Delhi District Court
Bimla Pradhan vs . State & Ors. on 14 December, 2018
Bimla Pradhan vs. State & Ors.
IN THE COURT OF DR. AJAY GULATI, ADDL. DISTRICT JUDGE,
SAKET COURTS, SOUTH DISTRICT, NEW DELHI
In the matter of
PC No.5896/2016
Filing No.28464/2014
CNR No. DLST010007012014
Bimla Pradhan
W/o Late Sh. Shanti Swaroop Pradhan
R/o Y5, Green Park, New Delhi
................Petitioner
Versus
1. The State
2 Prabhat Pradhan
S/o Late Sh. Shanti Swaroop Pradhan
R/o Y5, Green Park, New Delhi
3. Asha Saksena
D/o Late Sh. Shanti Swaroop Pradhan
R/o 216217 UGF DDA, Site No.1,
Shankar Road New Rajinder Nagar,
New Delhi
4. Dr. Surekha Saxena (nee/nickname Rekha)
D/o Late Sh. Shanti Swaroop Pradhan
R/o 121, Manas Nagar Shah Ganj,
Agra, Uttar Pradesh
5. Dr. Hema Saxena
D/o Late Sh. Shanti Swaroop Pradhan
R/o 142 Badripur Road Jogi Bala,
Post Office IIP, Dehradun,
Uttrakhand
.............Respondents
PC No.5896/2016 Page No. 1 of 38
Bimla Pradhan vs. State & Ors.
Date of Institution : 29.10.2014
Date of reserving the judgment: 03.12.2018
Date of pronouncement : 14.12.2018
Decision : Allowed
PETITION FOR GRANT OF PROBATE UNDER THE INDIAN
SUCCESSION ACT
JUDGMENT
1. Petitioner is seeking probate of the Will dt.14.8.1987 left by her late husband Sh. S. S. Pradhan who expired in the year 1999 i.e. 12 years after the Will was signed. Petitioner is the appointed Executor of the Will. The Will however is unregistered, in addition to the fact that the original Will was lost (as per the contention of the Petitioner) and in which regard, an FIR was lodged by the Petitioner in May 2014. In terms of the Will, after the petitioner, it is her grandson who becomes absolute owner of the immovable property no. Y5, Green Park, New Delhi which is the sole estate interest mentioned in the Will. A life interest was also created in favour of Ms. Shobha, 4th daughter of the testator. However, she expired in 2012.
2. The son of petitioner has been arrayed as Respondent no. 2 PC No.5896/2016 Page No. 2 of 38 Bimla Pradhan vs. State & Ors.
and has naturally supported the Will, his own son being the ultimate beneficiary under the Will. 3 daughters of the petitioner were arrayed as respondents no. 3 to 5 who have opposed the Will as being a nonexistent document (it has to be kept in mind that the original Will has been lost). It needs to be highlighted that the respondent No.4 had filed a suit for partition of the above said property in August 2014 by contending that their father died intestate, in response to which, ostensibly, the present petition came to be filed.
3. Both the attesting witnesses to the Will had expired. Consequently, to prove the signatures of Sh. S. Samantha who was one of the attesting witnesses, his son Tapan Samanta entered into the witness box as PW4. Signatures of the other attesting witness was also got proved by calling his son as PW
7.
4. The Will has been opposed by respondent nos. 3 to 5 primarily on technical grounds which are explained herein after. Since the original Will was lost, copy of the Will was filed along with the petition. The argument raised in this regard was that the Petitioner did not lay down the necessary ground for leading secondary evidence i.e. for exhibiting copy of the Will. Further, that the petitioner has not been able to prove whether the copy of the Will which was filed by her on PC No.5896/2016 Page No. 3 of 38 Bimla Pradhan vs. State & Ors.
record was actually prepared from the original Will, the argument being that a copy prepared from a copy cannot even be tendered as secondary evidence i.e. under section 65 of the Evidence Act. In addition to the petitioner, respondent no.2 also filed a copy of the said Will which was put to petitioner in her cross examination and was exhibited as Ex.PW1/R2. It has been argued in this regard that neither the petitioner nor respondent no. 2 (who supported the petitioner) were able to explain as to when were copies prepared from the original Will which casts a doubt on whether these copies were ever prepared from the original Will i.e. these were prepared from a photocopy. An additional argument was also raised in regard to the competence of Respondent no.2 to prove the case of the petitioner by leading evidence in support of the due execution of the Will. It was submitted on behalf of the objecting respondents that in a probate petition, only objecting respondents can lead evidence i.e. to disprove the Will.
5. Since the objecting respondents had denied the very existence of the Will and also refuted the contention of the petitioner to the effect that a copy of the said Will was supplied to all the children of the testator after the existence of the Will was disclosed to them, the evidence led by the petitioner and respondent no. 2 (who supported the petition) PC No.5896/2016 Page No. 4 of 38 Bimla Pradhan vs. State & Ors.
included documentary evidence in the form of recorded telephonic conversations and a video recording of a meeting between the legal heirs of the testator S.S. Pradhan wherein the objecting respondents have purportedly admitted the existence of the Will. The said recordings however were made without the knowledge of the objecting respondents. In their pleadings and examinationinchief, the objecting respondents have alleged tampering of those recordings. However, no evidence was led to prove the allegations of tampering except to put suggestions to PW1 and RW2 that these have been tampered with.
ISSUES
6. On the basis of the pleadings of the parties, ld. predecessor Judge framed the following issues:
1. Whether the petition is within prescribed period?
Onus on parties
2. Whether Late Sh. Shanti Saroop Pradhan (since deceased) had executed his last testament/Will dated 14.09.1987 of his estate during his sound state of physical and mental health and the PC No.5896/2016 Page No. 5 of 38 Bimla Pradhan vs. State & Ors.
petitioner provided copies of Will to all the children? OPP
3. Whether Sh. Shanti Saroop Pradhan was suffering from cancer, he has undergone surgery on 16.09.1987 and he was under great stress & pain. He was diagnosed of 'empty sella syndrome' which had resulted into loss of memory & confused state of mind, consequently he was not under sound health to write Will? OPR3 to 5
4. Where is that original Will dated 14.09.1987 (since it has not been filed on record)? OPP
5. Whether the Will dated 14.09.1987 is procured Will, if so, how and its consequences? OPR3 to 5
6. Whether the Will dated 14.09.1987 cannot be acted upon for want of equitable disposal of estate? OPR3 to 5
7. Whether the petition is at the behest of respondent No.2, if so its consequences?OPR3 to 5
8. Whether the petitioner is entitled for letters of administration of Will dated 14.09.1987?OPP
9. Relief PC No.5896/2016 Page No. 6 of 38 Bimla Pradhan vs. State & Ors.
EVIDENCE ADDCUSED On behalf of the petitioner:
7. Petitioner examined 8 witnesses. She herself entered the deposition box as PW1 and relied on the following documents:
1. Death certificate of Shanti Swaroop Pradhan as P1;
2. List of ClassI legal heirs as Ex.PW1/2;
3. Death certificate of Ms. Sobha Pradhan as P2;
4. Copy of email dated 17.08.2014 as Ex.PW1/4;
5. Letters written by Smt. Bimla Pradhan to her daughters as Ex.PW1/5 to Ex.PW1/7;
6. Postal receipts of letters as Ex.PW1/8 to Ex.PW1/10;
7. Track reports regarding receipt of letters as Ex.PW1/11 to Ex/PW1/13;
8. Email dated 26.08.2014 as Ex.PW1/14;
9. Reply dated 01.09.2014 to email dated 26.08.2014 as Ex.PW1/15;
10. Computer generated hard copy of notice dated 26.12.2014 as Ex.PW1/16;
11. Will as MarkA;
12. NCR lodged with police station Safdarjung Enclave PC No.5896/2016 Page No. 7 of 38 Bimla Pradhan vs. State & Ors.
dated 20.05.2014 as Ex.PW1/18; and
13. CD and its true transcript as Ex.PW1/19 (colly.).
8. Before proceeding to highlight the relevant part of the cross examination of PW 1, it is important to mention about Ex. PW1/19 which is a CD of a telephonic conversation between the petitioner and respondent no. 3 and 4 (on 2 different dates i.e. with respondent No.3 on 04.09.2014 and with respondent No.4 on 19.09.2014), and its transcript. This piece of evidence is most relevant from the point of view of the solitary defense raised by the objecting respondents i.e. that original Will has not been produced. While allowing the CD and its transcript to be exhibited in the face of objection raised by Counsel for Respondent no. 4, it was specifically observed by ld. Predecessor Judge that Respondent no. 4 has admitted her voice in the CD during the course of admission/ denial although she has denied some of its contents.
9. During the course of her cross examination on behalf of Respondent no. 2, a copy of the Will was exhibited as PW1/R2.
It is important to highlight that the copy of Will was exhibited in response to an answer by PW 1 that the Will was written in the hand writing of the testator. She identified the signatures of the testator on point 'A'. She further deposed that the Will PC No.5896/2016 Page No. 8 of 38 Bimla Pradhan vs. State & Ors.
was written at her residence Y-5, Green Park and after execution, was handed over to her for safe custody. PW 1 also identified the signatures of the attesting witnesses. She also deposed that she had no suspicion on anyone regarding loss of the original Will.
10. In cross examination of PW1 on behalf of respondent no. 4, she was questioned about the health of Late S. S. Pradhan in response to which PW 1 replied that on 14.9.1987, S. S. Pradhan was fine. She also deposed that he suffered a heart attack/problem in 1979 but had long recovered, and that one of his kidney had been removed in 1979. PW1 was specifically questioned about the preparation of copies of the Will to which PW 1 replied that the Will was read over and copies were prepared on the 13th day by respondent no. 2 and were handed over to all on the same day.
11. In the later part of her cross examination, PW 1 was questioned about the equipment used for recording Ex. PW 1/19. She answered that the CD of the recording was prepared by her grandson Samarth Pradhan. Witness also admitted that certain grammatical corrections were carried out in the hard copy of the transcript. Perusal of this part of the cross examination conveys the impression that petitioner was not aware that conversation between her and respondent no. 4 has PC No.5896/2016 Page No. 9 of 38 Bimla Pradhan vs. State & Ors.
been recorded i.e. at the time of conversation, she was not aware that it was being recorded in the phone itself.
12. PW1 was then specifically questioned for each correction which was carried out manually in the transcript i.e. each line and page where such corrections appeared in the transcript. Witness clarified regarding each of such corrections.
13. Since petitioner had filed certificate under section 65 B of the Indian Evidence Act, she was questioned as to whether she herself had taken out the prints to which the witness replied in the negative. She clarified that the prints were taken from the computer by her grandson.
14. PW 2 was HC Prem Pal from Police station Safdarjang Enclave who deposed regarding registration of FIR in respect of loss of the Will dt. 14.9.1987. He was briefly cross examined on behalf of Respondent no. 4.
15. PW 3 Jagbir Singh, Record Keeper from SDMC was an official witness who brought property tax file in respect of property no. Y - 5, Green Park to prove that though the property was still in the name of S.S. Pradhan, the house tax was being paid by the petitioner. He was briefly cross examined on behalf of Resp. no. 4 but the same is of no relevance.
16. PW 4 Tapan Samanta is the son of one of the attesting PC No.5896/2016 Page No. 10 of 38 Bimla Pradhan vs. State & Ors.
witness Late S. Samanta. In his examination in chief, PW 4 deposed that he was told by his father that he was a witness to the Will of S.S. Pradhan and that he had come to Court to identify his father's signatures on the Will. The Witness then identified his father's signatures on Ex. PW1/R2 and also his handwriting since late S. Samanta had written his address in his own hand.
17. PW 4 was very briefly cross examined on behalf of Respondent no. 4. No suggestion was put to the witness that the signatures which he had identified on Ex. PW1/R2 were not of his father.
18. PW 5 and PW 6 were witnesses from Central Bank, Green Park Extension & State Bank of India, Green Park Extension Branch, respectively, who brought relevant documents containing the admitted/specimen signatures of the other attesting witness late M.R. Garg.
19. PW 7 Anil Garg is the son of 2nd attesting witness late M.R. Garg. Mr. Anil Garg identified his father's signatures on Ex. PW1/R2. In his brief cross examination, PW 7 deposed that he last saw his father's signatures in the year 1971 and since then he has remembered his father's signatures. Significant to highlight that the witness admitted there was no written correspondence between him and his father.
PC No.5896/2016 Page No. 11 of 38Bimla Pradhan vs. State & Ors.
20. PW 8 was Dr. Jeevan Prakash who was examined for the reason that he claimed to be present on 14.9.1987 at Y - 5 Green Park when the Will in question was prepared and signed. He also claimed to be a long time general physician of S. S. Pradhan. Relevant to highlight that Dr. Jeewan Prakash is the cobrother in law of Respondent no. 2 i.e. wife of respondent no. 2 and wife of Dr. Jeewan Prakash are real sisters.
21. PW 8 identified the signatures of testator on the Will as also those of the attesting witnesses. Witness was questioned regarding his presence in Y - 5, Green Park on 14.9.1987 to which he replied that he was asked by S.S. Pradhan to come to his house on 14.9.1987 after 12 noon since he wanted the witness to attest the Will. Witness was further questioned on the presence of other persons at that time in Y - 5, Green Park and the events that unfolded i.e. the manner in which the Will was written. He further deposed that the Will was first signed by the testator followed by Sh. Moti Ram Garg and then by Sh. S. Samantha. Thereafter, the Will was given to the Petitioner.
22. In the later part of his cross examination, PW 8 was questioned about the various ailments of S. S. Pradhan. He deposed that witness was diagnosed with cancer of kidney in a routine medical examination but denied that S. S. Pradhan had any cardiac events in 1987. He admitted that S. S. Pradhan PC No.5896/2016 Page No. 12 of 38 Bimla Pradhan vs. State & Ors.
was informed that surgery of kidney was risky. However, PW 8 clarified that the treatment of S. S. Pradhan was being handled by his soninlaw Dr. Anand i.e. husband of respondent No.5.
Respondents:
On behalf of Respondent no. 2:
23. Respondent no. 2 himself entered the witness box and relied on the following documents:
1. CD of videography of meeting held on 14.09.2014 at the residence of Mrs. Asha Saxena at Rajendra Nagar Delhi as Ex.R2W1/1;
2. True transcript of the CD as Ex.R2W1/1 (colly.);
3. Conversation on 26.11.2014 between respondent No.2 and Smt. Surekha Saxena as Ex.R2W1/3;
4. Transcript of conversation as Ex.R2W1/4 (colly.); and
5. Affidavit of the witness under Section 65B of the Indian Evidence Act as Ex.R2W1/5.
24. Before reproducing the relevant part of cross examination of RW 2, it is important to highlight order dt. 26.08.2016 passed by ld. Predecessor Judge vide which it was clarified that Respondent no. 2 can only be permitted to lead evidence PC No.5896/2016 Page No. 13 of 38 Bimla Pradhan vs. State & Ors.
in order to prove the issue, onus to prove which had been put on the parties (as opposed to specific onus on petitioner or respondent), and not for proving any other issue. The only issue for which onus was put on the parties was issue no. 1 which relates to limitation i.e. prescribed period for filing a testamentary suit. Significantly, in the above said order, ld. Predecessor observed that it was issue no. 2 qua which onus was put on the parties and further observed that Respondent no. 2 is permitted to lead evidence to prove issue no. 2. However, issue no. 2 is actually the core issue which relates to proving the Will of late S.S. Pradhan. The order was never challenged. Consequently, after having gone through the entire cross examination of RW 2, Court is of the opinion that the deposition of RW 2 can altogether be omitted from any consideration since the evidence was led by RW2 only to prove the due execution of the Will in question and knowledge of the existence/execution of the Will on the part of objecting Respondents which issue was the responsibility of the petitioner to prove. Respondent no. 2 had been given limited liberty to lead evidence to prove the issue for which onus was put on the parties which issue was issue no. 1 and not issue no.
2. The Court has reason to believe that while making the above observation, ld. Predecessor Judge was actually PC No.5896/2016 Page No. 14 of 38 Bimla Pradhan vs. State & Ors.
prohibiting Respondent no. 2 from leading evidence against respondent no. 3 to 5 because ld. Predecessor specifically observed towards the end of this order that evidence led by Respondent no. 2 cannot be construed as having been led against Respondent no. 3 to 5. However, if the evidence led by Respondent no. 2 is to be considered, the same has to be read against Respondent no. 3 to 5 in view of the nature of evidence led. As a corollary, the Court does not feel the necessity to highlight the cross examination of RW 2.
25. Respondent no. 3 Asha Saxena did not cross examine any petitioner witness but nevertheless entered witness box. At the stage of tendering her affidavit in evidence, objections were raised qua some of the paragraphs of her affidavit which the petitioner alleged to be beyond pleadings. Consequently, vide a detailed order, certain parts of her affidavit were ordered to be struck off. Two material paragraphs of her affidavit which were ordered to be struck off were para nos. 17 & 21 which related to her assertion/affirmation that on 14.9.1987 (date of execution of the Will) she did not see Dr. Jeewan Prakash or the other 2 attesting witnesses at Y-5, Green Park. These paras were omitted for the reason that in the joint written statement on behalf of respondent No.3 to 5, there was no averment that either of them was present at Y5, PC No.5896/2016 Page No. 15 of 38 Bimla Pradhan vs. State & Ors.
Green Park on 14.09.1987.
26. During her cross examination on behalf of the petitioner, R3W1 submitted that her visit to her parents house after marriage was not consistent. After going through the para 8 of her affidavit Ex.R3W1/A, she submitted that she did not know the exact date or time or the name of the person who informed her about the fact that her father is suffering for cancer, and got to know about the same since there were talks about the same i.e. around August or September, 1987. On being asked about the names of the treating doctors of the surgery of her father in September, 1987, she submitted that Dr. Anand Prakash who was her brotherinlaw and Dr. Hema was getting the medical test etc. done of her father, and the superior doctor whose name she did not recollect, was treating her father. She admitted that Dr. Jeevan Prakash was posted at Safdarjung Hospital in 1987. She also submitted that her father used to consult Dr. Jeevan Prakash but he was not the only doctor whom her father used to consult, and that both Dr. Hema and Dr. Anand were involved in the surgery of Late Sh. S. S. Pradhan in September, 1987. She further submitted that atleast one month prior to his death, her father was confined to bed.
27. The witness was shown Identity Card of Late Sh. S. S. PC No.5896/2016 Page No. 16 of 38 Bimla Pradhan vs. State & Ors.
Pradhan vide ID Card No.2841 issued by the Ministry of Home Affairs, Government of India and was asked about the signatures of her father on the backside of the ID card. R3W1 expressed her inability to say whether the signature as appearing on the ID Card was of her father. Copy of the said ID Card was marked as R3W1/Mark A.
28. R3W1 denied the suggestions that she had falsely stated in para 31 to 34 (which relates to her assertion of not staying at Y5, Green Park after Shudhi & Havan ceremonies on 20.01.1999) of her affidavit Ex.R3W1/A after having gone through the cross examination of petitioner and respondent No.2; that she had attended her office on 16.09.1987; that her father returned from hospital 2 to 3 days after the operation was conducted on 16.09.1987 by submitting that her father remained in the hospital atleast for 2 weeks; and that she had falsely stated that the CD's and the transcript were tampered with.
29. She admitted that she received an email from Prabhat Pradhan in August, 2014.
30. She further denied the suggestions that S. S. Pradhan was in good health in 1987 and that S.S. Pradhan did not suffer any heart attack in the year 1987; that para Nos. 40 & 44 of her affidavit (which relates to allegation of tampering of CDs) PC No.5896/2016 Page No. 17 of 38 Bimla Pradhan vs. State & Ors.
were wrong & incorrect; and that she was denying the Will dated 14.09.1987 with ulterior motive.
31. Respondent No.4 Surekha Saxena tendered her evidence by way of affidavit Ex.R4W1/A wherein she deposed that she denied the execution of Will dated 14.09.1987 by her father; that the signature Mark A on the Will Ex.PW1/R2 was not of her father since she was familiar with her father's writing and signature; and that she did not see Dr. Jeevan Prakash, Shri Samantha or Chachaji at Y5, Green Park, New Delhi on 14.09.1987. Para 13 of her affidavit being beyond pleadings was struck off vide a detailed order.
32. During her cross examination on behalf of the petitioner, she submitted that her father suffered heart attack in the year 1979; that her father expired in 1999 due to failing heart on account of his chronic heart ailment; and that her father was diagnosed with enlargement of kidney in the year 1987. She denied that she was not by the bedside of her father when he died. R4W1 further denied that she was present with Smt. Bimla Pradhan on the 13th day (teravi) of the death of her father by submitting that since they were Arya Samajis there was no 'teravi' in their family; and that all her siblings stayed with Smt. Bimla Pradhan till the teravi ceremony.
33. R4W1 deposed that she had heard the audio recordings PC No.5896/2016 Page No. 18 of 38 Bimla Pradhan vs. State & Ors.
between her and her mother only once; denied that her statement in para 29 to 33 in Ex.R4W1/A were false, vague and untrue; that the original Will dated 14.09.1987 executed by her father was stolen either by her or her sisters some time in 2014 from the custody of her mother; that all the siblings had full knowledge about the Will dated 14.09.1987; and that para 9 (which relates to her assertion that signatures of her father are not on the Will) of her affidavit was a total lie & an afterthought.
34. During her cross examination on behalf of respondent No.2, she submitted that she had seen the video CD filed by respondent No.2 of the meeting dated 14.09.1987 many times; that only 3 sisters were seen in the video CD, however voice of Mr. Prabhat and Smt. Bimla Pradhan was heard in the same; and that only back of Smt. Bimla Pradhan could be seen in the first 2 seconds while she was entering the house. On being asked about the presence of Smt. Bimla Pradhan along with Hema which could be seen in the CD, the witness submitted that she did not deny that Smt. Bimla Pradhan was present in the meeting but she did not recollect whether she could be seen in the CD. In response to a question regarding telephonic conversation on 26.11.2014 between herself and respondent No.2, she submitted that when the audio CD was handed over PC No.5896/2016 Page No. 19 of 38 Bimla Pradhan vs. State & Ors.
to her, she recollected that there was a conversation on 26.11.2014.
FINDINGS
35. I have heard the arguments advanced by the Learned counsel for the parties and have carefully gone through the record and the evidence adduced by the parties. The issuewise findings are as under:
ISSUE NO.1 Whether the petition is within the prescribed period? Onus on the parties
36. The issue of whether article 137 of the schedule appended to the Limitation Act is applicable to right to apply for a probate/letters of administration in respect of a Will has been settled by the Hon'ble Supreme Court in Kunvarjeet Singh Khandpur vs. Kirandeep Kaur & Others (2008) 8 SCC 463 wherein it has been held by the Hon'ble Supreme Court that right to apply for probate/letters of administration in respect of a Will is a continuing cause of action. However, the limitation of 3 years i.e. as per article 137 of the schedule PC No.5896/2016 Page No. 20 of 38 Bimla Pradhan vs. State & Ors.
would begin from the day when the cause of action to apply for such a right accrues. This accrual of right to apply for probate/letters of administration will not in all cases be immediately after the death of the testator but from the date when someone objects to the rights under the said Will.
37. In the present case, right of the petitioner to apply for probate/letters of administration accrued when she wrote letters to each of her daughters on 24.08.2014 asking them the reason for not accepting the Will dt. 14.9.2017 despite knowing about its existence. The petition thereafter, having been filed on 30.10.2014, is squarely within the limitation period.
ISSUE NO.2 Whether Late Sh. Shanti Saroop Pradhan (since deceased) had executed his last testament/Will dated 14.09.1987 of his estate during his sound state of physical and mental health and the petitioner provided copies of Will to all the children? OPP
38. The onus to prove the Will was naturally put on the petitioner who had to lead affirmative evidence to prove the PC No.5896/2016 Page No. 21 of 38 Bimla Pradhan vs. State & Ors.
due execution of the Will. However, before discussing the evidence led by the petitioner, it is important to highlight the objections raised by Respondents no. 3 to 5 in their joint written statement. The objections raised were as follows:
1. The original Will was not filed
2. There is no equitable distribution of assets amongst the legal heirs of late S. S. Pradhan
3. The Will appears to be a procured one
4. The original Will might have been destroyed by S. S. Pradhan himself.
5. There is serious suspicion about the Will since the testator never intended to deprive the daughters of their right to the property.
39. It is important to highlight that in the entire joint written statement, the objecting respondents have not expressed any belief that the Will propounded by the petitioner had been forged. Their objection to the Will was on the ground of non production of original Will, lack of equitable bequeaths and in the alternative, that the Will was procured (presumably by Respondent no. 2).
40. In so far as the non filing of the original Will is concerned, a separate issue has also been framed in this regard. The PC No.5896/2016 Page No. 22 of 38 Bimla Pradhan vs. State & Ors.
arguments addressed in this regard on behalf of the objecting respondents are purely legal. It has been contended that Petitioner had to satisfy the requirements of section 65 of the Indian Evidence Act before leading secondary evidence in regard to the Will. Before going onto the requirements of section 65 of the Indian Evidence Act, relevant section of the Indian Succession Act which deals with grant of probate of a copy of the Will needs to be highlighted. Section 237 of the Indian Succession Act lays down as under:
"237. Probate of copy or draft of lost Will.When a Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced."
41. The above reproduced section thus grants the authority to the Court to grant probate even of a copy of the Will provided the original Will has been lost, which is the fact situation in the present case also.
42. Reverting to the requirements of section 65 of the Indian PC No.5896/2016 Page No. 23 of 38 Bimla Pradhan vs. State & Ors.
Evidence Act, vide order dt. 17.08.2015, ld. Predecessor Judge had specifically recorded that petitioner does not need to seek specific permission from the Court to lead secondary evidence. Reliance was placed by the ld. Predecessor on judgment titled as Shri Prem Chandra Jain vs. Sri Ram CM(M) No.1764 66/2005, dod 12.10.2009. The said order was never impugned by the objecting respondents which puts to rest any issue with regard to the right of the petitioner to prove a copy of the Will. Further, though the ld. Predecessor Judge declined permission to the petitioner to exhibit a copy of the Will in her examination in chief (and consequently, copy of the Will was tendered as Mark A), a copy of the Will was exhibited in cross examination of PW1 while being cross examined on behalf of respondent No.2 and was assigned the exhibit number Ex. PW1/R2. However, at the stage of final arguments, it was argued by the ld. Counsel for the objecting Respondents that the Will has not been exhibited by any witness since Ex.PW1/R2 was only assigned for the purpose of identification and hence, the same has not been proved by anyone. The Court is unable to comprehend the argument advanced. As already highlighted, copy of the Will was specifically exhibited in the cross examination of PW1. The marking of the copy of Will as an Exhibit has to be correlated PC No.5896/2016 Page No. 24 of 38 Bimla Pradhan vs. State & Ors.
with the specific liberty granted by the ld. Predecessor Judge to lead secondary evidence. There is nothing to suggest from the cross examination of PW 1 that copy of the Will was allowed to be exhibited only for the purpose of identification. Further, since a copy of the Will had already been exhibited in the cross examination of PW1, there was no necessity of again exhibiting it in the evidence of the sons of attesting witnesses who were brought in to identify the signatures of their respective fathers. Technically, these attesting witnesses also could not have exhibited copy of the Will since they were not a party to the testament. They were cited as witnesses only to comply with the requirement of section 69 of the Indian Evidence Ac. In such a fact situation, once copy of the Will was exhibited in the cross examination of PW1, the argument of objecting Respondents that the Will was never exhibited is meritless.
43. It has already been highlighted that the evidence of RW 2 does not require any discussion.
44. That leaves the Court only with assessing the probative value of the conversation between the petitioner and respondent no. 3 and 4 i.e. Ex.PW1/19. The conversation between them has not been denied. However, it has been alleged that the CD and transcript has been tampered with.
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Without getting the CD examined from a cyber expert to substantiate the allegations of tampering, only suggestions were put to the petitioner (as PW1) with regard to certain portions of the transcript. A perusal of the conversation transcript reveals that a number of times during the conversation, Respondent no. 3 admitted the existence of the Will of late S. S. Pradhan. However, each time the respondent no. 3 admitted its existence, it was followed up by either stating that "the situation has changed now after Shobha's death" or that "the value of the property has grown manifold". Perusal of the transcript of the conversation between petitioner and respondent No.4 also reveals that Respondent no.4 admitted the existence of the Will dated 14.09.1987. There are numerous instances in both the conversations which unambiguously point towards the fact that respondent no. 3 and 4 were aware of the existence of the Will and its contents also.
45. At the stage of seeking clarifications, the Court specifically asked the petitioner to place on record a copy of the Will dt. 21.09.2012 executed by the petitioner. This Will was subsequently revoked and a fresh Will has been prepared by the petitioner. Neither of the Wills is in question before this Court. The purpose for seeking a copy of the first Will of the PC No.5896/2016 Page No. 26 of 38 Bimla Pradhan vs. State & Ors.
petitioner was unique.
46. A careful perusal of the conversation transcript (especially between respondent No.4 and respondent No.2, though the same has not been discussed by the Court) reveals that the real grievance of the objecting respondents arose when the petitioner revoked her first Will in which all the 3 daughters had been given 1/6th share each in the property No.Y5, Green Park. This Will was revoked and then a fresh Will was prepared in which the whole of the property No.Y5, Green Park has been bequeathed to grandson of the petitioner Samarth i.e. son of Respondent no. 2. The entire dispute between the petitioner and objecting respondents arose after the Petitioner prepared her 2 nd Will. It was only to confirm the contents of the 1St Will of the petitioner did the Court direct the filing of copy of the Will. Perusal of the first Will reveals that the petitioner did bequeath 1/6th share each to her 3 daughters. It appears that the Will was prepared keeping in mind the medical condition of Shobha who suffered from a bi polar disorder and was unmarried (though she was employed). Probably, the petitioner felt that giving a share in the immovable property to her married daughters would act as an assurance that the unmarried daughter will be looked after by her married sisters i.e. after the death of Petitioner since she PC No.5896/2016 Page No. 27 of 38 Bimla Pradhan vs. State & Ors.
was quite aged even at the time when the first Will was prepared. It is thus safe to assume that while preparing the first Will, petitioner had her concern for her unmarried daughter Shobha foremost on her mind. However, after death of Shobha, petitioner seems to have changed her mind and prepared a new Will which is in favour of her grandson. Grandson Samarth is also the ultimate beneficiary of the Will in question. The conversations between the Petitioner and Respondent no. 3 and 4 also reveal that Petitioner was repeatedly trying to convey that vide her 2 nd Will she was only reiterating the wish of her husband S. S. Pradhan that the property should go to the grandson Samarth.
47. In so far as proving the signature of the Testator is concerned, the same was identified by the petitioner herself. In any case, objecting respondents did not even raise a doubt about it in the joint written statement. At this stage, it is important to highlight that both the attesting witnesses to the Will had died. Consequently, in such a situation, section 69 of the Indian Evidence Act comes into play which lays down that the signature of the testator has to be identified along with proof that signature of one of the attesting witness was in his own handwriting. To prove the signatures of attesting witnesses, sons of both the attesting witnesses were called and PC No.5896/2016 Page No. 28 of 38 Bimla Pradhan vs. State & Ors.
they identified the respective signatures. They were very briefly cross examined but there is nothing to highlight therein which could dent their testimony.
48. It also needs a highlight that had S.S. Pradhan actually died intestate on 1999, the objecting respondents would not have waited till 2014 to seek their share. Infact, the reason that they did not seek partition soon after the death of their father was the Will dt. 14.9.1987 wherein S.S. Pradhan had created a life interest in favour of Shobha on the ground floor of the property no. Y5, Green Park. The objecting respondents were aware that Shobha's interest had been taken care of in the Will of S.S. Pradhan which was the reason for them never to have raised any dispute regarding their share in the property. Shobha died in 2012 and still the suit for partition was not filed by the daughters which buttresses the understanding of the Court that it was only after petitioner revoked her first Will (and prepared the 2 nd Will dated 23.05.2014) was the heartburning caused amongst the daughters leading to the filing of the suit for partition by respondent No.4.
49. In view of the above discussion, it can be safely held that objecting respondents were well aware of the existence of the Will dt. 14.9.1987. The evidence on record proves that the PC No.5896/2016 Page No. 29 of 38 Bimla Pradhan vs. State & Ors.
Will dt. 14.9.1987 was executed by S.S. Pradhan. Infact one of the defenses taken by the objecting respondents was that probably the original Will had been destroyed by late S.S. Pradhan himself which shows that objecting Respondents have not completely denied the existence of the Will in question. They have led no evidence to prove that the Will was a result of forgery which in any case was never their defense in their joint written statement. The signatures of the testator were proved by the petitioner herself and those of the attesting witnesses by their respective sons. Consequently, the Court has no hesitation in concluding that S.S. Pradhan executed a Will on 14.9.1987 in all his senses. In so far as providing copies of Will dated 14.09.1987 by the petitioner to all her children is concerned, she stated in her cross examination that copies of the Will were provided to all the children on the "tehravi" of the death of Testator. Objecting respondents i.e. respondent No.3 & 4, in their respective affidavits of evidence denied that 'tehrvi' ceremony was ever performed since they were 'Arya Samajis'. There is no conclusive proof of this assertion. No suggestion was given to PW1 that she was deposing falsely with regard to the 'tehrvi ceremony' in view of which petitioner's assertion has to be believed. At this stage, it is also relevant to observe that there can possibly be no proof that the PC No.5896/2016 Page No. 30 of 38 Bimla Pradhan vs. State & Ors.
copy of the Will which was relied upon by the petitioner as MarkA or the one which was put to her in the cross examination by counsel for respondent No.2 were both prepared from the original Will. Since PW1 deposed in her cross examination that copies of the Will dated 14.09.1987 were prepared and handed over to all the children after the death of Testator i.e. on the 'tehrvi ceremony', it is safe to assume that the copy of Will which was with the petitioner or with respondent No.2, was prepared from the Original Will. The issue is thus decided in favour of the Petitioner.
ISSUE NO.3 Whether Sh. Shanti Saroop Pradhan was suffering from cancer, he has undergone surgery on 16.09.1987 and he was under great stress & pain. He was diagnosed of 'empty sella syndrome' which had resulted into loss of memory & confused state of mind, consequently he was not under sound health to write Will? OPR 3 to 5
50. The oral evidence on record suggests that testator was diagnosed with a tumour in his right kidney for which he was operated upon on 16.9.1987, just 2 days after he purportedly PC No.5896/2016 Page No. 31 of 38 Bimla Pradhan vs. State & Ors.
signed his Will. There is however, no documentary record of his diagnosed medical condition. Evidence on record i.e. cross examination of respondent No.2 suggests that that Sh. S.S. Pradhan wrote the Will since he was not sure of the outcome of the surgery that he was to undergo. In other words he appeared to be under stress which is natural for anyone undergoing a major surgery. But that alone would not be sufficient to conclude that the Will was not an expression of his true intent. Being under stress which is a natural outcome of a fact situation (in this case, it was the imminent surgery of testator) would not by itself mean that any act done under the pressure of such stress would be termed as being devoid of cognitive assessment/evaluation. There is no evidence to even show that S. S. Pradhan was under any pain since one of the reasons for him not agreeing for surgery was that he was not under any pain and was also not showing any signs of tumour in his kidney (detection of tumour in the kidney was by way of routine examination). Thus the mere fact that S. S. Pradhan was suffering from a cancerous tumour in his kidney and was operated just 2 days after he wrote his Will is no ground to conclude that the Will was written in such a state of mind that S.S. Pradhan was unable to comprehend as to what document was he signing on. He appeared to have PC No.5896/2016 Page No. 32 of 38 Bimla Pradhan vs. State & Ors.
simply settled the issue of succession by way of the Will in question should he die on the operating table. There is another facet of this argument. Assuming the best in favour of the objecting respondents that the Will was written by late S.S. Pradhan under stress of death since he was to undergo a major surgery, fact is that he recovered well and went on to live for another 12 years. If at all there was any change that he wanted to make in the Will after having fully recovered, he could have made changes in the Will subsequently. Infact, this argument of objecting respondents itself shows that they admit the existence of the Will by late S. S. Pradhan.
51. At this stage it needs to be highlighted that the allegation regarding 'empty sella syndrome' was directed against the petitioner and not late S. S. Pradhan. This is clear from the common written statement filed by respondent nos. 3 to 5. It appears that the second part of this issue was incorrectly framed or at best, inadvertent reference was made to the purported testator. Consequently, it does not require any discussion for the following reasons. First, Will of the petitioner is not under challenge, she being the propounder of the Will of her husband. Second, (assuming that the reference to empty ella syndrome was actually keeping in mind the petitioner and not S. S. Pradhan), petitioner was cross PC No.5896/2016 Page No. 33 of 38 Bimla Pradhan vs. State & Ors.
examined at length as PW1 which conclusively proves that she was not under any sort of 'syndrome' which might have affected her mental faculties.
ISSUE NO.4 Where is that original Will dt. 14.9.1987 (since it has not been filed on record)? OPP
52. Petitioner has led evidence to prove that the Will was lost/misplaced from her custody for which she did not strongly suspect anyone but during the course of final arguments, an apprehension was raised that it might have been taken away by her daughters. However, in her cross examination itself, PW1 deposed that she had no suspicion on anyone regarding the loss of the original Will. An FIR was got registered in this regard which was proved by summoning PW2. Relevant to highlight that the FIR regarding loss of Will was got lodged prior to the filing of suit for partition which has been preferred by respondent No.4. This issue requires no further discussion.
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ISSUE NO.5 Whether the Will dt. 14.9.1987 is procured Will, if so, how and its consequences? OPR 3 to 5
53. There is nothing on record to show that the Will dt. 14.9.1987 was procured by Respondent no. 2. Simply because the grandson of the testator is the ultimate beneficiary of the Will in question is no ground to hold that the testament is a procured one. Infact, the Will clearly shows that testator had first secured the interests of his wife (petitioner herein) and unmarried daughter Shobha and thereafter, bequeathed the property to his grandson as 2 nd in line for inheriting the property. This issue is thus decided against respondent No.3 to
5. ISSUE NO.6 Whether the Will dt. 14.9.1987 cannot be acted upon for want of equitable disposal of estate? OPR 3 to 5
54. It is a well accepted notion of law that the whole purpose of writing a Will is to disrupt the natural course of succession.
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Inequitable distribution of assets, as a standalone argument, can never be a ground for challenging the Will. It has to be pleaded and proved in this regard that testator could never have intended to exclude the heirs who were left out from any benefit under the Will. In the present case, testator has bequeathed all rights in the immovable property to his wife which seemed to be the most natural course of action for a person who was about to undergo a risk laden surgery. Not only his wife, the testator was aware about the safeguard to be put in place for his 4th daughter who was suffering from a medical disability and to that end, he took precautions in the Will. The Will appears to have been written with a purpose which was to safeguard the interests of the wife and daughter of the testator. Simply because as a second rung of bequeath, testator preferred his grandson over his daughters (who in any case were very well settled) is no ground to hold that such a Will could not have been intended by the testator. This issue is thus decided against respondent No.3 to 5.
ISSUE NO.7 Whether the petition is at the behest of respondent no. 2, if so its consequences? OPR 3 to 5 PC No.5896/2016 Page No. 36 of 38 Bimla Pradhan vs. State & Ors.
55. In view of the finding returned under issue no. 5, this issue requires no discussion and is thus returned against Respondent no. 3 to 5.
ISSUE NO.8 Whether the petitioner is entitled to letters of administration of Will dt. 14.9.1987? OPP
56. In view of the finding returned on above issues, especially issue No.2, the petitioner being the named Executor in the Will dated 14.09.1987, is held entitled to be granted Probate of the said Will.
RELIEF
57. In view of the above discussion, since the petitioner is the named executor of the Will dated 14.09.1987, she is held entitled for Probate of the said Will.
58. Letter of Probate with copy of the Will i.e. Ex.PW1/R2 will be issued to the petitioner on the prescribed form VI but it would be subject to - (i) filing of appropriate stamp/Court fee;
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(ii) furnishing of Administration Bond and Surety Bond by the petitioner, both of which can be filed within a period of one and half month from today; (iii) petitioner will furnish full and true inventory of the said property and credits, and exhibit the same in the Court within six months from the date of grant of Certificate on prescribed Form No. 178 and; (iv) to render true account of said property and credits within one year on prescribed Form No. 179.
59. Further, it is made clear that allowing of the petition for grant of Probate would not tantamount to be any declaration of the title of the deceased to the estate/s mentioned in the Will.
60. The petition was accompanied with the copy of the Will MarkA and copy of the Will which was exhibited as Ex.PW1/R2, both of which shall remain a part of the judicial file, in terms of Section 294 of the Indian Succession Act, 1925 and will not be returned to the petitioner.
61. File be consigned to the record room after necessary compliance.
ANNOUNCED IN THE OPEN (AJAY GULATI)
COURT ON 14.12.2018 ADDL. DISTRICT JUDGE02
SOUTH, SAKET COURTS,
NEW DELHI
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