Delhi District Court
Smt. Sneh Lata Khandelwal vs State on 22 July, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-7/10
In the Matter of:
1. Smt. Sneh Lata Khandelwal
wife of late Sh. Suresh Chand khandelwal
2. Sh. Mahesh Chand Khandelwal
son of late Sh. Puran Chand Khandelwal
.................. Petitioners
VERSUS
1. State
2. Smt. Shipra
d/o late Sh. Suresh Chand Khandelwal
wife of Sh. Vivek Kumar
r/o The Embassy, 15
Askar Ali Road, Flat n. 342
Bangalore.
3. Smt. Shivani Garg
d/o late Sh. Suresh Chand Khandelwal
wife of Sh. Sandeep Garg
r/o 65, Manishpuri
Indore.
4. Smt. Mahendro Kumari
wife of late Sh. G.R. Gupta
r/o B-3, Kalindi Colony
New Delhi.
5. Smt. Bimla Jhalani
wife of sh. R.C. Jhalani
r/o 6, Ram Chander Lane
Civil Lines, Delhi.
PC-7/10 Page:-1/23
6. Smt. Sarla Khandelwal
wife of late Sh. Suresh Khandelwal
r/o 153, Vardhman Nagar,
Satyamani Kunj, Nagpur.
7. Smt. Reeta Rawat
wife of Sh. Mohan Khandelwal
r/o C-80, Govind Puri
University Road, Gwalior.
8. Smt. Gita Khandelwal
wife of Sh. O.P. Khandelwal
r/o 5, North End Road,
Civil Lines, Delhi.
................ Respondents
Date of Institution:- 12.7.10
Date of Assignment to this court:- 28.9.12
Date of Arguments:-9.7.14
Date of Decision:- 22.7.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 228 of Indian Succession Act for grant of letter of administration in respect of the estate of deceased Smt. Ram Dei Khandelwal wife of late Sh. Puran Chand Khandelwal in view of Will dated 18.7.1989. The brief facts of the case as narrated in the petition are that petitioner no. 1 is the wife of late Sh. Suresh Chand Khandelwal who died on 1.8.92 and is one of the legal heirs of the deceased late Smt. Ram Dei Khandelwal who had exeucted the Will dated 18.7.1989 in favour of the late husband of the petitioner no. 1 PC-7/10 Page:-2/23 Sh. Suresh Chand Khandewal and petitioner no. 2. As stated in the said Will the deceased had appointed the late husband of the petitioner no. 1 Sh. Suresh Chand Khandelwal as executor and the entire estate which is the subject matter of the Will in question were bequeathed in the name of the late husband of petitioner no. 1 and father of petitioner no. 2. As stated since Suresh Chand Khandelwal died hence the petitioners are entitled to get the probate in their favour in respect of the Will in question. It was stated that respondents no. 2 and 3 namely Smt. Shipra and Shivangi Garg who are married daughters of the petitioner no. 1 have relinquished their rights through registered relinquishment deed in favour of the petitioner no. 1 in respect of the estate mentioned in the Will dated 18.7.1989. respondents no. 3 to 8 as stated are the near relatives of the deceased Smt. Ram Dei Khandelwal, wife of late Sh. Puran Chand Khandelwal. It was accordingly prayed that letter of administration be granted to the petitioner in respect of last Will of the deceased dated 18.7.1989.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of PC-7/10 Page:-3/23 publication in the daily newspaper " Statesman" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper "Statesman" on 13.9.10.
4. Respondents 7 despite service did not appear and was proceeded ex-pare vide order dated 7.7.11 whereas respondents no. 2,3,4,5 and 6 gave their no objection to the present petition.
5. Objections to the present petition were filed on behalf objector no. 8 wherein it was stated that the petition for grant of probate in respect of the alleged Will dated 18.7.99 is not maintainable since Smt. Ram Dei Khandelwal never executed any Will in respect of property in question. It was stated that Smt. Ram Dei Khandelwal was more than 75 years of age in the year 1989 and was ill for petty long time. She was not in a state of good health and was not even able to recognize her own relatives from the year 1989 which continued till her death i.e. 27.4.03. It was stated that the alleged Will regarding which probate is being sought is a fabricated document. It was also stated that the petitioners have approached this court after a period of seven years from the date of death of Smt. Ram Dei Khandelwal which clearly shows malafides of the petitioners. It was also PC-7/10 Page:-4/23 stated that if the alleged Will would have been genuine then in that case there was no necessity of executing relinquishment deeds by respondents no. 2 and 3 who are the real daughters of the petitioner no. 1. It was further stated that as per para no. 4 of the petition the property bearing plot no. 39 in the lay out plan of Sadhna Cooperative House Building Ltd. measuring 1010 sq. yds zone F-10 Sheikh Sarai opposite Malviya Nagar New Delhi comes in favour of the petitioners, however the Will in question does not mention and include the aforesaid property. Rest of the contents of the petition were denied and it was prayed that the probate petition filed by the petitioner by dismissed.
6. Vide order dated 7.9.11 from the pleadings of parties, the following issues were framed:-
1) Whether the petition is time barred and hit by law of Limitation?OPP
2) Whether the petitioners are entitled to have the probate of Will dated 18.7.1989?OPP
3) Relief.
7. In evidence, petitioners produced PW-1 Sh. Mahesh Chand Khandelwal, PW-2 Sh. Jagdish Prashad Jhalani, Pw-3 Sh. Sushil Kumar, PW-4 Dr. P.B Mathur. Though affidavit of Sh. Jagdish Prashad Jhalani was filed on record but the said witness was dropped by the petitioners vide statement PC-7/10 Page:-5/23 of Cl. for petitioner recorded on 27.1.14. PW-1 Sh. Mahesh Chand Khandelwal, petitioner no. 2 reiterated the case of petitioners as narrated in the petition and relied upon the Will in question Ex. PW-1/1 and original death certificate of my mother Smt. Ram Dei Khandelwal Ex. PW-1/2. PW-3 Sh. Sushil Kumar stated himself to be one of the attesting witnesses to the alleged Will. He identified the signatures of testator as well as other attesting witness on the Will and stated that both of them signed in his presence. He also stated that the testator was in sound health and senses on the date of execution of the alleged Will. PW-4 Dr. P.B Mathur that on 18.7.99 he examined the deceased Smt. Ram Dei and he came to the conclusion that she was of perfect health and sound state of mind at the time of execution of the said Will.
8. In defence, though affidavit of objector no. 8 was filed on record but she also did not appear in the witness box and accordingly RE was closed vide order dated 26.5.14.
9. I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
10. Issue no. 1:- The objection taken by the objector is that the petition is PC-7/10 Page:-6/23 barred by limitation since the present petition was filed by the petitioners after 7 years of the death of the testator and reliance was placed upon upon Yogesh Duggal & Ors. Vs. State & Ors. decided on 31.3.11 and it was stated that in the said case Hon'ble High Court of Delhi held the petition for probate to be barred by limitation since it was filed after 9 years of the death of the testator. The facts of the case are not applicable to the present case since in the said case it was also observed by Hon'ble High Court of Delhi that there was a dispute between the parties with regard to the Will in question much prior to the death of the testatrix which shows that the petitioners were well aware that there was a dispute regarding the authenticity of the Will of their deceased mother propounded by them in this case and accordingly petition was held barred by limitation. On the contrary, in the present case except objector no. 8 other respondents have given their no objection to the present petition and no prior disputes between the parties or dispute regarding the Will in question even prior to death of testator have been pleaded by either of the parties, hence the present case is distinguishable from the authority relied upon by the Cl. for respondent no. 8. Further, I rely upon AIR 2008 SC 2058(1) Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and Ors. wherein it was held by PC-7/10 Page:-7/23 Hon'ble Supreme Court that "Any application to Civil Court made under any Act is covered by Article 137 of Limitation Act. The application for letter of administration is made in terms of Section 264 of Succession Act 1925 to the District Judge. Section 2(bb) of the 1925 Act defines the District Judge to be Judge of Principal Civil Court. Article 137 is clearly applicable to the petition for grant of letter of administration. Proceedings for grant of probate of letter of administration applicant merely seeks recognition from the court to perform a duty. Because of the nature of the proceedings it is a continuing right." Accordingly, in view of the above, since in the present case letter of administration has been sought by the petitioners and when there was no previous disputes between the parties, it was the prerogative of the petitioners to decide when to exercise their right which is continuing in nature and can be exercised anytime after the death of the testator and can be exercised as long as it survives. There is no limitation prescribed for filing the probate petition. Hence, present petition is held to be within limitation and this issue is decided against the objector no. 8 and in favour of the petitioners.
11. Issue no. 2 :- Before proceeding to decide these issue, I would like to discuss the relevant law and judgments on this point. Section 278 of PC-7/10 Page:-8/23 Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
12.Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force PC-7/10 Page:-9/23 when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vashram Vs. State of Gujrat. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Ku. Chandan & Anr. Vs. Longa Bai& Anr."
13.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that PC-7/10 Page:-10/23 more than one witness be present at the same time, and no particular form of attestation shall be necessary."
14.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
15. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to PC-7/10 Page:-11/23 be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
16. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
17. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
18.The intention in the Will are to be ascertained by all possible and available PC-7/10 Page:-12/23 circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in (1971) 1 MLJ 127 P. Manavala Chetty V. P. PC-7/10 Page:-13/23 Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral PC-7/10 Page:-14/23 circumstances."
19.In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party PC-7/10 Page:-15/23 who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act.
PC-7/10 Page:-16/23 As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
20.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to PC-7/10 Page:-17/23 dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
21. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
22. Now I have to see whether in the present case the above principles have been duly made out or not. The only objection taken by the objector no. 8 is that the testator was not in good state of health and was not even able to recognize her own relatives from the year 1989 which state continued till her death. Though objectors have raised the objection that deceased testator was not in sound state of mind at the relevant time of the execution PC-7/10 Page:-18/23 of the Will in question, however except for the bald assertion no medical document has been produced on record by the objector no. 8 to support her said contention. There is no medical document on record to show that the testator was suffering from any such disease which could have effected her cognitive faculties. Rather PW-4 Dr. P.B Mathur had deposed during cross examination that by talking to Smt. Ram Dai and by understanding her desire to make a Will and that he was called for the said purpose, he judged and concluded that Smt. Ram Dai was having a clear mind and sound disposing capacity. He also denied the suggestion that Smt. Ram Dai was not well as such she was at home and has not gone to his clinic. Voluntarily he stated that she was in good health. The said testimony of PW-4 remained cogent and consistent and no dent could be created in his statement during cross examination whereas respondent no. 8 failed to examine any witness or bring any documentary evidence on record to prove her contention. Hence in view of the above, it is held that testator was not suffering from any disease at the relevant time of execution of the Will which would have effected her cognitive faculties.
23. Now I will deal with the question of valid execution of the Will. No objection has been raised by the objector no. 8 in regard to mode and PC-7/10 Page:-19/23 manner of execution of the Will in question. On the other hand petitioners have produced PW-3 Sh. Sushil Kumar who stated himself to be the attesting witness of the Will in question and had categorically stated that at the time of execution of the said Will, the decesed Smt. Ram Dai was of sound health and senses and was very well aware about her pros and cons. He stated that said Will and testament of the deceased was drafted by Sh. Arun Kumar, Advocate who duly explained the contents of the Will in vernacular language to the deceased Smt. Ram Dai in his presence as well as in presence of another attesting witness Sh. Jagdish Prashad as well as Dr. P.B. Mathur who were also present at that time when the said Will was duly signed by the deceased Smt. Ram Dai. He identified the signatures of testator, another attesting witness, signatures of Dr. P.B Mathur. No dent could be created during his cross examination and his testimony remained cogent. Statements of other PWs also remained cogent and consistent and there is nothing on record to discard the same. Objector no. 8 herself failed to lead any evidence to prove her contentions. Even otherwise the Will in question is a registered document and the Will is a detailed Will wherein testator had given details of all her properties movable or immovable as well as there is equitable distribution of the same PC-7/10 Page:-20/23 among both the sons of testator. As far as daughters of testator are concerned testator had duly given the reason for their debarment that they are married and happily settled and she had no obligations towards them except providing for them on certain occasions as per social customs. Rather testator had appointed Sh. Suresh Chand Khandelwal to take care of such obligations towards her daughter which shows the clarity of mind of testator. Further, it has been contended by the objectors that property bearing plot of land bearing no. 39 in the layout plan of Sadhna Cooperate House Building Ltd. measuring 1010 sq. yds. Zone F-10, Sheikh Sarai, Opposite Malviya Nagar, New Delhi has been claimed by the petitioner, however the same does not find mention in the Will in question. Though it is correct that the Will in question does not find specific mention of the said property, however it is written in the Will that " In respect of assets not mentioned above and that I may possess at the time of my death, I bequeath the same to both my sons Sh. Suresh Chand Khandelwal, my elder son, to be the sole executor of my this Will". When the abovesaid words find mention in the Will then there remains no doubt that the intention of the testator was that she wanted to bequeath all her properties in favour of the beneficiaries whether movable or immovable, even PC-7/10 Page:-21/23 mentioned or not mentioned in the Will but owned by the testator. In the objections it was stated that the said property was not owned by Smt. Ram Dei Khandelwal and she was not having right to executed the Will, however it was not mentioned as to who was the owner of the said property if not Smt. Ram Dei and except for said bald assertion nothing has been proved on record in support of said contention of respondent no.8/objector. Thus, just because there is no specific mention of any specific property would not be sufficient to discard the Will in question. Accordingly said contention of the objector no. 8 is also rejected. Rather the Will in question is dated 18.7.1989 and the testator expired on 27.4.03 which shows that considerable time had elapsed in between and testator had given enough thought over her decision and never took any steps to change the same during her lifetime. Accordingly, considering the facts and circumstances of the case and deposition of witnesses who appeared before the court, the authenticity and genuineness of the Will dated 18.7.1989 Ex. PW-1/1 stands proved. The Will dated 18.7.1989 has been proved to be executed by deceased in sound disposing mind of his own free will and in view of testimony of PWs the same is held to be the last testamentary disposition of deceased Ram Dai. However, perusal of Will shows that Sh. Suresh Chand Khandelwal was appointed PC-7/10 Page:-22/23 as executor by testator in the said Will who unfortunately had expired and therefore probate in these circumstances, cannot be granted and as per section 276 of the Indian Succession Act, letter of administration can be granted to petitioner. Hence, case in favour of petitioner is made out for grant of letter of administration. Accordingly this issue is decided in favour of the petitioner and against the respondents/objectors.
24.Relief:- In view of the above finding, the petition is allowed. Letter of administration be issued in favour of petitioners in respect of estate of deceased Smt. Ram Dai as detailed in Will dated 18.7.1989 to enable the petitioner to administer the aforesaid property of deceased. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in open court (Ajay Goel) on 22.7.14 ADJ-12(Central)/Delhi PC-7/10 Page:-23/23