Delhi District Court
Smt Sheela Devi @ Sheelawati vs State on 19 May, 2015
Sheela Devi v State & Ors. PC No. 32/08
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
PC No. 32/08
Smt Sheela Devi @ Sheelawati
W/o Late Sh Jagan Nath Suri,
R/o 17/148, Subhash Nagar,
New Delhi - 110027. ....... Petitioner
Versus
1. State
Through SDM, Delhi.
2. Smt. Sudesh Suri,
W/o Shri Satish Chander Suri.
3. Ms. Neha Suri,
4. Ms. Nidhi Suri,
R/o TypeIII/348, Ayur Vigyan Nagar,
Khel Gaon Road, New Delhi110049.
5. Sh Harish Chander Suri,
S/o late Sh Jagan Nath Suri,
R/o 17/148, Subhash Nagar,
New Delhi - 110 027.
6. Mrs. Shashi Sobti,
W/o Sh. B. K. Sobti,
R/o H. No. DGII, 135, D,
Result: Petition allowed. Page 1 of 34
Sheela Devi v State & Ors. PC No. 32/08
Vikas Puri, New Delhi110018.
7. Mrs. Nidhi Ghera,
W/o Sh Devender Ghera,
R/o B8/160, Sector5,
Rohini, Delhi.
8. Mrs. Neeru (Lecturer in Architecture)
ITI, Sector31,
Noida. ......Respondents.
Unique case I.D No. : 02401C0240602008
Date of Institution : 15.02.2008.
Date of Reserving Judgment : 16.05.2015.
Date of Judgment : 19.05.2015.
JUDGMENT
Petition for grant of Probate/Letter of Administration in respect of Will dated 11.8.1989 executed by Late Sh. Jagan Nath Suri under Section 276 of Indian Succession Act
1. The petitioner above named is wife of deceased Sh Jagan Nath Suri who died as a Hindu male on 18.5.1987 after having left behind a Will dated Result: Petition allowed. Page 2 of 34 Sheela Devi v State & Ors. PC No. 32/08 11.8.1989 (ExPW1/1). All his remaining legal heirs are arrayed as respondents no. 2 to 8 as above named. The deceased left behind the property bearing no. 17/148, Subhash Nagar, New Delhi 27 which he bequeathed unto the petitioner. A suit for partition in respect of the same property was also filed by respondents no. 2 to 3 which is pending in District Courts, Delhi for disposal. The petitioner has accordingly sought for issuance of Letters of Administration in respect of the estate left by the deceased as described in Annexure P4 (ExPW2/3).
2. Notice of the petition was issued to all the respondents and citation was published in newspaper 'Punjab Kesari' for general public and a copy was also displayed on the notice board of the Court. Notice was also issued to the State through Collector. The respondents no. 6 to 8 filed reply in the form of no objections. The respondents no. 2 to 4 however filed their objections.
3. It is averred that the deceased did not leave behind any Will as alleged and thus the Will produced by the petitioner is false, fabricated and fictitious. It is averred that the petitioner has not disclosed the correct facts. It is informed that the respondents filed a suit for Declaration, Partition and Permanent Injunction etc in respect of the subject property against the petitioner and respondents no. 5 to 7 which was registered as Suit no. 45/2005. It is averred that the respondents herein have stated in the said suit that the petitioners are the owner of 1/6th undivided share in Result: Petition allowed. Page 3 of 34 Sheela Devi v State & Ors. PC No. 32/08 the property in question which is four storeyed. In petitioner's Written Statement filed in the said suit, no mention of Will in question was made. It is further stated that as per the said Written Statement, the respondents no. 2 to 4 have no right in the subject property and that none of the respondents herein have any right, title or interest in the same as deceased Sh Jagan Nath Suri was the sole owner. The second respondent and her husband Sh Satish Chander were stated to have already separated from the family of the deceased and their relations stood severed accordingly. It is also pointed out in the objections that the petitioners herein took a stand in the said Written Statement that respondents no. 6 to 8 herein have relinquished their share in the properties left by the deceased vide duly registered Relinquishment Deed dated 21.5.1999 whereby which the respondents no. 6 to 8 herein were left with no right in the subject property. Not only this, the respondents no. 6 to 8 herein are stated to also have filed their own Written Statement that the second respondent and her husband took their share and separated from the joint family. They stated to have released their share in favour of the petitioner vide above Relinquishment Deed. Neither of them made a mention of the Will that is now being propounded. It is averred accordingly that the above factum would show that the Will in question is a frivolous, fabricated and manipulated document thereby rendering the petition not maintainable.
Result: Petition allowed. Page 4 of 34Sheela Devi v State & Ors. PC No. 32/08 3.1. In this Context, an objection is also taken that the petitioner applied for mutation of the subject property before the L&DO wherein she filed an affidavit dated 1.6.1999 attested by SDM, Karol Bagh, New Delhi in which she deposed that her husband who died on 18.5.1997 left behind no Will. Moreover, the affidavit disclosed the name of all the LRs of deceased except the answering respondents no. 2 to 4 which was apparently done with ulterior motive. It is averred that the said affidavit contains deposition that the deceased did not leave behind any other legal heirs. The petitioner had also filed a copy of Release Deed before the L& DO which stated that the deceased Sh Jagan Nath Suri died intestate living behind the legal heirs who inherited the property in equal shares. 3.2. An objection is taken that the petition is barred by time being highly belated. Sh Jagan Nath Suri died on 18.5.1997 and this petition was filed about 11 years thereafter in February 2008. At the time of death Sh Jagan Nath Suri is said to be 91 years of age and is said to be not mentally and physically fit to execute the alleged Will. He is stated to have been suffering from 'Parkinsons' disease besides having Cataract in both the eyes due to which he had to wear eye glasses. The deceased had retired from Government services in 1964 and he was unable to move around alone because of his diseases and poor visibility. He was also suffering from hypertension. All the respondents filed affidavit in support of their objections.
Result: Petition allowed. Page 5 of 34Sheela Devi v State & Ors. PC No. 32/08
4. No objections of respondents no. 6 to 8 accompanied with their affidavits is on record.
5. Rejoinder filed by the petitioner to the objections of respondents no. 2 to 4 is primarily a reiteration of the contents of petition as correct and all specific allegations have been specifically denied. It is pointed out that the deceased did not die intestate as he executed the Will in question and also an attorney was registered with the Sub Registrar on the same date i.e 11.8.1989. With respect to the Will in question visavis the suit for Partition, it is clarified by the petitioner that she was not aware of the said Will and as soon as she came to know of it, she immediately moved an application for amendment in the Written Statement filed in the suit for Partition. Application was disallowed. The order was challenged in Hon'ble High Court of Delhi. At the relevant time, the proceedings in Hon'ble High Court of Delhi were pending. However, it has been informed that order dismissing the amendment application was set aside and these facts were brought on record of the said case by virtue of amended Written Statement. Hence, it is denied that there is any concealment. Same is the reason given for non mentioning of these facts before the L & DO. The petitioner has denied that petition is barred by limitation. The age at the time of death of deceased is said to be 82 years. It is denied that the deceased was either mentally or physically unfit. He is said to be possessing full understanding. In this context, it is Result: Petition allowed. Page 6 of 34 Sheela Devi v State & Ors. PC No. 32/08 also averred that during the lifetime of Sh Suri, the husband of second respondent, who is father of respondents no. 3 & 4 had separated after taking his share in the year 1984 thus it is not possible for them to be knowing the details about the mental faculties of the deceased.
6. Issues came up to be settled on 28.5.2008. An additional issue was also framed on 7.9.2009 which are as under:
1. Whether the deceased Sh Jagan Nath Suri has validly executed the Will dated 11.8.1989 while in sound disposing mind ? OPP.
2. Relief.
ADDITIONAL ISSUE.
3. Whether present plaint is barred by limitation ? OPD.
7. The petitioner then produced her witnesses and as a first witness she produced one of the attesting witness Sh. B.K Sobti, who filed his affidavit in evidence as ExPW1/A. He was duly cross examined. 7.1. The only other witness examined by the petitioner is she herself. Her affidavit in evidence is ExPW2/A. She was also duly cross examined.
8. On behalf of respondents no. 2, 3 & 4, respondent no. 2 got examined herself as RW 1. She filed her affidavit in evidence which is ExRW1/A. She was duly cross examined.
8.1. The next witness of these respondents is Smt. Raj Bala, UDC from the office of L & DO, Ministry of Urban Development. Last witness of respondents is Sh Tulsi Ram, the then Assistant Ahlmad in the Court of Result: Petition allowed. Page 7 of 34 Sheela Devi v State & Ors. PC No. 32/08 Sh S.C Malik, the then Ld. ADJ, Delhi. No further witnesses were examined.
9. During the evidence, following documents were introduced in evidence.
PETITIONER'S EVIDENCE.
1. Will of late Sh Jagan Nath Suri dated 11.8.1989 ExPW1/1
2. Copy of Death Certificate of deceased Sh Jagan Nath Suri ExPW2/1
3. List of legal heirs of deceased Sh Jagan Nath Suri ExPW2/2.
4. Details of properties left behind by the deceased Sh Jagan Nath Suri ExPW2/3
10. During cross examination of witnesses, following documents were put for confrontation viz:
1. ExPW2/DA Certified copy of Written Statement of defendant no. 1/petitioner herein in Partition Suit.
2. ExPW2/DB Affidavit of petitioner in support of above Written Statement.
3. ExPW2/DC Affidavit of defendant no. 1/petitioner herein filed in evidence in Partition Suit.
4. ExPW2/DD Certified copy of affidavit of petitioner herein filed by her in the office of L & DO.Result: Petition allowed. Page 8 of 34
Sheela Devi v State & Ors. PC No. 32/08
5. ExPW2/DE Certified copy of Release Deed dated 21.5.99
RESPONDENTS' EVIDENCE
1. Affidavit in evidence ExRW1/A.
2. Certified copy of plaint of Partition Suit ExRW1/1
3. Copy of letter dated 25.4.07 written by
Deputy Land & Development Officer to
Respondent no. 2 herein ExRW1/2
11.During cross examination of respondents' witnesses, following documents were confronted viz:
1. ExRW1/P1 Copy of receipt of payment of Rs.2,000/ to the DDA in respect of earnest money deposited in Rohini LIG Scheme by Sh Satish Chander, husband of respondent no. 2.
2. ExRW1/P2 Certified copy of order dated 9.11.09 passed by Hon'ble High Court of Delhi in CM(M) No. 1056/2007 and CM No. 10598/2007.
3. ExRW1/P3 Certified copy of amended Written Statement in Partition Suit.
4. Mark A A hand written post card purportedly written by the deceased to his son Sh. Harish Chander Suri (respondent no. 5).Result: Petition allowed. Page 9 of 34
Sheela Devi v State & Ors. PC No. 32/08
5. ExRW1/P4 Original servicemen identity card of deceased.
12. The remaining witnesses i.e RW 2 and RW3 were called in to prove the certified copies of documents already exhibited as ExPW2/DB, ExPW2/DE, ExRW1/2, ExRW1/1, ExRW3/A, ExPW2/DA, ExPW2/DB, ExRW3/C, ExRW3/D, ExRW3/E, ExRW3/F, ExRW3/G, ExRW3/H, ExPW2/DC and ExRW3/1, which documents have been already described above.
13. I have heard learned counsel for petitioner as well as learned counsel for respondents. The primary issue before me is consideration on the aspect of limitation and examination of circumstances attending to execution/registration of the Will, its genuinity and the aspect of soundness of disposing power of deceased Sh Jagan Nath Suri. In doing so, the Court shall be guided by the following law on the subject viz;
Section 63 (C) of The Indian Succession Act,1925 requires that 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 been 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 signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator. But the law does not necessarily require that more than one Result: Petition allowed. Page 10 of 34 Sheela Devi v State & Ors. PC No. 32/08 witness be present at the same time, or that a particular form of attestation is necessary.
As per section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court, capable of giving evidence. It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the probate court. The probate court do not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance placed on 2008 (4) SCC 300 Krishan Kumar Vs. Rajinder Singh Lohra & ors. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the subject Will which may be lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 titled Vella Swamy Servai Vs. Result: Petition allowed. Page 11 of 34 Sheela Devi v State & Ors. PC No. 32/08 L. Shivraman Servai.
In a full bench judgment of the Hon'ble Apex Court reported in (1959) Supp. 1 SCR 426 titled H. Venkatachala Iyengar Vs. B. N. Thimmajamma, the Hon'ble Apex Court has discussed the entire gamut of law relating to the discharge of the onus of proving the Will while dwelling into sections 45,47,67 & 68 of Indian Evidence Act, 1872 and sections 59 & 63 of the 1925 Act and observed :
"Section 63 requires that the testator shall sign or affix his mark to the Will 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 dispositions in the Will ? Did he put his signatures to the Will knowing what it contained ? Stated 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 Result: Petition allowed. Page 12 of 34 Sheela Devi v State & Ors. PC No. 32/08 other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
The Hon'ble court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of dispositions and put his signatures to the document of his own freewill. It has been further held that :
"Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
The Hon'ble Apex Court has further discussed the circumstances, which may be termed as suspicious circumstances surrounding the Result: Petition allowed. Page 13 of 34 Sheela Devi v State & Ors. PC No. 32/08 Will and held that there may be circumstances where the signatures of the testator may be shaky, doubtful or the condition of testator's mind may appears to be feeble and debilitated so as to raise a legitimate doubt as to mental capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble court has succinctly held that :
"It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
It has been further held that an active participation of the propounder or the fact that the propounder has taken a prominent part in the execution of the Will and that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence.
The ratio of H. Venkatachala Iyengar's case (Supra) was later Result: Petition allowed. Page 14 of 34 Sheela Devi v State & Ors. PC No. 32/08 relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out the various prepositions :
"1). Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2). Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
3). Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the Result: Petition allowed. Page 15 of 34 Sheela Devi v State & Ors. PC No. 32/08 document propounded is proved to be the last Will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4). Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, and unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reason, for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document Result: Petition allowed. Page 16 of 34 Sheela Devi v State & Ors. PC No. 32/08 can be accepted as the last Will of the testator.
5). It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6). If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the Will, such pleas have to be proved by him but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
In Uma Devi Nambiar Vs. T. C. Sidhan, III (2004) SLT 754, the division bench of the Hon'ble Supreme court has further held that a Will is generally executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either Result: Petition allowed. Page 17 of 34 Sheela Devi v State & Ors. PC No. 32/08 reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, (by itself without anything more), cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
Having discussed aforesaid, the propounder of the Will under the law is required to prove the same in accordance with requirements of section 63 of the Indian Succession Act, read with section 68 of the Evidence Act, besides removing any suspicious circumstances and Result: Petition allowed. Page 18 of 34 Sheela Devi v State & Ors. PC No. 32/08 surrounding the same. The court shall be discussing the aforesaid aspects in the light of the evidence which is come on record. Issue no. 1: Whether the deceased Sh. Jagan Nath Suri has validly executed the Will dated 11.8.1989 while in sound disposing mind ? OPP.
14. The onus of this issue remained on the petitioner. As a matter of record, the Will in question which is ExPW1/1 is not a registered document but a Notarized one. The defence has objected that the Notary has not been examined. The defence has also objected that factum of death of second attesting witness Sh. Vikram Jit has not been properly proved. The defence also objects that signature appearing at point A on the Will ExPW1/1 do not appear to be of a person who was 91 years old at the time of his death.
15. The last argument is to be understood differently. The age of the deceased as provided by the petitioner in her rejoinder at the time of his death is said to be only 82 years whereas according to the respondents, he was 92 years old at the time of his death. The copy of death certificate ExPW2/1 provides the date of death of deceased Sh Jagan Nath Suri as 18.5.1997. His age at the time of his death is recorded as 82 years in the said certificate. The defence pointed out that the evidence of the petitioner is beyond pleadings. It is pointed out that in para 1 of the petition, the date of death is provided as Result: Petition allowed. Page 19 of 34 Sheela Devi v State & Ors. PC No. 32/08 18.5.1987 whereas the date of Will is 11.8.1989. The objectors have denied in the objection that Sh Jagan Nath Suri died on 18.5.87. At the same time, in their preliminary objection itself, they have stated that the deceased died on 18.5.97. Accordingly the date of death of deceased is indeed 18.5.97. Thus at the time of his death, he was 82 years old. It has been sought to be proved through PW 1 who is one of the attesting witness that the deceased had signed at point A in his presence on the Will ExPW1/1. It was also signed by the said witness as well as other attesting witness Sh Vikram Jit. During the cross examination of RW1, she was confronted with the service identity card of the deceased bearing his signature. Same document is ExRW1/P4. There is another letter purportedly written by the deceased in his hand writing on a post card dated Feb. 2, 95 to his son Sh H.C Suri. It also bears his signature. The witness RW 1 was unable to identify the signature of his father in law on these two documents. Similar is the position to the signature of her father in law appearing at point A on the Will ExPW1/1. However, perusal of these three would reveal that there is no marked difference between three. The signature on the Will were purportedly appended on 11.8.89 in the presence of notary public. The signature on document Mark A that has been introduced in the cross examination of RW 1 are purportedly on a letter written by the deceased much later in Result: Petition allowed. Page 20 of 34 Sheela Devi v State & Ors. PC No. 32/08 February 1995. He died in the year 1997. No remarkable difference is seen. No cogent evidence has been brought on record as to why the signature appearing at point A on the Will could not be that of deceased testator. Although, it is sought to be proved that the deceased was surgically operated for Cataract and that he was suffering from Parkinsons disease. Same in itself do not prove that the deceased was not of sound disposing mental capability or was so medically unfit that he could not move around without the help of others. Needless to say that the respondents have not filed any document on record in respect of the aforesaid ailments. However, assuming to be so, this Court has already pointed out that mere fact that the deceased was using reading glasses after surgery for Cataract in one of his eyes does not render his mental capabilities hampered. This would be more particularly in view of the fact that in the cross examination of PW 2, it has come out that one of the eye of her husband was operated about 45 years before his death. He started using spects after his eye was operated. Given the year of death which is 1997 he would have been operated upon in the year 1992
93. The will is much prior to it and was executed on 11.8.89.
16. It is PW 1, who happens to be one of the attesting witness. He is related to the petitioner who is his mother in law as deceased testator was his father in law. He categorically deposed that on request of his Result: Petition allowed. Page 21 of 34 Sheela Devi v State & Ors. PC No. 32/08 father in law, he became attesting witness to the Will ExPW1/1. He deposed that the Will was firstly signed by his father in law after going through its contents at point A and subsequently on his request, the deponent signed at point B whereafter which Sh Vikram Jit also signed at point C. He thereafter submits that the deponent was confronted with the Will by the petitioner herein somehow in January, 2007 after she found the same in an old envelope in the old records. The witness further deposes that this Will was executed in his presence in the Court premises before the notary public when his father in law himself and other attesting witness were present besides the notary public. He also deposed that his brother in law Sh Satish Chander Suri who is husband of respondent no. 2 herein and father of respondents no. 3 & 4 had separated from the family after taking his share during the lifetime of the deceased. He also deposed that his father in law was having sound disposing mind through out upto his death and even at the time of execution of the Will. He deposed that no other Will was left by his father in law. He further categorically deposed that the other attesting witness Sh Vikram Jit was friendly with his father in law and has now died. He asserts to have verified this fact after visiting his address at Vikas Puri where now somebody else is residing. It has come in his cross examination that the deceased, after superannuation from Indian Army, worked Result: Petition allowed. Page 22 of 34 Sheela Devi v State & Ors. PC No. 32/08 with Super Bazar. After his retirement from Super Bazar, he kept on working with a Transport company till the year 1992. He admitted to have signed on Release Deed, certified copy of which is ExPW2/DE as a witness. He admitted that in the said document as well as in the affidavit ExPW2/DB, it has been mentioned that the deceased did not execute any Will till then. The affidavit ExPW2/DD was executed on 15.6.99. The Release Deed ExPW2/DE was executed on 21.5.99 and registered on the same date. The explanation given by the witness for the submission is that his father in law had executed a Will but the same was not traceable at that time. On the Will itself, it is submitted that a typist prepared it at Kashmere Gate on dictation of his father in law. He also gives the name of typist which is Vikramjit who was present at the time of preparation of Will. The notary public referred to as Oath Commissioner in his testimony was not known to him. He promptly denied the suggestion that the signature on the Will are forged or that the attestation itself was forged. He specifically denies that hand of his father in law was not shivering at the time of his writing. He also denied that the Will itself is a forged document.
17. I have already pointed out that in the absence of any medical opinion with respect to presence of Parkinsons disease, if any, a person can not be said to be of not fit disposing state of mind.
Result: Petition allowed. Page 23 of 34Sheela Devi v State & Ors. PC No. 32/08 Although witness of the petitioner has denied this, however, even if same is assumed, then it was for the respondents to have established firstly, that the deceased was actually suffering from 'Parkinsons' disease to such an extent that he was rendered mentally incapable to make any sound disposition/or to write properly. This is not the case here. Further, the subsequent Cataract operation in one of his eye is of no consequence as the event occurred post execution of the Will. I find no reason to discredit the testimony of PW 1.
18. PW 2 is the propounder of the Will. She has supported the case as made out by her in the petition. The petitioner states that at the time of his death, the deceased left behind a Will dated 11.8.89. The original was filed. Much details about the pendency of Partition Suit were not provided. The circumstances with respect to the status of case were also not provided. However, in reply/rejoinder, it has been pointed out that petitioner was aware of the Will and that when she came to know of it, she immediately moved an application for amendment in the Written Statement in the partition suit. These aspects have been further amplified by her in her affidavit ExPW2/A. In para 6 of the affidavit, it is submitted that the fact regarding execution of the Will ExPW1/1 were known to the entire family but Will was not traceable and hence at the time of drafting of written statement in the partition suit, their counsel advised not to Result: Petition allowed. Page 24 of 34 Sheela Devi v State & Ors. PC No. 32/08 plead anything about the Will being not available. It is also in the evidence that the house in question was needed to be rebuilt and a builder was contacted. The builder advised that petitioner should obtain either no objection or Relinquishment Deed of other legal heirs. It is in these circumstances that some of the respondents executed a registered Release Deed. It is in the evidence that the petitioner was told at that time that there was no necessity of getting Relinquishment Deed from legal heirs of late Sh Satish Chander Suri i.e respondents no. 2, 3 & 4 as he had already separated from the family during the lifetime of husband of the deponent.
19. These facts are apparently mentioned in the application for amendment filed in the partition suit. Certified copy of it is filed alongwith certified copy of amended written statement as ExRW1/P3. It is in para 3 therein that at the time of filing of written statement, the plaintiff informed her counsel about the execution of the Will by her late husband but as she was not in possession of the Will, her counsel advised her not to plead it. It is further in the application that the factum of execution of Will was known to the entire family including respondents therein i.e respondents no. 2, 3 & 4 herein that a Will dated 11.8.89 in favour of defendant no. 1 (petitioner herein) was executed and for this reason, no one ever objected regarding the ownership of the house in question as every Result: Petition allowed. Page 25 of 34 Sheela Devi v State & Ors. PC No. 32/08 family member was aware of the fact that defendant no. 1 (petitioner herein) was the sole owner. It is again reasserted as to how the occasion for obtaining the Relinquishment Deed has also arisen. It is asserted that the legal heirs of deceased Sh Satish Chander Suri never ever claimed ownership or asserted title to the property even after the death of the testator herein for a full period of 8 years. The applicant further provides details as to how the Will was found. The amendment application was filed on 19.2.07. It is stated in the application that now in the old records of late Sh Jagan Nath Suri, the defendant no. 1 happened to find the said Will in the old envelope and when it was shown to Sh B.K Sobti, he immediately recognized that it is the Will executed by late Sh Jagan Nath Suri on 11.8.89 and witnessed by him.
20. These two versions are not contradictory but are complimenting each other. The preponderance of probabilities would point out that Will being an important document may have been kept safely by the deceased and could not have been found despite best efforts. Since the house in question was admittedly in dilapidated condition and required renovation/rebuilding, the version of the plaintiff that Relinquishment Deed were required to be executed in her favour is also sustainable and stands to logic visavis evidence on record. This is what the petitioner states in her chief examination ExPW2/A. Result: Petition allowed. Page 26 of 34 Sheela Devi v State & Ors. PC No. 32/08 Careful perusal of her cross examination would reveal that defence was confronting her with the pleadings of the suit for partition wherein neither she nor the other respondents have ever stated that any Will ExPW1/1 was ever executed. According to the defence, if indeed there was a Will, there was nothing preventing the present petitioner to disclose about this fact in response to the petition of partnership. Here, I would say that petitioner had stated on oath that she was prevented from doing so on the advise of her counsel. Ordinarily, this remains a 'privileged communication' between an advocate and his client, however, the Court can look into it as it has been disclosed by the petitioner herself. The only logical answer for such previous pleadings is that in the absence of original Will or its copy, they may be merely concentrating in defending the suit for partition. The admitted position that Sh Satish Chader Suri had separated during the lifetime of her husband and he or his LRs never returned in the 8 years next preceding the death of the testator, could have easily generated an opinion that they no longer represented the estate left by the deceased. This also explains as to why the Relinquishment Deed was sought to be executed.
21. It is with this view of the matter that RW 1 was cross examined on document ExRW1/P1. RW1 was suggested that her husband was separated in the year 1994 and a flat bearing no. B11, JD Block, Result: Petition allowed. Page 27 of 34 Sheela Devi v State & Ors. PC No. 32/08 Janta Flat, ground floor, Maya Puri was given to him. She denied that said flat was allotted in the name of her husband. She denied that said flat was purchased by her father in law at the time of separation. She however, agreed that said flat in Rohini was booked in the name of her husband. However, it was denied that her father in law had made payment for the booking. She was further suggested that her husband sold that flat and purchased another one in Janak Puri. In her further cross examination recorded on 7.11.12, she admitted that her husband became the member of Rohini LIG Scheme of DDA and a sum of Rs.2,000/ was paid in this regard on 25.4.1981 vide copy of receipt ExRW1/P1. She however, volunteered that no such allotment had been made till date.
22. The aforesaid line of cross examination and voluntary admission on the part of RW 1 also strongly points out on the basis of preponderance of probabilities that LRs of deceased Sh Satish Chander Suri may have not been interested in property left behind by the deceased. However, it was eventually not so as the partition suit was filed. Be that as it may, the petitioner as PW 1 has examined herself as propounder of the Will. That it was executed in accordance of Section 63(C) of the Indian Succession Act and in accordance of Section 68 of the Indian Evidence Act stand proved by the propounder/PW2. This satisfies the test of H. Venkatachala Result: Petition allowed. Page 28 of 34 Sheela Devi v State & Ors. PC No. 32/08 Iyengar's case (Supra). It is not the case of the defence that RW 1 had made any incorrect statement about the death of other attesting witness. In any case, as per law, the petitioner is required only to examine one of the attesting witness which has been done in this case. The occasion to question the genuinity of the testimony of PW 1 would have arisen only if his trust worthiness is shaken by the defence. It is not the case here and therefore, non examination of the notary public or for that matter the typist itself can not be rated as suspicious circumstances in this case. Perusal of Will provides that bequeath was made to the exclusion of all heirs and successors of the deceased. No reason for such execution has been provided in the Will itself. However, even the defence has not raised it as a suspicious circumstances. More over, having regard to the judgment in Uma Devi Nambiar's case (Supra) and Pentakota Satyanarayana's case (Supra), the above aspect in the facts and circumstances of this case is not a suspicious circumstance. In view thereof, the execution of Will stands duly proved. The issue is decided in favour of the petitioner and against the respondents. ADDITIONAL ISSUE: Whether present plaint is barred by limitation ? OPD.
23. The onus of this issue was on the respondents. It is the case of the respondents that petitioner is seeking Letters of Administration Result: Petition allowed. Page 29 of 34 Sheela Devi v State & Ors. PC No. 32/08 almost 8 years after the Will which was executed on 11.8.89. The petition was filed in February 2008. It has come in the testimony of PW 1 that he was confronted with the original Will by the petitioner in January, 2007 when she found the same in an envelope amongst the old papers of the deceased. Careful perusal of entire cross examination of PW 1 or for that matter PW 2 would reveal that no cross examination has been offered to both of them particularly PW 2 that under what and which circumstances, she checked upon the envelope containing the original Will. Although, ld counsel for respondents has argued at the time of final arguments that the petitioner has withheld these particulars and has also withheld filing of the envelope in which the original Will was found, yet mere argument will not be of any assistance as a party can prove only what has been pleaded. I have already pointed out that reason for non referral of execution of a Will in any documents filed before the L&DO to which PW 1 is also a witness appears to be the lawyer's advise that they should not make a defence of the case of the Will left behind by the deceased as it was simply not available.
24. The long time that the petitioner took in filing the petition for Probate after the death of the deceased was raised as circumstances to appear as a very suspicious one resulting in the manufacturing of a false Will. This question has already been answered in negative. No Result: Petition allowed. Page 30 of 34 Sheela Devi v State & Ors. PC No. 32/08 cogent evidence to this has come on record. So far as the aspect of limitation is concerned, the petitioner seems to have filed probate petition immediately on coming in possession of the original Will. The application seeking amendment to her written statement in the partition suit, is dated 19.2.07. The amended written statement is also of the same date. It was dismissed, however, ultimately allowed by the Hon'ble High Court of Delhi vide order ExRW1/P2 on 9.11.09. The petitioner can not be attributed with the knowledge that the respondent herein would stand in challenge to the Will propounded by her. The occasion to propound the Will would have arisen only when she found the original of it. It is nobody's case that its copy was available anywhere. It is not a registered document. Thus, the petitioner had to act on the basis of the original. Perhaps she could have acted on the basis of a lost Will but then in the absence of any copy of said Will, she would have failed in such an attempt.
25. I shall now refer to the case law on the point. In Rajindra Motwani v State & Ors 208 (2014) DLT 373, the Hon'ble High Court of Delhi dealt with this aspect of the Limitation. While referring to a decision of The Division Bench in Hari Narain v Subhash Chander, MANU/PH/0163/1985, the Hon'ble High Court noted that as per Hari Narain's case, the Article 137 of the Limitation Act 1963 would apply to any petition or application filed in a Court Result: Petition allowed. Page 31 of 34 Sheela Devi v State & Ors. PC No. 32/08 where no other period of limitation had been prescribed. The Hon'ble High Court extended the ratio of said decision 'mutatis mutadis' to also cover cases pertaining to grant of Probate where it can be fairly assumed that the petitioner had knowledge that the Will was likely to be disputed. According to Article 137, in such cases, the period of limitation is three years from when the right to apply accrues. It was further noted that the period of three years would surely commence at least from the date on which a legatee under a will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by other persons. The Hon'ble High Court also cited an example by way of adumbration hypothetically assuming a Will may have been executed in Delhi in 1950. It further went on to say that the bequests made and dealt with therein may not have come into any dispute for several decades. It observed that it could be that some legatees were in possession of the properties with the tacit permission of other legatees and the approval was subsequently withdrawn. The Hon'ble High Court observed that so long as the rights of any particular legatee are to emanate and flow from the will, probate proceedings ought to be filed at least within three years from this conjectured withdrawal of permission. That would then be the latest date on which 'the right to apply accrues'. This would be the most appropriate and meaningful Result: Petition allowed. Page 32 of 34 Sheela Devi v State & Ors. PC No. 32/08 interpretation given to the words 'when the right to apply occurs'.
26. The Hon'ble High Court further referred to Kunvarjeet Singh Khandpur v Kirandeep Kaur & Ors (2008) 8 SCC 463 where the Court recorded with approval the submissions of the counsel for the appellant that the crucial expression 'right to apply' in terms of Article 137 of the Limitation Act would mean that when a dispute about genuineness of the will arose.
27. Similar view was earlier taken by the Hon'ble High Court of Delhi itself in Pratap Singh's case (Supra) that is relied in this case by the respondents. The said law as discussed herein above in the judgment of the Hon'ble superior Courts, the time prescribed in Article 137 of the Limitation Act 1963 shall begin from the point of time where it can be fairly assumed that petitioner had knowledge that the Will was likely to be disputed. Of course, such knowledge in this case would be the date when the petitioner herein filed an application for amendment of her written statement in the partition suit and further upon its notice to the respondents. By that analogy, the petition is within limitation. The issue therefore, does not survive. It is decided against the respondents and in favour of the petitioner. Relief.
28. In view of the above discussion and findings as also determination on issues, the Court is of the considered opinion that the Will Result: Petition allowed. Page 33 of 34 Sheela Devi v State & Ors. PC No. 32/08 ExPW1/1 has been duly proved in accordance with law. There is no legal impediment in allowing the petition of the petitioner. However, in view of Section 222 of the Act, a probate of Will can only be granted to executor appointed under the Will. At the same time, in terms of Section 232 and 276 of the Act, letter of administration with Will annexed may be granted to the beneficiary under the Will. Similar views have been taken by our own Hon'ble High Court of Delhi in judgment titled as Raghav Sharma v State & Ors 2012 Vol. 3 AD (Delhi) 433. Thus, the petitioner who has otherwise prayed for issuance of letter of administration is held entitled for grant of letter of administration with Will annexed in respect of the property mentioned in Annexure P4 annexed with the petition. The same is accordingly granted on filing of valuation and requisite Court fee and administration bond alongwith one surety bond of the amount of valuation in accordance with law.
29. File be consigned to record room after due compliance.
Announced in open Court. (Manish Yaduvanshi) Dated: 19.05.2015. ADJ06(Central)Delhi Result: Petition allowed. Page 34 of 34