Delhi District Court
Pc 03/2017: Mrs. Sujata Kumar Suri vs State & Anr. Page 1 Of 45 on 31 May, 2023
IN THE COURT OF SH. SUDHANSHU KAUSHIK :
ADDITIONAL DISTRICT JUDGE-02 & WAQF TRIBUNAL :
PATIALA HOUSE COURTS : NEW DELHI
PC NO.03/2017
CNR NO.DLND01-000202-2017
IN THE MATTER OF :-
1. MRS. SUJATA KUMAR SURI
W/O SH. VISHAL SURI,
R/O APARTMENT NO.1702,
17, VIVA BAHARIYA, PEARL,
DOHA, QATAR
ALSO AT:
C-19, CHIRAGH ENCLAVE,
NEW DELHI-110048
2. SH. VISHAL SURI
S/O SH. DHARAM VIR SURI,
R/O VILLA NO.2, STREET NO.6,
MEADOWS NO.5, DUBAI, UAE
THROUGH HIS ATTORNEY
MRS. SUJATA KUMAR SURI
3. SH. AMIT SURESH KUMAR
S/O LATE SH. SURESH KUMAR
R/O FLAT NO.202, SUPREME PALLACIO-3,
SURVEY NO.29/2, NEAR PANCARD CLUB BANER,
PUNE CITY, MAHARASHTRA
THROUGH HIS ATTORNEY
MRS. SUJATA KUMAR SURI
4. MRS. JYOTSNA KUMAR
W/O SH. AMIT SURESH KUMAR
R/O FLAT NO.202, SUPREME PALLACIO-3,
SURVEY NO.29/2, NEAR PANCARD CLUB BANER,
PUNE CITY, MAHARASHTRA
PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 1 of 45
PC 36/2017: Sh. Indra Swarup Vs State & Ors.
THROUGH HIS ATTORNEY
MRS. SUJATA KUMAR SURI
.....PETITIONERS
VERSUS
1. THE STATE
(NCT OF DELHI)
2. SH. INDRA SWARUP
S/O LATE SH. RAM SWARUP
R/O A-251, SIDDHARTHA ENCLAVE,
MAHARANI BAGH, NEW DELHI-110014
.....RESPONDENTS
DATE OF INSTITUTION : 06.01.2017
DATE OF CONCLUSION OF FINAL ARGUMENT : 25.04.2023
DATE OF PRONOUNCEMENT OF ORDER : 31.05.2023
PC NO.36/2017
CNR NO.DLND01-013831-2017
IN THE MATTER OF :-
SH. INDRA SWARUP
S/O LATE SH. RAM SWARUP
R/O D-1061, THIRD FLOOR, GATE-1,
OPP. MATA MANDIR, NEW FRIENDS COLONY,
SOUTH DELHI, DELHI-110025
.....PETITIONER
VERSUS
1. THE STATE
(NCT OF DELHI)
PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 2 of 45
PC 36/2017: Sh. Indra Swarup Vs State & Ors.
2. MRS. SUJATA KUMAR SURI
W/O SH. VISHAL SURI,
R/O APARTMENT NO.1702,
17, VIVA BAHARIYA, PEARL,
DOHA, QATAR
ALSO AT:
C-19, CHIRAGH ENCLAVE,
NEW DELHI-110048
3. SH. VISHAL SURI
S/O SH. DHARAM VIR SURI,
R/O VILLA NO.2, STREET NO.6,
MEADOWS NO.5, DUBAI,
UNITED ARAB EMIRATES
THROUGH HIS ATTORNEY
MRS. SUJATA KUMAR SURI
4. SH. AMIT SURESH KUMAR
S/O LATE SH. SURESH KUMAR
R/O FLAT NO.202, SUPREME PALLACIO-3,
SURVEY NO.29/2, NEAR PANCARD CLUB BANER,
PUNE CITY, MAHARASHTRA
THROUGH HIS ATTORNEY
MRS. SUJATA KUMAR SURI
5. MRS. JYOTSNA KUMAR
W/O SH. AMIT SURESH KUMAR
R/O FLAT NO.202, SUPREME PALLACIO-3,
SURVEY NO.29/2, NEAR PANCARD CLUB BANER,
PUNE CITY, MAHARASHTRA
THROUGH HIS ATTORNEY
MRS. SUJATA KUMAR SURI
.....RESPONDENTS
DATE OF INSTITUTION : 23.10.2017
DATE OF CONCLUSION OF FINAL ARGUMENT : 25.04.2023
DATE OF PRONOUNCEMENT OF ORDER : 31.05.2023
PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 3 of 45
PC 36/2017: Sh. Indra Swarup Vs State & Ors.
JUDGMENT
1. By this common judgment, I shall dispose off two separate petitions; (i) Petition under Section 276 of the Indian Succession Act, 1925 titled as "Sujata Kumar & Ors. Vs State & Anr." PC No.3/2017 for the grant of probate in respect of a Will dated 30.11.2013 executed by deceased Mrs. Chandan Swarup (hereinafter referred to as 'the testatrix') and; (ii) Petition under Section 278 of the Indian Succession Act, 1925 titled as "Indra Swarup Vs State & Anr." PC No.36/2017 for the grant of Letter of Administration in respect of the estate of the testatrix.
2. Parties in both the petitions are same. Petitions involve a common issue regarding the authenticity and validity of the Will dated 30.11.2013 purportedly executed by the testatrix. Common evidence was led in both the petitions but the probate petition is treated as the main petition as the evidence stood recorded therein after both the matter were clubbed for the purpose of evidence and judgment. Reference in the present judgment to petitioner No.1 means 'Sujata Kumar Suri' and respondent No.2 means 'Indra Swarup'.
Averments in Probate Petition
3. The facts as disclosed in the probate petition are; 3.1 Testatrix Mrs. Chandan Swarup was a Hindu. She was a permanent resident of House No.C-1/25, Vasant Vihar, New Delhi-
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110057 (hereinafter referred to as 'the house'). She was married to Late Sh. Brij Nandan Swarup but no child was born out of the wedlock. The predeceased husband of the testatrix was the owner of the house. He bequeathed the house in favour of testatrix during his lifetime by executing a registered Will dated 29.03.2011. He died on 19.02.2013 and on his demise, the house devolved upon the testatrix by virtue of the registered Will.
3.2 Probate petition contains the details of other immovable properties of the testatrix. It was disclosed that testatrix acquired half share in two other properties i.e. (i) Northern Side i.e. right side premises measuring 52 sq yards located on the ground floor of property bearing No.37, Hari Nagar Ashram, New Delhi built on a land measuring 175 sq. yards comprising in Khasra No.1168/1110 of Village Kilokari vide a registered sale deed dated 16.08.2013 bearing No.7281 in book No.1 Volume 12930 registered with Sub-Registrar- V, New Delhi and; (ii) Southern Side i.e. left side premises measuring 52 sq. yards located on the ground floor of property bearing No.37, Hari Nagar Ashram, New Delhi built on a land measuring 175 sq. yards comprising in Khasra No.1168/1110 of Village Kilokari vide a registered sale deed dated 16.08.2013 bearing No.7280 in book No.1 Volume 12930 registered with Sub-Registrar-V, New Delhi. These were self-acquired properties of the testatrix. 3.3 Testatrix executed a Will dated 30.11.2013 declaring that on her demise, her properties and financial assets should be consolidated into a trust, which shall be run jointly by (i) Petitioner No.1/Ms. Sujata PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 5 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
Kumar Suri (Niece of testatrix); (ii) Petitioner No.2/Ms. Vishal Suri (Husband of Mrs. Sujata Kumar Suri); (iii) Petitioner no.3/Sh. Amit Suresh Kumar (Nephew of testatrix) and; (iv) Petitioner No.4/Ms. Jyotsna Kumar (Wife of Sh. Amit Suresh Kumar). All the proposed trustees have joined together and filed the present petition. Petitioners claimed that testatrix appointed them as executors of her Will. Petitioner No.1/Mrs. Sujata Kumar Suri is also an attesting witness of the Will.
3.4 The testatrix specified in the Will the purpose for which her funds should be deployed after her death. She mentioned in the Will that the details of the same are contained in a signed 'Letter of Wishes', which is in possession of petitioner no.1. In the letter of wishes, she bequeathed specific amount in favour of her servants and made provisions for supporting them during their lifetime and also bequeathed funds in favour of her friends and other relatives. 3.5 Petitioners claimed that the testatrix was in perfect health and sound disposing mind at the time of executing the Will dated 30.11.2013. She is stated to have died on 07.01.2014 due to old age. It has been stated that in case, the testatrix would have died intestate, her property would have devolved upon respondent No.2, Sh. Indra Swarup, who is the brother of her deceased husband. State has been impleaded as respondent No.1.
4. Based on the above-stated facts, petitioners have sought the probate of the Will dated 30.11.2013. Notice of the petition was PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 6 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
issued to the respondents. Notice was also issued to the concerned SDM, Vasant Vihar, New Delhi, who filed the valuation report. As per the valuation report, the value of the house is Rs.23,71,74,885/- (Rupees Twenty-Three Crore Seventy-One Lac Seventy-Four Thousand Eight Hundred and Eighty-Five).
5. Citations of the notice of probate were published in National daily Newspaper 'The Times of India' English Edition dated 30.03.2017 and 'Hindustan' Hindi Edition dated 30.03.2017.
6. Respondent No.2 filed objections and a separate petition under Section 278 of the Indian Succession Act seeking Letter of Administration in respect of the estate of testatrix alleging that the testatrix died intestate. In the said petition, petitioners, in the probate petition, were impleaded as respondents. Notice of the petition was issued to the respondents and citations were published in daily Newspapers 'The Times of India' English Edition dated 18.12.2017 and 'Hindustan' Hindi Edition dated 18.12.2017.
Averments in Letter of Administration & Objections in Probate
7. Respondent No.2 filed objections in the probate petition. The objections and the petition seeking letter of administration contain common averments. The main grounds taken in the objections are that;
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i. The valuation of the property has not been done properly and the petition is beyond the pecuniary jurisdiction of the court;
ii. The Will is a sham document and there is inordinate delay in filing the probate petition. Respondent no.2 mentioned that there is a delay of around 3 years in filing the probate petition;
iii. The Will is shrouded with suspicious circumstances. Respondent no.2 claimed that a trust in the name of the husband of testatrix was already operational. He mentioned that it was unusual that instead of depositing the property and proceeds in the said trust, testatrix desired for the creation of a new trust;
iv. There was a possibility that petitioner No.1 might have forged the signatures of the testatrix on the Will. Respondent no.2 mentioned that there is a possibility that petitioner No.1 might have obtained the signatures of the testatrix and the testatrix would have signed it without knowing the contents of the Will. Respondent no.2 mentioned that petitioner No.1 was residing abroad. He stated that petitioner No.1 is a member of the purported trust (to be formed under the Will) and a beneficiary under the Will. Respondent no.2 claimed that petitioner No.1 is the daughter of Ms. Leela Kumar, who was the sister of testatrix. He stated that during her last days, testatrix was PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 8 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
living with her sister and there is a strong likelihood that her signatures might have been obtained fraudulently; v. The petitioners have concealed material facts that testatrix was suffering from vaginal cancer and she was diagnosed with severe dyselectrolytemia for which she was being treated at Max Hospital, Saket, New Delhi. Respondent no.2 submitted that testatrix received around 25 fractions of radiation and she used to be under severe medication and sedatives. He has stated that testatrix was receiving the treatment from July 2012 and she was not in sound disposing mind at the time of executing the Will; vi. The Will does not disclose the correct age of the testatrix. Respondent no.2 has stated that it has been disclosed in the Will dated 30.11.2013 that testatrix was around 81 years of age whereas the medical certificate issued by the Max Hospital records her same age in the year 2012;
vii. The contents of the Will talks about a Letter of Wishes purportedly executed by the testatrix prior to the execution of Will. Respondent no.2 has stated that the Will records that the purpose for which the funds of the testatrix were to be deployed has been disclosed in the signed letter of wishes, which was in possession of petitioner No.1. He has mentioned that the Will is absolutely silent about the time and place when this document was created. He has PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 9 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
stated that although, record suggests that the letter of wishes was executed on some prior occasion but the same bears the same ink and it has been executed on a similar paper as the one used for the Will. He has mentioned that this similarity goes on to show that both the documents are forged;
viii. Respondent no.2 claimed that he used to regularly pay visit to the testatrix along with his wife at the hospital and he observed that she was suffering from depression & delirium. He mentioned that there is overwhelming evidence to demonstrate that testatrix was suffering from serious illness but the Will has not been attested by a doctor. He stated that the phraseology and language of the Will suggest that the same has been drafted by a lawyer but the name of the lawyer has not been disclosed;
ix. There is no independent witness to the Will and some of the bequeath are vague. Respondent has stated that the Will vaguely mentions that out of the sale proceeds, a sum of Rs.3 crore should be given to one Dr. Khanna but the details of the said person have not been specified.
8. On completion of pleadings, issues were framed in the probate petition as well as in the petition seeking Letter of Administration and both the matters were clubbed together vide order dated 10.12.2020 for the purpose of evidence and judgment. The issues framed were as PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 10 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
under:
Issues framed in probate petition Issue No.1: Whether the petitioners are entitled to the grant of probate of Will dated 30.11.2013? OPP Issue No.2: Relief.
Issues framed in the petition for Letter of Administration Issue No.1: Whether Will dated 30.11.2013 executed by Mrs. Chandan Swarup is forged and fabricated? OPP Issue No.2: Whether deceased Mrs. Chandan Swarup was not having sound disposing mind at the time of execution of Will dated 30.11.2013? OPP Issue No.3: Whether petitioner, being sole legal heir of deceased namely Mrs. Chandan Swarup, is entitled for issuance of Letter of Administration? OPP Issue No.4: Relief.
9. Evidence was recorded by the Local Commissioner.
Evidence led by respondent No.2
10. Respondent No.2/Indra Swarup examined four witnesses. 10.1 RW-1/Mahinder Singh (official from the Office of Sub- Registrar-VIIA, Sarojini Nagar, New Delhi) produced the copy of irrevocable trust deed of the testatrix executed on 18.09.2015. The same is Ex.RW-1/A. The witness deposed that although, the relevant PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 11 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
record of the trust purportedly in the name of the husband of the testatrix was also summoned by the court but no such record is available at the office. He stated that the office has no record of the trust being run under the name of B.N.Swarup Memorial Trust. 10.2 RW-2/Indra Swarup (respondent No.2) filed her evidence by way of affidavit Ex.RW-2/A. She tendered in evidence various documents; Death Certificate of late Sh. Brij Nandan Swarup Ex.RW- 2/1; Death Certificate of testatrix Ex.RW-2/2; Marriage Certificate of the testatrix Ex.RW-2/3 and; Will dated 29.03.2011 executed by the husband of testatrix Ex.RW-2/4.
10.3 RW-3/Bhagwan Singh, Assistant Supervisor (Records), Escorts Heart Institute, Okhla Road produced the medical record of testatrix. He mentioned that the testatrix underwent a bye-pass surgery at the hospital in the year 2004. He stated that testatrix was again admitted to the hospital on 05.03.2012 and she was discharged on 26.12.2013. He mentioned that thereafter, testatrix was admitted to the hospital on 03.01.2014 and she died on 07.01.2014. The relevant medical record is Ex.RW-3/B (colly).
10.4 RW-4/Sh. Chand Narayan, Manager (Medical Record), Max Hospital, Saket, New Delhi produced the discharge summary of the testatrix. He stated that the testatrix was admitted to the hospital on 09.07.2012 and discharged on 12.07.2012. He mentioned that all the other records at the hospital have been destroyed. The discharge summary is Ex.RW-4/C (colly).
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11. On the other hand, petitioners examined only one witness.
Evidence led by petitioners
12. PW-1/Sujata Kumar Suri (petitioner No.1). She was also one of the attesting witnesses of the Will. She filed her evidence by way of affidavit Ex.PW-1/A and tendered in evidence the following documents:
(a) Special Power of Attorney dated 13.12.2015 executed by petitioner No.2/Sh. Vishal Suri in favour of petitioner No.1 (Ex.PW-1/1);
(b) Special Power of Attorney dated 05.12.2015 executed by petitioner No.3/Sh. Amit Suresh Kumar in favour of petitioner No.1 (Ex.PW-1/1);
(c) Special Power of Attorney dated 05.12.2015 executed by petitioner No.4/Ms. Jyotsna Kumar in favour of petitioner No.1 (Ex.PW-1/1);
(d) Original Will dated 30.11.2013 executed by testatrix (Ex.RW-
2/3);
(e) Death Certificate of Late Sh. Brij Nandan Swarup (Ex.RW-2/1);
(f) Death Certificate of testatrix (Ex.RW-2/2);
(g) Marriage Certificate of the testatrix (Ex.RW-2/3);
(h) Certified Copy of Will dated 29.03.2011 executed by the husband of testatrix (Ex.RW-2/4);
(i) List of assets of testatrix (Ex.PW-1/7);
Arguments PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 13 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
13. I have heard the arguments.
14. Counsel for petitioner has submitted that the Will dated 30.11.2013 has been duly proved. Counsel has submitted that the petitioners were appointed as executor under the Will and they cannot be considered as beneficiaries. He has mentioned that the conditions stipulated under Section 63 of the Indian Succession Act were duly complied with and there is no reason to doubt the authenticity of the Will. He has mentioned that petitioner No.1 is an attesting witness of the Will and she has deposed that the testatrix as well as the second attesting witness signed the Will in her presence and she attested the Will in their presence. He has mentioned that the Will and the Letter of Wishes have been duly proved. He has contended that the identity of the beneficiaries under the Will is not disputed. He mentioned that the testatrix mentioned the names of the beneficiaries and they are easily identifiable. He has stated that the petitioners fall under the definition of executor as contemplated under Section 2(c) of the Indian Succession Act. Counsel has also filed written submissions.
15. On the other hand, counsel for respondent No.2 has argued that there are suspicious circumstances which puts serious question-mark over the authenticity of the Will. He has mentioned that petitioners concealed in the petition that testatrix was suffering from various ailments. He mentioned that petitioner No.1 has made various PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 14 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
admissions in cross-examination which establishes that testatrix was not keeping sound health. He mentioned that the probate of the Will cannot be granted as the bequeath is void on account of uncertainty. He mentioned that the time and the place where the Will was executed has not been disclosed. He stated that although, the Letter of Wishes was executed prior to the execution of the Will but both the documents bear the same date. He has mentioned that petitioners examined only one attesting witness of the Will. He has stated that petitioner No.1 was a beneficiary under the Will and she was also an attesting witness of the Will. He mentioned that it has not been explained as to why respondent No.2 was excluded under the Will although she was maintaining goods relations with the testatrix. He has argued that the scribe of the Will has not been examined. He argued that the petitioners have failed to cross-examine respondent No.1 on material aspects and her testimony has gone uncontroverted. Besides this, it was argued by the counsel that no valid trust was created under the Will. He has mentioned that the beneficiaries of the trust were not indicated with reasonable certainty and therefore, no valid trust, as contemplated under Section 6 of the Indian Trust Act 1882, was created. In order to support his arguments, counsel has relied on the decisions in"Ramchandra Rambux Vs Champabai & Ors." 1965 AIR 354, "Jaswant Kaur Vs Amrit Kaur" AIR 1977 SC 74, "Ram Piari Vs Bhagwant & Ors." AIR 1990 SC 1742, "Janki Narayan Bhoir Vs Narayan Namdeo Kadam" 2003 2 SCC 91 and "K.Laxmanan Vs Thekkayil Padmani & Ors." 2008 Supp I AD SC PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 15 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
678. Findings
16. I have perused the record in the light of arguments advanced by the parties. I have also considered the written synopsis and the case law filed by the parties in support of their arguments. My issue- wise findings are as under:
17. Issue No.1 in the probate petition and Issue No.1 & 2 in the Letter of Administration are interconnected and they are being taken up together.
Issue No.1: Whether the petitioners are entitled to the grant of probate of Will dated 30.11.2013? OPP (pertaining to probate petition) & Issue No.1: Whether Will dated 30.11.2013 executed by Mrs. Chandan Swarup is forged and fabricated? OPP (pertaining to Letter of Administration) Issue No.2: Whether deceased Mrs. Chandan Swarup was not having sound disposing mind at the time of execution of Will dated 30.11.2013? OPP (pertaining to Letter of Administration)
18. Respondent No.2 took a preliminary objection that the valuation of the property has not been done properly and the probate petition is beyond the pecuniary jurisdiction of this court. It was PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 16 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
further mentioned by the respondent No.2 that there is an inordinate delay in filing the probate petition. I do not find any substance in these objections. Section 264 of the Indian Succession Act, 1925 expressly provides that the District Judge shall have jurisdiction in granting and revoking Probates and Letters of Administration in all cases within his district. Section 300 of the Indian Succession Act states that the High Court shall have concurrent jurisdiction with the District Judge in exercise of all the powers conferred upon the District Judge. Thus, it is apparent that although, the High Court has a concurrent jurisdiction for granting the probate but no pecuniary restriction has been put for the grant of probate by the District Judge. The objection that there is a delay in filing the probate petition is also without merit. Record shows that petitioners filed the probate within the prescribed period of limitation of three years. The right to apply for the probate petition accrued on the death of testatrix and the probate petition was filed within three years.
19. Now, coming to the objections taken by respondent No.2 that the Will is surrounded with suspicious circumstances. It is the contention of respondent No.2 that the Will is shrouded with suspicious circumstances. Respondent No.2 has contended that the Will is forged and fabricated. Counsel for respondent No.2 has argued that petitioner No.1 has made various admissions in her cross- examination which casts serious doubts over the authenticity of the Will. He contended that testatrix has made reference to a 'Letter of PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 17 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
Wishes' in the Will. He stated that the testimony of petitioner No.1 has raised serious question-mark over the time-line of execution of the said letter of wishes.
20. On a careful scrutiny of material on record, I have serious doubts that the Will dated 30.12.2013 was the last testament of testatrix. There are enormous doubts surrounding the execution of the said Will by the testatrix. In case, she had signed and executed the Will, there are serious doubts that it was done in a fit and conscious state of mind. There are suspicious circumstances surrounding the execution of the Will which create doubt as regard to its genuineness and authenticity.
21. In order to demonstrate the suspicious circumstances, respondent No.2 produced the medical record of the testatrix. It is the case of the respondent No.2 that there is medical evidence to demonstrate that testatrix was not keeping sound health at the time of executing the Will.
22. Petitioners disclosed in the probate petition that testatrix died because of old age. It was stated in the petition that testatrix was in perfect state of health and sound disposing mind at the time of executing the Will. Respondent No.2 has disputed this aspect. He has set up a case that the testatrix was chronically ill and she was not in a sound disposing mind at or around the time when the alleged Will was PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 18 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
executed. In order to establish that testatrix was not keeping sound health, respondent No.2 summoned witnesses from Fortis Escorts Heart Institute and Max Hospital, Saket. These witnesses stepped into the witness-box and produced the relevant medical record of testatrix. RW-3/Bhagwan Singh, official from Fortis Escorts Heart Institute, deposed that testatrix was admitted to the hospital in the year 2004 for a bye-pass surgery and she was discharged thereafter. He stated that testatrix was again admitted to the hospital on 05.03.2012 and discharged on 19.03.2012. He stated that the testatrix was again admitted to hospital on 03.01.2014 and she died on 07.01.2014. He produced the relevant medical records which are Ex.RW-3/B.
23. I have perused the medical records of the testatrix. It has been mentioned in the discharge summary dated 19.03.2012 that the testatrix was admitted to the hospital on 05.03.2012. The age of the testatrix has been recorded in the discharge summary to be 80 years. The discharge summary contains a list of diagnosis and it mentions that the testatrix was suffering from Hyper Tension, Type-2 Diabetes Mellitus, Dyslipidemia, Coronary Artery Disease, Triple Vessel Disease, Post CABG, Angina on Effort, RICA 40%, RECA 60% to 70%, LCCA 705 to 72%, LICA 60%, LC Dysfunction (EF 30% to 35%), Recurrent UTI, Post Hysterectomy Status, Cholelithiasis with Upper Lobe Pneumonia. The discharge summary dated 19.03.2012 also records a history of illness of testatrix as under:
"The patient is hypertensive, diabetic, dyslipidemic and has no family history of ischemic heart disease. She is a PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 19 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
known case of CAD, TDV (13/12/2004), post CABG (LIMA to LAD, RSVG to D1, RSVG to OM1) - 17/12/2004, recurrent UTI, post hysterectomy and cholelithiasis. During routine check up in FEHI, she had an episode of breathing difficulty and got admitted. CT chest done on 01/01/2012 showed consolidation in lift upper lobe with path consolidation suggestive of resolving pneumonitis. She was admitted to this hospital for further management."
24. The discharge summary contains a list of medicines which were recommended by the doctors. The list of the medicines are;
(a) Tab. Ecosprin 75 once daily
(b) Tab. Angispan TR 2.5 mg twice daily
(c) Tab. Lasix 40 mg in morning & 20 mg in evening
(d) Tab. Telma 40 mg once daily
(e) Tab. Tonact 10 mg once daily
(f) Tab. Zytanix 2.5 mg alternate days
(g) Tab. Prazopress XL 5 mg once daily
(h) Tab. Haem Up once daily
(i) Syp. Potklor 15 ml twice daily
(j) Tab. Glizid - M 1 tab before breakfast and ½ tab before
dinner
25. The medical record shows that testatrix was again admitted to Fortis Escorts Heart Institute on 09.12.2013. It stands recorded in the evaluation form dated 09.12.2013 (Ex.PW-3/B colly) that the patient was suffering from breathlessness, Orthopnea and swelling in the lower limbs for the last 15 days. Orthopnea is a medical term which means sensation of breathlessness in the recumbent position which is relieved by sitting or standing. It also stands recorded in the evaluation sheet that the testatrix was earlier treated for CA Vaginal PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 20 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
Vault (Vaginal Vault Carcinoma). The evaluation sheet contains an evaluation of the physical condition of the testatrix which goes on to show that her mobility was severely affected to an extent that she could not walk, move and use toilet independently.
26. Petitioners have not disputed the medical documents. The medical documents leave no scope for doubt that testatrix was suffering from various chronic ailments such as Diabetes, Cronary Heart Disease, Hypertension and Cancer. The testimony of RW-2 demonstrates that the testatrix underwent heart surgery in the year 2004. The medical condition of the testatrix needs to be appreciated in the backdrop of her old age. There is evidence to demonstrate that the petitioner was taking number of medicines for the chronic ailments and her mobility was affected to a large extent. The medical condition of the testatrix stands also revealed from the cross-examination of petitioner No.1.
27. On evaluating the testimony of petitioner No.1, it becomes evidence that she has made various admissions which provide support to the stand of respondent No.2 that testatrix was suffering from various ailments. The relevant part of the cross examination of petitioner No.1 conducted on 11.03.2022 is as under:
"Q.5 Can you please give any reason as to why she wanted another Trust to be made when there was already a Trust by the name of B.N. Swarup Memorial Trust?PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 21 of 45
PC 36/2017: Sh. Indra Swarup Vs State & Ors.
Ans. Since B.N. Swarup Memorial Trust was not registered. In fact, she was to go for pacemaker operation in the second week of December and since B.N. Swarup Memorial Trust was not operational she wanted we all the four petitioners to make a trust to carry out her wishes I mentioned earlier.....
Q.8 Are you aware that on 30 th November 2013 Mrs. Chandan Swarup was suffering breathlessness orthopenea and at swelling in her limbs?
Ans. She had no breathlessness but she had swollen feet.
Q.9 I put it to you that Smt. Chandan Swarup had been admitted in Fortis Escort on 09.12.2013 and as per Ex.RW-3/B at page 25 it is clearly mentioned that she was suffering from breathlessness orthopenea and swelling B/L lower limb for the last 15 days and as such it is clear that on 30 th November 2013 she was suffering from the said ailments apart from other ailments mentioned in the medical reports/discharge summaries which are Ex.RW-3/B and Ex.RW-4/E. What do you have to say?
Ans. I can confirm that there was no sign of breathlessness while we were there and the only symptom she had was the swollen feet.
Q10. Are you aware that Mrs. Chandan Swarup was suffering from the vaginal cancer and she had 25 fractions of radiations till 12th July, 2012?
Ans. Yes, I am aware.
Q11. Kindly have a look at para 6 of the affidavit PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 22 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
where you have mentioned that Smt. Chandan Swarup was in perfect state of health. I put it to you that you have deliberately concealed the mental suffering and medical problems of Smt. Chandan Swarup in your affidavit so as to project that she was in a perfect state of health and was not suffering from various ailments?
Ans. She was perfect in her mental health and fully in control of her life and all her financial and medical decision were made by her.
Q12. I put it to you that Smt. Chandan Swarup was the suffering from severe dyselectolytemia even as far back on 10th July, 2012 and the said ailment impairs your ental faculties and is also life threatening?
Ans. I have no reason to believe that she was suffering from any mental impairment she remained in control she was also actively painting very detailed Tanjore paintings which require geometric decision and minute details. She was also social and showed no signs of depression or irrational behavior.
Q13 Ex.RW-EC shown to witness, which is the emergency certificate dated 10th July, 2012 mentioning she had severe dyselectolytemia on 10th July, 2012 for which she required immediate care and was admitted in ward after primary treatment which establishes that there was mental impairment. What do you have to say?
Ans. The certificate dated 10th July, 2012 Ex.RW- EC was much in the past and she continued to live an independent life and she took independent control of Mr. Swarup's assets after his passing and consolidated his holding independently and was taking independent decision.PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 23 of 45
PC 36/2017: Sh. Indra Swarup Vs State & Ors.
It is wrong to suggest that Sint Chandan Swarup was in depressed state of mind after passing away of her husband. It is wrong to suggest that Smt. Chandan Swarup did not have the mental capacity to execute the Will Ex.PW-1/2. It is wrong to suggest that Ex.PW-1/2 is a forged and fabricated document."
28. There is irrefutable evidence to establish that the testatrix was not keeping good health. She was an 81 years old lady, who was suffering from various ailments. The medical documents establish that the testatrix was suffering from heart disease. PW-1 admitted in cross- examination that testatrix was suffering from vaginal cancer and she was administered 25 fractions of radiation during treatment. PW-1 further conceded in cross-examination that testatrix was required to undergo an operation for placement of pacemaker in the second week of December. Although, date & year of this operation has not been revealed but the admissions made by PW-1 does provide support to the stands of respondent No.2 that testatrix was suffering from heart ailment. PW-1 denied in cross-examination that testatrix was suffering from breathlessness on the day on which the Will was purportedly executed but she admitted that testatrix had a swollen feet on that day. PW-1 gave evasive reply about the physical health of the testatrix. Counsel for respondent No.2 put a question (ques.11 in testimony recorded on 11.03.2022) to PW-1 that she has deliberately concealed the fact that testatrix was not keeping good mental & physical health.
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In response, PW-1 did not mention anything about the physical health but claimed that testatrix was in perfect mental health.
29. It stands established from the evidence that testatrix was not keeping good health and she was suffering from various serious life threatening ailments. This fact was very well known to the petitioners but they not only concealed it but also claimed that testatrix was in perfect health. There is not even a whisper in the entire petition about the ailments from which the testatrix was suffering. On the contrary, petitioners have stated in the probate petition (para-7) that testatrix was in perfect state of health and she died because of old age. The fact that the petitioners concealed such a material fact certainly creates suspicion.
30. The circumstances in which the Will is stated to have been prepared by the testatrix are suspicious. The Will makes reference to a Letter of Wishes of testatrix but there is no clarity as to when the same was prepared. PW-1 stated in cross-examination that she is residing at Qatar. She disclosed that she arrived in Delhi on 29.11.2013 i.e. just a day before the Will was purportedly executed by the testatrix. She mentioned that she came to Delhi to attend a wedding on 30.11.2013 and left Delhi on the next day i.e. 01.12.2013. She explained that testatrix called her in the beginning of November 2013 and disclosed that she was willing to make a Will. She stated that testatrix wanted to confirm from her whether she would be PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 25 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
attending the wedding in Delhi. She mentioned that testatrix told her on 30.11.2013 that she had prepared a Will. She disclosed that she met testatrix on 30.11.2013. She mentioned that testatrix did not discuss with her before 30.11.2013 about the manner in which she intended to bequeath her property. She mentioned that she was asked to go to the designated place for the attestation of the Will soon after lunch between 2:00 PM and 3:00 PM. She disclosed that she reached the designated place at 02:30 PM. She stated that Mr. Ishant Shankar, second attesting witness of the Will, came to the designated place at around 03:00 PM. Counsel for respondent No.1 requested PW-1 to narrate the sequence of events after 02:30 PM on 30.11.2013. The relevant extract from the testimony is as follows:
"QI. Can you give the sequence of events after 2:30 pm. On 30th November, 2013?
Ans. I went to the study room. Thereafter, Mr. Ishant Shankar came. He asked Mrs. Chandan Swarup to read out the Will. After her reading he put his signatures on the Will and thereafter I also put my signature on the Will. I returned the Will to Mr. Ishant Shankar.
Q2. Did Mrs. Chandan Swarup had any legal knowledge for drafting the Will?
Ans. She had prior knowledge of contracts while she was working in Asian Hotels but had no experience of drafting the Will. I have no idea as to who drafted the Will. I speculate that probably she herself typed the alleged Will. I am not sure whether there were one or two copies of the said alleged Will but there could not be more than two. After we signed the Will PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 26 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
she kept the same with herself. She did not handover any copy of the same to me or to Mr. Ishant Shankar. A document that I have filed alongwith the petition is a letter of wishes of Mrs. Chandan Swarup. The letter of wishes was typed alongwith the Will and I had seen it for the first time at the time when I signed the Will Q3. Can you give any reason as to why you have not made any reference to the letter of wishes in Ex.PW- 1/A?
Ans. I cannot.
I do not know who typed the letter of wishes. Either one or two copies were made of the letter of wishes but not more than two.
Mrs. Chandan Swarup herself read out the Will. There was no discussion with regard to the bequest made in the Will on 30.11.2013."
31. On examining the record in the backdrop of the chain of events narrated by PW-1, serious doubts have been raised about the execution of the Letter of Wishes. PW-1 claimed in cross examination that after executing the Will, the testatrix kept the letter of wishes with herself. She claimed that she got a copy of letter of wishes only after the demise of testatrix. PW-1 has conveyed that the Will was not prepared in her presence. She was not sure about the person who prepared the Will and the Letter of Wishes. She has categorically admitted in her testimony that she has no idea as to who drafted the Will. There is no reliable evidence which may disclose the identity of PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 27 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
scribe of the Will. PW-1 conveyed that she can only speculate that the Will might have been typed by the testatrix herself. She stated that the Letter of Wishes was typed along with Will. She claimed to have seen the Letter of Wishes for the first time at the time of signing the Will. Her testimony contradicts the record as well as the contents of the Will.
32. It has been categorically mentioned in one of the clauses of the Will; 'The funds are to be deployed for the following purposes (all details contained in the signed Letter of Wishes which is in the possession of my niece Sujata Kumar Suri)'. The testatrix declared in the Will that the the manner in which her funds are to be deployed is contained in the signed Letter of Wishes which is in the possession of petitioner No.1 (PW-1). This clause demonstrates that the letter of wishes was prepared before the execution of the Will. Testatrix disclosed in the Will that the Letter of Wishes was in possession of petitioner No.1 whereas petitioner No.1 denied having seen the Letter of Wishes prior to the date when the Will was executed. She categorically stated in cross-examination that she saw the Letter of Wishes for the first time at the time of signing the Will.
33. I have perused the Letter of Wishes. It not only bears the signature of the testatrix but it has also been signed by both the attesting witnesses of the Will. The fact that petitioner No.1 has given a contradictory version about the Letter of Wishes raises serious PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 28 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
doubts.
34. Record shows that petitioner No.1 has also presented contradictory version about the discussion with the testatrix in respect of bequeath of the property. She mentioned at one place in cross- examination that testatrix did not discuss with her before 30.11.2013 as to how she intends to bequeath her property. In the later part of cross-examination, she changed this version and mentioned that even on 30.11.2013, no discussion took place with the testatrix in regard to the bequest made in the Will.
35. Counsel for respondent No.2 confronted PW-1 with the contradictory stand about the Letter of Wishes. In response, PW-1 changed her earlier version and stated that she might have collected the Letter of Wishes when she met testatrix after her operation. The relevant part of the cross examination dated 11.03.2022 is as under;
"Q7. Kindly have a look at Ex.PW-1/2 and specifically to the portion, "the funds are to be deployed for the following purposes (all details contained in the signed letter of wishes which is in the possession of my niece Sujata Kumar Suri"). How do you reconcile the said part of the Will with the statement made by you that you got the letter of wishes after Smt. Chandan Swarup passed away?
Ans. I would have collected the letter of wishes when I met her after her operation."
36. The Will and the Letter of Wishes bear the signatures of the PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 29 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
testatrix as well as both the attesting witnesses. PW-1 stated at one place during her cross-examination that she might have collected the Letter of Wishes from the testatrix when she met her after her operation. However, in the Letter of Wishes, the testatrix has put the date of 30.11.2013, which is the same date on which the Will was executed. This contradiction raises suspicion.
37. The fact that PW-1 had been frequently changing her stand and giving contradictory answers to the crucial questions during cross- examination raise serious doubt over her reliability and credibility. She is one of the proposed trustees of the trust which was required to be created under the Will to manage the property of the testatrix. She is also an attesting witness of the Will and claims to have been appointed as the executor of the Will. As observed earlier, there is medical evidence to demonstrate that the mobility of the testatrix was serious affected because of old age and illness. Considering the age and the medical condition of the testatrix, it is quiet improbable that she herself prepared and typed the Will as well as Letter of Wishes. PW-1 has admitted in the later part of her cross-examination that the Letter of Wishes was prepared before the execution of the Will. She admitted in cross-examination that she might have collected the Letter of Wishes from the testatrix when she met her after her operation. Although, PW-1 has admitted that the letter of wishes was executed on some prior occasion but it bears the signatures of the testatrix as well as both the attesting witnesses. The Letter of Wishes contains the PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 30 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
signatures of the testatrix and the attesting witnesses with the same ink, with which, they have put signatures on the Will. In fact, the letter of wishes has been executed on a similar paper as the one used for the Will. This circumstance further raises serious doubts about the authenticity of the Will.
38. Record shows that testatrix not only mentioned the names of proposed trustees but also mentioned against their names either their PAN Card numbers or Passport numbers. Similarly, the Passport Number of Smt. Leela Suresh Kumar was also mentioned in the Will against her name. It is quite unusual for a testator to mention such minute details in the Will. PW-1 gave an explanation that the testatrix might have collected these details from her mother Smt. Leela Suresh Kumar but the said version does not inspire confidence. There is no evidence to demonstrate that testatrix collected the details of the PAN Card and Passport Numbers before executing the alleged Will.
39. No evidence has been led to establish the identity of the person who drafted and typed the Will. PW-1 has conveyed in cross- examination that the Will and the Letter of Wishes were typed simultaneously. She mentioned that she saw the Letter of Wishes for the first time at the time of signing the Will as an Attesting Witness. She mentioned that she has no idea as to who drafted the Will. She mentioned that she does not know who typed the Will. She stated that she speculate that the testatrix might have typed the Will herself. No PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 31 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
evidence has been led to throw light on all these aspects.
40. There is no evidence to show whether the Will was typed on a computer or an electronic typewriter. There is no evidence to show if any computer or electronic typewriter was available at the house of the testatrix. There is evidence to show that the testatrix was of old age and she was suffering from various serious ailments. There is evidence to show that the mobility of the testatrix was seriously affected on account of her illness. It is unbelievable that the testatrix could have prepared the Will herself. It is also not conceivable that the testatrix went out of her house and got the Will prepared as there is evidence to suggest that she required assistance for mobility. It appears from the Will that the same has been typed by a person, who is well versed with typing. There are perfect margin on both side of the paper and even gaps between the paragraphs, which demonstrate that the person who typed it was a well trained typist. Moreover, the Will and the Letter of Wishes also contains legal terminology. Petitioners have not led any evidence to throw light on the academic qualification of the testatrix. There is no evidence to suggest that the testatrix was well versed with typing and legal terminology.
41. It has been mentioned in the Letter of Wishes that a sum of Rs.3 crore shall be given to one Dr. Khanna from the sale proceeds of the house. The said amount was to be given to Dr. Khanna for opening a polyclinic with his son and daughter-in-law. The Will further declares PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 32 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
that one Mr. Chawla shall be given Rs.5.4 lac of NSCs. The Will mentions that a sum of Rs.50,000/- shall be given to the institute of Art & Design managed by the sister of Ritu Singhla in Allahabad. Similarly, there are various other clauses mentioning the names of different persons. However, the petitioners have not led any evidence to establish the identity of these persons. These facts provide support to the argument of respondent No.2 that the bequest made under the Will is vague.
42. There is serious question mark over the testamentary capacity and soundness of mind of the testatrix on account of her medical condition and ailment. It is an admitted position that the testatrix was suffering from serious ailments. She had undergone heart surgery and treatment for cancer. She was also suffering from various other ailments. There is evidence to establish that she was suffering from hypertension, diabetes, chronic liver diseases, heart ailment and she underwent radiation therapy for vaginal cancer. She was on regular medication and her mobility was seriously affected. She died within a span of less than 40 days after executing the Will.
43. As observed preceding paras, there are various suspicious circumstances surrounding the execution of Will. It is the propounder's duty, obligation to not only prove the due and valid execution of the Will but also to remove any and every suspicious circumstances surrounding the execution of the Will before the court PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 33 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
is to accept the Will to be genuine. Suspicion means doubt, conjecture or mistrust. Each and every suspicious circumstance is confounded by another and the cumulative effect of these suspicious circumstances is that the testatrix could not have understood the meaning, purport and effect of the contents of the Will and the same was got drafted & executed without the testatrix understanding the import of the same. There are doubts as regards to the signatures of testatrix on the Will on account of her old age coupled with the serious medical ailments, which required repeated hospitalization and admission in ICU. I have serious reservations that the testatrix had affixed her signatures on the Will after understanding the contents of the same. These are real, germane and valid suspicious features creating grave doubt and question-mark over the genuineness of the Will.
44. Mere assertion of the petitioners that the Will is genuine because it bears the signature of the testatrix and one of the attesting witness is not sufficient. This may be sufficient, in case, there are no suspicious circumstances surrounding the Will. In case of suspicious circumstances, the propounder is required to remove all the legitimate suspicions before the Will is accepted as the last Will of the testatrix. It has been held in 'H.Ventakachala Iyenger Vs B.N.Thinnajamma & Ors." 1 (1959) SCR Suppl.426 that unless, the propounder has discharged the onus of removing the suspicious circumstances, the courts would be reluctant to treat the document as the last Will of the testatrix. The Hon'ble Apex Court has held in 'Anil Kak Vs. Kumari PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 34 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
Sharda Raje and Ors' 2008 (6) Scale 597 that execution of the Will does not only mean proving of the signatures of the executor and attesting witnesses.
45. The law is well settled that the onus to prove a Will is always on the propounder and only in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signatures of the testatrix and due attestation as required by law, the Will can be proved. When there are suspicious circumstances, the initial onus become heavier and the propounder must remove all legitimate suspicion before the documents can be accepted as the last Will of testatrix.
46. It has been held in 'S.R.Srinivasa and Ors. v. S.Padmavathamma' (2010) 5 SCC 274 as under:-
"24. The mode, the manner and the relevant legal provisions which govern the proof of Wills have been elaborately dilated upon by this Court in a number of cases. We may make a reference only to some of these decisions.
25. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR 426] Gajendragadkar J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC 369] as follows:
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 35 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
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 testatrix 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 document propounded is proved to be the last will and testament of the testatrix. 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, an 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 testatrix or that the testatrix 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 testatrix who would normally receive their due share in his estate were disinherited because PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 36 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
the testatrix might have had his own reasons 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 can be accepted as the last will of the testatrix.
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 emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testatrix, 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 caveator alleges fraud, undue influence, coercion etc with regard to execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstance surrounding the execution of 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 reasonable doubts in the matter."
47. Coming back to the present matter, record shows that petitioner No.1 is a beneficiary under the Will and she has played important and prominent role in the execution of the Will. She herself is an attesting witness of the Will. In terms of her own version, she is a resident of Qatar, who came to India just a day before the execution of the Will.
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She has deposed that she came to Delhi on 30.11.2013 for attending a wedding and left Delhi on 01.12.2013. Thus, she came to Delhi only for a day on which the Will was purportedly executed by the testatrix. These circumstances, in itself, creates grave suspicion. Reliance may be placed upon the law laid down in 'Kavita Kanwar v. Mrs. Pamela Mehta and Ors.' AIR 2020 SC 2614 wherein it has been held as under:-
"17.4...........
41. The evidence on record shows that appellant has taken a prominent part in execution of Will Ex.PW1/H which confers on her a substantial benefit worth crores of rupees. This itself is a big suspicious circumstance as has been held by Supreme Court in Niranjan Umesh Chandra Joshi vs. Mridula Jyoti Rao: 2007 (1) AD SC
477. It has also been held by Supreme Court in Surinder Pal vs. Saraswati Arora: (1974) 2 SCC 600 that where propounder takes prominent part in the execution of Will which confers on him a substantial benefit that is itself one of the suspicious circumstance which he must remove by clear evidence. In the present case no evidence is led by appellant to satisfy the conscience of the court to clear the aforesaid suspicious circumstance existing at the time of making of Will Ex.PW1/H. The propounder was required to remove the doubts by clear and satisfactory evidence."
48. It is the duty of the propounder of the Will to prove that the same has been duly & validly executed. The same cannot be done simply by proving that the signature on the Will was that of the testatrix but it must be proved that attestations were also made properly as required under Section 63 of the Succession Act. In the PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 38 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
present matter, only one attesting witness of the Will has been examined. The examined attesting witness is also a beneficiary under the Will. Her testimony is shaky and contains contradictions which cannot be reconciled. There are various suspicious circumstances which have not been explained. There is no evidence to demonstrate the time and the manner, in which the Will and the Letter of Wishes, were prepared. Petitioner No.1 has presented contradictory versions about the time when the Letter of Wishes was prepared. She conveyed at one place in her cross-examination that the Will and the Letter of Wishes were prepared at the same time but admitted in the later part of cross-examination that the testatrix handed her over the Letter of Wishes at some prior point of time. The testimony of petitioner No.1 does not inspire confidence and the second attesting witness of the Will has not been examined. No explanation has been tendered about the availability of the second attesting witness of the Will.
49. There is no reliable evidence to reveal the identity of the scribe of the Will. Petitioner No.1 has deposed that the Will might have been drafted and typed by the testatrix herself but keeping in view the health and the old age of testatrix, the same appears to be highly improbable. In case, the Letter of Wishes was already in existence prior to the execution of the Will, then why the testatrix has mentioned the date 30.11.2013 under her signatures. No explanation has been tendered on this aspect. I have reached a conclusion that there are number of suspicious circumstances which puts question-
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mark over the authenticity of the Will. The plaintiff has failed to satisfy the conscience of the court that the Will is the genuine and last testament of the testatrix or that it was prepared voluntarily by her of her own free will consciously and in a fit state of mind. There are various circumstances which create a grave suspicion as regard to the making of the Will. Petitioners have offered no explanation of the suspicious circumstances. They have totally failed to discharge the heavy onus which lay on them for explaining the suspicious circumstances surrounding the execution of the Will and of establishing that the Will was the last Will of the testatrix.
50. In view of the discussions made in the afore-mentioned paras, issue 1 & 2 in the Letter of Administration are decided in favour of respondent No.2 and against the petitioners. Issue No.1 framed in Probate Petition is also decided in favour of respondent No.2 and against the petitioner.
Issue No.3: Whether petitioner, being sole legal heir of deceased namely Ms. Chandan Swarup, is entitled for issuance of Letter of Administration? OPP (pertaining to Letter of Administration)
51. Respondent No.2 Indra Swarup is the brother of husband of the testatrix. He filed the petition seeking Letter of Administration on the ground that testatrix inherited the property from her husband Brij PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 40 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
Nandan Swarup. It is an admitted position that the house bearing No.C-1/25, Vasant Vihar, New Delhi-110057 was the self acquired property of the husband of testatrix. The husband of testatrix executed a Will dated 29.03.2011 during his lifetime and on his demise on 19.02.2013, the house devolved upon the testatrix. Neither petitioners nor respondent No.2 have disputed this aspect. Petitioners have admitted in their petition that, in case, testatrix would have died intestate, the house would have devolved upon respondent No.2.
52. Respondent No.2 had three brothers including the husband of the testatrix but all of them were predeceased. Respondent No.2 has contended that he is the only surviving brother of late Sh. Brij Nandan Swarup and therefore, he is the sole legal heir under the Hindu Succession Act, 1956
53. In order to deal with the above said aspect, it is relevant to refer to Section 15 of the Hindu Succession Act which provides general rules of succession in case of female Hindus. Section-15 reads as under:
"15. General rules of succession in the case of female Hindus.- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16.-
(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
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(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband".
54. On perusing the provisions of Section 15 of the Hindu Succession Act 1956, it becomes evident that the property inherited by a female Hindu from her husband, in the absence of any son or daughter of the deceased shall devolve upon the heir of her husband. As observed earlier, it is not disputed that the house No.C-1/25, Vasant Vihar, New Delhi-110057 was inherited by the testatrix from her husband late Brij Nandan Swarup. Since, no class-I legal heir of late Sh. Brij Nandan Swarup was surviving, therefore, the house shall devolve upon the legal heirs specified in Class-II of the schedule of the Hindu Succession Act 1956. The Class-II of the schedule provides PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 42 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
as under:
"THE SCHEDULE [Section 8] HEIRS IN CLASS I AND CLASS II CLASS II I. Father II. (1) Son's daughter's son, (2) son's daughter's daughter,(3) brother, (4) sister.
III. (1) Daughter's son's son (2) daughter's son's daughter, (3) daughter's daughter's son (4) daughter's daughter's daughter.
IV. (1) Brother's son (2) sister's son, (3) brother's daughter, (4) sister's daughter.
V. Father's father; father's mother. VI. Father's widow; brother's widow. VII. Father's brother; fathers' sister. VIII. Mother's father; mother's mother. IX. Mother's brother, mother's sister. Explanation:- In this Schedule, reference to a brother or sister do not include reference to a brother or sister by uterine blood."
55. Section-9 of the Hindu Succession Act provides the order of succession amongst the legal heirs in the Schedule. It states that amongst the heirs specified in the schedule, those in Class-I shall take simultaneously and to the exclusion of all other heirs; Those in first entry in Class-II shall be preferred to those in second entry, those in second entry shall be preferred to those in third entry; and so on in succession. Section-11 of the Succession Act provides that the property of an intestate shall be divided between the heirs specified in any one entry in Class-II of the Schedule so that they share equally. Thus, it is apparent that in case of intestate succession amongst the PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 43 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
heirs specified in Class-II of the schedule, the legal heirs in the higher entry shall be preferred to those in the succeeding entry of the Schedule.
56. In the present matter, petitioner, being the brother of husband of testatrix, falls under Entry-II of Class-II of the Schedule annexed to the Hindu Succession Act. Although, it has come on record that the legal heirs of the other predeceased brothers of late Sh. Brij Nandan Swarup are present but they are not entitled to inherit the property as they fall under Entry-IV of Class-II of the Schedule. In view of Section-9 of the Hindu Succession Act, those falling in second entry of Class-II shall be preferred to those falling in entries below the said entry. Thus, although, there are other surviving Class-II legal heirs of late Sh. Brij Nandan Swarup but they are not entitled to inherit his property. Accordingly, issue No.3 of the Letter of Administration is decided in favour of respondent No.2 and against the petitioners.
57. The testatrix was a Hindu. Although, petitioners set up a case that testatrix executed a Will during her lifetime but it has not been proved that the Will was genuine. Petitioners have failed to satisfy the conscience of the court that the Will was the genuine and last testament of the testatrix or that it was prepared voluntarily by her of her own free will consciously and in a fit state of mind. In view of the finding given in respect of issue No.1 & 2 of the Probate Petition, the Will needs to be discarded. As a necessary corollary, the testatrix died PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 44 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.
intestate and the devolution of the property shall take place according to the provisions of the Hindu Succession Act 1956. The property is situated within the jurisdiction of this court. Respondent No.2, being the sole surviving legal heir in Entry-II of Class-II legal heirs, is entitled to the Letter of Administration.
58. In view of the finding given in afore-stated paras, the probate petition bearing PC No.3/2017 titled as "Sujata Kumar Suri & Ors. Vs State & Ors." is dismissed and petition seeking Letter of Administration bearing PC No.36/2017 titled as "Indra Swarup Vs State & Ors." is allowed. Record shows that respondent No.2 filed a detailed list of movable & immovable properties of the deceased vide Annexure-A of the petition. The Letter of Administration be issued in respect of the said properties of the deceased subject to filing of requisite court fee and administration bond with surety. It is clarified that under the present proceedings, the court is not adjudicating the title of the property in respect of which the Letter of Administration has been issued. The original Will filed by in probate petition shall be preserved in terms of Section 294 of the Indian Succession Act, 1925.
59. Files be consigned to record room after necessary compliance. Announced in the open court on 31.05.2023 (Sudhanshu Kaushik) Addl. District Judge-02 & Waqf Tribunal New Delhi District, Patiala House Courts, New Delhi/31.05.2023 PC 03/2017: Mrs. Sujata Kumar Suri Vs State & Anr. Page 45 of 45 PC 36/2017: Sh. Indra Swarup Vs State & Ors.