Delhi District Court
Smt. Santosh @ Anokhi vs State on 29 July, 2008
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IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
PC No. 269/06/03
Date of institution : 09.05.2003
Date on which the judgment was reserved for : 15.07.2008
Smt. Santosh @ Anokhi
W/o Shri Jai Kishan
R/o WZ-490, Tihar Village,
Near Shiv Mandir,
New Delhi-110018 ............ Petitioner.
Versus
State. ............ Respondent.
JUDGMENT
1. This is a petition under Sections 217 & 218 of the Indian Succession Act for the grant of probate. Briefly stated, the facts as stated in the petition are that Sh. Bhagwan Dass son of late Sh. Ram Swaroop died at Delhi on 23.10.1999. The deceased was having self acquired property at Delhi bearing No. WZ-490, Tihar Village, New Delhi having double storey building on the land measuring 100 sq. yards. The deceased during his lifetime executed a Will dated 19.12.1994, duly registered with Sub Registrar, Delhi whereby, he bequeathed the aforesaid property exclusively to the petitioner, who is his daughter in law. The names of the other legal heirs, left by the deceased, are mentioned in Para No. 6 of the petition and in the amended Schedule-B. : 2:
2. Citation was published in Dainik Jagran but none appeared from general public to file any objection. All sons of the deceased, except Sh. Jai Kishan Rohilla, contested the petition. They and Smt. Bhagwati Rohilla, daughter of the deceased, filed common objections. They took preliminary objections that the signatures on the Will are forged, left thumb impression on the alleged Will is not of their father and has been fabricated and forged. It has been stated that the deceased had acquired the property from his father late Sh. Ram Swaroop and therefore, he had no right to execute any Will qua the property in question which he acquired as legacy after the death of his father being the ancestral property. It is stated that Sh. Shri Kishan Rohilla was living with his father before his death and his relations were cordial with him. The other sons and daughters were also having cordial relations with the deceased and therefore there is no question of making the Will in favour of his daughter in law. It is stated that the mental condition of late Sh. Bhagwan Dass was not good during the year 1994 as he was a patient of Epilepsy, his hands used to tremble and could not move and sign properly. It is further stated that the plot of land does not measure 200 sq. yards. The plot which is subject matter of the Will is approximately 110 sq. yards. It is further stated that the son of the deceased Sh Bhagwan Dass is running a shop measuring 6` x 12' i.e. 72 sq. feet in which he is running a Kiryana shop for the last more than 30 years and that the shop is the only source of his : 3: livelihood. It is also stated that objector No. 3 is in possession of a room, kitchen, bathroom and open space on the first floor where his family resides. On merits of the petition, all the averments have been denied. The other legal heirs filed their no objection.
3. Petitioner filed rejoinder to the objections, therein, reiterating the averments made in the petition. It has been denied that the property is ancestral. It has been denied that the deceased was a patient of Epilepsy or that his mental condition was not good.
4. On the completion of pleadings, the court framed the following issues:-
i) Whether the Will dated 19.12.1994 propounded by the petitioner is the duly executed last and final Will of late Sh.
Bhagwan Dass in good health and sound disposing mind? OPP.
ii) Whether the petition is not maintainable in view of the preliminary objection No. 2 of the objections? OPO
iii) Relief.
5. In order to prove her case, petitioner tendered her duly sworn affidavit Exbt. P-1. She proved the death certificate of late Sh. Bhagwan Dass as Exbt. PW-1/1.
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PW-2 is Sh. Yashpal Arora, LDC from the office of Sub Registrar, Janak Puri. He produced the record with regard to the registration of the Will dated 19.12.1994.
PW-3 is Sh. Hari Kishan. He is one of the attesting witnesses to the Will. He identified his signatures on the Will at point X and X1 and also identified the signatures and thumb impression of the testator on the Will Exbt. PW-2/1 at point Z. The signatures of Sh. C.M. Bhagchandani, advocate were identified at point Y.
6. In support of their objections, objectors examined RW-1 Sh. Jai Bhagwan Rohilla (Relation No. 1) as RW-2 Sh. Shri Kishan Rohilla (Relation No. 4). They tendered their affidavit Exbt. R-1 and R-2 in evidence in support of their objections.
RW-3 is Sh. Khushi Ram. In his affidavit Exbt. R-3, he stated that he was on visiting terms with deceased Sh. Bhagwan Dass and that the property bearing No. WZ-490 was not the self acquired property of the deceased. The said property came to him from his father. He further stated that in the year 1994, the hands of Sh. Bhagwan Dass used to tremble and could not move without the help of other person. He used to take the help while walking on the road. He stated that he had gone to the house of the deceased in November, 1994 where he : 5: saw Bhagwan Dass confined to bed. He further stated that the relations of Bhagwan Dass with his sons and daughters were cordial and happy. It has also been stated that house No. WZ-490, Village Tihar is built on area of about 55 sq. yards and that house No. 489 is built on plot of 55 sq. yards and Sh. Shri Kishan son of Sh Bhagwan Dass is carrying on the business of Kiryana in a shop on the ground floor and is residing on the first floor in a room, kitchen, combined lavatory, bath and open area.
RW-4 is Sh. Sanjay Kumar, Assistant Zonal Inspector from MCD. He deposed that as per their record, house No. WZ-490 Village Tihar is assessed to house tax in the name of Sh. Pritam Lal and house No. WZ-489, Tihar Village is assessed in the name of Sh. Bhagwan Dass.
Arguments have been heard from the learned counsels of the parties. My issue-wise findings are as under:- 7. ISSUE NO. 2
Issue No. 2 is being taken up first as the same relates to the maintainability of the petition. The learned counsel of objector has argued that Sh. Bhagwan Dass had acquired the property from his father and therefore, the said property became ancestral property in his : 6: hands. He had no right to execute the Will in respect of the ancestral property. It has been argued that the petitioner has not produced any document on record to prove that the deceased was the owner of the property or that it was his self acquired property.
8. In exercise of testamentary jurisdiction, the court only decides about the due execution and genuineness of the Will. The testamentary court does not decide the title of the testator. In the case of Chiranjilal Shrilal Goenka Vs. Jasjit Singh (1993) 2 SCC 507, the Apex Court made pertinent observations about the nature of the probate proceedings in the following words:-
"The Succession Act is a self contained Code insofar as the question of making an application for probate, grant of refusal of probate or an appeal carried against the decision of the Probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the Probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. Thus, it does not more than establish the factum of the Will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself.": 7:
9. In the case of Kashi Nath Vs. Dulhin Gulzari AIR 1941 Patna 475, it was held that in an application for probate of a Will or for the grant of letters of administration with a copy of the Will annexed the sole question that arises is whether or not the Will is a true one. IT is not open to the probate court to decide whether or not the property with which a testator has purported to deal, in fact, belonged to him. Similarly, in the case of Brij Nath De Vs. Chandar Mohan Banerji ILR 19 Allahabad 458 quoted in Thomas P. Jacob Vs. M.G. Verghese AIR 1987 Kerala 193, it was held that it has been contended that where an application for probate of Will is contested and it is alleged that the property dealt with by the Will was not the testator's or was not property over which the testator had a power of testamentary disposal, it is the duty of the court to try an issue raising this question. All we can say is that it would be exceedingly inconvenient, if courts in this country had to try such issues. A court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in the case. It is much safer in the interests of the public that issues as to the title to property should be decided when the issues are raised in a regular suit, and not on an application for a grant of probate. If the court is not to decide the question as to whether the property to which the testator has purported to deal, in fact, belong to him, it will not be open to the court to decide whether the property in his hand was ancestral property or self : 8: acquired property of the deceased. Therefore, the petition is maintainable. Issue No. 2 is decided accordingly. 10. ISSUE NO. 1
The onus or proving the Will is on the propounder and in the absence of suspicious circumstances, surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even where the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. In order to succeed, the petitioner being the propounder, has to prove that the Will in questions conforms to the requirements of Section 63 of the Indian Succession Act. It must be established that the executant had signed or thumb marked before the attesting witnesses and the attesting witnesses had signed in the presence of the executant. The Will dated 19.12.1994 Exbt. PW-2/1 is a one page typed Will, bearing the signatures of the testator in Urdu with his left thumb impression. It also bears the signatures of Sh. Hari Kishan and Sh. C.M. Bhagchandani, advocate as witnesses. Section 68 of the Evidence Act provides that the Will can be proved by examination of one attesting witness. Petitioner has produced Sh. Hari Kishan to prove the Will. In : 9: his affidavit, Exbt. P-2, Sh. Hari Kishan stated that the Will dated 19.12.1994 was executed by Sh Bhagwan Dass in his presence and also in the presence of Sh. C.M. Bhagchandani, advocate. He stated that the Will was drafted by Sh. C.M. Bhagchandani, advocate. He identified his own signatures at point X and X-1, signatures of the testator and his thumb mark at point Z and that of Sh. C.M. Bhagchandani at point Y. He deposed that all three of them had signed the Will in the presence of each other. In cross examination, he admitted that he is the real brother of the petitioner. He stated that Sh. Bhagwan Dass had called him telephonically at the office of Sh. C.M. Bhagchandani, advocate. He further stated that Sh. Bhagwan Dass knew only Hindi but used to sign in Urdu. He denied the suggestion that the Will was not signed by Sh. Bhagwan Dass and Sh. C.M. Bhagchandani in his presence. The argument of learned counsel of objector is that PW-3 is an interested witness being real brother of the beneficiary and therefore, is not a reliable witness. Merely because the attesting witness is the brother of the beneficiary, will not make him an interested witness. There is nothing in the cross examination of PW-3 which can impeach his testimony. I, therefore, have no reason to disbelieve the testimony of PW-3 only because of the reason that he is the real brother of the beneficiary.
11. It has been argued that the signatures on the Will are forged. However, no handwriting expert has been examined to prove that the : 10 : signatures of the deceased are forged on the Will. PW-3 identified the signatures of the deceased on the Will. Objectors have not produced any document having signatures which look different from the signatures made on the Will. Objector Jai Bhagwan Rohilla in his cross examination has admitted that his father used to sign in Urdu. The Will is also bearing the signatures in Urdu language. RW-1 admitted that the document i.e. Sanitary plan Exbt. RW-1/P1 bears the signatures of his late father in Urdu at point A. On comparison, the signatures on the Will appear to tally with the signatures on the document Exbt. RW- 1/P1. Hence, in my view, petitioner has been able to prove that the signatures on the Will are the genuine signatures of Sh. Bhagwan Dass.
12. It has also been argued that the mental condition of Sh. Bhagwan Dass was not good in the year 1994 as he was a patient of Epilepsy and his hands used to tremble and he could not move or sign properly. Hon'ble Delhi High Court in L.C. Lai and others Vs. State, 2002 VII AD (DELHI) 343 held that the burden of establishing sound state of mind of the testator is on the person propounding the Will, but this burden is very light because there is presumption of soundness of mind in favour of every testator. However unless there is cogent material on record to doubt his capacity to dispose, the court must go by this presumption. The Will was executed on 19.12.1994 while the deceased expired on 23.10.1999. No medical record whatsoever has been produced to prove that the deceased was suffering from Epilepsy : 11 : or that his hands were trembling or that he was not having sound disposing mind at the time of execution of the Will. A bare suggestion given to the witnesses suggesting that the deceased was unable to execute the Will because of the aforesaid problems, are far from sufficient. Hence, the plea taken that the deceased was not in a position to execute the Will, is not acceptable.
13. In her cross examination, petitioner has admitted that objector Shri Kishan is running a shop in the property in question. She has also admitted that Shri Kishan is residing at the first floor having a room, kitchen combined lavatory, bath and open area. She has further admitted that the relations of Sh. Bhagwan Dass with his other sons were cordial at the time of execution of the Will. It has thus been argued that the Will is unnatural as there was no reason for disinheriting the other legal heirs.
14. It must be understood that the disproportionate nature of bequest is not suspicious circumstance for the reason that the whole idea behind the execution of Will is to alter the natural line of succession. The Will is the will of the testator and he has, under law, the freedom to give his property to whomsoever he likes. What strikes the court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound : 12 : disposing and understanding mind. But once it is established that the testator was free and ha a sound disposing mind, it is no longer the duty of the court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the court's own standard. As already discussed, it has been established by the propounder that the testator was fee and had a sound disposing mind. Under these circumstances, the alleged unnaturalness of the Will is no consideration for the refusal of grant of probate.
15. Another point which has been urged is that the Will is in respect of property bearing No. WZ-490 measuring 200 sq. yards. It is argued that the plot of land does not measure 200 sq. yards and is approximately 110 sq. yards. It is submitted that the property bearing No. WZ-490 is built on an area of 55 sq. yards and is a rear portion of the property while property bearing No. 489 is built on a plot of land measuring 55 sq. yards and is a front portion. The objectors have proved the house tax record which are in respect of property bearing No. WZ-489 and WZ-490. Objectors have relied upon the testimony of RW-4 Sh. Sanjay Kumar, Inspector from MCD who deposed that property bearing No. WZ-490 is assessed to house tax in the name of Sh. Pritam Lal. However, the documents proved by the objectors i.e. Exbt. RW-1/C and Exbt. RW-1/E themselves suggest that Sh. Bhagwan Dass was assessed to house tax for both the properties. In any case, the record of house tax is not the proof of ownership of the : 13 : property. As regards the size of the property, petitioner has admitted in his amended petition that the property bearing No. WZ-490 is built on a land measuring 100 sq. yards. The incorrect description of the size of the plot may possibly be due to typing mistake in the Will and therefore, not much importance can be given to this fact.
16. The petitioner has proved the registration of the Will dated 19.12.1994. In the case of Prithi Singh Vs. Saran Singh 2004 (4) RCR (Civil), it has been held that though the registration of a Will is not compulsory, however, its registration goes a long way to show its genuineness and raises a presumption of its validity. In my view, petitioner has been able to prove the due execution and genuineness of the Will of late Sh. Bhagwan Dass. Issue No. 1 therefore is decided in favour of the petitioner.
17. ISSUE NO. 3 (Relief) Petitioner has been named as executor of the Will. In view of my findings on the aforesaid issues, petitioner is entitled to grant of probate. Petition is accordingly allowed. Probate with the copy of the Will Exbt. PW-2/1, annexed thereto, be issued in favour of the petitioner subject to filing the requisite court fees and administration bond with surety. File be consigned to Record Room.
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( RAVINDER DUDEJA ) ADDL. DISTRICT JUDGE: DELHI.
ANNOUNCED IN THE OPEN COURT ON 29.07.2008.