Delhi District Court
Smt. Poonam Verma vs The State on 8 September, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 53/10/07
Unique ID Case No. - 02401C0123872007
1. Smt. Poonam Verma
Wife of late Shri V.K. Verma
R/o A-30, Behind Post Office,
Malkaganj, Delhi- 110007
..........Petitioner
Vs.
1. The State
2. Shri Harish Verma
S/o Late Shri Inder Dev Verma
R/o 76, Whitwell DR,
Brampten, Ontario, Canada
3. Smt. Prabha Sehgal
Wife of Shri Krishan Lal Sehgal,
D/o Shri Inder Dev Verma,
R/o A-30, Behind Post Office,
Malkaganj, Delhi- 110007
4. Smt. Prem Kapur
W/o Shri P.L. Kapur,
D/o Shri Inder Dev Verma,
R/o B-5/5, Plot No. 40, Sector-6
Dwarka, Delhi-110075
5. Shri Kshitij
S/o Late Shri V.K Verma
6. Ms Kopal
D/o late Shri V.K. Verma,
7. Ms Coral
D/o late Shri V.K. Verma
All R/o A-30, Ist floor,
Behind Post Office,
Malkaganj, Delhi-110007
......Respondents
PC No. 53/10/07 Page No 1/27
Date of institution of the case : 05.02.2007
Date reserved for judgment on : 31.08.2016
Date of pronouncement of judgment : 08.09.2016
JUDGMENT:
1 A petition under Section 278 of Indian Succession Act for grant of letter of administration filed by petitioner. In brief the facts are that petitioner is the daughter in law of deceased Sh. Inder Dev Verma S/o late Shri Lal Chand Verma ( hereinafter referred to as 'deceased') and wife of pre-deceased son namely Shri V.K. Verma who was the eldest son of the deceased and died on 18.01.1998. The deceased was the owner of built-up property bearing municipal No. A-30, measuring 100 sq yards situated at Malka Ganj, Delhi-110007, consisting of ground, first, and second floor with its roof right with land underneath with all fittings, and fixtures duly fitted and installed therein electricity, water and sewer connections ( hereinafter referred to as ' property in question' ).
2 The deceased expired at Delhi on 20.01.2007 and had executed a Will dated 19.01.2007 in favour of petitioner whereby bequeathed the property in question in favour of the petitioner. The Will dated 19.01.2007 was the last and final will and the testament of the deceased. The deceased was in good physical and mental health at the time of execution of the will and same was executed with his free will and consent and the same was duly entered into register of the Notary Sh. V.S. Malik, Notary Public. The above said will has been witnessed by marginal witnesses, namely, Dr. Rita Rastogi and one Shi Vishal who had signed the said will in the presence of testator.
PC No. 53/10/07 Page No 2/273 It is stated that petitioner has been named as sole beneficiary and other legal heirs have been specifically debarred from inheriting any right, title and interest. The wife of the deceased Smt. Gurpyari Verma has already expired in the year 2001. It is stated that deceased left behind two daughters Smt. Prem Kapur and Smt. Prabha Sehgal who are well settled and happily residing with their family and husband. The deceased had one more son Sh. Harish Verma. There is no other legal heir of deceased. The petitioner seeks a letter of administration of the property in question in her favour as per the will annexed dated 19.01.2007.
4 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents and citation to general public got published in daily newspaper "Indian Express" dated 19.02.2007.
5 The valuation report in respect of immovable property bearing no. A-30, Behind Post Office, Malkaganj, Delhi- 110007 was called from the concerned Collector and the said valuation report has been filed on behalf of Tehsildar, Kotwali, Delhi. The value of the aforesaid property has been assessed to the tune of Rs. 6,50,227/- (Rupees Six lacs Fifty Thousand Two Hundred Twenty Seven only).
6 Respondent no. 2 Sh. Harish Verma, filed written statement/objections and contents/averments of petition are denied except the fact that deceased was the owner of property in question and petitioner is the daughter in law of the deceased. It is stated that deceased was the father of respondent no. 2 and PC No. 53/10/07 Page No 3/27 died on 20.01.2007. It is further stated deceased was living with respondents sister Smt. Prabha Sehgal who was looking after the ailing father. The relationship between the petitioner and the deceased were not cordial and they were not on visiting terms, therefore, there is no question of execution of alleged will a day earlier of his death in favour of petitioner. The alleged will has been forged by petitioner in collusion with witness who are also a party to the aforesaid fabrication. The will does not appear the signatures nor the thumb impression of the deceased and there is no question of execution of the alleged will by the deceased.
7 It is stated that deceased had left behind one registered Will in favour of respondent no. 2 who has already filed a petition for probate which is pending before the Ld. ADJ, Smt. Bimla Makan. The deceased was never looked after by the petitioner. In fact, they were not on speaking terms for the last several years. The petitioner has never visited the deceased on the ground floor though she was living on the first floor. Even the mother-in-law was not looked after by the petitioner.
8 It is further stated that in fact the answering respondent no. 2 is the only legal heir or interest in the aforesaid property on the basis of registered will which is the last and final will of the deceased. It is stated that present petition is liable to be rejected.
9 Petitioner filed rejoinder to the written statement/objection of respondent no. 2 wherein she denied the objections raised in the objection and reiterated the averments in the petition.
PC No. 53/10/07 Page No 4/2710 Respondent no. 3, Smt. Prabha Sehgal and respondent no. 4 Smt. Prem Kapur filed objections on the same line as of respondent no. 2.
11 Petitioner also filed rejoinder to the written statement/objections of respondent no. 3 & 4 and denied all the averments mentioned in the objections and reiterated the averments mentioned in the petition.
12 Respondent no. 5 to 7 filed NOC in favour of the petitioner.
13 On the basis of the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 31.03.2009:-
1. Whether the Will dated 19.01.2007 executed by Sh.
Inder Dev Verma is genuine, legal and valid as well as duly executed by the testator in his sound disposing mind? OPP
2. Whether the petition is entitled for grant of Letter of Administration, as prayed for? OPP
3. Relief 14 Petitioner Smt. Poonam Verma examined herself as PW-1 and tendered her evidence by way of affidavit Ex. P1. Petitioner further examined Dr. Rita Rastogi, attesting witness and PW-3 Sh. Vishal another attesting witness. PW-4 Sh. Kshitij Verma grand son of deceased. Vide separate statement of counsel for the petitioner the evidence of the petitioner was closed on 09.05.2012.
PC No. 53/10/07 Page No 5/2715 Respondent Harish Verma examined himself as RW-1 and RW-2 Smt. Prabha Sehgal. Vide separate statement of ld. counsel for the respondent no. 2 evidence on behalf of respondent's was closed on 08.07.2014.
16 I have heard counsel for petitioner Sh. D.S. Sidhu and Sh. Y.P. Ahuja counsel for respondents and also gone through the written submissions filed on behalf of petitioner. I have also gone through the record . My finding on issues is as follows: -
17 Issue No. 1 & 2The issue no. 1 & 2 are interconnected, therefore, taken up together.
Let us scrutinize and examine the testimonies of witnesses of the parties. Petitioner Poonam Verma examined herself as PW-1 and proved her affidavit as Ex. P1. She deposed in her affidavit that she is the daughter-in-law of deceased Inder Dev Verma son of late Shri Lal Chand Verma and wife of pre- deceased son namely Sh. V.K. Verma who was the eldest son of deceased. The deceased was the owner of built-up property bearing Muncipal No. A-30, measuring 100 sq yards situated at Malka Ganj, Delhi and died on 20.01.2007. Before his death he had executed a Will dated 19.01.2007 in her favour whereby he bequeathed his above mentioned property in her name. She proved the Will Ex. PW-1/1 and death certificate of the deceased as Ex. PW-1/2.
18 She further stated that Will dated 19.01.2007 was the last and final Will/testator of the deceased and at the time of execution of the said Will dated 19.01.2007 the deceased was in PC No. 53/10/07 Page No 6/27 good physical and mental health. He executed the Will with his free will and consent and the same was duly attested by the Notary Public, Delhi and registered in the Notary Register at Registration No. 25/85, dated 19.01.2007 with Mrs V.S. Malik, Notary Public Delhi. The said will was executed by the deceased in the presence of marginal witnesses namely Dr. Rita Rastogi and one Shri Vishal and both of them had also signed the said Will in the presence of the testator. The deceased named petitioner as the beneficiary in the Will dated 19.01.2007 and other legal heirs have been specially debarred from inheriting any right, title and interest in the property in question. The deceased was being looked after and due care was being given by her and her husband Sh. V.K. Verma.
19 She further stated that other son Harish Verma and two daughters Smt. Prem Kapoor and Smt. Prabha Sehgal are well settled and son Harish Verma was also given his share from the movable and immovable properties long back. After the death of deceased, father in law she has became owner of the property as mentioned above by virtue of Will dated 19.01.2007 and other legal heirs of the deceased have no right, title and interest in the property.
20 In the cross-examination she deposed that her husband died on 18.01.98 and she is blessed with one son and two daughters. Deceased, Sh. Inderdev Verma, father in law, was living at the ground floor. Her mother in law died on 25.01.2001.
She admitted that deceased, father in law was living on the ground floor with her elder daughter Ms Prem Kapoor. She came to the property after the death of mother in law on 25.01.2001.
PC No. 53/10/07 Page No 7/27She denied that the relations were strained with father in law and mother in law after the death of her husband in 1998.
21 She denied that her father in law lodged a FIR at Police Station against her. She admitted that deceased, father in law not suffering from any disease prior to his death. The deceased used to operate the bank account. She denied that the deceased had informed about the Bank of India in writing that he was unable to put his signatures on account of his old age and illness. She admitted that deceased, father in law used to withdraw the amount by affixing thumb impression.
22 She further deposed that Harish Verma has been living out side India since 1987-88. Her daughters got married in the year 1999 and 2001. She denied that deceased, father in law had not attended the marriage of her daughter in 1999 and 2001. She categorically deposed that she got the photographs of marriage of both daughters showing father in law attended the marriage. She further deposed that photographs can be produce in the court.
23 She deposed that deceased, father in law was not medically treated by any doctor. She denied the knowledge of Will Ex. PW-1/1 again said she had seen the will first time at Kashmere Gate on 19.01.2007 when it was notarised. She specifically deposed to a question that she herself, her sister Dr. Rita Rastogi , her father in law and her son Kshitiaj were went o Kashmere Gate for getting the Will Ex. PW-1/1 notarized and one Vishal Sharma also joined there. They went to Kashmere Gate at about 2.45 p.m. and returned at about 3.30 p.m. She denied the PC No. 53/10/07 Page No 8/27 knowledge of earlier will of deceased, father in law. She deposed that her father in law died on 20.01.2007 i.e next date of the notarization of the Will . She came to know at about 7.40 a.m. in the morning. She denied that deceased, father in law never went to Kashmere Gate on 19.01.2007 and Will Ex. PW-1/1 does not bear the signature/thumb impression of his father in law.
24 She further denied that Will Ex. PW-1/1 is forged in collusion with her sister and one Vishal who are shown as attesting witnesses. She denied that the Will Ex. PW-1/1 at point A & B does not bear the signatures/thumb impression of deceased. She admitted that thumb impression/signatures of the deceased, father in law, might be available with the bank. She further deposed that Will Ex. PW-1/1 was handed over by the deceased, father in law, after getting the same notarized at Kashmere Gate on 19.01.2007 but no signatures were obtained for handing over.
25 She admitted that she has not disclosed in her affidavit that Dr. Rastogi is her sister. The mother of another attesting witness Vishal is her friend. He came to her house in summer, 2006 with his mother. The deceased, father in law was 86-87 years on the day he died but she does not know the age of the deceased when the photographs mark X on Ex. PW-1/1 was taken. She admitted that she had read the Will at residence before going to Kashmere Gate on 19.01.2007.
26 She further deposed that she cannot tell the details of fraud committed by Harish Verma and others. She deposed that she cannot tell the details about nominees of the deceased, PC No. 53/10/07 Page No 9/27 father in law in banks. But in next breath she deposed that Smt. Prem Kapoor is nominee in Punjab National Bank. The court has made observation regarding the conduct of the witness as she has been changing her version after each and every question put to her. She was directed to reply properly. She deposed that she had gone through the contents of the Will dated 13.08.2001 during the inspection and the Will is registered and it contains certain personal remarks.
27 In further cross-examination she deposed on 09.05.2012 that she could not brought the photographs of the marriage of her both daughters showing deceased, father in law was attending the marriage. She denied the suggestion that deceased, father in law, did not attend the marriage of her two daughters. She admitted the certified copy of the Will dated 13.08.2001 Ex. PW-1/R1 executed by deceased. She deposed that at the time of marriage of her daughters mother in law was ill and residing at her elder daughter.
28 She admitted that the present petition has been filed within 13 days of death of deceased, father in law. She denied the suggestion that Will Ex. PW-1/1 is forged in connivance with her sister Dr. Rita Rastogi. She again denied the suggestion that deceased, father in law lodged a complaint with the police against her.
29 PW-2 Dr. Rita Rastogi, proved her affidavit Ex. P-2. She deposed that she is family friend of the petitioner. The petitioner was being look after the deceased and taken the due care. She further stated in her affidavit that on 19.01.2007 Sh.
PC No. 53/10/07 Page No 10/27Inder Dev Verma executed a Will in her presence and she was attesting witness and identify the signatures at point B Ex. PW- 1/1.
30 In the cross-examination she deposed that petitioner has three children out of which two are married. But she was not able to disclose the dates and years except of 2001 when elder daughter was married. She denied the suggestion that deceased and his wife never attended both marriage. The husband of petitioner died in the year 2000. She admitted that petitioner is residing on the first floor of the property and deceased used to reside at ground floor. She denied that relations of petitioner were not good with her in laws. She admitted that one daughter of Inder Dev Verma, deceased was residing at ground floor. She denied that deceased was being look after by his one daughter only.
31 She further deposed that she does not know when and what time Inderdev Verma was died. But she came to know at about 11-12 A.M on that day and reached there. She admitted that petitioner Poonam Verma is her real sister but not mentioned in the affidavit. She further deposed that on 19.01.2007 at about 3 P.M the will was executed. Besides her a friend of deceased, petitioner and Karan Verma were present. She does not know who drafted the Will and got typed as it was already drafted and typed. She deposed that she was called to become a witness by deceased.
32 She deposed to a specific question that deceased was in a sound mind for last several months. She deposed that he PC No. 53/10/07 Page No 11/27 was not bed ridden as he was not unwell. She further deposed that Will was notarized in her presence. The second witness was also present there but she does not know the relation of petitioner with Vishal. She denied the suggestion that deceased was not able sign the documents. She denied that petitioner has forged the Will with her help. She denied that deceased never went to Kashmere Gate to get Will notorized. She denied that petitioner was not of visiting terms with deceased.
33 She denied the knowledge regarding the execution of the another will in 2001 by deceased. She deposed that about 2/3 months prior to execution of the Will Ex. PW-1/1 she met the deceased. She denied the knowledge of lodging of complaint by deceased against the petitioner with police. She denied that petitioner never visited the ground floor after the death of her husband as relation were strained. She denied that Will Ex. PW- 1/1 was not signed by deceased and also does not bear the thumb impression at point A & B. 34 PW-3 Sh. Vishal proved his affidavit Ex. PW-3/A which contains the same contents as of PW-2 Dr. Rita Rastogi. In the cross-examination he deposed that petitioner is friend of her mother for the last 15 years. The husband of the petitioner died in 1998. He did not attend the marriage of two daughters of petitioner. He does not know whether deceased was suffering from any disease from one and a half years prior to his death. He is not aware that deceased was looked after by her daughter.
35 He further deposed that will was signed at Kashmere Gate. At that time petitioner, her son, her sister were also PC No. 53/10/07 Page No 12/27 present. He further deposed that he was told that will was prepared by one Advocate but he does not know his name. He denied the knowledge of relations between petitioner and deceased, father in law became strain after the death of husband of petitioner. He denied that will is not signed or thumb impression put by deceased. He deposed that he signed the will after the deceased and Dr. Rita Rastogi. He denied that deceased was not in a position to put his thumb impression on account of his bad health. He denied that he put his signatures just to help petitioner who has fabricated the Will. He denied that deceased never came to Kashmere Gate for the alleged Will notarization by notary Advocate Mrs V.S. Malik. He admitted that he never seen deceased, Sh. Inderdev Verma signing any document in his presence except this will Ex. PW-1/1. He further deposed that he came to know that Sh. Inderdev Verma died in the next morning. He denied the suggestion that will is forged by the petitioner and he had signed in collusion with her.
36 PW-4 Kshitij Verma proved his affidavit as Ex. PW-4/A. In the cross-examination he deposed that he saw the Will Ex. PW- 1/1 on 19.01.2007 at about 11 A.M-12 Noon for the first time when it was shown to him by his grand father. At that time it bears only the signatures of grand father. Second time he saw the Will at Kashmere Gate. He denied the suggestion that deceased, grand father never went to Kashmere Gate to get will notarized and or he did not accompany him. He denied the suggestion that he is making false statement. He deposed that Dr. Rita and Vishal met them at Kashmere Gate. Vishal is their family friend. He deposed that his grand father died a natural death he was not now ill prior to his death.
PC No. 53/10/07 Page No 13/2737 He further deposed that he and his mother petitioner looked after the wife of the deceased when she was hospitalized and his aunt ( Bua) Ms Prem Kapoor used to come to visit her at the hospital. He denied that he and his mother's relations were strained with grand father and grand mother after the death of his father. He admitted that his Bua came to reside at the property in question in the year 2001-02. He denied that his Bua Ms Prabha Sehgal shifted her house. He deposed that she came on the pretext of studies of her children for the purpose of take possession of the property, she has also made a statement in the court. She does not claim any share in the property in the case filed by Harish Verma. He admitted that he has read the present case file and other connected case file titled Harish Verma and state. He admitted that he has read the will filed by Harish Verma when received the summons. He denied the suggestion that he and his mother did not accompany grand father to Kashmere Gate for the purpose of notarizing the Will.
38 Respondent Harish Verma appeared in witness as RW- 1 and proved his affidavit Ex. RW-1. In the affiavit he stated about the facts of registration of will dated 13.08.2001 executed and registered by deceased, father. He stated that the Will Ex. PW-1/1 is forged and fabricated by petitioner with the collusion of Dr. Rita Rastogi, her sister. He stated that deceased, father was not in a position to go to Kashmere Gate on 19.01.2007 and he was not in sound and disposing mind. The will dated 19.01.2007 not signed by deceased and also doe not bears his thumb impression.
PC No. 53/10/07 Page No 14/2739 He further stated that two power of attornies given to Mr. P.L. Kapoor, one is Special and other General Power of attorney. In the cross-examination he deposed that deceased Sh. Inderdev Verma had two sons, one himself and other elder brother Sh. Varinder Kumar Verma who was working in Punjab National Bank and expired on 18.01.98. He was working as technician with M/s Uptron India Ltd and left for Canada in 1988. Thereafter family also joined after six months. He denied that he had settled all his accounts with his father before leaving for Canada and also disposed off all his household articles. He admitted that he and his family members are Canadian citizen. But he has not mentioned permanent address of Canada.
40 He admitted that he was not present when the Will was registered on 13.08.2001. He further deposed that his father had told him that he went to Amritsar to get Will registered and accompanied with one Sh. Santhok Singh advocate and one Vishwamitra Mahajan. He deposed that Vishwamitra Mahajan is not related to Mr. P.L. Kapoor. He does not know those two persons. He deposed that he has no knowledge why deceased got registered Will at Amritsar. He denied that on the ground floor his family was residing with parents and elder brother Varinder Kumar Verma and his family was residing on first floor and second floor. He denied that he had no good relations with his parents while he was residing there that is why he left India.
41 He denied that he was not in possession of sufficient funds to go to Canada. He denied that his father had executed another Will dated 19.01.2007 in favour of Poonam Verma, petitioner. He denied that his father himself gone to Kashmere PC No. 53/10/07 Page No 15/27 Gate. He denied that Will dated 19.01.2007 is genuine, legal, valid and duly executed by his father and attested by two attesting witnesses. He denied that his father was in sound physical and mental health.
42 He further deposed that he kept visiting India after 1988, first time in 1996 and thereafter he kept on visiting every 2-3 years. He admitted that he did not come at the time of death of his elder brother and also did not attend the cremation and last rites of his mother. He denied that his father was having good relations with petitioner. He denied that his father had attended the marriage of daughters of petitioner. He denied that his mother was not hospitalized at the time of marriage of daughter of petitioner. He denied that after 1988 petitioner, her husband and children used to look after the parents. He deposed that his sister Prabha Sehgal used to reside in Punjab and she came to Delhi one week before the death of his mother on 25.4.2001 and used to reside at ground floor.
43 He further deposed that he is not aware of snatching of pension paper on 28.3.2004 by the husband of Ms Prabha Sehgal and a police complaint was lodge. He denied that in the year 1998, December he had broken open the locks of the first floor and the Barsati floor of the property and matter was reported to police and he apologized. However, he admitted that matter regarding the opening of Kundi of the top floor was compromised.
44 He deposed that in December 2001 his father had lodged a complaint case against the petitioner with the police for PC No. 53/10/07 Page No 16/27 harassment. He denied the knowledge that his sister had withdrawn the amount lying in the bank account of deceased. He denied the knowledge of filing of petitioner for grant of Succession Certificate of his father. He deposed that he had received the Will dated 13.08.2011 executed by his father in the year 2005 and handed over to him. He identified the Will when shown to him lying in P.C. No. 62/10/07. He denied that the Will dated 13.08.2001 was not executed by his father or got registered or does not bear the signatures. He denied that the attorney was not given in the case of Poonam Verma. In the year 2007 he had visited the India in March but could not purchased the stamp papers for execution of power of attorney. He admitted that Special Power of Attorney in respect of case filed by Poonam Verma. Special Power of Attorney was prepared and attested by his counsel. He denied the suggestion that Special Power of Attorney and General Power of Attorney are forged and fabricated. He denied that affidavit Ex. RW-1/A prepared by his counsel and he simply signed. He denied that the Will dated 19.01.2007 executed by Inder Dev is genuine and deceased was in sound disposing mind.
45 RW-2 Smt. Prabha Sehgal proved her affidavit Ex. RW- 2/A. In the affidavit she stated that deceased was not having relations with petitioners who was residing at first floor of the property. She had started residing after the death of her mother with deceased father. Deceased had left no Will dated 19.01.2007, same is forged and fabricated as he died on 20.01.2007 at about 12.55 a.m. The said will is totally fabricated by petitioner with the help of attesting witnesses. Deceased had not gone out of the house on 19.01.2007. She further stated that PC No. 53/10/07 Page No 17/27 on 13.08.2001 the last will of the deceased was executed at Amritsar. The will dated 19.01.2007 also not bears the signatures and thumb impression of deceased.
46 In the cross-examination she deposed that they are two brothers and two sisters. She does not remember when elder brother Sh. Virender Verma died. She admitted that Harish Verma has migrated to Canada before the death of Virender Verma. She denied that when Harish Verma migrated to Canada he has taken his share of property from his father. She admitted that Harish Verma and his family permanently settled at Canada and are Canadian Citizen. She admitted that Sh. P.L. Kapoor residing with her in-laws since her marriage at Dwarka, Delhi.
47 She further deposed that she was married in 1975 and started living at Hoshiyarpur, Punjab. Her parents used to reside on the ground floor of the suit property. She denied that petitioner Poonam Verma and her husband used to take care of parents and also provided medicines and food. She denied that she came to Delhi not to look after her father but my intention was usurp the ground floor of the property. She admitted that his husband joined her at Delhi after 1 ½ years and started working at Model Town, Delhi and now her entire family has come to Delhi permanently.
48 She denied that her father used to come to her and used to talk with petitioner and grand children. She further admitted that she had come to Delhi for education of his son who completed B.Com and MBA. She deposed that her father told that he had executed a Will, showed the will but she could not read the same and also told that it was registered at Amritsar where her Mausi resides.
PC No. 53/10/07 Page No 18/2749 She denied the knowledge of the fact that Harish Verma had broken the lock of the Barsati on the second floor and Poonam Verma had lodged any police complaint. She deposed that Harish Verma Came to Delhi stayed ground floor and came 3-4 times. Last time he came to Delhi in 2013. She further deposed that her father had handed over a registered will in favour of Harish Verma to her at the time of visit of Harish Verma to Delhi. She denied that her father had executed the will in favour of petitioner. She denied that will executed in favour of Harish Verma was not genuine. She denied that her father was being looked after by petitioner and her children. She specifically deposed that her father never attended the marriage of daughter of the petitioner. She denied that his father was in proper physical condition to go to register office at the time of registration of the Will. She denied that will bears the signatures and thumb impression of her father. She denied that Harish Verma in collusion with her and another had withdrawn the entire amount from the bank account belonging to deceased. She denied that at the time of migration to Canada Harish Verma had taken his share in the property. She denied that in collusion with Mr. P.L. Kapoor and his wife a false and forged will prepared at Amritsar. She deposed that she has been authorised by Sh. Harish Verma to reside at the ground floor of the suit property.
50 In order to appreciate the evidence of the parties, let us go through the well settled principle of law laid down by several judgments which are mentioned herein after.
51 In order to prove the Will, the propounder has to show that the Will was signed by the testatrix; that he was at the PC No. 53/10/07 Page No 19/27 relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testatrix is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testatrix's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Reliance is placed on H. Venkatachala Iyengar Vs B.N. Thimmajamma, ( (1995) Supp.1 SCR 426 and Rani Purnima Devi Vs Kumar Khagendra Narayan Dev, (1962) 3 SCR 195.
PC No. 53/10/07 Page No 20/2752 The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testatrix has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propunder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testatrix alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Reference is made to Benga Behera and Anr. Vs Braja Kishore Nanda and Ors., MANU/SC/7673/2007; Madhukar D. Shende Vs Tarabai Shedage, MANU/SC/00162002; and Sridevi and Ors. Vs Jayaraja Shetty and Ors (2005) 8 SCC 784.
53 The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear evidence that the puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor PC No. 53/10/07 Page No 21/27 of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
54 In the present case, the propounder has to demonstrate that the Will was signed by testatrix and that he has at the relevant time in a sound disposing state of mind and that he understood the nature and effect of disposition and further he has put his signatures to the testatment of his own freewill and that he has signed in the presence of two witnesses which has attested it in his presence and in the presence of each other. It has been expounded that a combined reading of Section 63 of the Act and Section 68 of 1872 Act, it was apparent that mere proving of signature of testatrix of the Will is not sufficient and attestation thereon was also to be proved as required by Section 63 (c) of the Act. It was however, emphasized that though Section 68 of the 1872 Act permits proof of a document compulsorily required to be attested by one attesting witnesses, he/she should be in a position to prove the execution thereof and if it is a Will in terms of Section 63 (c) of the Act viz attestation by two attesting witnesses in the manner as contemplated therein. It was exposited that if the attesting witness examined besides his attestation does not prove the requirement of the attestation of the will by the other witness, his testimony would fall short of attestation of the will by at least two witnesses for the simple reason that the execution of the will does not merely mean signing of it by the testatrix but connotes fulfilling the proof of all formalities required under Section 63 of the Act.
PC No. 53/10/07 Page No 22/2755 The principle of law and the evidence of the parties have been discussed hereinabove in detail. The vital witness of the petitioner in order to prove that the will of deceased as legal and genuine is PW-2 Dr. Rita Rastogi, attesting witness to the Will Ex. PW-1/1. In her affidavit she has not deposed the important legal facts that both the attesting witnesses and deceased/testator signed the will on 19.01.2007 in the presence of each other. She also not identified the thumb impression/signatures of testator and other witness Sh. Vishal. The important fact is that she during cross-examination admitted to be the real sister of petitioner and this fact has been concealed and suppressed by the petitioner and PW-2 Dr. Rita Rastogi during their chief examination. It also established that the attesting witness Dr. Rita Rastogi was not on visiting terms with the deceased Sh. Inder Dev Verma although she is the real sister of the petitioner. In her whole testimony the ingredient of Section 63 of Indian Succession Act read with Section 68 of Indian Evidence Act are not fulfilled. The testimony of PW-2 failed to establish that deceased testator at any point of time having cordial relations and called her to become witness. On the contrary, it is established that she is the real sister of petitioner and attested the will Ex. PW-1/1 at instance of petitioner not at the instance of deceased/testator.
56 Similarly PW-3 Sh. Vishal is also silent in his affidavit Ex. PW-3/A with regard to identification of thumb impression and signatures of deceased and also failed to identify the signatures of other witness. He is the son of very close friend of petitioner. He has no relation or acquittance with the deceased as per his testimony. He had never seen the deceased either signing or PC No. 53/10/07 Page No 23/27 putting thumb impression on any document or even visited the deceased prior to date of execution of the alleged will. Hence, both the attesting witnesses are close and near to petitioner instead of deceased. Therefore, their testimonies do not inspire confidence and suffered from legal lacuna and unbelievable. It is unnatural and improbable for a person to call such attesting witness in natural course who are neither related nor having any concern with the deceased. The testimony of both the witnesses established that both are the close person to the petitioner not to the deceased and signed under the influence of petitioner as attesting witness to the Will Ex. PW-1/1.
57 PW-1 perpounder of the will, Poonam Verma established important facts that deceased was living at the ground floor of the property in question and she was living at first floor. The testimony further established that her husband died on 18.01.1998. The detailed cross-examination further established that both were not having cordial relations. It has come on record that deceased himself has lodged FIR against her although she denied. The FIR has not been filed on record but it established that tone and tenure of relations that were not cordial but strained.
58 It is further established on record that parents in law did not attend the marriage of either of the daughter of the petitioner. Although in her cross-examination she claimed that she got photographs where father in law, deceased was attended the marriage of her daughter. But later on she could not produced the photographs of the said marriages of both daughters. Even the court has made specific observation, when PC No. 53/10/07 Page No 24/27 she was answering the question during cross-examination about her demure of changing of her version. The testimony of PW-1 Poonam Verma established that the relations of deceased with her were not cordial and strained to the extent that both the parents-in-law did not attend the marriage of both the daughters. It also proved that even petitioner and deceased were not in talking terms. In these peculiar circumstance it is un-natural and unbelievable that deceased could have executed the will Ex. PW- 1/1 in her favour few hours prior to his death.
59 Now coming to the another important aspect of the Will Ex. PW-1/1. It is admitted on record that the will was executed on 19.01.2007 in the after noon around 2.30 to 3.30 P.M and next mid night on 20.1.2007 deceased had died. Although according to petitioner he was not suffering from any disease or incapable of physical or mental faculty. In these circumstances when it is the case of the petitioner that will was notorized at Kashmere Gate then it is necessary to examine Notary. But petitioner failed to produce the Sh. V.S. Malik, Notary Public.
60 Another important aspect is that it is admitted case of the petitioner that she alongwith two attesting witnesses, namely, Dr. Rita Rastogi and his son and Sh. Vishal and the deceased went to the Kashmere Gate. Here I would like to mention the testimony of RW-2 Mrs Prabha Sehgal, daughter of the deceased. It established on record that after the death of deceased's wife in the year 2001 RW-2 Mrs Prabha Sehgal was residing at the ground floor alongwith deceased. She testified that on 19.01.2007 the deceased did not leave the house. In case the petitioner has taken him to the Kashmere Gate then she PC No. 53/10/07 Page No 25/27 must have known this fact. It is pertinent to mention here that it is not possible when relations are so strained then how deceased would voluntarily go to Kashmere Gate just few hours of his death to execute the will in favour of the petitioner alongwith her. Therefore, the circumstances are grave and suspicious and petitioner is not able to dispel the suspicion arose with regard to the execution of the Will on 19.01.2007 few hours prior to the death. Not only this the role played by the petitioner as per her own admitted case that she took the deceased for execution of the will alongwith her known witnesses is also established the suspicious circumstances and the influence used by her in execution of the will being the sole beneficiary of the will.
61 In my considered opinion it is under grave suspicion that the deceased Sh. Inderdev Verma could had executed the will Ex. PW-1/1 on 19.01.2007 few hours prior to his death leaving the house alongwith petitioner. The circumstances becomes more suspicious as both the attesting witnesses are very closed and known to petitioner not to the deceased. In addition to it both the attesting witnesses failed to fulfill the mandatory legal requirements. As per circumstances proved on record It is highly improbable and un-natural when the relations were so strained with the deceased then on 19.01.2007 why deceased had taken the decision to go to Kashmere Gate alongwith petitioner and her son to execute will Ex. PW-1/1 in favour of petitioner. It is further admitted case of the petitioner that the present petition has been filed after 13 days of the death of the deceased even she has not waited to complete all the last ceremonies of deceased. The conduct of the petitioner is also grave and suspicious. The petitioner failed to established PC No. 53/10/07 Page No 26/27 that deceased had executed legal and genuine Will Ex. PW-1/1 in her favour on 19.01.2007.
62 On the basis of above observation and discussion, the petitioner failed to prove the issue no. 1 & 2, therefore, decided against the petitioner and in favour of the respondents 63 Relief In view of my finding on issue no. 1 & 2 the present petition is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 8th September, 2016 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 53/10/07 Page No 27/27
PC No. 53/10/07 Page No 28/27