Delhi District Court
Col. Vijender Kumar Mittal ( Retd.) vs The State on 7 February, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 07/09
New P.C. No. 16065/16
Col. Vijender Kumar Mittal ( Retd.)
S/o Late Shri Devi Ram Mittal,
R/o House No. 1090, Sector-02
Panchkula ( Haryana)
..........Petitioner
Versus
1 The State
.....Respondent no. 1
2 Smt. Veena Goel
W/o Shri Manmohan Dayal Goel,
R/o House No. -161, Haapur Road,
Chanderpuri, Ghaziabad ( U.P.)
.....Respondent no. 2
3 Smt. Manju Mittal
W/o Col. Vijender Kumar Mittal ( Retd.)
R/O House No. 1090, Sector-02
Panchkula ( Haryana)
.....Respondent no. 3
4 Smt. Aruna Mittal
W/o Shri Kishan Chand Mittal
R/o Flat No. C-107, East End Apartments
Mayur Vihar Phase-I,
Delhi- 110096
.....Respondent no. 4
5 Smt. Renu Gupta
W/o Shri Gyanender Gupta,
R/o C-102, HIG, Rajender Nagar,
Bareilly ( Utter Pradesh)
.....Respondent no. 5
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 1/45
PC No. 23/09 Deepak Garg Vs State & Ors
6 Shri Deepak Garg
S/o Late Shri Seva Ram Garg,
R/o House No. D-31,
Mansarover Garden,
New Delhi- 110015
.....Respondent no. 6
Date of institution of the case : 05.06.2009
Date reserved for judgment on : 24.01.2018
Date of pronouncement of judgment: 07.02.2018
Probate Case No.- 23/09
New P.C. No. 16078/16
Shri Deepak Garg
S/o Late Shri Sewa Ram Garg,
R/o D-31, Mansarover Garden,
New Delhi- 15
....Petitioner
Versus
1 The State
2 Smt. Veena Goel
D/o Late Shri Sewa Ram Garg
W/o Shri Manmohan Dayal
R/o 161, Chanderpuri,
Hapur Road,
Ghaziabad ( U.P.)
3 Smt. Manju Mittal
D/o Late Shri Sewa Ram Garg
W/o Col. Vijender Kumar Mittal
R/O House No. 1090, Sector-02
Panchkula, Haryana
4 Smt. Aruna Mittal
D/o Late Shri Sewa Ram Garg
W/o Shri Kishan Chand Mittal
R/o C-107, East End Apartments
Mayur Vihar Phase-I,
Delhi
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 2/45
PC No. 23/09 Deepak Garg Vs State & Ors
5. Smt. Renu Gupta
D/o Late Shri Sewa Ram Garg
W/o Shri Gyanender Gupta,
R/o C-102, Hig, Rajender Nagar,
Bareily ( U.P.)
....Respondents
Date of institution of the case : 03.08.2009
Date reserved for judgment on : 24.01.2018
Date of pronouncement of judgment: 07.02.2018
JUDGMENT:
1 Vide this judgment two cases bearing P.C No. 07/09 and P.C. No. 23/09 are decided by a common judgment and evidence in both the cases also clubbed vide order dated 23.08.2010.
2 In the case bearing P.C. 07/09 titled as Col. Vijender Kumar Mittal ( Retd.) Vs State & Ors a petition under Section 276 of the Indian Succession Act, 1925 for grant of Probate Certificate with Will annexed, in respect of the Last Will and Testament dated 13th May, 2009 executed by late Shri Seva Ram Garg S/o late Shri Qabul Singh has been filed.
3 In brief the facts are Shri Seva Ram Garg S/o late Shri Qabul Singh (hereinafter referred to as "deceased" ) was the permanent resident of House No. D-31, Mansarover Garden, New Delhi-110015 and he died on 1st June, 2009 at the age of about 90 years.
4 It is stated that deceased during his life time executed his last and final Will and Testament on 13 th of May, 2009 while revoking his previous Will, in respect of his immovable property bearing no. D-31, Mansarover Garden, New Delhi- PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 3/45 PC No. 23/09 Deepak Garg Vs State & Ors 110015 ( hereinafter referred to as ' property in question' ), fixed deposit amount of Rs.3,00,000/- which was invested by the deceased under Senior Citizen Scheme in State Bank of India, mansarover Garden, New Delhi, a Pension Saving Bank Account bearing no. 10505633378 with State Bank of India, Mansarosver Garden, New Delhi and a fixed deposit amounting to Rs. 2,00,000/- with State Bank of India, Mansarover Garden, New Delhi.
5 It is stated that deceased executed his last and final Will and Testament on 13th of May, 2009 in the presence of two independent witnesses namely Shri Trilok Chand Sharma R/o Flat No. C-109, East End Apartments, Mayur Vihar Phase-I, Delhi- 110096 and Shri Satish Chand Sharma, R/o Flat No. C-94, East End Apartments, Mayur Vihar Phase-I, Delhi-110096. The petitioner who is a son-in-law of the deceased was/is appointed as an executor of the Will by the deceased.
6 It is stated that deceased testator was the absolute and sole owner of the property in question. The deceased executed the Will with his own sweet Will, in sound deposing mind and without any undue pressure, threat or coercion from any corner whatsoever. The deceased/testator was survived by four daughters and one son as mentioned respondents in the memo of parties hereinabove.
7 It is stated that wife of deceased Smt. Pushpa Garg was expired during the life time of the deceased/testator. Petitioner seeks Probate Certificate with Will annexed dated 13 th May. 2009 in his favour.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 4/45 PC No. 23/09 Deepak Garg Vs State & Ors 8 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Statesman " dated 24.07.2009 .
9 The valuation report in respect of immovable property was called from the concerned SDM/Tehsildar and accordingly, Astt. Collector GR-II ( Rajouri Gardn) filed valuation report in respect of property bearing No. D-31, Mansarover Garden, New Delhi and assessed the value of the same as Rs. 62,59,160/-.
10 It is pertinent to mention here that respondent no. 2, 3, 4 & 5 filed No Objections in favour of the petitioner.
11 Objections filed on behalf of respondent no. 6 Shri Deepak Garg and stated that petition under reply is not maintainable under the law as is based upon false and manufactured document.
12 It is stated that objector has already filed a petition under Section 276 of the Indian Succession Act for the grant of a Probate in respect of the Will dated 02.01.2009 executed by late Shri Sewa Ram Garg/deceased. The said Will is a registered document which was presented before the Sub-Registrar, Janakpuri on 02.01.2009 it self. The attesting witnesses Shri Bhagat Ram Goel R/o D-40, Mansarover Garden, New Delhi and Shri Amar Nath Seth R/o F-59, Mansarover Garden, New Delhi both local witnesses, accompanied the deceased for its registration. The deceased had duly stated about his sound PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 5/45 PC No. 23/09 Deepak Garg Vs State & Ors health and sound disposing state of mine . The Will dated 02.01.2009 was executed and got registered with a free will and without any pressure, compulsion or under undue influence or coercion from any corner whatsoever.
13 It is stated that objector being the only son was well looking after his deceased father and both were very happily living together in property in question. There was absolutely no occasion to have validity and truly executed any other Will, which now the petitioner desires to introduce with the allegations that the same was dated 13th May, 2009. It is stated that deceased, father of objector died on 1st June 2009 while residing with his son/objector in the property in question.
14 It is stated that the fabricated and manufactured Will is even otherwise not inspiring any confidence. Firstly the Will executed on 02.01.2009 was got duly registered by physically visiting the Sub-Registrar's office at Janak Puri. In the fabricated Will there is mention of a Will dated 22.10.2007 where it is alleged that deceased was at that time at C-107, East End Apartment, New Delhi. It is also mentioned that during January 2009 the objector made him to execute another Will. The same was got registered. No particulars of registration or dates are given, which clearly put a cloud over the present petition.
15 It is stated that deceased due to old age had fallen ill and during the month of April 2009 his condition remained deteriorating day by day. All this time he was immobile and not in a fit position to move or talk even. He was constantly looked after and provided all medical facilities by the objector. The PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 6/45 PC No. 23/09 Deepak Garg Vs State & Ors contents of this alleged Will are clearly creating suspicious circumstances about the execution of Will. Apart from the registered Will dated 02.01.2009 no other Will was executed or even mentioned at any time.
16 It is stated that a serious suspicious circumstances is that the Will under challenge is a false and fabricated document on the face of it. It is running into into three pages, loosely drafted there are about three alleged signatures which all differ in all respects. Even the procured witnesses are not at all concerned or know to deceased. These persons were never seen even by the locality people meeting the father of objector or visiting him at any time.
17 It is stated that FDR for Rs. 2,00,000/- mentioned in the false Will was much earlier credited father's account. There were two electricity meters both were in the name of his deceased father. For the preparation and registration of Will dated 02.01.2009 lawyers expenses/fee was paid by father through his own account. The entire property in question was used and occupied by the objector Shri Deepak Garg with his father. They were living as one unite and using the property comfortably. Objector seeks dismissal of the present petition.
18 Petitioner filed reply to the objection of respondent no. 6 and denied all the objections and it is stated that present probate petition has been filed by the petitioner much before the petition bearing no. 23/2009 filed by the objector. The Will dated 02.01.2009 is neither the last Will of deceased nor it was executed by the deceased with his own free Will and in fact he PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 7/45 PC No. 23/09 Deepak Garg Vs State & Ors was threatened and forced by the objector no. 6 to execute the same. This fact was disclosed later on by deceased to his daughters and son-in-law, the petitioner and Shri Kishan Chand Mittal. The deceased executed his last and final Will on 13.05.2009 in which he specifically revoked his previous Will dated 02.01.2009.
19 It is stated that the perusal of the Will dated 02.01.2009 clearly shows that it is a stereo-type drafted Will and nothing has been specifically mentioned in the Will. It is denied that deceased was living with the objector no. 6 till his death in the property in question. In fact the objector no. 6, his wife and their children never looked after his lat father properly. The deceased was not happy with the attitude of his son, daughter-in law and their children towards him. The deceased was residing in the front portion of the property in question. It is stated that kitchen of deceased was separate and he had engaged a full time maid servant who used to wok and cook food for him. The electricity meter of deceased was also separate. The deceased used to reside with his daughters at their respective residence. The deceased after 20.10.2008 resided at Mansarover Garden till his death but all the daughters and son-in-law used to visit to Mansarover Garden to meet their old aged father in regular interval. The deceased was the Central Government Health Scheme beneficiary. The contents of other objections are denied and it is stated that objections taken by objector no. 6 are false, fabricated and concocted story and is an effort to mislead this Hon'ble court.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 8/45 PC No. 23/09 Deepak Garg Vs State & Ors 20 A petition under Section 276 of the Indian Succession Act. For the grant of Probate/Letter of Administration in respect of the Will dated 02.01.2009 executed by late Shri Sewa Ram Garg has been filed.
21 The facts in brief of the case bearing P.C. No. 23/09 are that father of the petitioner late Shri Sewa Ram Garg, son of late Shri Qabul Singh ( hereinafter referred to as 'deceased') was permanent resident of D-31, Mansarover Garden, New Delhi which he had purchased from his own funds vide registered document no. 12054, Volume No. 1407, Additional Book No. 1, pages 42-43, dated 30.06.1965. The deceased died on 01.06.2009 at D-31, Mansarosver Garden, New Delhi. The wife of deceased late Smt. Pushpa was pre-deceased him and died on 29.06.2004.
22 It is stated that out of the wedlock of their parents petitioner and four daughters, i.e. respondents No. 2 to 5 were born. The deceased was living with the petitioner till his death. Respondents no. 2 to 5 are happily married who are residing in their respective matrimonial homes alongwith their husbands. The petitioner is residing in the property bearing no. D-31, Mansarover Garden, New Delhi ( hereinafter referred to as 'property in question'). The petitioner used to take care of his father in all respect for any need.
23 It is stated that deceased had executed a Will dated 02.01.2009 which was duly registered during his life time bequeathing his property in question in favour of petitioner. The said Will dated 02.01.2009 was duly executed by him while he was having good health and was of well deposing mind.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 9/45 PC No. 23/09 Deepak Garg Vs State & Ors 24 It is stated that petitioner is the sole and exclusive beneficiary of the property in question by virtue of the Will to the exclusion of all other heirs. Petitioner seeks Probate/Letter of Administration of the Will dated 02.01.2009 executed by father of the petitioner, deceased.
25 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Dainik Bhaskar " dated 19.09.2009 .
26 The valuation report in respect of immovable property was called from the concerned SDM/Tehsildar and accordingly, Astt. Collector GR-II ( Rajouri Gardn) filed valuation report in respect of property bearing No. D-31, Mansarover Garden, New Delhi and assessed the value of the same as Rs. 62,59,160/-.
27 Respondent no. 2 Smt. Veena Goel filed objection to the petition and taken preliminary objection that present probate petition is gross abuse to the process of law and hence is liable to be dismissed with heavy cost. It is stated that Will dated 02.01.2009 is neither the last Will of deceased nor it was executed by the deceased with his own free Will and he was threatened and forced by the petitioner to executed the same.
28 It is stated that deceased executed his last and final Will on 13th May, 2009 in which he specifically revoked his previous Will dated 2nd January, 2009. The petitioner has not approached to this court with clean hands and has suppressed PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 10/45 PC No. 23/09 Deepak Garg Vs State & Ors the true and actual facts from this Hon'ble Court. It is very well within the knowledge of the petitioner that the Will dated 02.01.2009 of which the petitioner has filed the present probate petition, is not the last Will of deceased. In the Will dated 13.05.2009 deceased appointed Col. Vijender Kumar Mittal, his son-in-law as executor of the Will . The Vijender Kumar Mittal filed the probate petition bearing Probate Case No. 7/2009 in respect of the last Will dated 13.05.2009 of deceased which is pending in this court.
29 It is stated that present petition has not been properly verified as per provision of law and petitioner has not complied with the provision of order VII rule 14 of CPC, hence the petition of the petitioner is liable to be dismissed with heavy cost. On merit all the contents of the petition are denied. And respondent no. 2 reiterated the same facts as mentioned by respondent no. 6 in the above mentioned another connected case.
30 Petitioner filed rejoinder to the objection filed by respondent no. 2 and denied all the objection and reiterated the averments mentioned in the petition.
31 It is pertinent to mention here that the remaining respondent no. 3, 4 & 5 filed objections on the same line as of respondent no. 2 and petitioner filed same replication to the above objections filed on behalf of respondent no. 3, 4 & 5. 32 Vide order dated 23.08.2010 on the pleadings of the parties my ld. Predecessor framed the following issues in both the above said matters:
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 11/45 PC No. 23/09 Deepak Garg Vs State & Ors Issues in P.C. No. 23/09 titled Deepak Garg Vs State & Ors.
1. Whether the petitioner is entitled for probate of Will dated 02.01.2009? ( in case bearing No. P.C. No. 23/09)
2. Relief Issues in P.C. No. 07/09 titled Col. Vijender Kumar Mittal Vs State & Ors.
1. Whether the petitioner is entitled for probate of Will dated 13.05.2009? ( in case bearing no. P.C. No. 07/09)
2. Relief
33 It is pertinent to mention here that vide order dated 23.08.2010 in P.C No. 23/2009 both the above said cases were clubbed for the purpose of recording of evidence as the property for which the Wills are in dispute is the same and P.C. No. 23/09 is considered to be the main case and evidence of both the cases recorded in this case only. Thereafter in P.C. No. 7/09 petitioner Col. Vijender Kumar Mittal examined as PW-1 who tendered his evidence by way of affidavit Ex. PW-1/A and rely upon the death certificate of deceased as Ex. PW-1/1.
34 Sh. Kishan Chand Mittal, appeared in the witness box as PW-2 who tendered his evidence by way of affidavit Ex. PW- 2/A. Vide order dated 23.04.2012 evidence on behalf of the petitioner was closed.
35 Respondent examined Sh. Raj Kumar, LDC from the office of Sub-Registrar, Janak Puri as RW-1 who proved the PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 12/45 PC No. 23/09 Deepak Garg Vs State & Ors registration of the Will Ex. RW-1/1 vide registration no. 47 in additional book no. 3, Volume No. 7683 on pages 94 to 98 on the date 02.01.2009.
36 Sh. Bahadur Prasad, Asstt. Manager, SBI, Mansarover Garden, New Delhi appeared as RW-2 and proved the statement of account of deceased bearing no. 10505633378 for the period of January 2009 and February 2009 as Ex. RW-2/1 and he also proved the certified copy of the cheque for a sum of Rs. 2000/- issued by the deceased as Ex. RW-2/2.
37 Respondent further examined Sh. Bhagat Ram Goel, the attesting witness to the Will dated 02.01.2009 as RW-3 who deposed that he is one of the attesting witness to the Will dated 02.01.2009 executed by the testator Sh. Sewa Ram and said Will is already Ex. RW-1/1 and it bears his signatures at point -A and the signatures of the testator Sh. Sewa Ram at point-B on each page. He deposed that he and testator Sh. Sewa Ram signed the Will Ex. RW-1/1 in the presence of each other as well as in the presence of another witness Sh. Amar Nath who had signed the said Will at point C. 38 Petitioner in P.C. No. 23/09 Shri Deepak Garg appeared as RW-4 and tendered his evidence by way of affidavit Ex. RW-4/X. He relied upon the documents i.e death certificate of deceased as Ex. RW-4/1, death certificate of late Pushpa Garg as Ex. RW-4/2, Bills of maid servant as Ex. RW-4/6 to Ex. PW-4/13, Gas receipt Ex. RW-4/14 and one water bill Ex. RW-4/15.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 13/45 PC No. 23/09 Deepak Garg Vs State & Ors 39 First of all I would like to refer the provisions and principles of law laid down by th Apex Court.
The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 14/45 PC No. 23/09 Deepak Garg Vs State & Ors more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 15/45 PC No. 23/09 Deepak Garg Vs State & Ors
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 16/45 PC No. 23/09 Deepak Garg Vs State & Ors document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
40. The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 17/45 PC No. 23/09 Deepak Garg Vs State & Ors produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 18/45 PC No. 23/09 Deepak Garg Vs State & Ors in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
( emphasis supplied)
41. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 19/45 PC No. 23/09 Deepak Garg Vs State & Ors except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of 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 signatures 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. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court.
The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 20/45 PC No. 23/09 Deepak Garg Vs State & Ors be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied)
42. In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar ( supra), the Supreme Court culled out the following propositions:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. And subject to the process of the court and capable of giving evidence. (3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is prsoved to be the last will and testament of the testator. Normally , the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 21/45 PC No. 23/09 Deepak Garg Vs State & Ors 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 susbtantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circusmtances 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 ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is connection with wills, the execution of which
is surrounded by suspicious circumstances that the
test of satisfaction of the judicial conscience has
been evolved. That test emphasises that in
determining the question as to whether an
instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 22/45 PC No. 23/09 Deepak Garg Vs State & Ors such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied)
43. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 23/45 PC No. 23/09 Deepak Garg Vs State & Ors Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied)
44. Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 24/45 PC No. 23/09 Deepak Garg Vs State & Ors would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
45. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied)
46. In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 25/45 PC No. 23/09 Deepak Garg Vs State & Ors evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a) The testatrix shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or the signature of such other PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 26/45 PC No. 23/09 Deepak Garg Vs State & Ors person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
20.2 Section 68 & 71 of the 1872 Act:
68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 27/45 PC No. 23/09 Deepak Garg Vs State & Ors acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 28/45 PC No. 23/09 Deepak Garg Vs State & Ors document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
47. First of all I would like to decide the issues in case titled Col. Vijender Kumar Mittal ( Retd.) Vs State & Ors. in P.C. No. 07/09 and finding on issues are as under:-
48. Issue No.1 Col. Vijender Kumar Mittal, petitioner is the husband of Smt. Manju Mittal, one of the L.Rs of late Sh. K.C. Mittal who appeared in witness box as PW-1.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 29/45 PC No. 23/09 Deepak Garg Vs State & Ors
49. Col. Vijender Mittal relied on the Will dated 13.05.2009. According to this will deceased/testator, Sh. Sewa Ram Garg had bequeathed the immovable property bearing H. No. D-31, Mansarover Garden, New Delhi amongst all the legal heirs, daughters and sons, Sh. Deepak Garg would get 24% if he vacate the portion occupied by him and remaining legal heirs i.e Ms Veena Goel, Ms Manu Mittal, Ms Aruna Mittal and Ms Renu Gupta would get 19% share in the property. Similarly, SBI deposits and pensions also disbursed in the same proportion.
50. In this will there are two attesting witnesses Sh. Trilok Chand Sharma and Sh. Satish Sharma as discussed herein above in detail. The provisions and principle of law that it is the duty of the beneficiary or the executor of the Will. In order to prove the Will at least one attesting witness is mandatory to be examined. In this petition there are two witnesses examined, one is son-in law, Col. Vijender Kumar Mittal as PW-1 and other Shri Kishan Chand Mittal, PW-2 the other son-in law of the deceased/testator. None of the above said attesting witness to the Will are examined by the petitioner despite order passed by the Hon'ble High Court dated 12.11.2013 subject to deposit of cost of Rs. 10,000/- but despite opportunity none of the above said attesting witness to the will are examined by the petitioner. Therefore, in my considered opinion despite given full opportunity where trial has taken about almost seven years, petitioner failed to examine any of the attesting witness, named and present at the time of execution of the will of deceased/testator, late Sewa Ram Garg. Therefore, the petitioner miserably failed to establish that Will dated 13.05.2009 is the last, legal and valid will as per Section 63 of Indian Succession Act read with Section 68 of Indian PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 30/45 PC No. 23/09 Deepak Garg Vs State & Ors Evidence Act, therefore, issue no. 1 is decided against petitioner and in favour of respondent no. 6
51. Relief in P.C. No. 07/09 titled Col. Vijender Kumar Mittal (Retd.) Vs State & Ors.
In view of finding on issue no. 1 the petition filed by the petitioner Col. Vijender Kumar Mittal in P.C No. 07/09, is dismissed. No order as to cost.
Finding on issues in P.C. No. 23/09 titled Deepak Garg Vs State & Ors.
52. Issue No. 1In order to prove the Will dated 02.01.2009 of deceased Sewa Ram Garg being the last, legal and valid will, petitioner examined Sh. Raj Kumar, LDC from the office of Sub- Registrar, Janak Puri as RW-1 and proved the registration of Will Ex. RW-1/1 dated 02.01.2009. Shri Bahadur Prasad, Assistant Manager, from SBI Mansarover Garden, New Delhi appeared as RW-2 and proved the certified copy of statement of account of deceased as Ex. RW-2/1 and RW-2/2 pertaining to January 2009 and February, 2009. RW-3 Sh. Bhagat Ram Goel is one of the attesting witness to the Will and RW-4 Sh. Deepak Garg is the perpounder of the Will of Sh. Sewa Ram Garg.
53. Ld. Counsel Sh. Vineet Sharma for respondent objector, Ms Manju Mittal and Ms Aruna Mittal, vehemently argued that the Will Ex. RW-1/1 relied by Deepak Garg surrounded by several suspicious circumstances. He relied on judgment of Barpur Singh & Ors. Vs Shamsher Singh, AIR 2009 Supreme Court 1766 and refer to the suspicious PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 31/45 PC No. 23/09 Deepak Garg Vs State & Ors circumstances as referred in the judgment, which are mentioned herein under:-
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the Will.
(vi) The testator used to sign blank papers.
(vii) The Will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.
54. He further relied on judgment of Ram Kumar Gupta Vs. State & Others, 2013 IV AD ( Delhi) 291 and referred Para 24 and 31 which are re-produce herein under:-
24. The legal proposition is well settled. The onus of proving a will is on the propouder; in the absence of suspicious circumstances surrounding the execution of will, proof of testamentary capacity and the signature of the testator may be sufficient to discharge the onus.
Where, however, there are suspicious circumstances, the onus is on the propounder to dispel the said suspicious circumstances. The number and nature of the suspicious circumstances cannot be put in a strait jacket formula; however the genuineness of the signatures of the testator;
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 32/45 PC No. 23/09 Deepak Garg Vs State & Ors the condition of his mind; depositions made in the will being unnatural, imporbable or unfair in the light of relevant circumstances or other indications in the will to show that the testator's mind was not free; in such circumstances; the court would naturally expect that all legitimate suspicions should be removed before the document can be accepted as the last wish of the testator.
31. As a general rule, a single circumstances by itself may not be sufficient to dispel the validity of a will, if it has otherwise been proved in accordance with law. However, in the present case, even presuming that the testimony of the attesting witness is to be accepted, the surrounding circumstances qua the execution of the will are far too many and which as noted by the learned Single Judge have been dispelled by the appellant; the settled legal position that the onus of discharge being upon the person who propounds a document. Thus all these cumulative circumstances taken together sufficiently establish that the second will dated 21.09.1998 could not withstand the test of a fair scrutiny. It being shrouded with suspicious circumstances, the learned Single Judge had rightly returned a finding that it did not establish document while he was a sound disposing mind and which is admittedly an essential requirement.
55. He further relied on the judgment of Apoline D Souza Vs John D' Souza, (2007) 7 Supreme Court Cases 225 and refer to the para 13 and page 231 which are reproduced as under: -
13. Section 68 of the Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 33/45 PC No. 23/09 Deepak Garg Vs State & Ors requirement. Attestation is sought to be proved by PW 2 only. Both the daughters of the testatrix were nuns. No property, therefore, could be bequeathed in their favour.
In fact one of them had expired long back. Relation of the testatrix of the with the respondent admittedly was very cordial. The appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that account she was made a beneficiary thereof. The will was full of suspicious circumstances. PW-2 categorically stated that the will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the will were read over and explained to the testatrix. PW-2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and over writings also in the will.
It was further observed ( SCC pp.459-60, paras 22-
25) "22[24].... However, having regard to the fact that the will was a registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the will to bring material on record meeting such prima facie case in which even the onus shifts back on the propunder to satisfy the court affirmatively that the testator did not (sic) know well the contents of the will and in sound disposing capacity executed the same.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 34/45 PC No. 23/09 Deepak Garg Vs State & Ors
56. Ld. Counsel for respondent further relied on the judgment of Sudershan Lal Maini Vs Virender Kumar Maini & Ors. 187 (2012) Delhi Law Times 414 ( DB) Delhi High Court and refer to Para 26 to 31.
57. Lastly, he relied on the judgment titled as Ved Prakash Vs. Om Prakash deceased through Lrs & Ors. 2013 IX AD ( Delhi) 461, judgment titled as Punni Vs Sumer Chand, AIR 1995 Himachal Pradesh 74 and judgment titled as Prem Chand Vs Mool Chand etc. 1983, Rajdhani Lal Reporter 522.
58. Ld. Counsel Shri Vineet Sharma for objector's submitted that main witness Sh. Bhagat Ram, RW-3 in the cross- examination clearly says that he did not tell the true to this court and concealed their material facts. This witness is almost stranger to the family of the deceased as he is not sure about how many sons of the deceased have. The deceased never discussed with him property matter. The witness also failed to till the court if he signed first or the other attesting witness Shri Amarnath. He further deposed that the evidence of the witness is clear that attesting witness does not know whether deceased Sewa Ram Gupta has the knowledge of contents of the will or not because in his presence the will was neither read over to him or to the other attesting witness as per provision of law. The witness also deposed that both the attesting witnesses brought in a car, by the advocate which is not possible that an advocate would brought the client in his car to the Sub- Registrar Office.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 35/45 PC No. 23/09 Deepak Garg Vs State & Ors
59. It is further submitted that all the activities of execution of will were planed by objector Deepak and he intentionally did not show his presence in the entire process of law. The advocate appointed by Deepak Garg for creation of evidence and intentionally got the payment of Rs. 2000/- through cheque of deceased Sewa Ram Garg. It is not explained how Deepak Garg came to know about the fees of Rs. 2000/- paid by the deceased Sewa Ram Garg.
60. The testimony of Deepak Garg appeared as RW-4 also raises doubt. It is stated that there was a separate kitchen of deceased Sewa Ram Garg and Deepak Garg in the same house they were living separately and Deepak is job less admitted by him. He has taken false plea that on the day of execution of the will he left house at 9 A.M. because Palika Bazar does not open prior 11 A.M. The deceased was more than 90 years on 02.01.2009 and stated that how such an aged person leave the house early in the morning for execution of the will.
61. He further submitted that Deepak Garg appeared as RW-4 also given false statement in the petition as well as in the court examined about the discovery of Will. The original will of the property at the time of Kirya was taken by the sister, then how the will and certified copies were found by deceased after the death when he has taken the stand about the knowledge of the will on the day when the will was mentioned before the relations and gathering after cremation. The testimony of witnesses of Deepak Garg are doubtful and suffered from suspicious circumstances. Ld. Counsel for the respondent submit that petition filed by Deepak Garg is liable to be dismissed.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 36/45 PC No. 23/09 Deepak Garg Vs State & Ors
62. Shri Vikas Kapoor , ld. Counsel for the Deepak Garg in the detailed written arguments submitted that as per law the attesting witness RW-3 appeared in witness box and subjected to detail cross-examination. The testimony of Bhagat Ram established the true and correct fact about the execution of the will Ex. RW-1/1 in favour of Deepak Garg by deceased Sewa Ram Garg. The witness explained how he went to the sub-Registrar office and the will was first executed and then registered before the Sub Registrar.
63. He further submitted that objector failed to brought on record in evidence to prove that Deepak Garg and deceased Sewa Ram Garg were having separate kitchen and living separately. It is submitted that both were living in the same house having one kitchen and being son the deceased had executed the will in his favour. He further submitted that there is no suspicious circumstances brought on record and established by the objectors. Deepak Garg has no role to play or influence. He further submitted that objector failed to prove on record any suspicious circumstances on the other hand Deepak Garg has proved the last, legal will dated 02.01.2009 of his deceased father Sewa Ram Garg, therefore, entitled for letter of administration/probate.
64. In order to appreciate the submissions, especially, of the objector's counsel, I would like to refer to the objections filed by respondent no. 2, Smt. Veena Goel, respondent no. 3 Smt. Manju Mittal and respondent no. 3 Smt. Aruna Mittal. All the three sisters have filed similar objections through same advocate, Sh. Vineet Sharma, however, none of the objectors PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 37/45 PC No. 23/09 Deepak Garg Vs State & Ors appeared in witness box. The objector's examined their husband, namely, Col, Vijender Kumar Mittal as PW-1 and Sh. Kishan Chand Mittal as PW-2. The objectors set up suspicious circumstances on the basis of the fact that deceased Sewa Ram Garg was living separately in the same house with perpounder of the Will Sh. Deepak Garg.
65. PW-1 Col. Vijender Kumar Mittal appeared in witness box and in his affidavit Ex. PW-1/A he taken the stand that deceased Sewa Ram Garg executed last and final Will dated 13.05.2009. In the affidavit there is no deposition with regard to any of the objection taken by objectors, namely, Smt. Veena Goel, Smt. Manju Mittal and Smt. Aruna Mittal.
66. Similarly, PW-2 Sh. Kishan Chand Mittal, husband of Smt. Aruna Mittal appeared in witness box. The stand taken is that deceased Sewa Ram Garg was very closed to his wife Smt. Aruna Mittal and deceased was not happy with the attitude of his son Deepak Garg and original documents were given by deceased to her. A separate kitchen was maintained by the deceased in the same house.
67. In the detailed cross-examination he admitted that deceased Sewa Ram Garg used to reside in the same house where Deepak Garg the perpounder of the Will was residing. He deposed that Sewa Ram Garg was residing in front portion and Deepak Garg was in rear portion. There were two kitchen. He further answered to a specific question that Deepak Garg has appointed maid servant for the deceased but earlier it was appointed by his wife. He admitted that there is no partition wall in the property. There is common house tax to the property.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 38/45 PC No. 23/09 Deepak Garg Vs State & Ors
68. The objectors on the basis of testimony of PW-2 Sh. Kishand Chand Mittal, in my considered opinion failed to prove on record that the relations were strained between the deceased Sewa Ram Garg and his son Deepak Garg. There is no evidence brought on record that two separate kitchen were maintained.
69. It is pertinent to mention here that Deepak Garg also appeared in witness box, however, during the cross-examination ld. Counsel for the objector failed to put up questions and suggestions with regard to suspicious circumstances as alleged during the course of arguments. Ld. Counsel for objectors also did not put suggestions with regard to separate kitchen and living of deceased and specifically there is no cross-examination on the aspect of strain relations between them. RW-3 Sh. Bhagat Ram Goel also deposed that he used to visit house of Sewa Ram Garg once in two months. However, used to set in front portion room and used to taken tea and water which was served by his daughter-in-law. According to his knowledge there was no servant deputed in the house. Deceased never discussed in detail the family matters.
70. Ld. Counsel for the objectors also not able to put any question or suggestion with regard to strain relations and separate living of deceased from his son Deepak Garg. In my considered opinion the objectors failed to establish suspicious circumstances on the basis of alleged separate living of deceased Sewa Ram Garg from his son Deepak Garg and his maintaining of separate kitchen.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 39/45 PC No. 23/09 Deepak Garg Vs State & Ors
71. Ld. Counsel for the objectors heavily relied on the testimony of RW-3, Sh. Bhagat Ram Goel, especially the cross- examination and contended that as per Section 63 of Indian Succession Act and 68 of Indian Evidence Act the testimony is surrounded by suspicious circumstances.
72. I would like to refer to the principle of law that the testimony has to be read in entirety and not in piecemeal. RW-3 Sh. Bhagat Ram Goel is the resident of same colony since 1977. he truthfully stated that deceased Sewa Ram was not his close friend or close relationship but residence of deceased at 100-130 meters and used to meet occasionally. It is natural that he is resident of the same locality and meet on occasion. He also visited once in two months, however, he did not attend any function.
73. He further truthfully stated that he met Sewa Ram Garg laslty, before his death when the Will Ex. RW-1/1 was executed. He further explained that he was called by Amar Nath to met Sewa Ram Garg. The deceased Sewa Ram Garg never discussed with him his property matters. He further explained that on the day of execution of the will he was called by Amar Nath and then came to know about the execution of the will by the deceased. He firmly stated the fact that deceased Sewa Ram Gar was physically fit and able to walk on that day. He also explained the mental fitness of the deceased. He further explained that he had only friendship with Sewa Ram Garg but not with the children, especially Deepak Garg. He further explained that deceased Sewa Ram Garg, his lawyer and Amar Nath had asked him to sign the will and further specifically on the PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 40/45 PC No. 23/09 Deepak Garg Vs State & Ors basis of his memory specify that he signed the will on the asking of the deceased Sewa Ram Garg and at that time Amar Nath, lawyer and Sewa Ram Garg was also present. Sh. Amar Nath, the other attesting witness is also resident of same colony.
74. He further explained that about 9 A.M. he went to the house of deceased Sewa Ram Garg and inquired about the signing of the will in question as a witness. He deposed that he did not sign will at the house but signed at the Sub-Registrar office. The will was not ready. The will was got prepared alongwith advocate at Sub-Registrar office when they went to Janak Puri but he does not know the name of advocate.
75. He further truthfully stated that he sit in the car of the advocate. He truthfully stated that he is not aware of everything which took place at the office of Sub-Registrar. It is natural that a lay man has no knowledge about the process carried out at the Sub-Registrar office. The will was got typed by the advocate. He also explained that he was in the car at that time. He admitted that will was not read over to him by the advocate but he cannot say whether the said will was read over by deceased and Sh. Amar Nath or not as he is appearing in witness box for about after four years. He is not able to recollect and explain who signed the will first. It also established that he is not tutored witness but truthfully stated whatever he remember when appeared in witness box.
76. He further explained that his photographs and finger prints were taken after signing the Will. He deposed that he, Sewa Ram and Sh. Amar Nath signed the will in question in the PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 41/45 PC No. 23/09 Deepak Garg Vs State & Ors presence of each other. However, clearly denied about the deceased Sewa Ram's other activities prior to execution of the will about the residing with the daughter. He truthfully also explained that he is not aware whether the Will dated 13.5.2009 was the last will of deceased Sewa Ram Garg. He also not aware of relations between Sewa Ram Garg and his son Deepak Garg.
77. In my considered opinion, the attesting witness Sh. Bhagat Ram Goel, RW-3 is a natural and truthful witness who in cross-examination explained when and how the will in question was got executed and registered by deceased Sewa Ram Garg. He truthfully explained that he alongwith other attesting witness and deceased testator went in the car of advocate. The will was not typed at that time. He also explained that he is not fully aware of the process taken there of typing etc. He also truthfully stated that deceased never discussed with him the property matters. However, he is confirmed and established that will was signed by deceased/testator and other attesting witness signed the will in each other's presence. The physical and mental condition of the deceased/testator was fit.
78. He further established that the will in question was got registered as per procedure by the Sub-Registrar, Janak Puri office where their finger prints and photographs were also taken. In my considered opinion, no suspicious circumstances as alleged by objectors established on record as per the testimony of RW-3, Sh. Bhagat Ram Goel.
79. It is pertinent to mention here that if the stands taken by perpounder of the will Deepak Garg about the discovery of will PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 42/45 PC No. 23/09 Deepak Garg Vs State & Ors either on cremation's day or later on in the house it does not effect the legal, valid execution and registration of the will and it is not a suspicious circumstances to vitiate the validity and legality of the will in question Ex. RW-1/1.
80. In my considered opinion the judgment relied by the objectors of Barpur Singh & Ors (Supra) is distinguishable in the present facts and circumstances of the case. The deposition are natural, probable and fair. The judgment of Ram Kumar Gupta (Supra) is also distinguishable because as per testimony of attesting witness, Sh. Bhagat Ram Goel, no suspicious circumstances proved on record. The judgment of Apoline D Souza (Supra) is distinguishable as there is no circumstance brought that the will in question was typed in some different language and there is filling in the blanks in other language. Here is the evidence of RW-3 Sh. Bhagat Ram Goel fully satisfactory, therefore these judgments is not of any help.
81. It is pertinent to mention here that it is admitted by the counsel for the objector's that Deepak Garg was cleverly out of the picture but it is not established that his cleverness influenced the deceased Sewa Ram Gupt for execution of the will Ex. RW-1/1. On the contrary Deepak Garg has proved through independent evidence that he had later on discovered cheque for payment to the counsel and proved through the bank witness. In my considered opinion, the objectors failed to establish any suspicious circumstances. On the other hand Deepak Garg, perpounder of the will proved and established that the Will Ex. RW-1/1 dated 02.01.2009 is the last, legal and valid Will executed by the deceased Sewa Ram Garg. Accordingly, issue no. 1 is decided in favour of Deepak Garg and against the objectors.
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 43/45 PC No. 23/09 Deepak Garg Vs State & Ors
82. Relief in P.C. No. 23/09 titled Deepak Garg Vs State & Ors.
In the present case, the petitioner has prayed for grant of Probate/Letter of Administration in respect of the Will dated 01.02.2009 executed by Late Sh. Sewa Ram Garg S/o Sh. Qabul Singh, however, the perusal of the said Will ( Ex. RW-3/1) reveals that petitioner has not been named as Executor therein and as such the probate in respect of the Will in question cannot be granted in favour of the petitioner in accordance with the provisions of Section-222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the Will. In these circumstances and in view of the provisions of Section-232 of Indian Succession Act, the petitioner shall be entitled only to Letter of Administration in respect of the property mentioned in the said Will.
83. In view of my findings on issue no. 1 in the P.C. No. 23/09 titled Deepak Garg Vs state etc. the petitioner Deepak Garg is entitled to Letter of Administration in respect of property No. D-31, Mansarover Garden, New Delhi-15 after obtaining requisite Court fee and administration cum surety bond to the tune of Rs. 62,59,160/- as agreed by petitioner with one surety of like amount.
84. Further, the petitioner Deepak Garg is directed to file the inventory of the immovable property within six months and final statement of account within one year from the date of receipt of formal letter of administration. The formalities of issuance of Letter of Administration shall completed by the petitioner within six months from the date of the judgment as per PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 44/45 PC No. 23/09 Deepak Garg Vs State & Ors Section 290 & 291 read with Section 317 of Indian Succession Act.
85. It further clarified that the question of title, share or ownership of movable property mentioned herein above is not decided by this Court.
86. The petition bearing No. 07/09 having New No. 16065/16 titled Col. Vijender Kumar Mittal Vs State & Ors. Stands dismissed and petition bearing No. 23/09 having New No. 16078/16 titled Deepak Garg Vs State & Ors. Stands allowed. This judgment be placed in both the above said probate petitions. File be consigned to the Record Room.
(Announced in the open (SANJAY KUMAR)
court on 7th February, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 45/45
PC No. 23/09 Deepak Garg Vs State & Ors
PC No. 07/09 Col. Vijender Kumar Mittal Vs State & Ors 46/45
PC No. 23/09 Deepak Garg Vs State & Ors