Delhi District Court
Tilak Raj Kathuria vs Smt. Brij Bala Kapoor on 17 November, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
(Old Case)
PC-45/13/05
In the Matter of:
Tilak Raj Kathuria
s/o late Sh. D.N. Kathuria
r/o 130/53, P.G.H. Shah Road,
Jadavpur, Kolkata-32
.................. Petitioner
VERSUS
1. Smt. Brij Bala Kapoor
w/o Sh. Vijay Kapoor
r/o Jasmal Building,
Lawrence Road, Amritsar,
Punjab.
2. Rajesh Nagpal
s/o Om Prakash Nagpal
A-4, Inder Prastha Society,
Sector-14, Rohini, Delhi.
3. Sh. Om Prakash Nagpal
s/o Sh. Panna Lal Nagpal
r/o F-104-A, Ekta Society,
Sector-13, Rohini, Delhi.
................ Respondents
Date of Institution: 6.9.05
Date of Assignment to this court: 6.7.13(at the stage of RE)
Date of Arguments: 5.11.14
Date of Decision: 17.11.14
PC-45/13/05 Page:-1/39
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 276/278 of Indian Succession Act 1925 for grant of probate/letter of administration in respect of the estate of deceased Saroj Nagpal w/o late Jognderpal Nagpal in view of Will dated 15.7.04. The brief facts of the case as narrated in the petition are that deceased late Smt. Saroj Nagpal widow of late Sh. Joginderpal Nagpal is the sister-in-law of petitioner who died at Kanpur on 20.8.04. As stated late Saroj Nagpal was issue less and the husband, mother-in-law and fahter-in-law of late Saroj Nagpal have also died. As stated the descendant of late Saroj Nagpal are the beneficiaries of the present Will. It was stated that two beneficiaries are filing affidavit in support of present petition and the third beneficiary Smt. Brij Bala Kapoor presently not supporting the present petition and as such arrayed as persons interested in schedule B attached with the petition. It was stated that one brother namely Om Prakash Nagpalof husband of late Saroj Nagpal was disowned by the father and as such severed all relationship with the family of the husband of late Saroj Nagpal. One sister namely Smt. Hemlata of husband of Saroj Nagwal already predeceased to Saroj Nagpal. It was stated that late Smt. Saroj Nagpal was absolute and PC-45/13/05 Page:-2/39 sole owner of self acquired property/flat no. B-2 Sangam Estate-1, under Hill Road, Civil Lines, Delhi and she was also having saving bank account no. 051042371 of HSBC Bank, bonds & FD's of Hongkong Bank, Connaught Place, Delhi and P.N.B Civil Lines, Delhi, jewellery cash etc.. It was stated that late Saroj Nagpal made and executed Will dated 15.7.04 in favour of her sister-in-law Brij Bala Kapoor, Lalit Narula, Sheela Kathuria and made the petitioner as executor of the Will and authorised him to distribute the sale consideration of property in question. As stated petitioner has not filed any other petition either before this court or before any other court of India and it was accordingly prayed that probate be granted to the petitioners in respect of last Will of the deceased dated 15.7.04.
2. After the petition was filed the same was issued to the Collector of State and near relations of the deceased besides citation to the general public was directed to be published in the newspaper "Rashtriya Sahara" and also displayed on court notice board.
3. Valuation report was not filed and the publication of the citation was effected in the newspaper " Rashtriya Sahara" on 30.9.05.
4. Before proceeding further it is pertinent to mention here that these are two PC-45/13/05 Page:-3/39 probate case one is bearing no. PC-39/13/05 titled as Rajesh Nagpal Vs State and another is bearing no. PC-45/13/05 titled as Tilak Raj Kathuria Vs. State and both these cases were consolidated vide orders dated 14.12.05 and 1.9.06.
5. Objections to the present petition were filed on behalf of objector/respondent no. 1 Rajesh Nagpal wherein preliminary objections were raised to the effect that petitioner has not come to the court with clean hands, petition is bad for non joinder/misjoinder of parties, petitioner has no locus standi to file the present petition and the petition is without cause of action. On merits it was stated that deceased Smt. Saroj Nagpal prior to her death severed all her relations with the beneficiaries of the present Will and in her last days of life there was no one except the objector and his wife to take care of her. Rest of the contents of the petition were denied and it was prayed that present petition be dismissed.
6. Respondent/ Objector no. 2 Brij Bala Kapoor filed separate objections to the present petition in which it was stated that property in question was purchased by Sh. Panna Lal Nagpal in the name of Saroj Nagpal who was his daughter-in-law. As stated Smt. Saroj Nagpal lost her husband namely Sh. Joginder Pal Nagpal in December,1962 and thereafter it was only Sh.
PC-45/13/05 Page:-4/39 Panna Lal Nagpal who looked after his daughter-in-law as Smt. Saroj Nagpal did not have any source of income of her own, however she was teaching in Jaipuria school as a teacher for a little period and that too only to pass time. It was stated even in the sale deed dated 12.7.01 executed in favour of Smt. Saroj Nagpal it was mentioned that an agreement to sell was executed with Sh. Panna Lal Nagpal on 20.7.99 by the erstwhile owner. Sh. Panna Lal Nagpal paid the entire consideration of Rs.16,00,000/- vide cheque paid between 2.5.98 to 28.3.00. It was further stated that it was also mentioned in the said sale deed that after execution of the said agreement for sell Sh. Panna Lal Nagpal with consent of the vendor nominated Smt. Saroj Nagpal as his nominee and got the sale deed registered in her name, therefore there is no iota of doubt that Sh. Panna Lal Nagpal purchased the property under probate in the name of his daughter-in-law Smt. Saroj Nagpal. It was further stated that Sh. Panna Lal Nagpal expired on 3.8.02 and during his lifetime had executed a registered Will dated 25.5.00 wherein he bequeathed the property under probate in the name of Smt. Saroj Nagpal, his daughter-in-law. As stated he declared in the said Will that Sh. Om Prakash is his second son and he had spent sufficient amount for the benefit of Sh. Om Prakash and for his three PC-45/13/05 Page:-5/39 children. As stated he also declared that Sh. Om Prakash and his family members has no connection with him and they will not be entitled to any part of his movable or immovable property. Moreover it was his wish that after his death the said Om Prakash or the family members of Sh. Om Prakash shall not be entitled to participate in the last rites and they should not be allowed to touch his dead body. It was stated that petitioners in the above petition are one of the sons and daughter-in-law of the said Om Prakash and the said Om Prakash alongwith his family members were disowned and disinherited by his father Sh. Panna Lal Nagpal whereas Joginder Pal and Smt. Hem Lata expired prior to demise of Sh. Panna Lal and hence only respondent no. 2/objector no. 2 is the only legal of Sh. Panna Lal Nagpal. It was stated that Smt. Saroj Nagpal died intestate and therefore the petition is not tenable in the eyes of law and is liable to be dismissed.
7. Objector Om Prakash Nagpal was impleaded later on as respondent no. 3 in the present case and in his application u/o 1 Rule 10 CPC cum objections filed on his behalf it was stated that Smt. Saroj, the wife of real brother of the respondent no. 3 was suffering from cancer and was heart patient and was permanent resident of Kanpur till her retirement and PC-45/13/05 Page:-6/39 thereafter she has shifted to Delhi. It was stated that the Will in question is forged and fabricated document as Smt. Saroj never executed an will in favour of the petitioner and said Will has been fabricated by petitioner in collusion and connivance with Smt. Brij Bala Kapoor and Smt. Sheela Kathuria. It was denied that deceased Saroj Nagpal executed a Will dated 15.7.04. It was stated that executant was not in a sound state of mind on the alleged date of execution of the Will as she was suffering from cancer and heart ailments. Rest of the contents of the petition were denied and it was prayed that present petition be dismissed.
8. Separate replies to respective objections of objectors were filed on behalf of the petitioners in which contents of the petition were reiterated and those of the objections were denied.
9. Vide order dated 1.9.06 from the pleadings of parties, the following issues were framed:-
1) Whether the Will dated 6.5.04 propounded by petitioners Rajesh Nagpal and Meenu Nagpal is the duly executed last and final Will executed by Smt. Saroj Nagpal in good physical health and sound state of mind? Onus placed on Rajesh Nagpal and Meenu Nagpal.
2) Whether Will dated 15.7.04 propounded by petitioner Tilak Raj Kathuria is the duly executed last and final Will and testament of Smt. Saroj Nagpal in goods physical health and sound state of mind? Onus placed on PC-45/13/05 Page:-7/39 Tilak Raj Kathuria.
(3) Whether petitioners Rajesh Nagpal and Meenu Nagpal are entitled for grant of probate as prayed?Onus placed on Rajesh and Meenu Nagpal.
(4) Whether Tilak Raj Kathurai is entitled for grant of probate/letter of administration as prayed? Onus placed on Tilak Raj Kathuria (5) Relief.
10.In evidence in support his case present petitioner Tilak Raj Kathuria examined himself as R4W1 and reiterated his case as set out in his petition/objections in the connected case and relied upon death certificate of Saroj Nagpal Ex. PW-1/1 and Will dated 15.7.04 which was marked in his examination as mark A. R4W2 Sh. Devender Kumar Arora stated himself to be the attesting witness of the Will dated 15.7.04 executed by Smt. Saroj Nagpal and identified his signatures, signatures of testator as well as other attesting witness on the said Will. He stated that Will dated 15.7.04 was executed by Smt Saroj Nagpal in his presence in sound disposing mind and understanding the same and they all signed in presence of each other. R4W3 Sh. Sahil Suri official from HSBC bank was also examined on behalf of objector no. 4 who brought the summoned record i.e original application form Ex. R4W3/1. Sh. Kamal Kant Khandewal, handwriting expert was also examined as R4W3 and relied upon photo enlargements Ex. R4W3/1 to R4W3/9 and their CD Ex. R4W3/10, his report Ex. R4W3/11.
11. It is pertinent to mention here that respondent no. 3 Om Prakash during the course of the defence evidence expired on 23.12.13 and his LRs were brought on the record.
PC-45/13/05 Page:-8/39
12. In defence objector Rajesh Nagpal who is petitioner no. 1 in connected case titled as Rajesh Nagpal Vs. State bearing no. 39/13/05 examined himself as PW-1 Rajesh Nagpal, PW-2 Wazid Ali Shah and PW-3 Tarun Behal. PW-1 Rajesh Nagpal, petitioner no. 1 reiterated the case of petitioners as set out in the petition and relied upon death certificate of Saroj Nagpal Ex. PW-1/B, list of successors/LRs of deceased Ex. PW-1/C, schedule of bequeathed property Ex. PW-1/D. PW-2 Wazid Ali stated himself to be the attesting witness of the Will dated 6.5.04 Ex. PW-2/1. He stated that Will dated 6.5.04 was executed by late Saroj Nagpal in favour of Rajesh Nagpal and his wife and the same was executed in his presence. It was stated by him that Will was executed by the deceased in sound mind and without any pressure and identified his signatures as well as signatures of testator. He also stated that the other attesting witness also signed in his presence and all of them signed in presence of each other. PW-3 Tarun Behal also stated himself to be the attesting witness of the Will Ex. PW-2/1 and identified his signatures as well as signatures of the testator on the said Will. He also stated that other attesting witness Sh. Wazid Ali Shah had also signed the Will in his presence and they all signed Will in presence of each other. He also deposed that deceased executed the Will PC-45/13/05 Page:-9/39 Ex. PW-2/1 in his presence in sound mind and without any pressure in favour of Sh. Rajesh Nagpal and his wife.
Respondent no. 3 Om Prakash Nagpal examined himself as R7W1 and stated his case as set out in his objections (Though affidavit of Om Prakash was filed and the same was tendered and even he was partly cross examined but he did not appear for his further cross examination and the same was not conducted since he expired on 23.12.13). Respondent no. 7/respondent no.3 Om Prakash Nagpal also examined Sh. B.N. Srivastava as R7W1 who was handwriting expert and filed his report Ex. R7W1.
Respondent no. 2 Brij Bala Kapoor examined herself as R2W1 and reiterated her case as set out in her objections and relied upon certified copy of Will dated 25.5.00 executed by Sh. Panna Lal Nagpal marked A, certified copy of the suit Ex. Mark B, copy of the written statement filed in said case mark C, certified copy of application u/o 340 Cr. PC marked D, certified copy of order dated 9.8.05 and certified copy of order dated 16.8.05 marked E and F, certified copy of statement of Brij Bala Kapoor in said case marked G, certified copy of the statement of petitioner no. 1 recorded in the said case marked H. PC-45/13/05 Page:-10/39
13.I have heard Ld. Counsel for the parties who have vehemently argued the matter for quite sometime and perused the entire record including the pleadings and documents as also oral testimony of the witnesses adduced during trial.
14. It is argued on behalf of the petitioner that the Will in question dated 15.7.04 Ex. PW-2/1 is valid and last testamentary document of the testator Smt. Saroj Nagpal who made the same in sound disposing mind. It was stated that the Will in question has been duly proved by the attesting witness Sh. Devender Kumar Aurora R4W2 who categorically stated that deceased Saroj Nagpal executed Will dated 15.7.04 in respect of property bearing no. B-2, Sangam Estate, Under Hill Road, Delhi which was executed in presence of two attesting witnesses i.e. himself and Ganga Narain Gupta. It was argued that R4W2 had categorically stated that the Will dated 15.7.04 was executed by Saroj Nagpal in her sound disposing mind after reading and understanding the same as well as the said Will Ex. PW-2/1 was singed by all of them in presence of each other. On the other hand Cl. for objector Om Prakash Nagpal argued that Smt. Saroj Nagpal was not in sound state of mind since she was suffering from cancer and was heart patient and was permanent resident of Kanpur till her PC-45/13/05 Page:-11/39 retirement and thereafter she has shifted to Delhi. Further, Cl. for objector Rajesh Nagpal argued that deceased Saroj Nagpal executed her last Will dated 6.5.04 and Will dated 15.7.04 is forged and fabricated since all the beneficiaries of the said Will severed their relations with her as well as the petitioner has taken active part in the execution of the said Will which create suspicious circumstance. It was also argued that even major beneficiary of the said Will i.e. Brij Bala Kapoort herself is not supporting the said Will, hence the instant petition is liable to be dismissed. Ld. Cl. for the respondent/objectors have virtually taken a tour of all statutory provisions of the Indian Succession Act, including section 2(h), section 63, section 276, 280 and 281. In addition to the aforesaid, reliance has been placed on various judgments of the Hon'ble Apex Court which shall also be discussed in the forthcoming paragraphs while discussing the aforesaid aspects.
15.I have given a thoughtful consideration to the same. My issuewise determination is as under:-
16. Issue no. 2&4 :- Whether the Will dated 15.7.04, propounded by petitioner Tilak Raj Kathuria is the duly executed last and final Will executed to by Smt. Saroj Nagpal in good PC-45/13/05 Page:-12/39 physical health and sound state of mind ? And Whether Tilak Raj Kathuria is entitled for grant of probate/letter of administration as prayed? Onus placed on Tilak Raj Kathuria Before proceeding to decide these issue, I would like to discuss the relevant law and judgments on this point. Issue no. 1 being pertinent to all the probate cases in which a Will is set up either for grant of probate or for grant of letters of administration with Will annexed, is pivotal to the entire controversy. It may be seen that, first and foremost a Will is a legal declaration of the intention of the testator whereby which the testator desires to bequest his property after his death and as such the same carry the last intentions of the testator to be carried out after his death. Further more, it is pertinent to mention that Will is the only document in law which is required to be proved after the death of its author and the law provides a specific procedure for the same.
17.Section 278 of Succession Act 1925 deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to PC-45/13/05 Page:-13/39 intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
18.Section 2(h) of the Indian Succession Act 1925 describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben PC-45/13/05 Page:-14/39 Vashram Vs. State of Gujrat. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Ku. Chandan & Anr. Vs. Longa Bai& Anr."
19.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign 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 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 signatures 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-45/13/05 Page:-15/39
20.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
21. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal PC-45/13/05 Page:-16/39 requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
22. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
23. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
24. It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the PC-45/13/05 Page:-17/39 Will and the question of title or share in the property cannot be gone into by the probate court. The probate court does not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance is placed on 2008(4)SCC 300 Kirshan Kumar Vs. Rajinder Singh Lohra & Ors..
25. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the subject Will which may lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 title Vella Swamy Servai Vs L. Shivaraman Servai.
26.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a PC-45/13/05 Page:-18/39 finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in (1971) 1 MLJ 127 P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try PC-45/13/05 Page:-19/39 to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
27.In a full bench judgment of the Hon'ble Apex Court reported in (1959)Supp. 1 SCR 426 titled as H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, the Hon'ble Apex Court has discussed the entire gamut of law relating to the discharge of the onus of proving the Will while dwelling into Sections 45,47,67 & 68 of Indian Evidence Act,1872 and PC-45/13/05 Page:-20/39 sections 59 & 63 of the 1925 Act and observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every PC-45/13/05 Page:-21/39 person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be PC-45/13/05 Page:-22/39 applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
28. The Hon'ble Court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of the dispositions and has then put his signatures to the document of his own freewill. It has been further held that:
"Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
29. The Hon'ble Apex Court has further discussed the circumstances, which may be termed as suspicious circumstances surrounding the Will and held that there may be circumstances where the signatures of the testator may be shaky, doubtful or the condition of testator's mind may appear to be feeble and debilitated so as to raise a legitimate doubt as to mental PC-45/13/05 Page:-23/39 capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble Court has succinctly held that:
" It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
30. It has been further held that an active participation of the propounder or the fact that the propounder has taken a prominent part in the execution of the Will and that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence.
PC-45/13/05 Page:-24/39
31.The ratio of H. Venkatachala Iyengar's case(supra) was later relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out various prepositions as:-
".....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, 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 by an PC-45/13/05 Page:-25/39 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 proved to be the last Will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4) Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, and unfair and PC-45/13/05 Page:-26/39 unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testaor might have had his own reason, for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances PC-45/13/05 Page:-27/39 attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5) It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the PC-45/13/05 Page:-28/39 execution of the Will, such pleas have to be proved by him but even in the absence of such pleas, the very circumstance surrounding the execution of 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.........."
32. In Uma Devi Nambiar Vs. T.C. Sidhan, III(2004) SLT 754, the division bench of the Hon'ble Supreme Court has further held that a Will is generally executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there isno 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 PC-45/13/05 Page:-29/39 circumstance especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
33. It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
34.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of PC-45/13/05 Page:-30/39 one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
35. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
36.Having discussed above, now I have to see whether in the present case the above principles have been duly made out or not. As far as the PC-45/13/05 Page:-31/39 ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will is concerned, only objector Om Prakash has raised objection that deceased Saroj Nagpal was not in sound state of mind since she was suffering from cancer and heart ailments at the relevant time of execution of the alleged Will. PW-1 Rajesh Nagpal during his cross examination also admitted that deceased Saroj Nagpal was having heart problem and cancer. He even stated that his tai was not maintaining good health. He also admitted that medical treatment papers were not in his personal custody. Even PW-2 gave contradictory statement regarding the health of the deceased as at one place he stated that on 6.5.04 Smt. Saroj Nagpal was suffering from various ailment but he could not specify any ailment with which she was suffering and at other place he stated that at the time of execution of the Will, Smt. Saroj Nagpal was not ill and she was physically alright. Even thereafter again this witness stated that in May, 2004 Saroj Nagpal was very weak and was having ill health. PW-3 also during cross examination stated that Smt. Saroj Nagpal was constantly ill as she was suffering from Cancer and had a heart problem too, when he visited her for witnessing the said Will. He even stated that Saroj Nagpal seemed to be ill at that time. Though the above statements were made for PC-45/13/05 Page:-32/39 the period May,2004 but R4W2 Devender Kumar, brother of deceased had stated that Smt. Saroj Nagpal expired with natural death and was not suffering with any ailment at any point of time. Even it is also a point of consideration that present Will is dated 15.7.04 whereas testator expired on 20.8.04 i.e after about 1 month 5 days from the execution of the Will and hence it cannot be presumed that testator was fully hail and hearty. However still, no documentary evidence is produced on record by the objectors to show the medical condition of the deceased and even there is nothing which can show that if testator was suffering from any ailments then those ailments were of such intensity which could have affected the cognitive faculties of the testator and that she was not in her senses at the relevant time of execution of alleged Will. Reliance is placed upon 149(2008) DLT 783 titled K.L. Malhotra Vs. Sudarshan Kumari & Anr wherein it was held :-
"As the Wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to PC-45/13/05 Page:-33/39 suppose that those qualities of mind should be possessed by the testator in highest degree, position or to the same extent as before the illness in order to enable him to validly make his Will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property, memory to remember the relations and persons normally having claims on his bounty and has also a judgment" .
Hence said objection of the objector no. 3 Om Prakash Nagpal is rejected and it is held that testator was not suffering from any disease at the relevant time of execution of the Will which would have effected her cognitive faculties.
37. Now I will deal with the question of valid execution of the Will. There is PC-45/13/05 Page:-34/39 two attesting witnesses to the alleged Will dated 15.7.04 i.e. Devender Kumar Aurora and Ganga Narain Gupta @ Ganga Ram out of which only Sh. Devender Kumar Aurora appeared in witness box and was examined as R4W2. Though R4W2 categorically stated that the Will was executed in his presence and he and other attesting witness as well as the testator signed the alleged Will in presence of each other but R4W2 is none other than the brother of the deceased and is also brother of beneficiary Sheela Kathuria meaning thereby he was also related to the beneficiary of the Will in question. No explanation has been given as to why other attesting witness Sh. Ganga Narain Gupta has not been produced in the witness box to corroborate the version of R4W2. Even said attesting witness Sh. Ganga Narain as stated by R4W2 Devender Kumar Aurora was his Chartered Accountant meaning thereby he was not personally known to the deceased and was made a witness to the alleged Will only at the behest of R4W2 Devender Kumar Aurora. Further, it has come in cross examination of R4W1 Tilak Raj Kathuria, petitioner that he came to know about the Will of Saroj Nagpal within seven days from 15.7.04. Sh. Tilak Raj Kathuria is none other than the husband of beneficiary Smt. Sheela Kathuria as well as he has been appointed as executor in the Will in question and it is quite PC-45/13/05 Page:-35/39 strange that the factum of existence of Will in question was disclosed to him within seven days of its execution. It has not come on record as to who disclosed about the factum of existence of Will in question to Sh. Tilak Raj Kathuria and if it was done so then what was the reason to disclose about the Will in question even prior to the death of testator. If it is presumed that testator/deceased had disclosed about the Will to Sh. Tilak Raj Kathuria then on the same analogy why the existence of Will was not disclosed to Brij Bala Kapoor another beneficiary of the said as per whom nobody told her about the existence of Will in question. Hence the abovesaid certainly raises suspicion on the execution on the Will and the Will in question cannot be stated to be validly executed.
38. Further, it is also a point required to be discussed here that when deceased was issueless and had executed the Will in question in favour of his sister-in-law Brij Bala Kapoor, Lalit Narula, son of another sister in law and her own sister Smt. Sheela Kathuria then why her two brothers Sh. Devender Kumar Aurora and Dr. Lalit Arora were debarred by her while distributing her assets when as admittedly she stayed with them at Kanpur and they were taking care of her. No reason for their debarment have been mentioned in the Will and it is very unlikely for a person to choose only her PC-45/13/05 Page:-36/39 sister among her maternal relations and leave her brothers with whom she spent last days of her life. Hence the abovesaid also raise suspicious circumstance surrounding the Will in question.
39. Further, objectors have disputed the signatures of deceased on the Will in question two handwriting experts have been examined by different objectors in support of their contention. RW-7W1 Sh. B.N. Srivastava examined by the objector Om Prakash Nagpal opined that the signatures on both the Wills i.e. Will dated 6.5.04 as well as Will dated 15.7.04 do not tally with the admitted signatures A-1 to A-3 on account opening form of Hongkong Bank Ex. R4W3/1 . On the other hand R4W3 Sh. Kamal Kant Khandelwal vide his report Ex. R4W3/11 opined that the disputed signatures D-1 to D-3 on alleged Will dated 15.7.04 tally with the admitted signatures A-1 to A-3 whereas disputed signatures on Will dated 6.5.04 do not tally with the admitted signatures A-1 to A-3. There is difference of opinion of both handwriting experts on Will dated 15.7.04 and now the genuineness of the Will is to be seen coupled with other circumstances. R4W3 Sh. Kamal Kant Khandelwal was produced as witness by the petitioner Tilak Raj Kathuria himself and further the disputed signatures on the alleged Will appear as 'Saroj Nagpal' whereas the admitted signatures PC-45/13/05 Page:-37/39 appears as 'Saroj Kumari Nagpal'. Hence both of them differ due to non presence of word Kumari in the disputed signatures which fact was also admitted by R43 Sh. Kamal Kant Khandelwal handwriting expert. It is also surprising to note here that said fact do not find mention in his report. Non mentioning of the said fact in the report of said handwriting expert definitely create doubt on the opinion given by the handwriting expert R4W3 Kamal Kant Khandelwal and in no case such major difference in the signatures can be ignored. Even otherwise from naked eyes the signatures on the Will in question as well as on admitted signatures on account opening form Ex. R4W3/1 differ from each. Further, the Will in question is an unregistered document and thumb impression of the testator could have been affixed to make the Will in question more authentic. Hence, the execution of the Will in question dated 15.7.04 Ex. PW-2/1 is surrounded with heavy suspicion and the Will in question cannot be given a clean chit. Accordingly in view of the above said Will dated 15.7.04 Ex. PW-2/1 cannot be stated to be the last testamentary disposition of the testator Smt. Saroj Nagpal out of free will and without coercion and is accordingly rejected and petitioners are held not entitled to the property in question. Issues no. 3 & 4 are decided in favour of the objectors and against the PC-45/13/05 Page:-38/39 petitioner.
40. Further it is also argued that petition has not been verified by one of the attesting witnessses of the Will and therefore liable to be dismissed. Petitioner has argued that if one the attesting witness comes and depose before the court that he has seen testator executing the Will in question then reqrement of Section 281 stands satisfied. Though the Will in question has already been rejected due to reasons mentioned above but even otherwise in the present case since the executor is appointed by the testator in the Will,hence Section 281 of Indian Succession Act applies as per which there is mandatory requirement of one attesting witness to sign the petition. Hence the Will in question also fails on said count and objecton of the objector is sustainable. Accordingly the Will in question is also discarded on the said point.
41. Relief:- In view of the above finding, the petition is dismissed. This file be consigned to record room.
Announced in open court (Ajay Goel) on 17.11.14 ADJ-12(Central)/Delhi PC-45/13/05 Page:-39/39