Delhi District Court
Smt. Chander Prabha Chawla vs State on 26 November, 2020
IN THE COURT OF SH. UMED SINGH GREWAL,
ADDITIONAL DISTRICT JUDGE-02, WEST, DELHI.
Probate Case No. 15983/16
Smt. Chander Prabha Chawla
@ Prabha Narula
D/o late Sh. Santokh Lal Chawla,
W/o Sh. Praveen Narula
R/o B-10/12, ( FF), Double Storey,
Ramesh Nagar,
New Delhi-110015
.....Petitioner
Versus
1. State
2. Sh. Avinash Chandra Chawla
S/o Late Sh. Santokh Lal Chawla
R/o 1501, Deeraj Valley Tower
C.H.S. Ltd. Mohan Gokhle Road,
Near Sai Baba Complex,
Goregaon- East Mumbai- 400 063
3. Smt. Anju Chawla
W/o Late Sh. Anil Kumar Chawla
R/o B-10/11, ( GF) Double Storey,
Ramesh Nagar, New Delhi-110015
...Respondents
Date of institution of the case : 22.08.2013
Date of reserving judgment : 11.11.2020
Date of pronouncement : 26.11.2020
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 1/ 31
JUDGMENT
1. This petition under Section 266 of Indian Succession Act, 1925, for grant of Probate/letters of administration is in respect of immovable property of Sh. Santokh Lal Chawla.
2. The facts are that Sh. Santokh Lal Chawla had purchased immovable property bearing no. B-10/11 & 12 with terrace rights, Ramesh Nagar, New Delhi from one Sh. Atma Singh vide sale deed duly registered on 18.01.1963 in the office of Sub-Registrar vide registration No. 637, Addl. Book No. I, Vol. No. 880 on pages nos. 61 to 65. The property was mutated in his name in the office of Ministry of Urban Development, Land and Development office on 22.04.1963. For the purpose of property tax, the property was in his name in West Zone, MCD. The property was built with terrace on a piece of land measuring 126.66 sq. yards and was having ground and first floor. Unfortunately, Sh. Santokh Lal Chawla expired on 13.02.1992 in Delhi leaving behind his wife Smt. Krishna Chawla, two sons, Sh. Avinash Chawla and Anil Chawla and daughter, namely, Chander Prabha @ Prabha Narula. Smt. Krishna Chawla expired on 28.11.1995 in Delhi. Younger son, namely, Anil Chawla expired on 19.11.2011 leaving behind his wife, Smt. Anju Chawla, respondent no. 3. But Sh. Santokh Lal Chawla had executed a will of the suit property on 11.02.1988 which was registered on the same day in the office of Sub-Registrar. Vide that will, he P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 2/ 31 bequeathed ground floor to Sh. Anil Chawla with liability of his mother, Smt. Krishna Chawla and sister, Chander Prabha @ Prabha Narula. The first floor was bequeathed to Chander Prabha Chawla and terrace to Sh. Avinish Chawla. Smt. Krishna, who expired on 28.11.1995, had also executed a will which was duly registered in the office of Sub-Registrar on 25.11.1992 in which she had acknowledged that her husband had executed a will dated 11.02.1998. Despite the fact that the will dated 11.02.1998 is in existence and it was duly executed by the father of petitioner and respondent no. 2 and father- in-law of respondent no. 3, the respondent no. 3 became greedy by filing a suit No. 259/13 in the Hon'ble High Court of Delhi for partition of the suit property stating that Sh. Santokh Lal Chawla had died intestate. Lastly, it is mentioned that the suit property is situated in Delhi and the deceased also had fixed place of abode in Delhi and he was very much residing at Delhi at the time of his death and so, there is no impedement in granting Probate/letters of administration in favour of the petitioner.
3. Upon filing the petition, notices were issued to all the respondents/LRs of deceased and citation was issued in daily newspaper 'Statesman' dated 11.10.2013. Notice was also served to State through the concerned Collector.
4. The valuation report in respect of the suit property bearing no. B-10/11 & 12, Ramesh Nagar, New P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 3/ 31 Delhi and the value of the said property has been assessed to the tune of Rs. 1,23,82,677/- ( One crore Twenty Three Lac Eighty Two Thousand Six Hundred Seveny Seven only).
5. Written statement of respondent No. 2 is to the effect that Sh. Santokh Lal Chawla had married twice. Respondent no. 2 was born from his first wife and the petitioner and Sh. Anil Chawla, husband of respondent no. 3 were born from his second wife. So, respondent no. 2 is step brother of the petitioner and he is residing in Mumbai. It is further mentioned that their father was exclusive owner in possession of the property in question comprising of ground and first floors. Initially, their father used to reside on ground floor of the suit property alongwith his wife and younger son, namely, Anil Chawla. At that time, the first floor had been rented out. Petitioner got married with one Sh. Praveen Narula and after marriage, they started residing as husband and wife in their matrimonial home but they could not adjust with each other and ultimately, their marriage was dissolved vide a decree of divorce and thereafter the petitioner alongwith her minor daughter started residing with her parents and brother Anil Chawla on the ground floor of the property.
It is further mentioned by respondent no. 2 that Sh. Anil Kumar Chawla was unmarried during those days and he did not have funds to make livelihood. The marriage of petitioner was also broken. Due to these reasons, his father Sh. Santokh Lal Chawla was mentally P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 4/ 31 perturbed and went into depression. He started suffering from several chronic disease. Intermittently, he used to lose memory due to which he was hospitalized several times. He was not able to do any work or to think anything due to illness. During those hard days, it was respondent no. 2 who provided basic necessities to his father and dependents of his father. Ultimately, Sh. Santokh Lal Chawla expired on 13.02.1992 in Delhi leaving behind his wife Smt. Krishna Chawla, two sons, namely, Sh. Avinash Chawla/respondent no. 2 and Sh. Anil Chawla, husband of respondent no. 3 and the daughter/petitioner. Sh. Anil Chawla got married with respondent no. 3 after the death of Sh. Santokh Lal Chawla and started residing on the ground floor of the property. Smt. Krishna Chawla wife of late Santokh Lal Chawla also passed away on 28.11.1995. Sh. Anil Chawla also expired on 19.11.2011 leaving his wife Anju Chawla only.
It is next mentioned in the written statement of respondent no. 2 that Sh. Santokh Lal Chawla left behind one immovable property bearing No. B-10/11 & 12, Ramesh Nagar, New Delhi. He and his wife Smt. Krishna Chawla died intestate. After the death of Smt. Krishna Chawla, the property left by Sh. Santokh Lal Chawla devolved upon his surviving legal heirs.
It is next mentioned that petitioner and respondent no. 3 are in actual physical possession of the entire property and they did not allow the respondent no.2 to live in any portion of the same. The respondent no.2 being son born from the first wife of the deceased, P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 5/ 31 is entitled to half of the suit property. He demanded his share several times from other sharers but they refused. They never told him about any instrument executed by Sh. Santokh Lal Chawla during his life time.
It is next mentioned that respondent no.3 has filed a case no. 259/13 in the Hon'ble Delhi High Court regarding the suit property.
It is next mentioned that no date of execution of the will is mentioned in the will. It is also not mentioned on whose instruction the will was drafted. It is bearing the name of one Mahavir Singh Advocate but he is a fictitious person as no person by that name is enrolled as advocate in the Bar Council. The Chamber number and address of Sh. Mahavir Singh is not mentioned in the will. The signature of attesting witness, namely Mr. Rajinder Prasad is also not of that person. The signatures of Mr. Mahavir Singh and Mr. Rajinder Prasad have been forged. It is further mentioned that the will is not bearing the signature of even Sh. Santokh Lal Chawla. Moreover, Mr. Santokh Lal Chawla was not in a position to execute any will because he was mentally perturbed during those days and was living a depressed life.
6. Written statement of respondent no. 3 is to the effect that the petition is not maintainable because she had already filed a civil suit for partition of the suit property left by Mr. Santokh Lal Chawla and so, as per Section 10 of CPC, the petition is liable to be stayed. Mr. Santokh Lal Chawla expired on 12.02.1992 and the P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 6/ 31 Probate case was filed in 2013 i.e. after 21 years of his death and in this way, it is barred by time.
It is next mentioned that Mr. Santokh Lal Chawla was ill and leading a depressed life on account of various ailments and hence, he was hospitalized several times. Due to these reasons, he was not in a fit state of mind to execute any document. The will purported to have been executed by him is a forged and fabricated document and signatures of testator and attesting witnesses have been forged by the person who is going to draw benefit from the will.
7. Following issues were framed on 05.11.2014:-
1.Whether the present petition filed on behalf of petitioner is time barred? OPR-2 & 3
2.Whether the Will dated 11.02.1988 executed by testator Mr. Santokh Lal Chawla is a valid, legal and genuine Will ? OPP
3.Whether the petitioner is entitled for Probate/Letter of administration in respect of aforesaid Will dated 11.02.1988, as prayed? OPP
4.Relief.
8. In order to prove the case the petitioner examined three witnesses.
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 7/ 31
9. PW-1 is petitioner herself who deposed in affidavit Ex.PW-1/A all the facts mentioned in the petition. Additionally, she deposed that her father Mr. Santokh Lal Chawla was of sound mind during his life time and also at the time of death. He was able to understand the consequences whatever he intended to do. She next deposed that her father used to write and sign in her presence and that is why she was conversant with his handwriting and signatures as he used to live with him. She identified the signatures of her father on the Will dated 11.02.1998. She next deposed that at the time of execution of the Will, her father was of sound mind and he Will was drafted as per his own wish and without any pressure, coercion or undue influence from any corner. Thereafter it was duly registered. She relied upon the following documents:-
(i) Ex. PW-1/1 is the copy of his Election Card;
(ii) Ex. PW-1/2 is the original Will dated 11.02.1988 of late Santokh Lal Chawla;
(iii) Ex. PW-1/3 is the original Will dated 25.11.1997 of Smt. Krishna Chawla;
(iv) Mark A is the copy of death certificate of late Santokh lal Chawla;
(v) Mark B is the copy of death certificate of late Smt. Krishna Chawla;
(vi) Ex, PW-1/6 is the original Electricity Bill dated 18.07.1996;
(vii) Ex. PW-1/7 is the original telephone bill dated 08.12.2005;
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 8/ 31
(viii) Ex. PW-1/8 is the original House Tax Bill dated 26.11.1991;
(ix) Mark C is the copy of his Pan Card;
(x) Ex. PW-1/10 is the original handwritten Will of Sh.
Santokh Lal Chawla;
(xi) Ex-1/11 is the original diary of Testator Sh. Santokh Lal Chawla.
PW-2 Mr. Gaurav Kumar, LDC from the office of Sub-Registrar-II, Basai Darapur, placed on record the documents regarding the Will of Anil Kumar chawla, brother of the petitioner which was registered in that office on 18.11.2011 vide registration No. 5735, in Addl. Book No. 3, Vol. No. 7975, on pages 99 to 101, as Ex.PW2/1.
PW-3 Mr. Surya Prakash, LDC, in the office of Sub-Registrar I, Kashmere Gate, placed on record the documents of the will of mother of the petitioner as Ex. PW-1/3 which was registered in his office on 25.11.1993 vide registration No. 46417, Addl. Book No. III, Vol. No. 1929 on pages 13 & 14.
10. Respondent no. 2 examined himself as RW-1 by filing an affidavit in evidence which contains all the contents mentioned in his written statement. Additionally, he deposed that his father died intestate leaving behind no Will and as such, all four legal heirs inherited the right to the extent of 1/4th each in the property of his father. His mother, Smt. Krishna expired on 28.11.1995 in Delhi and during her life time, she also P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 9/ 31 never executed any Will in respect of her 1/4th share. So after the death of his father and mother, the property left by them devolved upon the legal heirs i.e. respondent no. 2, respondent no. 3 and petitioner. He further deposed that he, being the son from first wife, is entitled to half share in the property. He further deposed that respondent no. 3 has also filed a partition suit of the suit property claiming equal share. So, the present petition is collusive between petitioner and respondent no. 3.
11. In affidavit Ex.R3W1/A, the respondent No. 3 deposed all the facts which are finding place in her written statement. Additionally, she deposed that after the death of her husband Sh. Anil Chawla, her brother-in- law/respondent no. 2 started claiming to be owner of the half of the property left by her father-in-law. As there was apprehension in her mind that Avinash Chawla may succeed to the property to the extent of half share, she filed a civil suit bearing no. 259/13 in the Hon'ble High Court of Delhi for partition of the suit property and the suit is being hotly contested by petitioner as well as Avinash Chawla. She next deposed that petitioner disclosed for the first time in the written statement of the partition suit that her father had executed a Will which was registered on 11.02.1988.
Issue No. 1:
12. Ld. Counsels for respondent nos. 2 & 3 argued that Mr. Santokh Lal Chawla is stated to have executed P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 10/ 31 the will on 11.02.1988 and he expired on 13.02.1992 but the case for Probate/ Letters of administration was filed in 2013 i.e. after a delay of 21 years. They further submitted that period for limitation for applying such relief, as per Article 137 of Limitation Act, is three years from the date of death of testator.
On the other hand ld. Counsel for petitioner argued that the respondent nos. 2 & 3 were quite aware that their father had executed a Will on 11.02.1988 vide which the ground floor was bequeathed to the husband of respondent no. 3, first floor to petitioner and terrace to respondent no. 2. Till the beginning of 2013, nobody raised finger towards the will. It was respondent no. 3 who disputed the will by filing a partition suit in the Hon'ble High Court of Delhi in 2013 and only thereafter the petitioner filed the present case. He further submitted that the period of limitation starts running from the date of accrual of cause of action which in the present case arose on filing of partition suit in the Hon'ble High Court.
13. In "KUNVARJEET SINGH KHANDPUR VS.
KIRANDEEP KAUR", (2008) 8 SCC 463, the Hon'ble Supreme court held that period of limitation to seek relief of probate/letters of administration as per Article 137 of Limitation Act was three years from the date of accrual of cause of action. It further held that if the will, in the initial period remained undisputed but became disputed later on, the period would start running from the date of dispute.
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 11/ 31 It further held as under:
15. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in the Kerala State Electricity Board's case (supra).
16. Similarly, reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani vs. Sajni Prem Lalwani (AIR 1983 Bom. 268). Para 16 reads as follows:-
"16. Rejecting Mr. Dalpatrai's contention. I summarise my conclusion thus-
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) Such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as along as as the right to do so survive and the object of the trust exists or any part of the trust, if created remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death.;
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 12/ 31
17. The conclusion'b' is not correct while the conclusion 'c' is the correct position of law.
18. In view of the factual scenario, the right to apply actually arose on 9.08.1999 when the proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed within three years, the same was within time and therefore, the appeal is without merit, deserves dismissal, which we direct but in the circumstances without any order as to costs."
14. It is mentioned in para No. 14 of the petition itself that despite existence of Will dated 11.02.1988 by Mr. Santokh Lal Chawla, the respondent No. 3 filed a partition suit in the Hon'ble High Court mentioning falsely that Mr. Santokh Lal Chawla had died intestate. By doing so, the will was disputed. It is mentioned in the written statement of respondent nos. 2 & 3 also that respondent no. 3 had filed a partition suit regarding the suit property in the Hon'ble High Court in 2013 and the same was pending.
PW-2 Mr. Gaurav Kumar, LDC from the office of Sub-Registrar, Basaidara Pur placed on record the Will of Anil Kumar Chawla, husband of respondent no. 3 which was registered in that office on 18.11.2011 as Ex.PW-2/1. In that will, it is mentioned by Mr. Anil Kumar Chawla that his father Mr. Santokh Lal Chawla had executed a will on 18.02.1988 by which he had bequeathed the ground floor of the suit property to him and that he had become owner of the ground floor on the strength of that will. It is further mentioned in that will Ex.PW-2/1 that he was bequeathing the ground floor of the suit property to his wife/respondent no.3. It P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 13/ 31 means that husband of respondent no. 3 was well aware about the existence of the will and he was believing the same as valid and that is why he mentioned in his own will that he had become owner of ground floor of the property on the strength of his father's will. So, till 18.11.2011 there was no opposition to that will from the side of respondent no. 3. Hence, there was no cause of action for the petitioner to apply for Probate/Letters of administration. But, in 2013 respondent no. 3 filed a partition suit regarding suit property and only thereafter the petitioner felt need of apply for Probate and that is why she filed the present case in 2013. So, the right to apply for the relief accrued to the petitioner in 2013. She filed the present case in 2013 itself i.e. within three years from the date of accrual of right to apply for Probate/Letters of administration.
In view of above discussion, this issue is decided in favour of the petitioner and against respondent no. 2 & 3.
Issue nos. 2 & 3:
15. Both these issues are interconnected hence are being taken up together.
16. Ld. Counsels for respondent nos. 2 & 3 argued that petitioner was married with Mr. Praveen Narula but after sometime, both fell apart and the marriage was dissolved. After break down of marriage, the petitioner P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 14/ 31 alongwith her minor daughter started residing with her parents in the suit property. The husband of respondent no. 2 was unemployed. Due to breaking of marriage of his daughter and due to unemployment of husband of respondent no. 3, Mr. Santokh Lal Chawla was feeling mentally perturbed due to which he started suffering from various ailments. They further argued that he was admitted in the hospital several times. He was unable to do anything or think anything and so, he cannot be said to have executed any will because he was not in proper state of mind during those days.
The counsels for respondent nos. 2 & 3 next argued that the will is a forged and fabricated document as the same is not bearing the signatures of the testator. They further submitted that the will is not bearing the signatures of the attesting witnesses also who are stated to be Mr. Rajinder Prasad and Mahavir Singh because no person by the name of Mahavir Singh got registered as advocate in Bar Council. They next argued that the petitioner has failed to prove that the will is bearing signatures of the testator. They next argued that as per Section 63 of the Indian Succession Act, the will is required to be attested by at least two attesting witnesses who should have seen the testator signing the will. They next drew the attention of the court towards Section 68 of Indian Evidence Act as per which at least one attesting witness is mandatorily required to be examined to prove the will if the said witness is alive and subject to process of the court.
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 15/ 31 They next argued that the petitioner did not examine any attesting witness. The petitioner did not place on record any document or examine any witness to prove that both the attesting witnesses have died. In this way, the will has remained short of proof.
17. On the other hand, ld. counsel for the petitioner argued that the testator was of sound mind at the time of execution of the will. He was never admitted in the hospital for any illness.
The counsel next argued that the petitioner/ PW-1 used to reside with her father and hence she had seen him signing and writing several times. That is why she is well conversant with his writing and signatures. That is why she has identified the signatures of her father on the will. He argued that both attesting witnesses have died and hence, none of them could be examined to prove attestation of the will.
18. Before proceeding to decide probate petition, let us discuss in nutshell the relevant legal provisions and judicial pronouncements.
(I). 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:-
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 16/ 31 "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.
Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation 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 more lucent by putting it negatively in words to the effect that if 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.
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 17/ 31 (II). 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".
(III). 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 P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 18/ 31 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 is more important when the witnesses attest and 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.
(IV). The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, being germane to the discussion, are quoted as under:-
"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 P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 19/ 31 execution of any 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."
The Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13th November 1958, laid down following prepositions on the nature and standard of evidence required to prove a Will:-
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 proved to be the last will and testament of the testator.
Normally, the onus which lies on the P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 20/ 31 propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the 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 circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the 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 P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 21/ 31 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, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounded 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. "
(V). In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, the 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 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 P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 22/ 31 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 substantial 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 be unnatural and might cut off wholly or in part near relations..."
(emphasis supplied) (VI). The decision 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 P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 23/ 31 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. 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) (VII). Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held that the evidence unmistakably showing that the objectors had separated from the family, taking their P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 24/ 31 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. It added that:-
"Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
(VIII). In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed as:-
"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) P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 25/ 31 (IX). Naveen Bhatia through LRs. Vs. Raj Kumari Bhatia & Ors., 2017 (165) DRJ 511, Hon'ble Delhi High Court hold as under :-
"A trial court commits legal error by going into issues of title of the properties because a Probate Court only decides the validity or invalidity of execution of the will. Whether or not the testator did or did not have title to the properties which were subject of bequests under the will or that actually someone else had title or that the testator had title only of some of the properties and not all of the properties or that testator had only part interest and not full interest in the bequeathed properties etc. etc. are all issues which have to be decided by a civil court in a civil suit between the parties whenever and where ever disputes will arise with respect to title of a particular property."
19. In order to prove that the testator was not in a fit state of mind to execute the will, the respondent nos. 2 & 3 did not examine any witness though their contention is that testator was suffering from several ailments and he was admitted in the hospital many times. They did not depose about from what illness Mr. Santokh Lal Chawla was suffering. They did not mention the date of his admission and discharge from the hospital. The name of the hospital has also not been mentioned. No treatment record, admission record, discharge summary, investigation report or prescriptions slips or receipt of purchase of medicines have been placed on record by them. In the absence of such vital P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 26/ 31 documents, it cannot be said that Mr. Santokh Lal Chawla was not in a fit statement of mind at the time of execution of the will on 18.02.1988.
20. Respondent no. 3 has come into the shoes of her husband Mr. Anil Kumar Chawla. She has derived her interest in the subject matter through her husband. He/Anil Kumar Chawla had executed a will which was registered on 18.11.2011 in the office or Sub-Registrar with the assertion that his father Mr. Santokh Lal Chawla had executed a will in his favour regarding the ground floor of the suit property. It is further mentioned in the will by Mr. Anil Kumar Chawla that he had become owner of the ground floor of the suit property on the strength of will of his father. It is next mentioned that he would remain owner of the ground floor till his life and after his death, it shall devolve upon his wife/respondent no.3. So, as per the husband of respondent no. 3, the will Ex.PW-1/2 executed by his father on 11.02.1988, was valid, proper and legal. It is a vital admission which was made by the husband of respondent no. 3 regarding the will when dispute about the suit property had still not arisen. Such an admission is highly relevant under Section 18 (2) and 21 of Indian Evidence Act, 1872. Due to admission of her husband about the validity and legality of the will, it does not lie in the mouth of respondent no. 3 to say that the will was not properly executed by her father-in-law.
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 27/ 31
21. As per Section 63 of Indian Succession Act, 1925, the will should be attested by two or more witnesses, each of whom had seen the testator signing or affixing his thumb impression mark to the will. As per Section 68 of Indian Evidence Act, a document required by law to be attested cannot be used as evidence until one attesting witness has been examined to prove its execution, if the attesting witness is alive and subject to the process of the court. As per Section 71 of Indian Evidence Act, if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
In Janki Narayan Bhoir vs. Narayan Namdeo Kadam (2003) 2 Supreme Court Cases 91, the petitioner had examined one attesting witness but that attesting witness did not prove the attestation of the will by other attesting witness. The petitioner had pleaded that the will was duly proved with the help of Section 71 as the other witness has deposed about the attestation by other attesting witness. The Hon'ble Apex court held that the petitioner had failed to prove the attestation of the will saying that the petitioner should have examined the other attesting witness also in the background that the first attesting witness has failed to prove the execution of the will. The Apex court further held that the Section 71 of Indian Evidence Act comes into play if the attesting witness denies or does not recollect the execution of the document. It further held as under:
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 28/ 31 10"...On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got prove that the Will was duly and validly executed. That cannot be done by simply proving that the signatures on the Will was that of the testator but must also prove that attestation were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act doe not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least bye two witnesses. Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of Section 63. viz. Attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined. In his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also if falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the will does not merely means the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 29/ 31 make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness, there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
22. In the case in hand, as per Will Ex.PW-1/2, the same was drafted by one Mr. Mahavir Singh, Advocate. In the column of attesting witnesses it is bearing the signatures and names of two persons, namely, Rajinder Prasad and Mahavir Singh. It is bearing the signature of Mr. Santokh Lal Chawla above the signature of Mahavir Singh as drafter. ld. Counsels for respondent nos. 2 & 3 are not justified to argue that the petitioner has failed to prove the signature of testator on the will because signatures of testator on the Will Ex.PW-1/2 have been identified by petitioner by deposing as PW-1 that she had seen her father writing and signing and that is why she was conversant with his hand writing and due to that reason, she was able to identity her father's signature on the will. So, the petitioner has proved that the will in question is bearing the signature of her father.
23. Bare perusal of the file shows that the petitioner did not examine any of the attesting witness. Contention of her counsel is that both attesting witnesses had expired. It has come in the order sheet dated 25.05.2016 in the form of contention of counsel for petitioner that both attesting witnesses had already died. The petitioner had moved an application on 18.04.2015 to summon one Smt. Vijay Rani, wife of Sh.
P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 30/ 31 Bijender Kumar, daughter-in-law of Sh. Rajinder Prasad, i.e. one of the attesting witness.
Despite moving of that application, the petitioner did not examine said Smt. Vijay Rani. There is nothing on the file which may suggest that attesting witness, namely Mr. Rajinder Prasad and advocate Mahavir Singh have expired. The petitioner has failed to prove their death and consequently, she has failed to prove the attestation of will Ex.PW-1/2.
In view of above discussion, both these issues are decided in favour of respondents and against the petitioner.
Issue No. 4:
24. Consequent to decision on issue nos. 2 & 3, it is held that petitioner is not entitled to any relief.
Petition is dismissed. File be consigned to record room.
Announced in the open court today the 26th November, 2020 (Umed Singh Grewal) Addl. District Judge (West) Tis Hazari Courts, Delhi P.C. No. 15983/16 Chander Prabha Chawla Vs State & Ors. 31/ 31