Delhi District Court
Lachhman Dass Gupta vs The State (Govt. Of Nct Of Delhi) on 9 May, 2012
IN THE COURT OF SHRI VIMAL KUMAR YADAV:
ADDL. DISTRICT JUDGEII (NORTH): DELHI
PC No. 88/11
Lachhman Dass Gupta
(since deceased)
Through his brother
Sh. Madan Lal Gupta
R/o A10, C.C. Colony,
Opposite Rana Pratap Bagh,
G.T. Karnal Road, Delhi7 ... Petitioner
Versus
The State (Govt. of NCT of Delhi)
and others ... Respondents
Date of Institution: 27.11.2003
Date of Arguments: 11.04.2012
Date of Decision : 09.05.2012
JUDGMENT
The petition filed under Section 276 of Indian Succession Act, 1925 seeking Letter of Administration to the estate left behind by late Shri Kirori Mal Gupta based upon the Will dated 18.10.1985, is hereby disposed off through this judgment.
2. The indispensable facts as set up by the petitioner, who was named executor of the Will dated 18.10.1985 are; that Sh. Kirori Mal Gupta was the exclusive owner of the property no.A10, C.C. Colony, G.T. Karnal Road, Delhi to the extent of 154.41/2 sq. yds. based upon the registered lease deed dated 28.2.1967 executed by his son/ petitioner herein and executor of the Will PC No. 88/11 1 Shri Lachhaman Dass Gupta. The testator expired on 10.2.1986 leaving behind the legal heirs as per AnnexureA to the petition i.e. seven sons and two daughters and nothing else was left behind by him. Through the Will dated 18.10.1985 the property owned by him as referred above was bequeathed in the following manner:
i. Shop, Store stair case area, toilet, and open space, left as set back in front of the shop, to be jointly owned in equal shares by Madan Lal Gupta and Suresh Chand Gupta.
ii. Room measuring 12'x10' behind the toilet and also the open space left opposite it at setback (20'x6'), to devolve upon Sh. Milap Chand Gupta. iii. All the passages shall be kept in common use and maintained jointly. iv. First floor portion comprising three living rooms, one kitchen, and a toilet shall devolve upon sh. Madan Lal Gupta.
v. Second floor comprising two living rooms, one kitchen, a toilet and verandah with open space shall devolve upon to Shri Suresh Chand Gupta.
3. Against the backdrop of the above facts and circumstances, the executor has come forward after the death of his father for grant of Letter of Administration in respect of the property left behind by the Testator and asserted that the Will in question contains the genuine last wishes of late Shri. Kirori Mal Gupta, which was executed in compliance with all the legal requirements by him in sound disposing mind and health. Two independent witnesses, namely, Rajinder Singh Saini and Sh. Sada Nand Shastri had attested the execution of the Will whereas Dr. Rajan Anand had certified about PC No. 88/11 2 the health and his mental alertness and consciousness at the time of execution of the Will. Recently, Sada Nand Shastri, one of the attesting witnesses has however expired whereas the other one Sh. Rajindeer Singh Saini has supported the petition through his affidavit.
4. Pursuant to the publication and notice none except respondent no.7 Milap Chand Gupta came forward to contest the petition as others' gave their no objection.
5. The respondent no.7 while contesting the petition filed objections asserting that primarily, the original Will has not been filed alongwith the petition and the Will in any case is a forged and fabricated document, besides the petition is hit by limitation inasmuch as the Testator expired on 10.2.1986 whereas the petition has been filed in the month of October, 2003 i.e. after lapse of about 18 years without giving any justification as to how and why it was not filed earlier. It is further alleged that the petitioner and two beneficiaries i.e. Madan Lal Gupta and Suresh Chand Gupta have connived with each other in order to cause loss to the respondent no.7 by grabbing his share in the property. It is further asserted that the respondent no.7 had built the property in question with his own funds and resources inasmuch as the other two claimants i.e. Madan Lal Gupta and Sh.
Suresh Chand Gupta were school going children and were not earning the testator Kirori Mal Gupta, father of the parties, was an Urdu teacher, not acquainted with the English script and was leading a retired life in the PC No. 88/11 3 paralytic condition for last twothree years prior to his death. It is further asserted that brothers of respondent no.7 Madan Lal Gupta and Sh. Suresh Chand Gupta had also filed a civil suit bearing No.110/98 before the court of Civil Judge on the basis of original Will but no original Will was filed. Therefore, the Will set up by the present petitioner is nothing but forged and fabricated Will to deprive the respondent no.7 of his due and fair share in the property.
6. In the rejoinder, the petitioners clarified that the original Will was misplaced/ untraceable and a complaint in this regard was lodged with the local police of PS Model Town through daily Diary no.63B, FIR No.1562/03 on 8.11.2003. The other contents of the objections have been denied on the expected lines. Besides, it is stated that mutation application was moved by the respondent no.7 on 27.3.1991 which was supported by the requisite documents wherein the respondent no.7 had admitted that Sh. Kirori Mal was the recorded owner of property no.A10, C.C. Colony, G.T. Karnal Road, Delhi. The other brothers of the parties, namely, L.D. Gupta, petitioner, Attar Chand Gupta, Kedar Nath Gupta and Prem Chand Gupta through their affidavits/ declaration dated 20.6.1990 alongwith Smt. Devki gave their no objection for the division of the property and its mutation in the name of their brothers Sh. Milap Chand, Madan Lal Gupta and Suresh Chand Gupta in terms of the last wishes of their father as described in the said Will has already taken place. The said declaration was also filed by the respondent no.7 with the MCD in order PC No. 88/11 4 to have his share mutated in the property in terms of the Will dated 18.10.1985. Therefore, in these circumstances, it is asserted that the Will is genuine Will containing the last wishes of the father of the parties and the petition deserves to be allowed.
7. On the basis of the pleadings of the parties, the following issues were framed on 25.8.2005:
1. Whether the deceased late Sh. Kirori Mal Gupta executed his valid and enforceable Will dated 18.10.1985 as claimed by the petitioner.? OPP.
2. Whether the petitioner is entitled to letter of Administration on the basis of the aforesaid Will as claimed? OPP.
3. Whether the petition is not maintainable for want of original Will? OPR
4. Whether the petition is not maintainable being barred by time/ Limitation? OPR
5. Whether the petition is liable to be dismissed on the ground of forgery and falsity of the documents? OPR
6. Whether the petition is not maintainable for objections of the respondent? OPR
7. Whether the respondent is estopped from objecting to the Will on the ground that the respondent has himself taken benefit of it? OPP.
8. Relief.
8. To substantiate their claim, the petitioners have examined himself as PW1, Shri Rajinder Saini as PW2, Shri Kamal K. Kaushik as PW3, Dr. PC No. 88/11 5 Rajan Anand as PW4 and Shri Arjun Singh as PW5 and closed the evidence. On the other hand, respondent no.7 has examined as many as four witnesses, namely, Shri Vinod Gupta as RW1, Smt. Usha Garg as RW2, Sh. Puran Chand as RW3 and Shri Milap Chand Gupta as RW4.
9. I have considered the submissions made by the Ld. counsels for the parties and have perused the record as well. My issuewise findings are as follows: Issue No.3:
It was incumbent upon the respondent no.7 to establish that original Will is sinquanone for the grant of Letter of Administration/ Probate.
It has been contended on behalf of the respondent no.7 that absence of the original Will in itself is a circumstances which raises a question about the authenticity of the document.
10. The Indian Succession Act, 1925, however, contains answer to the situation where the original Will is not there and in this context Section 237, 238, 239 can be looked into, which provides that in the absence of original Will, copy of the Will can be looked into under certain circumstances. The Act has taken care of even those circumstances, where the Will is either lost or destroyed or not even copy or particular are preserved. In the instant case a carbon copy of the Will exists and as such, Section 237 of the Indian Succession Act comes into play and as per the evidence coming on record the Will dated 18.10.1985 executed by the Testator which was lost/ misplaced after PC No. 88/11 6 his death, which took place in the year 1988.
11. The Will was seemingly lost in the year 2003 or so. In this context, a report was lodged with the police station Model Town. Therefore the carbon copy has to be taken into consideration. It has come in the evidence that the Will placed on record is the carbon copy of the original Will and incidentally the Will which is there on record is also a signed will, therefore, absence or non production of the original Will does not create any obstruction , so far as the relief sought by the petitioner is concerned. In this context, Section 62, 63 and 65 of Indian Evidence Act can also be relied upon, which provide the circumstances under which the documents can be proved through the secondary evidence. Section 62 and 63 of Evidence Act nearly qualify in this context to take care of the Will in question original of which being not there. In this context reference can be made to the judgment in Kamala Rajamanikkam Vs. Sushila Thakur Dass AIR 1983 Allahabad 90 wherein it has been held as follows:
"In order to bring the document within the meaning of explanation 2 to S.62 of Evidence Act, the whole documents with the signatures must have been made by one uniform process. As only after the contents of the letter had been typed out B signed the document which was addressed to the Government and then initiated Ext A. which was kept to the Taluka Board Office, the signatures on the document addressed to the Government and the initials in Ext. A could not be said to have been made by one uniform process within the meaning of that Section. The document sent to the Govern must be treated as the original as it constituted the communication between the Government and B and therefore, Ex. A produced by the Taluka Board office, was not admissible in evidence being a copy of the original, which was not admissible as being privileged PC No. 88/11 7 document, under Section 124 of the Evidence Act."
12. In view of these facts and circumstances, it can therefore be concluded that even if the original Will has not been filed on record, the same cannot be made basis to throw the case of the petitioner out. As such, the petition is very well maintainable on the strength of a carbon copy. Accordingly, the issue no.3 is decided in favour of the petitioner and against the respondent.
Issue no.4 It was again incumbent upon the respondent no.7 to establish that the petition is barred by Limitation. It is in this context, further contended that the Will was executed in the year 1985 whereas the petition has been filed in 2003 that is after about 18 years and there is no explanation as to why the petition was not filed earlier. Ld. Counsel for the respondent no.7 has contended that Article 137 of the Limitation Act is applicable in these circumstances which provides limitation of only three years. The petition is apparently beyond that period of three years, even if taken from the date of death of the Testator, which took place in 1988. The counsel for the respondent has relied upon the judgment in Pamela Manmohan Singh Vs. State & others 83 (2000) DLT 469. There was no occasion with the petitioner to file or seek probate of the Will for no such reason arose. Subsequently, when the parties have divided the property left behind by the petitioner as per the wishes in terms of the Will years ago and even the mutation was also carried PC No. 88/11 8 out in terms of the same in which even the respondent no.7 was also a party, thus, there was no occasion to seek probate of the Will which is otherwise not mandatory in City of Delhi as was held in Chander Bhan Vs. Harnath 20 (1981) DLT 32. It seems that dispute raised by the respondent no.7, which is evident from the fact that the parties are litigating before the Civil Court also is the reason why the Probate/ Letter of Administration qua the Will dated 18.10.1985 has been sought. History of litigation between the parties reflects that there was strained relations amongst the brothers especially those the respondent no.7 and the other two brothers who are occupying part of the property left behind by the Testator. Therefore, in these circumstances, the petition came into being, which apparently, is not effected by the law of Limitation. The litigations amongst the brother started in 1998 and reached to the extent where division and mutation effected in terms of the Will came under challenge. Therefore, the present petition was been filed when a specific objection was taken by the respondent no.7 in his written statement dated 21.9.1999, where it has been asserted on behalf of the respondent no.7 in the preliminary objections that the suit is not maintainable in the absence of Letter of Administration/ Probate of the Will. This particular assertion give cause of action to the petitioner to file and to go for probate of the Will. The will was not traceable seems to be probable reason and that is why the petition was not filed. A complaint was lodged with regard to this to the police station Model Town that the Will was misplaced. It seems that carbon copy was PC No. 88/11 9 available and therefore, the petition has emerged.
13. Different views have been expressed by the different Hon'ble High Courts on the aspect as to whether the law of Limitation is applicable to the probate proceedings or not. One stream is to the effect that the law of limitation is not attracted to the probate proceedings as it is continuing right and can be asserted at any time. The other line of thought is that the law of limitation, as is applicable to the other proceedings, is applicable to the probate proceedings also. The petition, at the most, may be treasted as an application and in the absence of any specific period of limitation, Article 137 of Indian Limitation Act would come into play which provides a period of three years. However, the law which has now been crystalized is to the effect that the law of limitation is applicable to the probate proceedings also. The only difference is that the period of limitation was to be reckoned on the occurance of such event or circumstance, which gives beneficiary/ propounder/ executor of the will a ground to assert one's right under the Will. In case the beneficiary or the executor fails to assert those rights under the Will after happening/ occurance of such event or situation, which has the potential to jeopardize the rights flowing under the Will. Thus, in such a case a petition filed after three years of that event/ circumstance, would PC No. 88/11 10 be hit by limitation. Reference can be made to the case of Basant Dayal Vs. State and others Manu/DE/3265/2009, Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur & others AIR 2008 Supreme Court 2058, Pratap Singh & another Vs. State 157 (2009) DLT 731.
14. There was no occasion or reason with the petitioner to file the petition as the Will was not disputed by anyone, rather, was acted upon by all concerned including the objector no.7, which is evident from the documents Ex.PW5/2, Ex.PW5/3, Ex.RW4/P1 and Ex.RW4/P2, relating to the house tax issue with the MCD indicating further that the property in question was divided amongst the brothers on the basis of Will in question. The mutation of the property was sought by Shri L.D. Gupta through the application dated 25.5.1990, copy of which is Ex.PW5/1 and another application Ex.PW5/2 is there, which has also been signed by the respondent no.7, through which the mutation/ sub division of the property no.A10, C.C. Colony, G.T. Karnal Road, Delhi (part) was sought and this application by the three brothers dated 27.3.1991 is in support of the application for mutation dated 21.5.1990 Ex.PW5/1. The application has a reference of the Will in question dated 18.10.1985 and on the basis of the said Will, the mutation of the property was applied by Shri L.D. Gupta, brother of the parties. The supporting PC No. 88/11 11 affidavit of the respondent no.7 is there and clause 3 of the said affidavit is very categorical and clear about the bequeathment of the property by late Shri Kirori Mal Gupta. The Indemnity Bond too is there, both of which are Ex.PW5/3 and Ex.PW5/4, which are ample proof of implementation of the Will dated 18.10.1985. Therefore, in these circumstances, the contention of the respondent no.7 that the documents were got signed by him of his brother Shri L.D. Gupta cannot be asbovle him or permit him to withdraw his signatures or disown the documents. He is an educated man retired as principal. Therefore, it does not fit into his mouth to say that blank papers were got signed from him by his brother. If it was so, then he, in the first place should not have signed or raised some or other sort of protest or reservation. It has been held in Punjab & Sind Bank Vs. Ram Parkash Jagdish Chand 40 (1990) DLT 497 that the contention that the signatures alleged to have obtained on blank papers, is not to be believed as the signatures are token of acceptance and authenticity of the documents. Therefore, the respondent no.7 is unable to wriggle out of this situation. As such, there was no reason with the petitioner to feel trepidated to move for the grant of Letter of Administration/ Probate. In such circumstances, a person geting a lost careless qua an implemented document is not unusual. PC No. 88/11 12 Subsequently it got delayed on account of the Will being not available. This seems to be in accordance to and otherwise to the human behaviour and conduct especially when the Will was acted by the brothers and necessary documentation was done in the Municipal records. The brothers are since occupying their respective portions, thus the documents have lost its importance. In such circumstances and even otherwise, it cannot be ruled out that the documents cannot be misplaced. Accordingly, the petition filed on behalf of the petitioner is not barred by Limitation. As such, the issue no.4 is decided in favour of the petitioner and against the respondents.
Issue no.5, 6 & 7 It is for the respondent no.7 to show that the petition is not maintainable and liable to be dismissed on the grounds as asserted by the respondent no.7 that the Will is forged and fabricated document and the other preliminary objections taken by the respondent no.7 in his objections filed in response to the petition. Two of the major objections with regard to the limitation of nonfiling of the original Will have also been addressed and considered under the issue no.3 & 4. Thus, what remains to be seen is that how far the respondent no.7 has been able to show that the Will is a forged and fabricated document. The other PC No. 88/11 13 preliminary objections are of no consequences inasmuch as answer to these are inherent and entwine the issues framed i.e. issue no.3,4,5 & 6. Thus, what is to be seen as to whether the Will is a forged and fabricated document or not.
15. The counsel for the respondent no.7 has categorically asserted that copy of the Will has been deliberately filed on record as it is forged and fabricated document whereas the original Will is available on the judicial record of the suit No.110/98 (New No.0CS093/06) titled as Madan Lal Gupta Vs. Milap Chand Gupta. There are two wills on record i.e. Ex.PW1/2 and certified copy of another Will is Ex.PW2/R3 and comparison of both would reflect that these are two different Wills prepared at different point of time. However, there is no answer with the respondent no.7 as to why the original Will, which according to the respondent is a part of judicial record in suit No.110/98, has not been brought on record. What prevented him from confronting the witnesses of the petitioner with the original Will. So far as the copy of the Will is concerned, this aspect has already been dealt with in issue no.3 and this fact alone would not be sufficient to conclude that the Will placed on record is a forged and fabricated document.
16. The counsel for the respondent no.7 has further contended PC No. 88/11 14 that the circumstances as have come in the testimony of PW3 Sh. Kamal K. Kaushik and PW4 Dr.Rajan Anand respectively are indicative of the facts that execution of the Will as presented is not only defective rather it was prepared subsequently and that is why there are contradictions and anamolies in the testimony of the two witnesses. Counsel for the respondent no.7 has highlighted the fact that time given by Dr.(Mrs.) Rajan Anand as to when she had started from her place, when the Will was signed by her coupled with the fact that her certificate was typed written, which further indicates that all was preplanned and pre determined and that is why without waiting for the medical examination, the Will and the certificate of Dr. was prepared through a typewriter. Further, she has not given the identification mark of the Testator which renders the medical certificate inadmissible.
17. However, human being has their own limitation and so is the case with the human memories. Therefore, if a person is supposed to require recall events, then importance attached to the particular event becomes vital, and that alone in all probability will decide as to how and what would be retained in the memory store and for what period.
18. The will in question was executed in the year 1985, whereas the testimony of witnesses was recorded in the year 2006. None of the PC No. 88/11 15 witness i.e. PW2 and PW4 were closely related to the Testator or his family nor have any personal interest in the execution of the Will in such a manner which may warrant them to remember each and every fact with minor and finer details. The basic aspect for which the witness Dr. Rajan Anand has been examined is to ascertain the physical health and mental state of the testator and on that aspect her testimony is required to be probed primarily. The incidental aspects cannot be given the same kind of importance as is to be given to the basic or fundamental fact with which the person concerned was associated. On the same parameters, the testimony of PW2 Rajinder Saini is also to be appreciated. The testimony of the witness when tested on the parametrs above, then it appears straight, natural and unshakable, thus worth relying and acting upon.
19. To top it all, although the respondent no.7 himself has taken advantage of principal document i.e. the Will in question before the Muncipal Corproation of Delhi in order to carry out mutation in respect of the property, thus, he is estopped from questioning it. Affidavit in this context was sworn by the respondent no.7 together with Indemnity Bond etc. Thus, the genuineness and authenticity of the Will dated 18.10.1985, on the basis of which the mutation was applied by the PC No. 88/11 16 parties for their respective shares, including respondent no.7, cannot be disputed at this stage. The respondent no.7 apparently is stopped from taking contradictory stand. Therefore, the contention that the Will is a forged and fabricated document stands demolished. The respondent no. 7 has albeit tried to wriggle out the situation by saying that he has signed the indemnity bond and other documents with regard to the mutation under the belief and trust that the documents contains factual narration. The respondent no.7 is an educated person, who helds responsible position in the Govt. and it is not expected from him to sign any document without knowing or going through the contents of the same. If the document has been signed by the person, he is bound by his signatures, which indicates that the document is genuine and authentic documents unless it is pleaded that threat, force or coercion was used, which inadvertently is not the case here. The courts have gone to the extent of saying that when plain papers were allegedly got signed even then also it has been held that the signatures are token of the acceptance of the documents. In this context, reference can be made to the judgment in Punjab & Sind Bank Vs. Ram Parkash Jagdish Chand 40(1990) DLT 497 (DHC). As such, the issue no.5, 6 & 7 are decided in favour of the petitioner and against the respondent.
PC No. 88/11 17 Issue No.1&2 It was for the petitioner to establish that Will has been executed properly by the Testatar in sound disposing mind and in proper physical shape. The petitioner has taken care to being evidence qua both the attesting witnesses, although one of them i.e. Shri Shradhanand Shastri was not alive therefore his son was examined in order to prove the fact that the Will dated 18.10.1985 bears the signatures of his father. Nevertheless, the requirement is that of attestation by two witnesses and it is not necessary to examine both of them as this fact can be deposed by one of them. As such, the examination of Sh. Rajinder Saini PW2 can be looked into on this aspect.
20. In order to prove the Will, Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act are to be complied with. Section 63 of Indian Succession Act provides as follows:
(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 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 PC No. 88/11 18 the same time, and no particular form of attestation shall be necessary."
In the landmark case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been 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 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 will 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 PC No. 88/11 19 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 applied would be the usual test of the satisfaction of the prudent mind of such matters."
In this context, reference may be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
21. Ld. Counsel for the respondent no.7 has attempted to pick holes in the testimony of PW2 Sh. Rajinder Saini and that of PW4 Dr. Rajan Anand. However, both of them have come out unshaken from the onslught of cross examination. It is also pertinent to mention here that the Will was executed in the year 1985 whereas examination of the attesting witnesses Sh. Rajinder Saini took place in the year 2006 and by that time PW2 Shri Rajinder Saini has turned in to an old man of 80 years. Thus, expecting him to be very meticulous about the time meticulous and the other finer details would be expecting too much. He has, however, testified about the vital aspects of the matter and has also been able to recall that Testator was having some knee problem and gone to the extent of saying that one Pandit used to look after the testator during the last 3/4 years prior to his death. Shri Rajinder Saini seems to be a neighbourer of the Testator, therefore, his being attesting witness is not unusual rather natural. He was able to recall that doctor was also there to check up the health PC No. 88/11 20 of the Testator. The said Dr. Rajan Anand has testified about principally about the health of the testator and after examining him medically, she had put her signatures on the Will dated 18.10.1985, which is to the effect that the Testator was fully conscious, alert and aware of the contents of the Will and had signed the same in her presence. She has also supplemented to the testimony of PW2 Shri Rajinder Saini, which further strengthen the case of the petitioner.
22. Ld. Counsel for the respondent has contended that medical certificate issued by PW4 Dr. Rajan Anand is also type written which shows that it was already prepared even before the examination/ arrival of the doctor and therefore, the said certificate is apparently manipulated certificate and cannot be relied upon. However, the witness has not been confronted with this aspect that medical certificate was already typed before the medical examination and medical examination was not done by her, therefore, the medical examination is not correct. What emerges on record though the evidence led by the petitioner, is that the testator had executed the Will, which was witnessed by two attesting witnesses and prior to that he was medically examined. Certificate to that effect was appended to the Will itself showing that the Testator was physically fit and mentally alert. Apparently, the requirements of the execution of the valid Will have been satisfied by the petitioner for the reason mentioned hereinbefore and the issues dealt with in the preceding paragraphs.
23. The respondent no.7 had also acted upon the Will in question in PC No. 88/11 21 the year 1991 or so seeking mutation of the property as per the wishes of the late father of the parties leaves no room for him to assert anything contrary to it and is bound by the documentary evidence. In this context, ld. Counsel for the respondent no.7 has relied upon the judgment in Shiv Dutta Vs. Kedar Nath AIR 1972 Himachal Pradesh 20 to assert that no estoppal operates against the respondent no.7 on account of documents submitted on behalf of the respondent no.7 for the mutation process, and in any case the entries made in the mutation proceedings though carry a presumption of correctness but are rebuttable. However, the judgment does not come to the rescue of respondent no.7 for he has not been able to show through cogent evidence that presumption in any way is not attracted or applicable on the state of facts, thus, fails to rebut.
24. The mutation proceedings were more or less statutory proceedings and the documents in support of the same, if not disputed or proved to be forged and fabricated, then the parties are bound by the same, which has also been shown. The act of the respondent no.7 was also not some kind of gratuitous admission or for that matter by any of the parties. Therefore, the judgment relied upon by the ld. Counsel for the respondent no.7 in Aishan Dar Vs. Mohd. Dar Air 1963 Jammu & Kashmir 15 is not attracted to the facts of the instant case.
25. The execution of the Will by the Testator and subsequent implementation of the same by the beneficiaries of the Will acting upon the PC No. 88/11 22 said Will, leads no scope for any doubt or suspicions to even seep in respect of the proper execution of the Will, which has otherwise been there and as such in these circumstances, there appears no reason as to why case of the petitioner should not be believed, which makes the will dated 18.10.1985 legally executed valid Will, which is enforceable, rather, which has already been enforced amongst the parties. Therefore, in view of these circumstances, the petitioner become entitled to have the Letter of Administration in respect of the property in question in terms of the Will. Accordingly, the issue no.1 & 2 are decided in favour of the petitioner and against the respondents. Relief In view of the above discussions, the petition filed on behalf of the petitioner Shri Lachhman Dass Gupta stands granted. Accordingly, subject to completion of requisite formalities, the Probate/ Letter of Administration qua the Will dated 18.10.1985 be issued. File be consigned to record room.
Announced in open court (VIMAL KUMAR YADAV)
on 09.05.2012 Addl. District JudgeII (North)
Delhi
PC No. 88/11 23
PC No. 88/11
09.5.2012
Present : None.
Vide separate order dictated and announced, the petition filed on behalf of the petitioner Shri Lachhman Dass Gupta stands granted. Accordingly, subject to completion of requisite formalities, the Probate/ Letter of Administration qua the Will dated 18.10.1985 be issued. File be consigned to record room.
(V.K. Yadav) ADJII (North) Delhi.
PC No. 88/11 24