Delhi District Court
Judgment vs Patel Mohmad Air 1999 Gujarat 108 Cited ... on 16 November, 2009
1
In the court of ASHWANI SARPAL, Additional District
Judge,
Tis Hazari Courts, Delhi.
Sh. Rajesh Sharma
vs
State & others
(PC no.-409/06/04)
Date of filing of petition==31-3-2004
Date of decision=======16-11-2009
(Petition u/s 278/232/234 of Indian Succession Act
for grant of Letter of Administration)
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JUDGMENT:-
Sh. Bachan Dass Sharma was the owner of property no. E- 286-A, Greater Kailash-I, New Delhi who expired on 21-3-2000. He had two sons namely Sh. Inderjit Sharma and Sh. Rajender Mohan Sharma. Deceased admittedly had executed a Will dated 4-12-1986 under which he had appointed his elder son Sh. Inderjit Sharma as an executor but Sh. Inderjit Sharma during lifetime of testator expired on 3-3-1989. According to the petitioner, testator due to changed situation executed a 2 Codicil dated 11-9-1996 and appointed his younger son Sh. Rajender Mohan Sharma as an executor of his Will. After death of testator, Sh. Rajender Mohan Sharma had not filed any probate petition and unfortunately he also expired on 15-1-2004.
Petitioner is the son of Sh. Rajender Mohan Sharma whereas respondents no. 6 to 8 are the other legal heirs of deceased Sh. Rajender Mohan Sharma. Respondents no. 2 to 5 are the legal heirs of Sh. Inderjit Sharma. Petitioner filed the present petition on 31-3-2004 for grant of Letter of Administration on basis of Will and Codicil of testator Sh. Bachan Dass Sharma dated 4-12-1986 and 11-9-1996 respectively.
Respondents no. 6 to 8 did not contest the matter but respondents no. 2 to 5 filed their joint objections in which they admitted the genuineness of the registered Will dated 4-12-1986 but described the unregistered Codicil dated 11-9-1996 as forged and fabricated document. They challenged the genuineness and correctness of the Codicil on various grounds. Respondent no. 3 being attorney of respondents no. 2, 4 and 5 contested the matter in the court.
On the basis of the pleadings of the parties, the following issues were framed by my ld. Predecessor vide order dated 21-12-2005:
1. Whether late Sh. B.D. Sharma had executed the Codicil dated 11-9-96 as alleged by the petitioner? OPP
2. Whether the petitioner is entitled to the grant of Probate on the basis of Will dated 4-12-1986 and Codicil dated 11-9-96?
3. Whether the petition is liable to be dismissed on 3 the objections raised by the objectors?
4. Relief.
In order to prove his case, petitioner examined himself as PW-1 and also examined his mother Smt. Aruna Sharma (Respondent no. 6), attesting witness of the Codicil as PW-2. Respondent no. 3 stepped into the witness box in defence as R2-5-W1. I have heard counsel for the petitioner, counsel for respondent no. 2 and counsel for respondents no. 6 to 8 and gone through the record. Counsel for respondents no. 3 to 5 neither appeared to argue on the matter nor filed written submissions within time given. My decision on the above issues is as under:
Issues no. 1 to 3:-
These three issues are interconnected and required to be dealt with together. The Will dated 4-12-1986 Ex. PW1/1 executed by Sh. Bachan Dass Sharma is not in dispute and court has to find out whether his Codicil dated 11-9-1996 Ex. PW2/1 is genuine, legal and valid or not. As per provision of section 2(b) of Indian Succession Act, Codicil is treated as part and parcel of the Will and is normally executed to clarify or to change some terms and conditions of original Will. Codicil does not supercedes the original Will but infact fortifies the same through minor changes.
Respondents in their objections have described the Codicil as forged and fabricated document and showed ignorance about the same but my ld. Predecessor had recorded the statement of respondent no. 3 apparently under Order 10 CPC on 21-12-2005 from which it can be held that respondents not only know about the Codicil since beginning but also had relied and acted upon it. Respondent no. 3 on 4 basis of this Codicil by writing a letter to MCD dated 30-10-2004 Ex. PW1/3 had sought exemption of house tax in respect of the portion of the property in question which came to share of respondents. This letter is admittedly written by respondent no. 3 and bearing his signatures. In this letter he not only referred to about Codicil but also annexed its copy to MCD. Thus due to this admission of the respondents, there remains no need to discuss the case on merits and Codicil can be treated as genuine and correct document. Respondent no. 3 in his statement dated 21-12-2005 took some absurd and unreliable plea which neither has been proved nor even fully alleged in the affidavit of evidence. A person who tried to get benefit under some document and relied upon cannot be lateron permitted to dispute its correctness. On these grounds also, the forgery of the Codicil is ruled out.
At the request of the respondents vide order dated 24-4- 2008, the admitted Will and Codicil were sent to Forensic Science Laboratory for comparison of the signatures but handwriting expert could not give any opinion. Thereafter respondents moved an application for bringing on record some more documents containing signatures of the deceased but that application was rejected and no appeal or revision against that order was filed by the respondents. Though on the face of Will and Codicil, there appear some discrepancies in the signatures of testator on both which is also reflected in the orders of the court dated 24-4-2008 but it is also true that court is not an expert in comparing the signatures. When handwriting expert of prestigious govt. laboratory himself has failed to give any opinion on the signatures, then in that circumstance, this court also cannot form any definite opinion about alleged forged signatures of testator on the Codicil. The case law Ashok 5 Kumar vs. Patel Mohmad AIR 1999 Gujarat 108 cited on behalf of respondent no. 2 is not applicable when the facts of present case are distinguishable and there is an admission of execution of Codicil also. Moreover slight changes take place in the handwriting and signatures of a same person due to passage of time, use of different ink/pen, quality of paper, physical and mental condition of executor and old age etc. Even if there are some discrepancies in the signatures of testator upon Will and Codicil then that may be due to gap of 10 years in execution of the same. At the time of execution of Will, testator was aged about 72 years whereas at the time of execution of Codicil, his age was about 82 years. The old age also causes difference in the signatures and handwriting. Even otherwise, there is no admitted document containing signatures of the testator on record with which this court can compare signatures on Codicil. Moreover this fact now becomes unimportant because respondent no. 3 had admitted its execution and even acted upon the same by sending letter to MCD. This admission of respondent no. 3 can be treated as admission of other respondents also because no other respondent stepped into witness box to challenge the Codicil. Respondent no. 3 was deposing and acting not only for himself but also on behalf of other respondents in the capacity of attorney. Hence despite some difference of signatures on Codicil Ex. PW2/1, the same is held as genuine and duly executed.
Law does not require that Will or Codicil should be compulsory registered. Even if Will is registered and Codicil in question is unregistered, that will be of no consequences. Unregistered Codicil if is fully established on record and is not surrounded by any suspicious circumstance carries same weight which can be given to registered Will.6
Non registration of Codicil does not make it invalid.
Record also point out that there was a purpose behind execution of Codicil by testator Sh. Bachan Dass Sharma because his elder son who was once appointed as an executor of the Will had already expired. Necessity had arisen in the mind of testator to appoint his second son as an executor of his Will through execution of Codicil and to bequeath share of his elder predeceased son to his widow. Moreover respondents in paragraph no. 3 of preliminary objections have themselves admitted that death of elder son had necessitated the need for making Codicil.
Under the Will dated 4-12-1986, ground floor of the property in question was given to elder son Sh. Inderjit Sharma whereas first and second floors were given to younger son Sh. Rajender Mohan Sharma. In the Codicil dated 11-9-1996, no major change was done in this bequeath except that an additional basement is given to wife of Sh. Inderjit Sharma who had since expired. A water tank constructed on ground floor has been allowed to be used by both the parties. It is also stated in the Codicil that a small room measuring 10' x 10' construed by Sh. Rajender Mohan Sharma on the ground floor for keeping scooters shall be used by him. Thus basis disposition under the Will has not been changed through the Codicil.
There is no denial of the fact that till date there is no basement constructed on ground floor which is referred to in the Codicil. It is also not a disputed fact that water tank and small room being used as garage are in existence on the ground floor of the property. Respondents have not led any evidence to show that water tank or small room exclusively belonged to them or the same were constructed by them 7 and not by testator or Sh. Rajender Mohan Sharma. There is a gap of about 10 years in execution of Will and Codicil. This water tank and small room appears to have been constructed during this period of about 10 years during life time of testator and necessity arose for him to redistribute these subsequently acquired/raised assets also according to his wishes which compelled him to execute Codicil. Mere fact that basement has also been bequeathed under this Codicil which was never constructed itself is not a ground to reject the same because possibility cannot be ruled out that testator intended to bequeath basement to be constructed in future to the wife of his elder son and inadvertently wordings of Codicil point out its existence as on the date of execution of Codicil. Otherwise also when this Codicil has been relied and acted upon by the respondents then the same has to be accepted as correct and genuine. PW-2 in her statement deposed about the necessity of the testator to execute the Codicil and its due execution and she is not effectively cross examined on this aspect. She being reliable and trustworthy witness has fully proved the execution of Codicil in her presence as per law and in that situation, some difference of signatures of testator on it becomes immaterial fact. Thus it can be held from this fact that there were genuine causes available to the testator to execute Codicil in view of changed situation and thus this Codicil can be relied upon as correct and valid. The Codicil cannot be held as invalid merely on the ground that it was not got attested from one of the original witnesses of the Will though second witness is the same. There is no hesitation to say that respondents no. 2 to 5 have failed to even prima facie show that Codicil is forged or fabricated.
Law does not require that testator should inform his legal 8 heirs, relatives and beneficiaries before executing his Will or Codicil. If testator before execution of the Codicil or till his death had not told about the same to respondents then that itself is not a ground to reject the genuineness of the same. It may be a one of the suspicious circumstance but alone itself does not create a ground to totally ignore the same. Here in the present case, this defence is also not available to the respondents in view of the fact that Codicil was acted upon by them. Non examination of second attesting witness of the Codicil is not fatal to the case of the petitioner.
Counsel for respondent no. 2 during arguments while citing case law Krishna Kumar Sharma vs. Rajesh Kumar Sharma 2009 (2) Civil Court Cases 594 raised a question of limitation but this ground was not taken in the objections. Otherwise also, I am of the view that this petition is not hit by any period of limitation. Under the Will and Codicil in question, executors were appointed by the testator and when executor is available or not incapacitated to execute the Will then no other person can file any probate petition. If executor had died without applying for any probate then right of beneficiaries under the Will arises to approach the court only from the date of death of executor. The petition filed by petitioner from the date of death of Sh. Rajender Mohan Sharma, named executor of codicil is within period of limitation and not time barred. Case law cited can be distinguished from the facts of the present case. However certainly petitioner cannot be granted any probate but can be granted only Letter of Administration.
If Will and Codicil are considered in totality, then it can be said that under the Codicil, right of the widow of elder son Sh. Inderjit Sharma was not substantially curtailed but something additionally is 9 given to her. Testator in fact has given deemed permission to construct basement as per law upon which petitioner or his family members cannot object. Only a small room measuring 10' x 10' being used as garage was given to Sh. Rajender Mohan Sharma. Accordingly the arguments advanced by counsel for respondent no. 2 that Codicil cannot be relied upon being suspicious as it has cut down the right of the widow daughter in law in the estate of the testator is without any force.
From the contents of the letter Ex. PW1/2 written by respondent no. 3 to the petitioner, it also leads to the inference that petitioner and his family was using the small room being used as garage. It also appears that dispute had arisen between the parties on account of constructing some third floor in the property due to which the petitioner was deprived to use of this room subsequently. From this fact also, it can be said that respondent had knowledge since beginning that this small room was for the use of family of petitioner and was bequeathed to them. Contradiction whether this small room was constructed by testator or Sh. Rajender Mohan Sharma and when it was constructed whether before the date of execution of Will or subsequent to that are not material facts to reject the Codicil.
There is one application of the petitioner dated 17-10-2005 under section 340 Cr.P.C. for prosecution of the respondent no. 3 for filing false objections in court. No doubt the defence taken by respondents regarding forgery of the Codicil is not acceptable and they have unnecessarily prolonged the matter by taking inconsistent grounds but I am of the view that matter is not so big which require prosecution of respondent in the interest of justice. He is a retired army officer, old aged and had won various gallantry awards in doing service to 10 motherland. By taking mercy upon him also, I do not propose to prosecute him for perjury or for filing false claim in the court in the form of objections but certainly all the respondents are liable to pay compensatory costs to the petitioner. This application under section 340 Cr.P.C. is accordingly dismissed.
In view of above findings, I am of the view that there are no merits in the objections of the respondents no. 2 to 5 and Codicil dated 11-9-1996 Ex. PW2/1 is genuine, legal and valid and has to be enforced. Will dated 4-12-1986 Ex. PW1/1 is admitted document so the petitioner is entitled to claim relief of grant of Letter of Administration on basis of the both Will and Codicil in respect of portion coming to his share. These issues are accordingly decided in favour of petitioner and against the respondents.
Issue no.- 4 (Relief):-
Accordingly in view of above discussions, petition is allowed. Letter of Administration annexed with copy of Will dated 4-12-1986 Ex. PW1/1 and Codicil dated 11-9-1996 Ex. PW2/1 executed by Sh. Bachan Dass Sharma is granted in favour of petitioner only in respect of share coming to his father late Sh. Rajender Mohan Sharma as specified in the Will and Codicil subject to his deposit of necessary court fees, administration bond cum surety bond. The valuation of property for which relief is being granted to the petitioner shall be called from revenue authorities at the time of completion of necessary formalities. Respondents no. 2 to 5 shall pay compensatory costs of Rs. 20,000/- to the petitioner in equal proportions. Petitioner shall comply with the provisions of section 317 of Indian Succession Act after receipt of formal 11 certificate of Letter of Administration within the prescribed time. It is clarified that issue of right, title, share and ownership of property in question is not decided by this court. File be consigned to the Record Room.
. (ASHWANI SARPAL) Dt.- 16-11-2009 ADDITIONAL DISTRICT JUDGE