Delhi District Court
Jawahar Lal Pinjani vs Sh. Inder Pinjani on 5 November, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-38A/11/07
In the Matter of:
1. Jawahar Lal Pinjani
son of late Parmanand Pinjani
5/33(first floor) Old Rajinder Nagar
New Delhi-110060
2. Naveen Pinjani
son of Jawahar Lal Pinjani
3009 Cedar Ridge Drive
Richardson Texas-75082 USA
3. Praveen Pinjani
Son of Sh. Jawahar Lal Pinjani
1134 King James Ct.
Bear, DE 19701, Delaware, USA
Also at:-
5/33 (2nd floor) Old Rajinder Nagar
New Delhi-110060
.................. Petitioners
VERSUS
1. Sh. Inder Pinjani
Son of late Parmanand Pinjani
5/33 Old Rajender Nagar
New Delhi-110060
2. Sh. Rajendra Pinjani
son of late Parmanand Pinjani
B-82 (1st floor), Sector-27,
Noida-201301
3. Smt. Vijay Haryani
Daughter of late Parmanand Pinjani
PC-38A/11/07 Page:-1/40
25, Kanta Apartments
9/3 Manoramaganj, Indore.
4. State
National Capital Territory of Delhi.
................ Respondents
Date of Institution: 3.10.07
Date of Assignment to this court: 5.10.12
Date of Arguments: 20.10.14
Date of Decision: 5.11.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 276 of Indian Succession Act for grant of probate in respect of the estate of deceased Smt. Sukhda Pinjani in view of Will dated 4.5.1987. The brief facts of the case as narrated in the petition are that Smt. Sukhda Pinjani was the mother of petitioner no. 1 and respondents no. 1 to 3 and was residing at premises bearing no. 5/33 Old Rajinder Nagar, New Delhi-110060. As stated she died on 22.1.07 and had left behind three sons i.e. petitioner no. 1, respondents no. 1 and 2 besides the respondent no.3 her daughter. There is no other legal heir of the deceased Smt. Sukhda Pinjani. As stated Sh. Parmanand Pinjani, the husband of the deceased had predecessed Smt. Sukhda Pinjani on 14.10.1976. As stated Smt. Sukhda Pinjani had signed and executed the last registered Will and PC-38A/11/07 Page:-2/40 testatment dated 4.5.87 which was duly registered with the office of Sub Registrar on 4.5.87. As stated names of beneficiaries and their respective portion of immovable property bearing no. 5/33 Old Rajinder Nagar, New Delhi which the deceased had bequeathed in their favour is mentioned in the schedule annexed with the plaint. No application has been made to any other court for the grant of probate of last Will dated 4.5.87. It was accordingly prayed that probate be granted to the petitioners in respect of last Will of the deceased dated 4.5.1987.
2. After the petition was filed notice of the same was issued to the Collector of State and near relations/respondents of the deceased besides citation to the general public was directed to be published in the newspaper "The Statesman" and also displayed on court notice board.
3. Valuation report dated 8.1.08 was filed and the publication of the citation was effected in the newspaper " The Statesman" on 20.10.07 .
4. Respondents no. 1 and 2 did not appear in the matter and were accordingly proceeded ex-parte vide order dated 5.12.07.
5. Objections to the present petition were filed on behalf of relation no. 3 Smt. Vijaya Haryani, daughter of the deceased wherein it was stated that property in question being an evacuee property could not be disposed off PC-38A/11/07 Page:-3/40 by a Will. As stated after demise of Sh. Jawaharlal Pinjani, Smt. Sukhda being the wife would get only 1/5th in the property and she was capable of disposing off by Will only 1/5 of house no. 5/33 Old Rajendra Nagar, New Delhi i.e the property in question. It was stated since no executor is appointed, hence the present petition for grant of probate is not maintainable. It was further stated that the Will is shrouded in suspicion and propounder was in a position to exercise undue influence on her. It was also stated that the petitioner/applicant has taken a prominent role in the execution of the Will and mere registration will not be sufficient by itself to dispel all suspicion surrounding the execution of the Will. It was also stated that the condition of the testator's mind at the time of executing the alleged document called as Will and nature of the disposition made therein being unfair is an illustration of suspicions circumstances. It was further stated that the executor of the Will cannot be said to be of sound mind when the alleged Will was executed as she was not keeping good health in her old age and her mental faculty was not in fullest vigour and her memory was feeble. It was stated that Smt. Sukhda Pinjani could not dispose off the property by her Will because it is falsely alelged as can be observed from a forged power of attorney that the property was released by PC-38A/11/07 Page:-4/40 a power of attorney. As stated the objector has not executed any such power of attorney and therefore there could be no effective release of her interest in the property, in favour of Smt. Sukhda Pinjani and thus she could not bequest such property. It was stated that as learnt from the alleged release deed Sh. Jawaharlal Pinjani had signed on the release deed as an attorney. It was stated that Jawaharlal Pinjani was never appointed or authorized as attorney and the fact of the alleged release deed and will were learnt for the first time by the objector from the reply dated 24.9.07 of sh. Prem P. Ahuja. It was stated that Sukhda Pinjani was the mother of the petitioner who was residing with the petitioner at the time of her death which provided the petitioner to obtain her signatures on the alleged Will. It was further stated that late Parmanand Pinjani was the owner of 5/33 Old Rajendra Nagar, New Delhi and on his demise, the property would devolve upon his widow, his three sons and his only daughter. It was also stated that the petitioners and respondents no. 1 and 2 have connived in obtaining the Will and they were in position to influence the executor to obtain such a Will. It was further stated that the names of the witnesses attesting the alleged Will are not mentioned in the petition but one Mr. J.K. Mehta has signed the petition who does not mention the name of the other witness. As PC-38A/11/07 Page:-5/40 stated in an affidavit of Mr. J.K. Mehta in which it is found that the other witness to the Will were Dr. D. Bachani and Sh. Raj Singh who were very close friends of Sh. Jawaharlal Pinjani and therefore their presence as witnesses is suspicious. It was stated that the document dated 4.5.1987 is not the result of the testator's free will and mind and the circumstances surrounding the execution like that her three sons were around her, therefore were unable to take advantage of the situation and to confer upon themselves a substantial benefit of getting the will executed. Rest of the contents of the petition were denied and it was prayed that the present petition be dismissed.
6. Reply to objections of objector was filed on behalf of the petitioner in which contents of the petition were reiterated and those of the objections were denied.
7. Rejoinder to the reply of objections was filed on behalf of the objector in which contents of the objections were reiterated and those of the reply were denied.
8. Vide order dated 10.7.08 from the pleadings of parties, the following issues were framed:-
1) Whether the Will dated 4.5.1987, propounded by the petitioners is the duly executed last and final Will testament of late Smt. Sukhda Pinjani PC-38A/11/07 Page:-6/40 in sound disposing mind ?OPP
2) Whether petitioners are entitled to the grant of probate?OPP
3) Relief.
9. In evidence in support of her case, petitioner produced PW-1 Raj Singh, PW-2 Dr. Damodar Bachani, PW-3 Sh. Jawahar Lal Pinjani. PW-1 Sh. Raj Singh stated himself to be the attesting witness of the Will in question and stated that the same was executed by deceased Sukhda Pinjani in his presence as well as presence of other witnesses namely Dr. D. Bachani and Sh. J.K. Mehta, Chartered Accountant. He identified the signatures of deceased at point on Will dated 4.5.87 as well as his signatures at point B, signatures of Dr. Bachani at point C and signatures of Sh. J.K. Mehta at point D. It was stated that the Will was drafted at the instructions of Smt. Sukhda Pinjani. He also stated that the deceased Sukhda Pinjani had executed the Will dated 4.5.87 in sound disposing mind and the Will was exhibited as Ex. PW-1/1. PW-2 Dr. D. Bachani stated himself to be in distant relation of the Smt. Sukhda Pinjani, deceased and stated that she had conveyed to him for the execution of the Will in respect of assets owned by her so that there may not be any dispute after her demise. It was stated that Will dated 4.5.87 was drafted and typed at the instruction of Smt. Sukhda Pinjani and same was prepared by Sh. J.K. Mehta, a PC-38A/11/07 Page:-7/40 Chartered Accountant at her instructions and after the same was drafted it was read explained by Sh. J.K. Mehta to the deceased and also to him as well as other attesting witness Sh. Raj Singh. He stated that Smt. Sukhda Pinjani was of sound disposing mind and hail and hearty on 4.5.87. h He further stated that the Will dated 4.5.87 was executed by deceased Sukhda Pinjani in his presence as well as presence of other witnesses namely Sh. Raj Singh and Sh. J.K. Mehta, Chartered Accountant. He also identified the signatures of the deceased testator as well as other attesting witnesses. PW-3 Jawahar Lal Pinjani, petitioner no. 1 reiterated the case of the petitioners and relied upon general power of attorney executed by Naveen Pinjani Ex. PW-3/1, general power of attorney executed by Praveen Pinjani Ex. PW-3/2, death certificate of Sh. Parmanand Pinjani Ex. PW-3/3, death certificate of Smt. Sukhdha Pinjani Ex. PW-3/4, photocopy of said mutation letter Ex. PW-3/5, copy of mutation by MCD vide letter dated 24.2.1978 Ex. PW-3/6, conveyance deed dated 23.3.97 was Ex. PW-3/7.
10.In defence, objector/respondent no. 3 produced herself as RW-1 and reiterated her case as set out in the objections.
11.I have heard Ld. Counsel for the parties who have vehemently argued the matter for quite sometime and perused the entire record including the PC-38A/11/07 Page:-8/40 pleadings and documents as also oral testimony of the witnesses adduced during trial.
12.It is argued on behalf of the petitioner that the Will in question is valid and last testamentary document of the testator made in sound disposing mind which has been duly proved by the attesting witnesses PW-1 Raj Singh and PW-2 Dr. D. Bachani who have categorically stated that late Sukhda Pinjani executed the Will dated 4.5.87 Ex. PW-1/1 in their presence and in presence of Sh. J.K. Mehta, a Chartered Accountant and at the time of execution of the said Will she was in sound disposing mind. They identified the signatures of testator as well as their own in the Will in question besides signatures of Sh. J.K. Mehta, Chartered Accountant. On the other hand Cl. for objector argued that the testator was not in sound disposing mind at the time of executing the Will in question. It was submitted that the she did not have a memory to recall and was unable to understand what she was doing. It was further argued that even the deceased Sukhda Pinjani was had no testamentary capacity to execute the said Will for the complete property since after the death of her husband who was owner of the property in question she being the wife would get only 1/5th share in the property. Besides that it was stated that the property PC-38A/11/07 Page:-9/40 in question was a evacuee property and could not be disposed off by a Will. It was also argued that the propounder Sh. Jawahar Lal who was the eldest son of the testator Smt. Sukhda Pinjani was in a position to exercise undue influence on her since she was residing with the petitioner till her death and the same provided an opportunity to the petitioner to obtain her signatures on the alleged Will. It was further argued that the attesting witnesses to the Will are very close friends of the propounder Sh. Jawaharlal Pinjani which create suspicious circumstances surrounding the Will.
13.I have given a thoughtful consideration to the same. My issuewise determination is as under:-
14. Issue no. 1&2 :- Whether the Will dated 4.5.1987, propounded by the petitioners is the duly executed last and final Will testament of late Smt. Sukhda Pinjani in sound disposing mind ?OPP & Whether petitioners are entitled to the grant of probate?OPP Before proceeding to decide these issue, I would like to discuss the relevant law and judgments on this point. Issue no. 1 being pertinent to all the probate cases in which a Will is set up either for grant of probate or for grant of letters of administration with Will annexed, is pivotal to the PC-38A/11/07 Page:-10/40 entire controversy. It may be seen that, first and foremost a Will is a legal declaration of the intention of the testator whereby which the testator desires to bequest his property after his death and as such the same carry the last intentions of the testator to be carried out after his death. Further more, it is pertinent to mention that Will is the only document in law which is required to be proved after the death of its author and the law provides a specific procedure for the same.
15.Section 278 of Succession Act 1925 deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
16.Section 2(h) of the Indian Succession Act 1925 describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death PC-38A/11/07 Page:-11/40 of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vashram Vs. State of Gujrat. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Ku. Chandan & Anr. Vs. Longa Bai& Anr."
17.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
PC-38A/11/07 Page:-12/40
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
18.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
19. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian PC-38A/11/07 Page:-13/40 Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
20. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a PC-38A/11/07 Page:-14/40 Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
21. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
22. It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the probate court. The probate court does not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance is placed on 2008(4)SCC 300 Kirshan Kumar Vs. Rajinder Singh Lohra & Ors..
23. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but PC-38A/11/07 Page:-15/40 is also required to weed out any circumstances surrounding the subject Will which may be lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 title Vella Swamy Servai Vs L. Shivaraman Servai.
24.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every PC-38A/11/07 Page:-16/40 other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in (1971) 1 MLJ 127 P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of PC-38A/11/07 Page:-17/40 the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
25.In a full bench judgment of the Hon'ble Apex Court reported in (1959)Supp. 1 SCR 426 titled as H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, the Hon'ble Apex Court has discussed the entire gamut of law relating to the discharge of the onus of proving the Will while dwelling into Sections 45,47,67 & 68 of Indian Evidence Act,1872 and sections 59 & 63 of the 1925 Act and observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to PC-38A/11/07 Page:-18/40 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 ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as PC-38A/11/07 Page:-19/40 prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
26. The Hon'ble Court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has PC-38A/11/07 Page:-20/40 understood the nature and effect of the dispositions and has then put his signatures to the document of his own freewill. It has been further held that:
"Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
27. The Hon'ble Apex Court has further discussed the circumstances, which may be termed as suspicious circumstances surrounding the Will and held that there may be circumstances where the signatures of the testator may be shaky, doubtful or the condition of testator's mind may appear to be feeble and debilitated so as to raise a legitimate doubt as to mental capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble Court has succinctly held that:
" It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may PC-38A/11/07 Page:-21/40 have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
28. It has been further held that an active participation of the propounder or the fact that the propounder has taken a prominent part in the execution of the Will and that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence.
29.The ratio of H. Venkatachala Iyengar's case(supra) was later relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out various prepositions as:-
".....1) Stated generally, a Will has to be proved like any other document, the test to be applied being PC-38A/11/07 Page:-22/40 the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2) Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, it cannot be used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there by an 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 PC-38A/11/07 Page:-23/40 decision of the question whether the document propounded is proved to be the last Will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4) Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, and unfair and 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 PC-38A/11/07 Page:-24/40 signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testaor might have had his own reason, for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances 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 PC-38A/11/07 Page:-25/40 satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the Will, such pleas have to be proved by him but even in the absence of such pleas, the very circumstance surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the PC-38A/11/07 Page:-26/40 matter.........."
30. In Uma Devi Nambiar Vs. T.C. Sidhan, III(2004) SLT 754, the division bench of the Hon'ble Supreme Court has further held that a Will is generally executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there 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 circumstance especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
31. It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the PC-38A/11/07 Page:-27/40 Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
32.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing PC-38A/11/07 Page:-28/40 mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
33. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
34.Having discussed above, now I have to see whether in the present case the above principles have been duly made out or not. As far as the ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will is concerned, objector has taken the objection that the deceased was not in sound state of mind at the time of execution of the Will in question and her mental faculty were not in fullest vigour. No documentary evidence is produced on record by the objector to show the medical condition of the deceased Sukhda Pinjani. Even during cross examination RW-1/objector though denied the suggestion that her mother was in sound disposing state of mind on 4.5.1987 at the time of execution PC-38A/11/07 Page:-29/40 of the Will and voluntarily stated that she was not keeping well but further could not give the name of disease nor the name of the doctor. Even if it is considered that testator was not keeping well due to old age as contended by the objector even then again no documentary evidence is on record to show as to what was the disease she was suffering from or whether the said disease was of such intensity which could have affected the cognitive faculties of the testator. It is not proved that she was undergoing any treatment. Reliance is placed upon 149(2008) DLT 783 titled K.L. Malhotra Vs. Sudarshan Kumari & Anr wherein it was held :-
"As the Wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in highest degree, position or to the same extent as before the illness in order to enable him to validly make his Will. Section 59 of the Indian Succession Act requires that the testator should PC-38A/11/07 Page:-30/40 have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property, memory to remember the relations and persons normally having claims on his bounty and has also a judgment" .
Rather in the present case Will in question is dated 4.5.87 whereas the testator died on 22.1.07 meaning thereby that after execution of the Will in question the testator lived for a long span of time and it can easily be presumed that she was not suffering from any serious or life threatening disease which could even had the capacity to effect her mental faculties. Except for the bald assertion of objector, there is nothing on record to show that testator was not in good mental state at the relevant time. Hence objection of the objector does not hold any ground either in law or facts and is rejected and it is held that testator was not suffering from any disease at the relevant time of execution of the Will which would have effected her cognitive faculties.
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35. Further, Respondent no. 3/objector has contended that the deceased Sukhda Pinjani was not competent to execute the Will in question in respect of the property in question since the property was owned by late Parmanand Pinjani and on his demise the property would devolve upon his widow Smt. Sukhda Pinjani , his three sons and his only daughter. Objector also contended that property in question being evacuee property cannot be disposed off by way of a Will. On the other hand petitioners contended that after the death of their father their mother Smt. Sukhda Pinjani became the landlady/owner of the property vide conveyance deed Ex PW-3/7 and also in view of execution of relinquishment deed dated 1.2.77 by the other legal heirs after the demise of Sh. Parmanand Pinjani. Petitioners also produced letter issued by L&DO Ex. PW-3/5 whereby property was transferred in the name of Sukhda Pinjani and letter issued by MCD Ex.PW-3/6 whereby mutation was effected in the name of Sukhda Pinjani. Though objector has denied that she relinquished her rights in the property in question and denied execution of Ex. PW-3/R-1 in favour of the petitioner no. 1 but in conveyance deed Ex. PW-3/7 at para no. 4& 5 it has been clearly mentioned that public notice was published in prominent newspaper of Delhi on 15.4.92 and no person has objected to the PC-38A/11/07 Page:-32/40 mutation/substitution of name of the lessee as abovemade by the lessor meaning thereby there was no objection from any quarter regarding the substitution of name of Smt. Sukhda Pinjani and when the objector did not object before the concerned department and even did not any steps for cancellation of said conveyance deed and relinquishment deed after receiving the reply dated 24.9.07 of petitioner to the legal notice of objector Ex R-1/P-1. In the said letter Ex. R-1/P-1 it was clearly mentioned regarding the conveyance deed and relinquishment deed and since objector did not take any steps for the cancellation of the said documents since the year 2007, hence now it does not lie in the mouth of the objector to challenge the same. Rather during cross examination RW-1/objector admitted that the property in question was being assessed in the name of her deceased mother till date. As far as question of evacuee property is concerned during cross examination RW-1 herself admitted that her father was owner of the property in question and except for the bald assertion nothing has been produced on record by the objector to support her contention that property in question was a evacuee property and in view of the above mentioned documents produced on record petitioners have been able to prove that the property in question was PC-38A/11/07 Page:-33/40 owned by their father late Parmanand Pinjani and after his death the said property was transferred in the name of deceased Sukhdha Pinjani and hence she was fully competent to execute the Will in question regarding the property in question. The said objection of the objector is accordingly rejected.
36.Now I will deal with the question of valid execution of the Will. There are three attesting witnesses to the Will in question i.e. Raj Singh, Dr. D. Bachani and Sh. J.K. Mehta out of which Sh. Raj Singh and Dr. D. Bachani have appeared in the witness box whereas Sh. J.K. Mehta had signed the present petition as attesting witness. Both the attesting witnesses have corroborated statements of each other and categorically stated the Will in question was executed by the testator in their presence as well as in presence of Sh. J.K. Mehta, another witness on 4.5.1987 and identified the signatures of the testator, signatures of Sh. J.K. Mehta as well as signatures of each other. No dent could be created in their testimonies during cross examination. However, it was contended on behalf of objector that both the attesting witnesses Sh. Raj Singh and Dr. D. Bachani are very close to the petitioner no. 1 Jawahar Lal Pinjani and hence are interested witnesses. Though PW-1 Sh. Raj Singh had stated that Sh. Jawahar Lal PC-38A/11/07 Page:-34/40 Pinjani was working in the same organisation where he was working and had visiting terms with his family and used to visit at the house of Jawahar Lal Pinjani frequently and whenever his mother used to come to the residential complex of her son, he used to meet her and PW-2 also stated that he was related to Jawahar Lal Pinjani and Sukhda Pinjani but it has no where come that both the attesting witnesses had no connection with the testator and were only related to Jawahar Lal Pinjani. Deposition of PW-1 shows that besides being colleague of Jawahar Lal Pinjani he was having assess to his other family members like the testator, sons of Jawahar Lal and even the objector since he was given suggestion at the time of cross examination that when he went on official work at Indore he visited the house of objector. Hence, from the abovesaid it is clear that PW-1 Raj Singh was not only the friend of petitioner no. 1 Jawahar Lal Pinjani but was close to the whole family and in these circumstances there is nothing unnatural if he was chosen as a witness by the testator. As far as PW-2 is concerned, he has stated himself to be distant relative of Jawahar Lal Pinjani and testator Sukhda Pinjani who himself was doctor by profession, hence it is quite possible that the testator had shown trust in him to be witness to the Will in question since he was a doctor as well as a relative PC-38A/11/07 Page:-35/40 of the testator and again there is nothing unnatural in it. Furthermore, the Hon'ble Delhi High Court in 2008(100) DRJ 98 titled Jagdish Lal Bhatia Vs Madan Lal Bhatia has held that where Will is registered and the Sub Registrar states that the same has been read over to the executor who has done so admitting the contents, the fact that the witnesses are interested parties looses much of his significance. Accordingly in view of the above, the above objection of the objector is hereby rejected.
37.It was also contended by the objector that the signatures of the deceased testator on the Will are either forged or were obtained fraudlenty by the petitioner no. 1 Jawahar Lal Pinjani by exercising undue influence since the testor was living with him till her death and there was every occassion for the petitioners to influence her to sign the Will in question. However no handwriting expert has been examined by the objector to prove that the signatures of testator on the Will are forged and except for the mere bald assertion nothing has been brought on record to prove the same. As far as plea of exercising undue influence by the petitioner no. 1 on the testator is concerned it was stated that the testator was living the petitioner Sh. Jawahar Lal Pinjani who is one of beneficiary to a Will and he has taken a prominent part in execution of the Will and reliance has been placed upon PC-38A/11/07 Page:-36/40 AIR 2007 SC 614 titled Niranjan Umesh Chand Joshi Vs Mridula Jyoti Rao. Additionally, it has been sought to be argued that the fragile and feeble mind of the testator was overawed and overpowered by the powerful mind of the beneficary Jawahar Lal Pinjani who was interested in getting the property bequeathed in his name and in the names of his sons and reliance has been placed upon AIR 2007 SC 311 titled B. Venkatamuni Vs C.J. Ayodhya Ram Singh & Ors.. First of all as already observed it is not proved that the testator was having feeble mind at the time of execution of the Will in question and secondly there is nothing on record to suggest that the mind of a testator was overpowered or overawed by the beneficiary Jawahar Lal Pinjani. The overpowering and overawing should be such impact that the testator looses his or her control to bequeath the property voluntarily and out of her free Will. Now in this regard, first and foremost, what is important is to be kept in mind that the suspicion on execution of the Will certainly arise once it shows that beneficiary under the Will has taken active part in execution of the Will. Secondly, the aforesaid only creates a suspicious circumstances or circumstances which can be taken or weeded out by cogent evidence. In other words that presumption of beneficiary being prominent in execution is a rebuttable presumption.
PC-38A/11/07 Page:-37/40 The law in this regard is settled and has been discussed in earlier paragraphs by the court. In the present case none of the attesting witness have deposed that Sh. Jawahar Lal Pinjani was present at the time of execution of the Will. Rather when the said suggestion was given to PW-2 he denied the same. Both PW-1 and 2 have categorically stated that the Will was executed at the house of Sh. J.K. Mehta and the same was got registered at the office of Sub Registrar. No dent could be created in the said testimony of PW-1 and 2. Hence, applying the preposition to the facts and circumstances of the present case, it is clear that this objection is of no importance and rather has been weeded out as discussed above. Besides that perusal of the Will in question shows that property in question was distributed among her three sons and two grand sons in a detailed manner and even the there is discussion of sanitary and electrical fittings in the said property which reflect about the conscious state of mind of testator. Rather during cross examination of objector RW-1 she admitted that her mother had executed the Will dated 4.5.1987 whereas her mother died on 21.1.07. The said admission on the part of the objector has completely demolished her case and execution of the Will dated 4.5.1987 by deceased Sukhda Pinjani stood duly proved.
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38. Further the execution of the subject Will has been duly proved in terms of the provisions of Section 63(C ) of Indian Succession Act and Section 68 of Indian Evidence Act and it is settled preposition of law that once these formalities are completed, a probate court is required to accept the will. Reliance is placed on 2009(11) SCC 1 titled Rup Singh Vs Bachan Kaur. Accordingly, the Will dated 4.5.87 has been proved to be executed by deceased in sound disposing mind of his own free will and in view of testimony of PWs the same is held to be the last testamentary disposition of deceased Sukhda Pinjani. In view of the aforesaid discussion and findings as also determination of the court as issue no. 1 and 2, the court holds that the subject Will has been proved in accordance with law. There is no legal impediment for allowing the petition of the petitioner. However, in view of Section 222 of the Indian Succession Act, a probate of Will can only be granted to an executor appointed under the Will. However, in terms of Section 232 and 276 of the Act, a letter of administration with Will annexed may be granted to be beneficiary under the Will. Perusal of Will in question shows that no executor had been appointed in the Will in question, hence probate in these circumstances, cannot be granted and as per section 276 of the Indian Succession Act, letter of administration can be granted to petitioner. Reliance is placed upon 2012Vol. III, AD(Delhi) 433 titled Rahul Sharma Vs State & Ors.. Hence, case in favour of petitioner is made out for grant of letter of administration. Accordingly these PC-38A/11/07 Page:-39/40 issues are decided in favour of the petitioners and against the respondents.
39. Relief:- In view of the above finding, the petition is allowed. Letter of administration be issued in favour of petitioners in respect of estate of deceased Sukhda Pinjani i.e. property situated at 5/33 Old Rajinder Nagar, New Delhi as detailed in Will dated 4.5.87 Ex. PW-1/1 to enable the petitioners to administer the aforesaid property of deceased. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in open court (Ajay Goel) on 5.11.14 ADJ-12(Central)/Delhi PC-38A/11/07 Page:-40/40