Delhi District Court
Smt. Nirmla Devi vs . State & Another on 18 July, 2008
1
In the court of ASHWANI SARPAL, Additional District Judge,
Tis Hazari Court, Delhi.
Smt. Nirmla Devi vs. State & another
(PC No.: 153/06/04)
(Petition for grant of Probate of Will)
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JUDGMENT:-
Petitioner Smt. Nirmla Devi filed the present petition for grant of Probate in the court on 8-4-2004 on the basis of Will of deceased Sh. Ram Pat. The notice of this petition was given to the State and to respondent no. 2. General public was also informed about the petition through the citation published in the newspaper 'Dainik Jagran' dated 2-8-2004. Respondent no. 2 contested the case and filed his objections but no one appeared on behalf of the State or general public to say anything in this matter.
Averments made in the petition:-
As per petitioner, Sh. Ram Pat was the owner of some piece of land measuring 5 Bighas 10 Biswas situated in the revenue estate of village Nizam Pur, Delhi who died on 11-10-2001. Petitioner was known to the deceased, was residing with him and taking his care whereas respondent no. 2 is the real son of the deceased who did not render any services towards his father and had separated from the deceased.
According to the petitioner, deceased Sh. Ram Pat during his life time keeping in view the good services rendered towards him by the petitioner had executed a Will dated 14-9-1999 and bequeathed his entire land in favour of the petitioner by excluding his son i.e. respondent no. 2. The Will was also got registered in the office of Sub Registrar on 17-9-1999. Deceased also 2 executed a General Power of Attorney in favour of the petitioner on the same day in addition to Will and possession of the land was also given to her. Mutation of the land was also entered in her name by revenue authorities. Thus petitioner prayed for relief of Probate on the basis of Will left by the deceased.
Objections of respondent no. 2:-
Respondent no. 2 in his objections besides taking some legal objections also challenged the status and locus standi of the petitioner. Even the question of incorrect identity of part of the property was also raised. According to the objections, the agricultural land in question was allotted to his father deceased Sh. Ram Pat and he was declared Bhumidar of the said land. It is also stated that mutation in favour of petitioner has been set aside by the higher revenue authorities.
He further stated that the deceased had amicable relations with him and he never lived with the petitioner. It is also alleged that the husband of the petitioner got the Will executed on the pretext of getting the old age pension for the deceased and on the day of registration of the alleged Will, an account was opened in the name of his deceased father in the SBI in which father's name of the deceased was wrongly mentioned. Allegations were also levelled that signatures and thumb impressions of the deceased were taken by the petitioner and her husband on alleged Will and General Power of Attorney by fraudulent means. Will was bearing signatures of interested witnesses including husband of the petitioner. Respondent thus challenged the genuineness, legality and validity of the Will in question on various grounds and stated that possession of the land in question is with him. He also alleged that petitioner had no relation of any kind with the deceased and infact respondent was looking after him and taking his care being his only son.
Respondent also stated that he had filed a civil suit of declaration for treating the Will in question as null and void which is still pending.
Replication and issues:-3
Petitioner did not file any rejoinder to the objections of the respondent no. 2 and on the basis of the pleadings of the parties, my Ld. Predecessor framed following issues vide order dated 3-6-2005:-
Whether deceased Ram Pat executed a valid and enforceable Will dated 14-9-1999? OPP Whether petitioner is entitled to Probate of the aforesaid Will? OPP Whether the petition is liable to be dismissed in view of the objections raised by the objector?
Relief.
In order to prove her case, petitioner examined herself as PW-1, her husband Sh. Zile Singh as PW-2, Smt. Shyama Devi as PW-3 and Ms. Nutan Sharma, advocate as PW-4. Infact PW-2 and 4 are the attesting witnesses of the Will. Respondent also examined himself as RW-1 and one witness Sh. Rajender Singh as RW-2.
I have heard counsel for both the parties and gone through the record as well as case laws cited. My decision on above issues is as under:-
Issue no.1:-
Will executed by late Sh. Rampat on 14-9-1999 is Ex. PW1/1. However it was registered on 17-9-1999. It is English typed Will bearing the photograph of the deceased as well as his thumb impressions. This Will is attested by PW-2 and 4.
PW-2 who is the attesting witness of the Will is husband of the petitioner. He in his affidavit stated that he signed on the Will as an attesting witness after deceased Sh. Ram Pat put his thumb impression on it. He also stated that deceased was in sound disposing mind and of good health and was without any pressure or coercion. Will was written in the office of Sub 4 Registrar at the behest of the deceased by the typist Sh. Virender Kumar. He also stated that respondent no. 2 was living separate from the deceased who infact was residing with the petitioner.
PW-4 who is an advocate in her affidavit specifically stated that she signed on the Will after it was thumb marked by the deceased and at that time, PW-2 was also present. She also stated that Will was written at the behest of the deceased in the office of Sub Registrar. Mere fact that Will was not read over to the deceased by this witness is of no consequences especially when the fact deposed by her that Will was written at the behest of the deceased is not disputed in her cross examination. This witness had also stated that she had verified the identity of the deceased through ration card produced by him and this version is also not challenged further. It is not the law that a person cannot sign in two or more than two different manners and styles. A person signs differently at different time. Small initials and long signatures always differ. When this witness PW-4 has specifically stated that Will bears her signatures also as attesting witness, then her statement cannot be disbelieved simple on the fact that her small initials put on the Will above her seal do not tally with the long and full signatures on her affidavit of evidence. I thus find no ground to reject the testimony of attesting witness PW-
4.
Respondent no. 2 has not led any evidence to show that at the time of execution of the Will, deceased was suffering from any ailment of such nature that he could not understand the things and was not of sound disposing mind. No medical evidence of any treatment of the deceased is brought on record by the respondent. He on the other hand admitted in his cross examination that except week eyesight, his father was not suffering from any ailment in year 1999 when the Will was executed. Simple old age of the deceased itself is not sufficient to raise a presumption that mental position of the deceased was not good and he had lost control over his senses and thinking. Respondent has failed to prove his defence of unsound mind position of the deceased.
The Will was also registered. Though registration of Will is not necessary and mere registration is not proof of due execution of the Will as per 5 decision of Madhya Pradesh High Court in case Bherulal vs. Ramkunwarbai 1994 (2) Civil Court Cases 97 but if it is registered and otherwise appears to be genuine, then it further fortifies the legality and validity of the same. Endorsement of the Sub Registrar in the form of stamp on the back side of the Will with his signatures that contents of document were explained to the parties and they admitted its correctness draws a presumption of due execution of the same also. Further endorsement of Sub Registrar regarding putting of thumb impression and signatures by the parties on the Will in his presence also draws a presumption of due and proper execution. Hence registration of the Will in the present circumstances of the case also goes in favour of the petitioner. In the present circumstances of the case, execution and registration of the Will on two different dates does not create any suspicious circumstance and thus case law cited by counsel for the respondent no. 2 titled as Ku. Chandan vs. Longa Bai 1998 (1) Civil Court Cases 573 is distinguishable from this case.
It is stated by the petitioner that on the day of execution of the Will, a General Power of Attorney in respect of the property was also executed by the deceased and possession of land in question was given to her. Counsel for the petitioner argued that on the basis of General Power of Attorney, petitioner had also become owner of the land. PW-1 and 2 admitted that no consideration was paid to the deceased for the alleged purchase of the land. Sale of immovable property without consideration sometimes is treated as void but in the probate proceedings, question of possession or right and title of the property is not to be seen and considered. Hence it is beyond the jurisdiction of this probate court to find out whether any legal title was transferred to the petitioner by the deceased through GPA or not. In this proceeding, this court has only to see the genuineness and validity of the Will in question and not to find out whether the GPA was duly and properly executed or not. Accordingly disputed issue who is in possession of the land in question is also not decided in this proceedings.
The thumb impression of the testator on the Will is not disputed at all by the respondent. Only plea is that his thumb impressions were taken on it fraudulently under pretext of getting old age pension sanctioned.
6Respondent had not made any complaint to police about this fraud committed and this fact goes against him. Moreover from any evidence, I could not find out such alleged fraud being committed by the petitioner or her husband as the statement of attesting witnesses of the Will is satisfactory and truthful.
According to PW-2, petitioner had also accompanied with the deceased to the office of Sub Registrar on the day when Will in question was executed. The presence of PW-1 and active participation of PW-2 in getting the Will executed, attested and registered who is the husband of petitioner being the sole beneficiary under the Will create suspicion about the due execution of the Will if the law laid down by Punjab & Haryana High Court in case Nimbo vs. Satyabir Singh 1995 (1) Civil Court Cases 224 is taken into consideration but simple this suspicious circumstances, which if is explained by satisfactory evidence, is not sufficient to reject the Will in question. Petitioner was living with the deceased though what was the exact relation between the petitioner and the deceased has not come on record. Petitioner PW-1 stated that she was living with deceased for the last 9/10 years before his death and was taking care of him and PW-2 endorsed this fact. I find no ground to disbelieve them when virtually in their cross examination, nothing material has been put to controvert or dispute this fact. Accompanying of PW-1 to the office of Sub Registrar with the old age deceased who had no other relation living with him does not draw a presumption of coercion or influence. The version of the respondent that deceased was living with him and not separately is not established on record.
Will can be executed in favour of any person and it is not necessary that beneficiary should always be connected with the deceased through any relation. When petitioner had taken care of the deceased in his old age for several years without any blood relations especially when his only real son was living separately, then certainly it would have been a consideration in the mind of the deceased for excluding his real son from the benefit of his property. Exclusion of near relation in the present circumstances overrules the suspicion around the Will. Bequeathing the property in favour of petitioner in such situation cannot be said as unnatural and improbable. Non- giving of any reason of exclusion of the respondent in the Will itself and from 7 the benefits of the property of the testator can be ignored when the circumstances are clear that deceased wanted to give the property to the petitioner and not to his own son. PW-3 is an independent person who being neighbour of the deceased, had deposed that deceased wanted to give his property to petitioner who was living with him. Her deposition in this regard cannot be rejected merely on the ground that it appears from her cross examination that attestation of her affidavit of examination in chief before oath commission was not proper.
Will was typed by Sh. Virender Kumar at the behest of the deceased as per the version of the witnesses of the petitioner. Non examination of the typist is not fatal to the case of the petitioner because Supreme Court in Ramabai Padmakar Patil vs. Ruminibai Vishnu AIR 2003 Supreme Court 3109 held that typist if neither is attesting witness nor the testator had put thumb impression before him on the Will, then his examination was not necessary.
Contradiction regarding the fact whether the account in the name of deceased was opened on the day of execution of the Will or not is not so material to reject the testimony of any witness of the petitioner. The account was got opened by PW-2 and even if he got wrong name of father of deceased incorporated in the records of bank itself is not sufficient to presume that false pretext was used to obtain the thumb impression of the deceased on the Will. Otherwise also it is not clear whether the wrong name of father of the deceased got noted by the bank at the instance of PW-2 or it was due to mistake of any other person or bank official.
Similarly non remembering of PW-1 whether any other document was also prepared along with the Will is also not a ground to disbelieve her. I find no sufficient material on record from the cross examination of PW-1 and PW-2 to discard their statement which inspire confidence.
Respondent RW-2 in his cross examination stated that he does not know the petitioner but his version itself is false because admittedly litigations between him and petitioner are going on since long in civil and revenue courts. RW-2 being neighbour of the respondent and having visiting terms with him is 8 an interested witness and his deposition that petitioner never lived with the deceased cannot be believed. He on the other hand admitted that petitioner was living near to the house where allegedly deceased lived. Respondent has failed to bring on record any document such as ration card or voter list etc. to show that deceased was living with him in the same house. Hence in such circumstances, it is held that deceased was living separately from respondent no. 2 and not with him.
In view of the above discussion, Will Ex. PW1/1 is fully proved. It was executed by the deceased in sound disposing mind according to his free will without any pressure or influence. It is not the product of any fraudulent means as alleged, so is liable to be enforced. This issue is decided in favour of petitioner and against the respondent no. 2.
Issue no. 3:-
Simple mentioning of wrong Act in the heading of the petition (instead of Indian Succession Act, Hindu Succession Act is mentioned) is only a typographical mistake and not a ground to reject the petition. Otherwise also the court has to consider the contents of the petition and not the heading to find out what petitioner wants to say and what is claimed.
Even if there is some mistake in the property number given in the petition, but where identity of the land is not in dispute, then giving of part incorrect number of Khasra number of the land in question is irrelevant.
Petitioner at final stage of the petition got the deficiency of provisions of section 281 Indian Succession Act removed by moving amendment application so that defence is now not available to the respondent. Moreover getting the petition attested from attesting witness of the Will is only directory and not mandatory.
Court fee paid is proper at the time of filing of the petition and balance court fee is to be paid at the time of completing the necessary formalities by the petitioner, accordingly petition cannot be rejected on the ground that full court fee is to be paid at the initial stage.
Pendency of civil suit for declaration for declaring the Will in 9 question as null and void does not attract section 10 CPC when no copy of plaint of that civil suit is brought on record nor any order of the court of framing of issues is produced from which it can be ascertained that issue in dispute was common in both the matters.
A ground is also taken that land in question is being governed by the provisions of Delhi Land Reforms Act because deceased was declared Bhumidar of the same by the revenue authorities and thus it could be inherited only by respondent no. 2 and could not go to anyone else. It is also argued that transfer of the land to the petitioner by way of Will is violative of the provisions of Delhi Land Reforms Act. Counsel for the respondent cited case law Shri Pawan Kumar vs. Financial Commissioner, Delhi 2003 IV AD (Delhi) 265 but the controversy involved in this case was different. Otherwise also, under section 48 of Delhi Land Reforms Act, execution of the Will is permissible for Bhumidar. Accordingly the petition cannot be rejected simply on the ground that provisions of Delhi Land Reforms Act are attracted in respect of land of the deceased.
Accordingly this petition cannot be rejected on any of the technical grounds taken in the objections of the respondent. This issue is decided in favour of the petitioner and against the respondent.
Issue no. 2:-
When the Will is duly proved and entire land in question is bequeathed in favour of the petitioner, then I find no ground to refuse to grant relief of probate as claimed. Petitioner has now become entitled to administer the estate of the deceased in respect of his property in question and is under obligation to manage the same as per wishes of the deceased mentioned in the Will. Accordingly it is held that petitioner is entitled to the grant of probate of the Will in question. This issue is decided in favour of the petitioner and against the respondent no. 2.
Relief:-10
As per findings given above, the petition is allowed and probate of the Will Ex. PW1/1 executed by Sh. Ram Pat on 14-9-1999 registered on 17-9- 1999 (copy annexed) is granted in favour of the petitioner in respect of the land of the deceased measuring 5 Bighas 10 Biswas bearing Khatta no. 364/277, Khasra no. 11/13 (1-14) & 18 (3-16) situated in village Nizampur, Delhi subject to her furnishing necessary court fees according to the valuation report to be called from revenue authorities at the time of completion of formalities and upon executing administration bond with one separate surety bond. An inventory of the property of the deceased shall be exhibited in the court within six months from the date of issue of formal letter of administration and a statement of account shall be filed within one year thereafter by the petitioners. It is further clarified that question of possession or right, title and ownership of the immovable property in question is not decided by this court. File be consigned to the record Room.
(ASHWANI SARPAL)
Dated:-18-7-2008 ADDITIONAL DISTRICT JUDGE
DELHI.