Delhi District Court
Smt. Tejinder Kaur Gona vs N.C.T. Of Delhi on 25 September, 2019
IN THE COURT OF MS. SUJATA KOHLI, ADDITIONAL DISTRICT
JUDGE, CENTRAL, TIS HAZARI, DELHI
PC No. 13 of 2017
Smt. Tejinder Kaur Gona
W/o Late Shri Amarjit Singh Gona,
R/o A188, New Friends Colony,
New Delhi110065. .........Petitioner
Versus
1. N.C.T. OF DELHI, DELHI
2. S. Balbir Singh Bhatia
S/o Late Shri Amar Singh Bhatia,
R/o C789, GF, New Friends Colony,
New Delhi110065.
3. S. Gurdev Singh Bhatia
S/o Late Shri Amar Singh Bhatia,
R/o J530, Sainik Farms,
New Delhi.
4. S. Nirmal Jit Singh Bhatia
S/o Late Shri Amar Singh Bhatia,
R/o A36, GF, New Friends Colony,
New Delhi110065.
5. S. Jagjit Singh Bhatia
S/o Late Sh. Amar Singh Bhatia,
R/o A36, FF&SF, New Friends Colony,
New Delhi110065. ..........Respondents
PC No. 13/17 Tejender Singh Gona vs. State & ors. 1 of 44
Date of filing of the petition : 20.02.2007
Date of reserving judgment : 20.08.2019
Date of judgment : 25.09.2019
Petition under Section 276 of the Indian Succession Act, 1925 for
Granting a Probate.
JUDGMENT
1. By this Judgment I propose to decide the present petition, under 276 of the Indian Succession Act for seeking Probate in respect of Will left behind by Smt. Iqbal Kaur Bhatia (hereinafter referred to as Testatrix) bequeathing Space/Unit admeasuring 350 Sq Ft (i.e 35.52 Sq Mts) situated on the First floor of the Property bearing No.16/11 WEA Karol Bagh, New Delhi (referred to hereinafter as 'said property' - same expression as used in the Petition) in favour of the Petitioner and also appointing her as the executor of the Will.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 2 of 44 Facts as stated in the Petition
2. Testatrix was the mother of the Petitioner and the respondents 2 to 4 (brothers of the Petitioner) who had died on 22/06/2016. During her lifetime she had executed a WILL dated 21/09/2005.
3. In her life time she had acquired three properties. They were:
Property bearing No. 15A/62 WEA Karol Bagh, New Delhi Space Unit, assigned Private No.2 admeasuring 200 Sq feet Mezzanine Floor Property bearing No. 16/15 WEA Karol Bagh, New Delhi Space Unit, admeasuring 350 Sq feet situated on the First Floor of Property bearing No. 16/11 WEA Karol Bagh, New Delhi (mentioned as 'Said Property' hereinbefore)
4. Testatrix had sold first two properties to the Petitioner in her life time.
Third, she had bequeathed to the Petitioner. The total value of this property has been given to be Rs.25,00,000/ (Rs. Twenty Lacs). PC No. 13/17 Tejender Singh Gona vs. State & ors. 3 of 44
5. Petitioner also made reference to a suit for partition being filed by Respondent before the Hon'ble High Court bearing No. CS (OS) 2295 of 2001, wherein Respondent No. 5 claimed all properties to be HUF properties including the said property. Testatrix was also one of the parties in the suit impleaded as Defendant No.4. Petitioner herein is the Defendant No.12 in that case. Petitioner after the death of the Testatrix had filed a fresh written statement based on the Will but Hon'ble High Court declined to take it on record, with the observation interalia that as the Will was being disputed Petitioner herein could seek probate of the said Will. This is what led to the filing of the petition for probate. Publication of Citation and service of summons on respondents
6. In terms of Section 283 citations were published calling upon all persons claiming to have interest in the estate of the Testatrix to come and see proceedings before the grant of probate. Summonses were also sent to the respondents. There was also notice given to the State through District Collector/ Concerned SDM to provide the valuation of the Property.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 4 of 44 Filing of objections - written statements
7. Respondents No.2 and 3 had filed objections/written statement. Same had been adopted by the Respondent No.4. Respondent No. 5 had filed separate objections/ written statement.
8. It is stated in the objectionscumwritten statement filed on behalf of respondent no.2 and 3 that the Will is manipulated and fabricated taking advantage of the advanced age of Testatrix. She was not in a fit state of mind to execute the Will. Petitioner coerced Testatrix to create a forged Will by using emotional "tactics". The property in respect of which probate is asked for is a joint family property and there are proceedings related thereto pending before the Hon'ble High Court. It is also stated that it is not natural that their mother (Testatrix) would give away all her possessions to only her daughter ignoring her sons.
9. Respondent No. 5 has also reiterated in his objections that the property for which probate has been asked for and other properties are joint family properties which are the subject matter of the suit pending before the Hon'ble High Court. It is also pointed that said property for PC No. 13/17 Tejender Singh Gona vs. State & ors. 5 of 44 which the Probate is being asked for in the petition, according to Will is stated to have been sold this shows that the Petitioner is playing fraud on the Court.
Rejoinders by Petitioner
10. Petitioner has denied all the allegations levelled and reiterated her stand in the Petition. In respect of said property as referred to in the Will having been sold off for which probate is being asked for, it is stated that the during the probate proceedings Court cannot decide the question of the title of property. She has added that according to the Will said property had been sold to the Petitioner but the petitioner herself is claiming that the said property was not sold to her and the testatrix continued to be the owner of the Property. Issues
11. On the basis of Pleadings following issues were framed:
PC No. 13/17 Tejender Singh Gona vs. State & ors. 6 of 44
1). Whether testator was/was not competent and was/was not in the sound state of mind to execute the Will?
OPP/OPR 2,3 & 4
2). Whether the subject matter of Will was joint family property and therefore also testator had no capacity to execute the Will being not her selfacquired property? OPR 2,3 4&5
3). Whether the petitioner is entitled for grant of probate? OPP
4). Relief.
Examination of witnesses by Petitioner
12. Petitioner had examined herself as PW1. She has filed her affidavit in examination in chief on the lines of the Petition filed. In her testimony she had referred to the death certificate of the testatrix, two sale deeds Ex Pw1/2 and Ex PW1/3 of the two properties other than the said property, written statement she wanted to file in the proceedings before the Hon'ble High Court Ex PW1/4, Will ExPW1/5, testimony of the Testatrix recorded in the case CS 12221/2016 (Old No. 150/2005) filed by the Petitioner and the Testatrix against the respondent No.2&3 for PC No. 13/17 Tejender Singh Gona vs. State & ors. 7 of 44 possession and damages and mesne profits in respect of ground floor of the property bearing no. 15A/62 WEA Karol Bagh New Delhi wherein they had claimed themselves to be the tenants in the property and affidavit ExPW1/6, wherein she also interalia deposed about having executed the Will in the presence of the attesting witnesses and Judgment passed in that case ExPW1/7.
13. Witness PW2 Sh. Daulat Ram Kashyap UDC from the office of the registrar had appeared and produced the record of the registration of the sale deeds of two properties other then the said property. He had identified the certified copies of the sale deeds Ex PW2/1 and ExPW2/2 as having been issued by their office.
14. Witness PW3, had produced the record from the High Court relating to the affidavit filed be the testatrix in her examination in chief and her crossexamination in that case. He had deposed about the certified copies of those documents Ex PW3/1 and Ex PW3/2 having been issued as per the record of the case.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 8 of 44
15. Similarly he had brought the record of the case CS No.12221/2016 (Old no. 150/2005) to say that the certified copy of the judgment Ex.PW3/3 was issued as per the record of the case.
16. PW4 Sh. Ranjit Singh is one of the attesting witnesses of the Will. He had described his relationship with the petitioner informing that she was his Mami. He had deposed that as to how he had come to stand as witness of the Will and how was it executed, where it was executed, who all were present at the time of the execution of Will including one Dr Indra. He had deposed that the testatrix had signed the Will in his presence, he and one other witness had signed the Will in her presence. According to him all of them had signed in the presence of each other. He also deposed about Dr Indira having signed the Will. He had identified her signature on the Will, which was reexhibited as PW4/1 which was earlier given the exhibit Ex PW1/5.
Witnesses of Respondents
17. Respondent No.2 is the only one who had appeared as a witness in the Court. His affidavit in examinationinchief is on the lines of the stand PC No. 13/17 Tejender Singh Gona vs. State & ors. 9 of 44 of the respondents in this case. According this affidavit, the property for which the Probate is being asked for is a joint family property for which there is a civil suit pending. It is alleged that the Testatrix was never made to know the contents of the Will which she was made to sign. The circumstances in which it was executed are suspect. The property which is stated to have been left behind by the testatrix, according to Will had already been sold off by her. It is further alleged that she even did not know about the sale deeds being executed. Submissions
18. I have heard counsel for the parties, gone through the record of this case and also the written submissions filed.
Findings Whether testator was/was not competent and was/was not in the sound state of mind to execute the Will? OPP/OPR 2,3 & 4
19. Who could have been a better person to say that Testatrix was in a sound state of mind to execute the Will then the Testatrix herself? It PC No. 13/17 Tejender Singh Gona vs. State & ors. 10 of 44 may not happen in every case but it has happened in this case. We have firsthand account of the Testatrix herself deposing about the Will in another case which was pending between the parties, i.e Petitioner herein and her mother Testatrix as Plaintiffs and Respondent No2 and 3 herein as defendants, bearing no. CS No. 12221/16. The suit was decided in favour of the Petitioners and it has come on record that there is an appeal pending against the Judgment. That is not our concern here. Our concern is, what had she deposed about the Will. Form the side of Petitioner those proceedings have been filed on record. Para no. 14 of the said affidavit filed in examination in chief reads as under:
"That I have signed and executed a Will dated 21/09/2005 in the presence of Witnesses in favour of my daughter, Plaintiff No.2 (i.e Petitioner herein) to avoid any dispute over the inheritance of my estate amongst my legal heirs after my death. I have brought the Original of the said Will and photocopy thereof filed on record is Ex PW1/7. (Underlined portion supplied)"
PC No. 13/17 Tejender Singh Gona vs. State & ors. 11 of 44
20. This affidavit was filed way back in 2006. There were no questions asked about her sound state of mind to have executed that Will. It may be added that there is no dispute as to the said statement she had given in Court or Ex PW1/7 Will referred to in the said case is not the Will which is the subject matter of this case.
21. From the testimony of the Witness PW 4, Ranjit Singh it is clear that there had been some active role being played by the Petitioner and her husband Amarjeet Singh Gona. The witness had stated that Petitioner (his Mami) and her husband Sh. Amarjeet Singh Gona had requested him to be a witness of the Will. He had then informed him that he would let him know the date when his presence would be required. On the day of the Execution of the Will he had reached the house of Sh. Amarjeet Singh Gona (husband of Petitioner) where he had found Testatrix, one Dr Indra, Petitioner and her husband. The Will was read out by Sh. Amarjeet Singh Gona before Testatrix had signed it and others.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 12 of 44
22.This by itself, cannot be a sign of any undue influence being exercised.
It is quite evident from the litigation that Testatrix and the Petitioner have been close to each other and on the same side of the fence. There is no dispute that she was aged and it was not unnatural for her to fall back on persons she trusted.
23. Although the testimony of Testatrix in the other case is good enough to show that she was in a sound state of mind to execute the Will as she had herself deposed to have executed the Will. This fact also gets confirmed by the statement of the Witness PW4 Sh. Ranjit Singh. This witness had deposed " Mataji Mrs. Iqbal Kaur might have been around 80 years. Mataji Mrs Iqbal Kaur was quite mobile and inspite of her age, she could hear, see and understand things which were going on and all her facilities were sound as I saw. She executed the Will of her own free Will, without any pressure or coercion from anyone whatsoever. In fact she was very close to me and she used to share her personal matters with me and whenever I used to go to meet my PC No. 13/17 Tejender Singh Gona vs. State & ors. 13 of 44 Mamaji, I used to first meet Mataji Mrs. Iqbal Kaur and have talked with her. She was in sound disposing mind and executed the Will."
24. There is no serious challenge to the testimony of this witness on this aspect, except a few suggestions given to him to which he had replied in denial. Said set of answers read like this "It is wrong to suggest that testatrix was not in sound disposing mind to execute the Will. It is wrong to suggest that deceased Iqbal Kaur was not in a position to understand what is going on at the time of execution of Will. It is wrong to suggest that deceased Iqbal Kaur was under constant threat of her son in law and daughter." These suggestions would have gained some weight had there been material produced or circumstances explained to disbelieve this witness as to mental capabilities of the Testatrix for the execution of the Will.
25. Thus there is nothing to doubt that the Testatrix was in a sound state of mind to execute the Will.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 14 of 44
26. Section 63 1of the Indian Succession Act lays down how a will is required to be executed and section 682 of the Indian Evidence Act, as to how Will can be proved.
27. In the context of the present case what was required to be proved as to the execution of the Will is like this Testatrix had signed the Will and in a manner to indicate that she intended to give effect to the Will.
1 63. Execution of unprivileged wills.Every testator, not being a Collected by the All India Christian Council, www.christiancouncil.in Page 19 of 123 soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his 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 signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 2 68. Proof of execution of document required by law to be attested. -- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] PC No. 13/17 Tejender Singh Gona vs. State & ors. 15 of 44 Will had been signed by two witnesses each of whom has seen the Testatrix having signed the Will and each of the Witness has signed the Will in the presence of Testatrix.
28. According to Section 68 of the Evidence Act, a WILL cannot be proved unless at least one of the attesting witnesses has been examined to prove the execution of the Will.
29. Therefore, the examination of only one of the witnesses was good enough.
30. Coming to execution of the Will, it may be noted that the witness PW4 Ranjit Singh had deposed in his testimony "I have come today to depose about the execution of a Will by Smt. Iqbal Kaur, on which I signed as a Witness. Mrs Iqbal Kaur had signed in my presence and also signed in her presence and there was also another witness who signed in presence of both of us." He did not give the date of the execution of the Will but he gave the sequence as to how things unveiled on the day of the execution of the Will. He had deposed "Will PC No. 13/17 Tejender Singh Gona vs. State & ors. 16 of 44 was executed sometime in the morning, but I don't remember the exact time. I had gone alone to the house of Sh. Amarjeet Singh Gona that day. At that time when I reached house, I found Mr Amarjeet Singh his wife Ms. Tejinder Kaur Gona and Mrs. Iqbal Kaur and Dr Indra. I knew Dr Indra also before. There was no other person present. We all were sitting in the room of Mataji ( Iqbal Kaur) and Will was already ready and typed, in the hands of Amarjeet Singh Gona. Mr Amarjeet Singh Gona read over contents of Will to Mataji. She heard them and understood them, and thereafter he (sicshe) put her signature on the Will in our presence and I put my signature thereafter and last of us, Dr Indira put her signatures thereon. Mata Ji signed in English and we both signed in English."
31.Thus the testimony of this witness fits into requirements of Section 63 of the Succession Act.
32. The questions, however, have been raised as to the signing of Will on the basis of the part of testimony this attesting witness wherein he has stated " Mataji signed only at one point. Perhaps the Will was having PC No. 13/17 Tejender Singh Gona vs. State & ors. 17 of 44 two three pages. Matatji, also signed only one page as far as I remember. I am not in a position to identify the signatures of Mata Ji Mrs. Iqbal Kaur if shown to me separately without specific document but I can identify the same, if I am shown the said Will. I state this because that it is only once she had signed in my presence and that is it." Thereafter there is an observation of the Court "(At this stage witness has been shown all the pages, but he categorically maintained that signature had been done in his presence only on one page i.e last page. Will is already Ex PW1/5, reexhibited as Ex PW4/1).
33. It is stated that the witness could not identify the signature of the Will.
I am of the view that so long as the witness has stated that the Will had been signed by the Testatrix in his presence is good enough. He has only been truthful by saying he had seen her signing only once, and therefore will not be able to identify her signature. There is, however, no confusion as to the document which had been signed. It is also stated that he had been categorical that she had signed in his presence only on the last page i.e at the end of the Will. It is though correct that on the PC No. 13/17 Tejender Singh Gona vs. State & ors. 18 of 44 other pages of the Will signature of testatrix appear. But as far the signatures of attesting witnesses and her signatures are concerned they appear only on the last page i.e. at the end of the Will. It may be noted that so far as section 63 is concerned what is material is Testatrix had signed the Will and in a manner to indicate that it intended to give effect to the Will. The signatures appearing on the other pages of Will are only to indicate the continuity of pages and nothing more. The signature which appear on the last page at the end of the document is the only one meant to indicate the execution of Will. Therefore, even if, the signatures had been put by the testatrix on other pages of the Will not in the presence of the attesting witnesses, it would not matter.
34. Therefore, the execution of the Will and the competence of the Testatrix to execute the same stand proved. Issue No.1 is accordingly decided in favour of the Petitioner.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 19 of 44 Findings on Issue No. 2 Whether the subject matter of Will was joint family property and therefore also testator had no capacity to execute the Will being not her selfacquired property? OPR 2,3 4&5
35. It has been submitted in the written submissions filed from the side of respondents that first that there is a suit for partition pending before the Hon'ble High Court and second that Will would show that the property in respect of which the probate has been asked for has already been sold off thus legacy being adeemed under section 152 of the Indian Succession of the Act.
36. So far as the Partition suit pending before the Hon'ble High Court is concerned there is no dispute. In fact that suit is raison d'etre for the filing of this suit. If one were to say, the petition would not maintainable because the said suit is pending consequences would be very odd.
37. In the written statement filed, there is a reference to the judgment of the Hon'ble Supreme Court in "Kanwaljit Singh Dhilon vs. Hardayal PC No. 13/17 Tejender Singh Gona vs. State & ors. 20 of 44 Singh Dhillon AIR 2008 SC 30. In the said case, originally, the suit properties stood in the name of one Ishar Singh (paternal grand father of the appellant) which were subsequently mutated in the name of his two sons, S.Hazara Singh and S.Kirpal Singh. Appellant was the son of Late Kirpal Singh. Kirpal Singh died leaving behind certain properties. According to the Appellant, the suit properties left behind by late S.Kirpal Singh were their ancestral properties. After eight years of the death of late S.Kirpal Singh, the Respondent No.1 propounded an unregistered Will left behind by late S.Kirpal Singh and applied for probate thereof in the High Court of Punjab and Haryana. Probate was granted by the Hon'ble High Court and also subsequently affirmed by Hon'ble Supreme Court. Thereafter a suit was filed by the Appellants seeking declaration that the properties subject matter of the Will were HUF properties. Ld Civil Judge dismissed the suit by stating that the suit was not maintainable and had no jurisdiction to proceed with the suit after probate had been granted. This judgment was also confirmed by the Hon'ble High Court. In the background of these facts it was observed:
PC No. 13/17 Tejender Singh Gona vs. State & ors. 21 of 44
10. The High Court by the impugned order, relying on a decision of this Court in the case of Smt. Rukmani Devi and Ors. v. Narendra Lal Gupta, [1985] 1 SCC 144 affirmed the order of the civil court by holding that a probate granted by a competent probate court was conclusive of the validity of the Will of late S.Kirpal Singh until it was revoked and no evidence could be admitted to impeach the said Will except in a proceeding taken for revoking the probate. According to the High Court, a decision of the probate court would be a judgment in rem which would not only be binding on the parties to the probate proceeding but would be binding on the whole world. Upon the aforesaid finding, the High Court had affirmed the order of the civil court holding that the suit must be dismissed in view of the fact that the probate court had already granted probate in respect of the Will executed by late S.Kirpal Singh relating to the suit properties. We are not in a position to agree with the views expressed by the High Court in the impugned order nor are we in agreement with the order passed by the civil court. As noted herein PC No. 13/17 Tejender Singh Gona vs. State & ors. 22 of 44 earlier, the suit for declaration of title and injunction has been filed by the appellant inter alia on the allegations that the suit properties are joint family properties of the HUF of which the appellant and his two brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur are members. It has also been claimed by the appellant in the suit that by utilizing the income from the ancestral agricultural land, various properties including the suit properties were acquired. Such being the allegations made in the plaint which can only be decided on trial after parties are permitted to adduce evidence in respect of their respective claims, it is difficult to hold that only because probate of the Will of late S.Kirpal Singh has been granted, the suit for title and injunction must be held to be not maintainable in law. It is well settled law that the functions of a probate court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent PC No. 13/17 Tejender Singh Gona vs. State & ors. 23 of 44 for the probate court to determine whether late S.Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator.(Emphasis supplied)
38. Meaning of this is, so far as the Suit pending before the Hon'ble High Court is concerned, same would not be an impediment in the grant of Probate by this Court.
39. There is, however, another question which relates to a faux pas committed in the writing of the WILL. If one were to examine strictly in the light of the Will what is being bequeathed to the Petitioner is not the Said Property for which property has been bequeathed, but another property i.e 200 Sq. Ft of Mezzanine Floor of property bearing no. 16/15 WEA Karol Bagh, New Delhi., which according the Petitioner had actually been sold, by Testatrix to her. The property for which the PC No. 13/17 Tejender Singh Gona vs. State & ors. 24 of 44 Probate is being asked for, according to the Will had been sold by Testatrix to the petitioner which she had actually not.
40. This is what has been stated in the WILL:
"I purchased/acquired during my life time three immovable properties i.e. (1) a two and a half storey building bearing property No.15-A/62, W.E.A. Karol Bagh, New Delhi, (2) 350 Sq. Ft. space on the First Floor of the property bearing No.16/11, W.E.A. (Arya Samaj Road) Karol Bagh, New Delhi and (3) 200 Sq.
Ft. of Mezzanine Floor of property bearing No.16/15, W.E.A. Karol Bagh, New Delhi, out of which I have already sold and transferred first two of the above three properties in favour of my married daughtr Smt. Tejinder Kaur Gona and I continue to be the owner of the third of the above said three properties."
41. This what which has been stated in the Petition:
4. That during her life time, the deceased had duly executed on 21.09.2005 a WILL, as her last WILL and Testament, in the presence of the two witnesses, PC No. 13/17 Tejender Singh Gona vs. State & ors. 25 of 44 whose names appear at the foot thereof, and who also signed as attesting witnesses the same. The said original WILL is attached herewith as Annexure "B".
5. That the deceased had purchased/acquired during her life time three immovable properties; (I) Property, bearing No.15A/62, WEA, Karol Bagh, NEW DELHI; (ii) Space/Unit, assigned Private No.2, admeasuring an area of 200 sq. ft., situated on the Mezzanine Floor of the Property, bearing No.16/15, WES Karol Bagh, New Delhi; and (iii) Space/Unit, admeasuring an area of 350 sq. ft., situated on the First Floor of the Property bearing No.16/11, WEA, Karol Bagh, New Delhi.
6. That the deceased had subsequently sold, transferred, conveyed and assigned in favour of the above named Petitioner the first two of the above mentioned three properties, i.e. (i) Property bearing No. 15A/62, WEA, Karol Bagh, New Delhi, vide sale deed, dated 16.01.2001, duly registered vide Regd.
No.2687 in Addl. Book No.1, Vol. No. 10259, Pages 19 on 16.06.2001 before the Ld. Sub Registrar, PC No. 13/17 Tejender Singh Gona vs. State & ors. 26 of 44 New Delhi and (ii) Space/Unit, assigned Private No.2, admeasuring an area of 200 sq. ft., situated on the Mezzanine Floor of the Property, bearing No.16/15, WEA, Karol Bagh, New Delhi vide sale deed, dated 16.01.2001, duly registered vide Regd. No.2686 in Addl. Book No.1, Vol. No.10258, Pages 197205 on 16.06.2001 before the Ld. Sub Registrar, New Delhi. Thus, at the time of her death, the deceased was the owner of and had left behind only the Space/Unit, admeasuring an area of 350 sq. ft. (i.e. 32.52 Sq. mets.), situated on the First Floor of the Property, bearing No.16/11, WEA, Karol Bagh, New Delhi, hereinafter referred to as the "Said Property".
42. And this what has been stated in the written submissions filed on behalf of the Respondents "In view of the fact that the Testatrix had during her life time having sold the space/property for which the probate is applied for, there is no question of any probate is granted under the law. Section 59 of the Indian Succession Act refers to the persons who are capable of PC No. 13/17 Tejender Singh Gona vs. State & ors. 27 of 44 making Will and Section 59 and explanation (I) to the said section as under : 'Every person of sound mind not being a minor may dispose of his property by Will.
Explanation (i); A married woman may dispose by Will of any property which she could alienate by her own act during her life time' Since the alleged property having already been sold, there is no question of making of Will in respect of said property.
The aforesaid section is to be read with section 152 of India Succession Act and the said Section reads as under :
'152; Ademption Explained' - If any thing which has ben specifically bequeathed does not belong to the Testator at the time of his death or has been converted into property of a different kind, the legacy is adeemed : that is, it cannot take effect, by reason of the subject matter having been withdrawn from the operation of the Will'.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 28 of 44 In view of the aforesaid submissions, there is no estate for which the probate can be granted."
43. Hon'ble High Court of Delhi in Sh. Dalip Kumar & Anr vs. M/s. Shree Gopal Jewelers & Ors. 2016 SCC OnLine Del 4290 had summarized the law with regard to the interpretation of Will in the following words:
"6. The law with respect to interpretation of the Will has been referred to by the first appellate court in its judgment by referring to the judgment of the Supreme Court in the case of Navneet Lal @ Rangi v. Gokul (1976) 1 SCC 630. The relevant paras of the first appellate court dealing with what is the law on the subject interpretation of the Will as also the observations of the Supreme Court in the case of Navneet Lal @ Rangi (supra) are contained in para 19 to 22 of the judgment of the first appellate court and which paras read as under: "19 The general rule of construction in interpreting a 'Will', is first to ascertain by an examination of the entire Will what is the nature and the grammatical meaning of the language used by the testator. The entire instrument and all its parts are to be construed in relation to each other and so as, if possible, to form one consistent whole.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 29 of 44
20. The fundamental and foremost rule while reading and interpreting the Will, is that the intention of the testator should be found from the recitals/clauses mentioned by him in his Will and the effect should be given to it as far as possible for the construction of the Will. Every case in hand should be looked into independently and that the other cases will be of little assistance because the different clauses in different Wills will always differ from case to case.
21. In Navneet Lal @ Rangi v. Gokul (1976) 1 SCC 630, The Hon'ble Supreme Court Of India in para 8 has laid down five rules while construing/interpreting a Will and observed as under:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.
(2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v. Parthasarathy) (1913) 41 Ind App 51 at p.73 (PC) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense.... But all this is PC No. 13/17 Tejender Singh Gona vs. State & ors. 30 of 44 solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case (supra) and Gananmbal Ammal v. T. Raju Ayyar: (AIR 1951 SC 103)] (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory (Raj Bajrang Bahadur Singh v. Bakhtraj Kuer): (AIR 1953 SC
7) (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The could will look at the circumstances under which the testator make his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such PC No. 13/17 Tejender Singh Gona vs. State & ors. 31 of 44 hiatus. (Pearey Lal v. Rameshwar Das): (AIR 1983 SC 1703).
(5) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will. (Ramachndra Shenoy v.
Mr. Hilda Brite: (AIR 1964 SC 1323)
22. While interpreting a 'Will', it is the primary duty of a court is to read the Will as a whole and ascertain from the language of the recitals therein as to what was the intention of the testator, that is to construe the Will. In interpreting the 'Will' the regard must have to be, not merely to the words used but to the evident intention of the testator. However, those intentions must be ascertained by the proper construction of the words he uses, and once ascertained, they must not be departed from."
(underlining added)"
PC No. 13/17 Tejender Singh Gona vs. State & ors. 32 of 44
44. Before proceeding further one would also like make reference to the Judgment of Hon'ble Supreme Court of United Kingdom in Marley (Appellant) v Rawlings and another (Respondent) [2014] UKSC 23 On appeal from: [2012] EWCA Civ 61. It is a case in which a husband and wife mistakenly signed each others wills, thus rendering them invalid. The Supreme Court decided that principles relating to contracts should also apply to wills, and so the wills could be interpreted as having been signed by the correct people. Relevant part of the Judgment related to interpretation of Will reads as under:
" 18. During the past forty years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900.
19. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions 3 https://www.supremecourt.uk/cases/docs/uksc-2012-0057-judgment.pdf PC No. 13/17 Tejender Singh Gona vs. State & ors. 33 of 44 of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. In this connection, see Prenn at 13841386 and Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 2130.
20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, "No one has ever made an acontextual statement. There is always some context to any utterance, however meagre." To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that "[c]ourts will never construe words in a vacuum".
21. Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a PC No. 13/17 Tejender Singh Gona vs. State & ors. 34 of 44 different approach in principle to interpretation of wills : it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts - see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C771D, and Lord Hoffmann at 779H780F.
22. Another example of a unilateral document which is interpreted in the same way as a contract is a patent - see the approach adopted by Lord Diplock in Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 243, cited with approval, expanded, and applied in KirinAmgen at paras 2732 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will.
23. In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg PC No. 13/17 Tejender Singh Gona vs. State & ors. 35 of 44 Theobald on Wills, 17th edition, chapter 15 and the recent supplement supports such an approach as indicated in RSPCA v Shoup [2011] 1 WLR 980 at paras 22 and 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should "place [itself] in [the testator's] armchair", is consistent with the approach of interpretation by reference to the factual context.
(emphasis supplied)"
45. As has been already noted above "in construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v. Parthasarathy) (1913) 41 Ind App 51 at p.73 (PC) and is bound to bear in mind also other matters than merely the words used." And doing so"It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense".
46. It is evident from the Will itself that the relations between the defendants with the Testator had been bad. As has already been noted that there had been litigations between her and her sons i.e the Respondents. Relevant part of her WILL read as under :
PC No. 13/17 Tejender Singh Gona vs. State & ors. 36 of 44 "I have four married sons, namely, S. Balbir Singh Bhatia, S. Gurdev Singh Bhatia, S. Nirmaljit Singh Bhatia and S. Jagjit Singh Bhatia and one married daughter Smt. Tejinder Kaur Gona as my legal heirs. My youngest son S. Jagjit Singh Bhatia has filed a suit for partition bearing Suit No.2295/01 pending adjudication before the Hon'ble High Court of Delhi at New Delhi.
All my sons have practically disowned me and are not only fighting amongst themselves over the inheritance of the estate left behind by my deceased husband but have practically rendered me destitute which compelled me to file an application before the Hon'ble High Court of Delhi in the said suit seeking maintenance and the Hon'ble High Court of Delhi passed an order on 06.05.2003 directing all my four sons to pay to me maintenance @ Rs.5,500/ each per month.
Not only that I have been rendered practically destitute by my sons at this advance age but my sons S. Balbir Singh Bhatia and S. Gurdev Singh Bhatia have gone to the extent of creating a forge and fabricated lease deed with respect to a portion in the Ground Floor of property bearing No.15A/62, W.E.A. Karol Bagh, New Delhi, to establish their right over the same." PC No. 13/17 Tejender Singh Gona vs. State & ors. 37 of 44
47. She further clearly expresses her desire that none her sons should get any part of her property. It is so stated in the Will " I, therefore, desire and wish that none of my sons inherit and/or acquire any part of my estate, whether moveable or immovable that I may leave behind at the time of my death and all such estate should be inherited and acquired only by my daughter Smt. Tejinder Kaur Gona who alone is looking after me for my physical and emotional needs."
48. Thus, if this Court is to put itself in the position of Testatrix, that she never wanted any part of her estate to go to the Respondent then this Court can not interpret the Will in a way, that the sons of the Testatrix end up getting any benefit under the Will. We have before us two Sale Deed by which the other two properties were sold by the Testatrix to Petitioner not the one which is the subject matter of the Petition. It was nothing but a bonafide mistake in giving description of properties in the Will, where the property 350, Sq Ft space on First Floor of the Property bearing no. 16/11 WEA ( Arya Samaj Road) Karol Bagh, New PC No. 13/17 Tejender Singh Gona vs. State & ors. 38 of 44 Delhi was shown to have been sold though it was not, instead of the property 200 Sq Ft of Mezzanine Floor of property bearing No. 16/15 WEA Karol Bagh, New Delhi, which was in fact sold though shown to have not been sold. I would, therefore, read the Will has having bequeathed the Property 350, Sq Ft space on First Floor of the Property bearing no. 16/11 WEA (Arya Samaj Road) Karol Bagh, New Delhi to the Petitioner and not 200 Sq Ft of Mezzanine Floor of property bearing No. 16/15 WEA Karol Bagh, New Delhi.
49. Having reached this conclusion then the reference to section 152 of Indian Succession Act, as the legacy having been redeemed under the Will does not survive.
50. The issue No. 2 is accordingly decided in favour of the Petitioner and against the Respondents.
PC No. 13/17 Tejender Singh Gona vs. State & ors. 39 of 44 Clarification as to the title of the property
51. In Ishwardeo Narain Singh vs. Kamta Devi, AIR 1954, SC 280, the Hon'ble Supreme Court formulated the principle of law in the following terms : "The Court of Probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind."
52. In Delhi Development Authority vs. Mrs. Vijaya C, AIR 2003 SC 3669 the Hon'ble Supreme Court had again emphasized the following principle : "A Testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased."
PC No. 13/17 Tejender Singh Gona vs. State & ors. 40 of 44
53. Thus, one may say that the grant of Probate in this case in favour of the petitioner would not tantamount to confer the title of the property to the petitioner.
No need to file Administrative Bond or Sureties
54. Since in this case, it is the probate which is to be granted in favour of the petitioner i.e executor of the Will Smt. Tejinder Kaur Gona, there will not be any necessity of furnishing any Administrative Bond or Surety Bond. As is clear from Section 291 of the Indian Succession Act that such bonds and sureties are required only in case of Letters of Administration being granted and not Probates. Compliances to be made under section 317 of Indian Succession Act.
55. Petitioners herein would be required to exhibit inventories within six months and one year as is required u/s 317 of the Indian Succession Act from the date of the issue of the Letters of Administration in the Form No.178 and 179 Vol. 6, Delhi High Court Rules respectively. PC No. 13/17 Tejender Singh Gona vs. State & ors. 41 of 44 Valuation under Section 19 -I of the Court Fees Act
56. It may noted here though the Petitioners may be held to be entitled to Probate. The same shall, however, be issued only after Petitioner has filed valuation of the property/properties in the Form as given in Schedule III of the Court Fees and accepted by the Court as is required under section 19I4 of the Court Fees of the Act and in consequence thereof necessary Court Fee has been filed. One may also make reference to the Judgment of the Hon'ble High Court in DRA Mountford v. Govt of NCT of Delhi 2018 SCC OnLine Del 8892 in this respect relevant reads as under:
"19. Considering the law cited above the question of valuation of assets and payment of the court fee shall arise 4 [19I. Payment of Courtfees in respect of probates and letters of administration.--
(1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation.1[19I. Payment of Courtfees in respect of probates and letters of administration.--(1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation."
(2) The grant of probate or letters of administration shall not be delayed by reason of any motion made by the Collector under section 19H, subsection (4).] PC No. 13/17 Tejender Singh Gona vs. State & ors. 42 of 44 only once the Will is held to be valid and the Court directs the grant of probate or letter of administration with Will annexed and the final valuation shall be done by the Collector of the area at that time."
Conclusion
57. In view of the foregoing discussion and facts and circumstances of the case, I am granting Probate in favour of Petitioner Smt. Tejinder Kaur Gona u/s 276 of the Indian Succession Act in respect of the Space/Unit admeasuring an area of 350 sq. ft., situated on the First Floor of the property bearing No.16/11, WEA, Karol Bagh, New Delhi of the Testator Late Smt. Iqbal Kaur Bhatia, as referred to in the Will.
58. Let the same be issued in favour of the petitioner Smt. Tejinder Kaur Gona on the submission of the valuation of the property as referred above in the Form as given in Schedule III of the Court Fees and accepted by the Court as is required under section 19I of the Court Fees of the Act and in consequence thereof necessary Court Fee has been filed. She would also be required to exhibit inventory and PC No. 13/17 Tejender Singh Gona vs. State & ors. 43 of 44 accounts within six months and one year as discussed above under section 317 of` the Indian Succession Act.
59. Ordered accordingly.
60. File be consigned to record room.
Announced in the open court on 25th September, 2019 (Laxmi Kant Gaur) Additional District Judge, Central, Delhi PC No. 13/17 Tejender Singh Gona vs. State & ors. 44 of 44