Delhi District Court
Judgment vs . on 1 October, 2008
1
In the court of ASHWANI SARPAL, Additional District Judge,
Tis Hazari Court, Delhi.
Sh. Anil Dogra
Vs.
State & Others
(PC No. : 367/06/99)
(Petition under Indian Succession Act
for grant of Probate of Will)
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JUDGMENT:-
The present petition was filed in the court on 6-8-99 by the petitioner Anil Dogra for grant of Probate of the Will dated 31-12-97 of his late father Sh. Kundan Lal in respect of the property bearing no. 19-D, Top Floor, Block no. BG-5, Paschim Vihar, New Delhi. The notice of this petition was given to all the respondents and the state. General public was also informed through citation published in the newspaper. Respondents no. 2 to 4 who are the brothers and sister of the petitioner only contested the matter.
It is alleged in this petition that the property in question was self acquired property of the deceased Sh. Kundan Lal who executed a registered Will in favour of the petitioner on 31-12-1997. Testator Sh. Kundan Lal was being looked after and maintained by the petitioner and he was residing with him who died on 10-1-98.
Respondents no. 2 to 4 who are other children of the deceased filed their joint objections and described the Will in question as invalid, forged and fabricated document. They admitted the possession of the property with petitioner but alleged that he is illegally occupying the same. It is also stated that besides the property in question, deceased also had left a sum 2 of Rs. 25,000/- which is not disclosed in the petition. Respondents further disputed the soundness of mind of the testator at the time of alleged execution of the Will. It is also stated that the property was not the self earned property of the testator. Will was also challenged on the ground that deceased had equal love and affection for all the children and there was no reason available to exclude the respondents from the benefit of the estate of the deceased.
Petitioner in his replication denied the allegations of the respondent and affirmed the averments made in the petition. On the basis of the pleadings of the parties, my ld. Predecessor framed the following issues vide order dated 22-5-2001;
Whether late Shri Kundan Lal executed a valid Will dated 31-12-97 while in sound disposing mind and whether the said document is the last Will and testament of the deceased? OPP Relief In order to prove his case, petitioner examined five witnesses including himself as PW-5. The evidence of PW-1 HC Umed Singh cannot be read in evidence because his statement was left incomplete and thereafter he was not recalled. PW-2 Pradeep Kumar from DDA simply proved the fact of allotment of the property in question in the name of deceased Sh. Kundan Lal. PW-3 Jagdish Yadav, official from the office of Sub Registrar proved that the Will in question was registered in his office. PW-4 Ajay Kumar Verma is very material witness of the petitioner being one of the attesting witnesses of the Will.
Respondent no. 3 Vinod Kumar Dogra appeared as a witness RW- 1 whereas respondent no. 2 Kamal Kumar Dogra stepped into witness box as RW-3. RW-2 Vijay Kumar Sharma is relative of respondent no. 2. RW-4 P.C. Tamta, Manager of State Bank produced the record of saving bank account of deceased. PW-5 Jaswant Singh from RML hospital tried to establish one certificate pertaining to illness of the deceased. I have gone through the written submission placed on record by both the parties. My decision on above issues is as under;
3Issue no. 1:-
The Will of Sh. Kundal Lal testator is Ex. PW-3/1 which was executed and registered on 31-12-97. It is English typed Will consisting of three pages. It is signed by two witnesses including PW-4 Ajay Kumar Verma.
The original Will Ex. PW3/1 is lying on record since beginning. It appears that petitioner under some confusion or mistake got permission of the court to prove the Will by way of secondary evidence on ground of theft/loss of the original Will. When the Will in original was already on record then the mistake committed by petitioner in obtaining permission of the court to lead secondary evidence can be ignored and is of no consequences. This blunder committed by the petitioner will not affect the merits of the case in any manner.
Attesting witness of the Will PW-4 in his affidavit of evidence specifically stated that he had signed the Will in presence of the testator and in presence of the another attesting witness Ms. S. Sood and he at the request of the testator had also gone through the contents of the Will. This witness also identified signatures (infact should have been the thumb impression) of the testator and of the witnesses including himself on the Will Ex. PW3/1. According to affidavit of PW-4, the testator was in sound disposing mind and maintaining good health at the time of execution of the Will though was aged about 75 years approximately.
PW-4 was cross examined by the counsel for the respondents and out of only few lines cross examination consisting of half page, I could not find any ground to reject his testimony. No cross examination regarding the facts deposed in his affidavit was done on behalf of the respondents. The manner of execution of the Will as per requirement of section 63 of Indian Succession Act as stated by PW-4 is not challenged at all. Mere absence of knowledge on the part of PW-4 whether testator Sh. Kundan Lal was admitted in RML hospital on 9-5-1997 or was outdoor patient of this hospital is not a sufficient ground to discard the statement of this witness and to presume that at the time of 4 execution of the Will on 31-12-2007 the testator was not in good physical health and sound mind. Nothing has come in the cross examination of PW-4 to impeach his credibility. This witness PW-4 has fully proved the Will and there is no ground to disbelieve his statement. No plea of forged and fabricated thumb impression of testator on this Will was raised in cross examination of PW-4 so the defence of forgery as raised by the respondents falls on the ground. Non examination of any finger print expert also by the respondents leads to the inference that they are admitting thumb impressions of the deceased on the Will. In my opinion, due execution of the Will is fully proved from the statement of PW-4. This attesting witness PW-4 cannot be declared as false simply on the ground that in his affidavit, instead of identifying thumb impression, he by mistake used the word signatures of the testator. This appears to be a typing mistake in his affidavit which is liable to be ignored.
PW-5 Sh. Anil Dogra in his affidavit corroborated the averments made in the petition. His deposition made in the cross examination that his father had read the Will himself before execution was not shaken further by the respondents or proved wrong. When the Will was himself read by the testator then non proving of fact of reading over the same to testator by some one else becomes immaterial. Hence it can be said that the Will was executed by the testator after going through its contents and understanding the same.
Mere presence of petitioner and his wife at the time of registration of the Will as stated by PW-4 is not a guarantee to presume that they had coerced and used undue influence upon the testator to execute the Will. Moreover respondents in their objections have raised only ground of forgery of the Will and not alleged any use of force, pressure or undue influence upon the deceased by the petitioner. No suggestion was given to the PW-4 and 5 in this regard so in such situation, presence of petitioner or his wife at the time of execution of the Will does not ipso facto leads to the inference of use of coercion or undue influence in executing the Will. Otherwise also deceased testator admittedly was residing with the petitioner and his family members whereas all the respondents were residing separately. Respondents have failed to prove from any document or evidence that deceased even lived with them also for overnight as stated by the petitioner. In that situation, taking of 5 petitioner and his wife to the office of Sub-Registrar for purpose of execution and registration of the Will itself is not sufficient to draw presumption of existence of coercion or undue influence. Supreme Court in Pentakota Satyanarayana vs. Pentakota Seetharatnam (2005) 8 SCC 67 held that any and every circumstances is not a suspicious circumstance. When there is no doubt either about the testamentary capacity of the testator or the genuineness of the Will then mere presence of one of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. In such situation, the presence of the petitioner at the time of execution and registration of the Will does not create any suspicious circumstances in the present facts and circumstances of the case.
Though the relations of the deceased with the respondents were normal but he was living with the petitioner only whereas other children were living separately. The version of the petitioner PW-5 that his father never stayed overnight in the house of any of the respondents and nor they ever came to live with the deceased cannot be disbelieved in absence of any evidence to the contrary or even in absence of any contrary suggestion put to him to deny this fact. RW-1 also admitted in his cross examination that his father used to come to meet him but never resided with him permanently further proves the fact that testator had more love and affection towards petitioner then other children and he chooses to live permanently with the petitioner than other sons. PW-5 further stated that his wife used to take him hospital whenever necessary and respondents have failed to show that they had also gone with their father to the hospital at any time. This factor may be in the mind of the deceased to execute the will in favour of the petitioner alone. Simple normal relations with all the children or absence of any police complaints or litigations does not create suspicion regarding the Will merely on the ground that estate has been bequeathed in favour of particular legal heir by excluding others. Living with a particular child during old age may be a ground to give benefit of the estate to him and to exclude the other children living separately. The exclusion of the petitioner and his brothers from the benefits of the Will is not sufficient to treat it a grave unexplainable suspicious circumstances. Supreme Court in case 6 Ramabai Padmakar Patil vs. Rukminibai Vishnu (2003) 8 SCC 537 upheld the proved Will by which property was given to one of the legal heir by excluding others and the same was not treated as suspicious circumstances. Such type of Will even may be unnatural in the sense that it cut off wholly or in part the near relations, if is beyond purview of suspicions, has to be given effect. Supreme Court also in case Shashi Kumar Banerjee vs. Subodh Kumar Banerjee AIR 1964 SC 529 held that where propounder succeeds in removing the suspicious circumstances, the court would grant probate even if the Will might be unnatural and might cut off wholly or in part the near relation. Accordingly the last wishes of testator cannot be ignored merely on ground that one of legal heir got everything and another were excluded from the property left by the deceased. Court has to honour the last wishes of dying man and thus the Will in question cannot be rejected on this account.
Respondents have alleged that the testator was not having any good health and was not of sound mind. PW-5 admitted that his father used to attend OPD of RML Hospital and also suffered from fever some time in year 1997. RW-5 Record Clerk of the RML Hospital tried to prove one medical certificate Ex. RW-1/5 dated 9-5-97 regarding the illness of the testator but this certificate is relating to the illness of the period prior to May 1997 whereas Will was executed after about seven months of that illness. RW-5 had no personal knowledge about the illness of the deceased as referred to in this certificate nor it bears his signatures or issued before him. Moreover the concerned doctors who issued this certificate were not examined so this certificate cannot be read in evidence being not properly proved as per law. Even if, for the sake of arguments it is presumed that testator had attended psychiatry ward of the RML Hospital prior to May, 1997 for cure of some mental problems but still there is nothing to establish that even on the day of execution of the Will, his mental problems persisted and his condition was of a such nature that he was not able to understand right or wrong and was not able to know the nature and consequences of his disposition. There is nothing to show that deceased had not cured from the alleged mental problems or diseases allegedly being suffered at one time or those continued till the time of execution of Will or his death.7
Respondents tried to show through some OPD cards Ex. RW1/6 to 12 that deceased continued to remain under treatment of psychiatrist for several months and even in the month of December, 1997 he was getting treatment. But mere production of some OPD cards of the hospital Ex. RW-1/6 to RW-1/12 without examining the concerned doctor who prepared the same or without proving hospital record per se does not even prima facie raise any inference that the testator was suffering from some problems and he was incapable to execute the Will at any time. These OPD cards are not properly proved by relevant evidence as per law. It is also not conclusively established that these OPD cards related to deceased only and not to any other person of the same name. It is also not established that due to alleged mental problems, testator was incapable to execute the Will. These cards only reveal some medicines prescribed but for what problems these medicines relate to is not clear. No case history or problems being suffered by the testator is mentioned in these cards. Accordingly, I am of the view that the respondents have failed to establish that deceased was not in fit state of mind and was not capable to execute the Will as on relevant day. The statement of PW-4 cannot be ignored who is reliable and trustworthy witness. His affidavit of examination in chief has not been shaken in his cross examination so it is held that the Will was executed by the deceased in good health and in sound disposing mind. Except this Will there is no other Will so it is to be treated as last testament of the deceased.
Number of facts have been alleged by RW-1 and RW-3 in their affidavits of examination in chief which are beyond pleadings and have come first time so that portion of the affidavits beyond pleadings are liable to be ignored. The story deposed by RW-2 is also nowhere disclosed in the objections of the respondents. He is the brother in law of respondent no. 3 and is highly interested witness. He admittedly never had seen any medical papers of the deceased then on which basis he was giving details of physical and mental problems suffered by him is not explained. His deposition given in para no. 2 of the affidavit that he had gone to the house of deceased on 9-12-1997 and came to know about his bad health and problems itself is contradicted from his cross examination wherein he admitted that he had gone to his house last 8 time 1 ½ to 2 months prior to his death which took place on 10-1-1998. This witness RW-2 cannot be said as reliable witness.
Respondents tried to prove through RW-4 that deceased was maintaining a bank account and was issued a cheque book and the cheques were used to be cleared on the basis of the signatures. The Will is not signed by the testator but bearing his thumb impressions. Respondents have not raised any defence of forgery of thumb impression of the deceased in the cross examination of the petitioner and attesting witness nor examined any expert to show that thumb impression on the Will are forged. RW-4 in his statement has also admitted that the cheques used to be cleared on the basis of thumb impression also, if the account holder appears before the branch manager and put his thumb impression on it. RW-4 nowhere in his statement alleged that all the cheques of the deceased were bearing his signatures only and no cheque was cleared bearing his thumb impression. The thumb impressions of the deceased were easily available in bank because account opening form Ex. RW4/A only contained thumb impressions of the deceased. Respondents did not took any steps to get thumb impression on the Will to be compared from this account opening form through finger print expert to prove defence of forgery of the Will and to show that the thumb impression on Will did not belong to the deceased. Respondents since beginning from their objections were taking defence of forgery of the Will but due to non examination of any finger print expert and non putting of any such suggestion to the witnesses of the petitioner, this defence of forgery has fallen on the ground. The argument of the respondents that deceased only used to sign and never put any thumb impression on any documents in his life time itself falsify from the account opening form Ex. RW4/A produced by his own witness which point out absence of signatures of the deceased in bank record at all. From this document, the argument of the respondents that deceased used to withdraw money from his bank by signing cheque only found itself contradictory from the evidence led and thus has no force.
On the other hand, a presumption of due execution of the Will also arises due to its registration keeping in view the endorsement made by the Sub Registrar at the time of its registration which point out that the testator 9 had understood the contents of the will and admitted its correctness. Though registration of the Will is not necessary but if it is registered then presumption of its due execution arises. Its registration also proves one fact that this was prepared at least on or before the date of registration and rule out chances of its manufacturing lateron of that date. It is very easy to level allegations of connivance against govt. servant and officials of office of Sub-Registrar regarding ante dated registration, practice in this office to register document even without appearance of the parties etc. but it is not substantiated by any evidence. Even respondents did not cross examine PW-3 regarding alleged improper registration of the Will in question or alleged connivance so in such situation also, it can be said that respondents have failed to rebut these presumptions arises from the registration of the Will from any evidence. Law presumes that govt. officers works in accordance with the prescribe procedure as per law and this presumption is not rebutted by the respondents from any evidence. The request made in the written submission to refer the matter to CBI and to register FIR against officials of Sub-Registrar is hereby declined.
In the written arguments, it is alleged by the respondents that this petition is a counter blast of civil suit filed by them but neither any pleadings nor any document or evidence has been brought on record to show filing of any civil suit. Hence this argument is beyond the record and cannot be considered.
Another argument raised by respondents that name of wife of deceased and date of execution of the Will were left blank while typing the same and were lateron filled up by use of another typewriter amounts to manipulations is liable to be rejected because in this regard, no cross examination was done of witnesses of the petitioner including of attesting witness. There is no hesitation to say that absence of any material cross examination of the main attesting witness of the Will infact amounts to an admission of the due execution of the Will on the part of the respondents.
It is also mentioned in the written arguments of the respondents that attesting witness PW-4 has nowhere stated in his affidavit that testator had executed the Will without any force, coercion or influence but this aspect of the argument is also liable to be ignored because in the objections filed by the respondents, there is no plea of use of any coercion or influence by the 10 petitioner upon the deceased and since beginning they were taking defence of forgery of the Will only which is otherwise not established.
Under section 68 of Indian Evidence Act, only one attesting witness is required to be examined in the court to prove the Will. Law does not say that all the attesting witnesses must come in the witness box to prove the execution of the Will, hence in such circumstances non examination of the second witness of the Will Ms. S. Sood, advocate by the petitioner does not draw any adverse inference against him for withholding the best evidence. The Will does not create any suspicion simple on the fact that attesting witness Ms. S. Sood advocate is also conducting this case on behalf of the petitioner.
PW-4 was friend of the petitioner and known to the deceased for last several years as stated by him in his affidavit and cross examination. Another attesting witness of the Will namely Ms. S. Sood advocate is conducting the case of the petitioner. Both these witnesses even if presumed to be interested witnesses do not create a suspicion about the due execution of the Will. No motive was imputed to PW-4 in his cross examination nor was any suggestion given to him for deposing falsely due to some ulterior motive or being interested witness. The argument raised in the written submission of the respondents in this regard is beyond any evidence and cannot be considered.
Another argument that property in question was not the self acquired property of the deceased and respondents also contributed in making payment to DDA is an issue which relates to the right, title and ownership aspect. Probate court is not required to go into these questions in view of the settled law of Supreme Court given in case Chiranjilal Shrilal Goanka vs. Jasjit Singh (1993) 2 SCC 507 wherein it is held that probate court has not to decide question of title or ownership and even has not to see the very existence of the property. Even it is not to be seen whether the particular bequeath was good or bad in law. Thus this court has only to see whether the Will in question is genuine or not. Even if there exists no property then also that question becomes irrelevant to the present proceedings. Respondents can go to civil court for establishment of their share, interest in the property on basis of payments of some installments to DDA if advised but cannot be allowed to raise this issue in the present proceedings.
11Respondents in their rebuttal written arguments filed on 15-4- 2008 again took various grounds which are not found from any evidence and liable to be rejected straightway. Even number of facts deposed by respondents in their affidavits of evidence i.e. paragraphs no. 10 to 14, 17, 18 regarding death of wife of deceased, pendency of another civil suit etc. are beyond pleadings and liable to be ignored. The documents Ex. RW1/1 and 3 being photocopies cannot be said as proved as per primary evidence and even it is not proved from calling record of concerned office through secondary evidence. Ex. RW1/2 is not signed by the petitioner and cannot be used against him.
There is no delay in filing this petition as law of limitation is not applicable to probate proceedings. Even if it is presumed that there is a delay of about 1½ years in filing this petition from the date of death of the deceased then also it is within period of limitation as prescribed under Art. 137 of Limitation Act, if is applicable. Counsel for the respondents in their written submission cited few case laws but did not produce any one of them.
Death of the testator within 10 days of the date of the execution of the Will does not create any suspicious circumstances to presume that the Will is invalid or fabricated. When the evidence of the attesting witness is reliable and trustworthy then simple death of the testator within few days of execution of the Will is found not a suspicious circumstance even by Supreme Court in case Sridevi vs. Jayaraja Shetty (2005) 2 SCC 784 and the court upheld the validity of the Will which was duly proved and there was nothing on record any fact of poor physical health and unsound mind state of testator. Supreme Court in this case was of the view that mere age of 80 years of testator and death within 15 days of execution of Will itself is not sufficient to reject the Will.
Respondents are not able to show that any cash of Rs. 25000/- was also left by the deceased as alleged in the objections. From the evidence of the respondents, I do not find any suspicious circumstances which have not been explained by the petitioner. The execution of the Will Ex. PW3/1 is fully proved by attesting witness PW-4. Will is established being the last Will of the deceased executed in sound disposing mind so the same shall be enforced. Accordingly this issue is decided in favour of the petitioner and against the 12 respondents.
Issue no. 2:
Since the Will in question Ex. PW3/1 is fully proved and petitioner is exclusive beneficiary under this Will, so probate with Will annexed is ordered to be granted to the petitioner in respect of the immovable property bearing no. 19-D, Top Floor, Block BG-5, Paschim Vihar, New Delhi subject to his furnishing requisite court fee in terms of the valuation report of the Collector, administration bond cum surety bond. As there is no valuation report on record so the same shall be called from revenue authorities at the time of completion of necessary formalities. It is clarified that in this petition question of title and ownership of property in question is not decided. An inventory of the property of the deceased shall be exhibited in the court within six months from the date of grant of certificate and a statement of account shall be filed within one year thereafter. File be consigned to the Record Room.
(ASHWANI SARPAL)
Date: 1-10-2008 ADDITIONAL DISTRICT JUDGE
DELHI.