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[Cites 13, Cited by 0]

Delhi District Court

Yogender Kumar Sharma vs The State on 16 May, 2012

        "In the court of Sh. V.K Yadav, ADJ-02 (North), Tis Hazari Courts, Delhi"

PC No. 113/11

Yogender Kumar Sharma
Son of Sh. Suresh Chand Sharma (Late)
Resident of H. No. 15, Tagore Gali
Babarpur, Shahdara, Delhi
                                                                       ...... Petitioner
        Versus

The State
                                                                       ......... Respondent
Date of institution : 11.02.2002
Date of arguments : 14.05.2012
Date of decision : 16.05.2012

JUDGMENT

1. The petition filed seeking the probate / letters of administration of the Will dated 06.09.2000 executed by late Roop Wati Sharma u/s 276 of the Indian Succession Act, 1925 is hereby disposed off through this judgment.

2. The indispensable facts, concisely, as set up by the petitioner are that the petitioner alongwith his two sisters are the only legal heirs of late Smt. Roop Wati Sharma, who expired on 30.09.2000 and prior to her death she had executed a Will dated 06.09.2000. The petitioner being the beneficiary under the said Will, which was executed by the mother of the petitioner complying with all the legal requirements in sound physical and mental health is a legal and valid document and as such, the petitioner has sought the grant of probate/letter of administration in respect of the aforesaid Will dated 06.09.2000 qua the property bearing house no. 15, Tagore Gali, Babarpur, Shahdara, Delhi was bequeathed to him.

3. The other legal heirs i.e the sisters of the petitioner and the children of the petitioner filed their objection petition stating that the Will in question is not a genuine document rather a document set up by the petitioner in order to deprive the objector(s) from their legal rights flowing to them through an PC NO. 113/11 Page 1 of 14 earlier registered Will executed by Smt. Roop Wati Sharma dated 30.09.1994. It is alleged that the petitioner could not have been named as a beneficiary by the testatrix since she was having strained relation with him since he was not taking care of his own family and children and creating troubles not only for his legally wedded wife but for his mother Smt. Roop Wati Sharma as well. There was no love lost between the mother and son, therefore, there was no question of the execution of the Will in which the petitioner could have been nominated as the beneficiary. The petitioner was indulging into all sorts of vices from taking liquor and fighting with the family and neighbours. More so, the testatrix was suffering from various age related chronic disease and was not physically and mentally fit on the alleged date of execution of the Will to execute any document. The Will dated 06.09.2000 sought to be probated by the petitioner is under cloud on account of the fact that civil litigation was pending between the respondents and the petitioner but the said Will dated 06.09.2000 was never ever mentioned during those proceedings whereas as an obvious fall out of the litigation filed by the respondent had there been anything with the petitioner especially qua his rights he would have come forward with the same at the earliest. Thus, it is alleged that the Will is a forged and fabricated document and cannot be given any weightage or consideration. Besides, the case filed as such is defective and it has not been verified by any of the attesting witnesses whereas at least one of them is required to do so.

4. Based upon the contentions of the parties, the following issues were framed on 20.11.2004.

1) Whether the Will dated 06.09.2000 as propounded by the petitioner was validly executed by the deceased Smt. Roop Wati Sharma in her sound disposing mind and same is her last Will /testatement ? OPP
2) Whether the Will in question is forged and fabricated one ? OPR
3) Relief PC NO. 113/11 Page 2 of 14

5. The petitioner in order to prove his case examined Sh. Ram Kumar as PW-1, Sh. O.P Sharma as PW-2 and Smt. Sarla Sharma as PW-3 and thereafter closed PE. Respondent examined Sh. Ram Kumar Sharma as RW-1, Ms. Sonal Sharma as RW-2, Sh. Dharmender Siingh as RW-3 and Sh. Om Prakash Sharma as RW-4 and closed their evidence too.

6. I have considered the submissions made by the Ld. counsels for the parties and have gone through the record as well. My issuewise findings are accordingly as follows :

ISSUE NO. 1 and 2
Both the issues are almost inextricably interwoven with each other in such a manner that both are required to be taken up together. The petitioner has set up a registered Will dated 06.09.2000 as its beneficiary, whereas the objectors have come up with another Will of the same testatrix Smt. Roop Wati Sharma dated 30.09.1994, which is a registered document. The claim of the petitioner is that the Will executed in his favour by Smt. Roop Wati Sharma, is the only genuine document, whereas the Will set up by the respondents, who incidentally happens to be the children of the petitioner, is a forged and fabricated document. In these circumstances, especially when one of the attesting witnesses, who is common to both the Wills, has maintained that the Will set up by the petitioner dated 06.09.2000 is not the genuine document.
In a recent judgment titled as Suraj Bhan Vs. State in FAO no. 82/07 by Hon'ble Mr. Justice Pradeep Nandrajog of our own High Court dealing with the probate matter has elaborated and reaffirmed the legal position as has been there since 1950's in Venkatachala Iyengar Vs. B.N Thimmajamma and Others AIR 1959 SC 443 and was followed in 1977 in Smt. Jaswant Kaur Vs. Amrit Kaur AIR 1977 SC 74. It has been observed and is reproduced as under :
There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. Those decisions PC NO. 113/11 Page 3 of 14 have been reviewed in an elaborate judgment in Rs. Venkatachala Iyengar Vs. B.N Thimmajamma and Ors (1959] Supp. 1 S.C.R. The court, speaking through Gajendragadhar J. laid down in that case the following propositions :-
1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, 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.
3. Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signatures, a feeble mind, an unfair and unjust disposition of property, the pro-pounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the pro-pounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances, attendant upon the execution of PC NO. 113/11 Page 4 of 14 the Will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasies that in determining the question as to whether an instrument produced before the court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free Will.

And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter (underlining emphasised).

Judgment of this court in the decision reported as Vidya Sagar Soni Vs. State and Others AIR 2006 Delhi 354 extensively dealt with the legal burden of proof when a Will is propounded in the last legal and valid testament. I need not repeat. Principles culled out in paras 5 to 21 of the said decision are as under :- 5 Section 2 (h) of the Indian Succession Act, 1925 defines a Will to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

7. The legal burden to prove due execution always lies upon the person propounding a Will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is the last Will of a free and capable testator.

8. A Will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the Will. It is the living who have to establish the Will. It naturally throws a heavy burden on the court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspicious PC NO. 113/11 Page 5 of 14 circumstance explained.

9. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the Will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of Wills are not rules of Laws but are rules of prudence. Normally, a Will is executed by a person where he desirous, to either alter the normal rule of succession or where he desirous to settle his estate in a particular manner amongst the legal heirs. Therefore, through to be kept in mind, as to what is the nature of bequest too much importance cannot be attached to the disproportionate nature of a bequest. However, as observed in AIR 1995 SC 1684, Rabindra Nath Mukherjee and Anr. Vs. Panchanan Banerjee (dead) by Lrs disproportionate nature of a bequest is no doubt a suspicious circumstance to be kept in mind, but, being a mere suspicion, it is capable of being dispelled by other evidence to how voluntary character of the document.

10. Therefore, the first rule to appreciate evidence is to peruse the Will. Normally, if there is rationality in a Will, a presumption arises about due execution. Of course, being a presumption, it is rebuttable.

11. As observed in AIR 1962 Punjab 196 Smt. Kamla Devi Vs. Kishori Lal Labhu Ram and Ors. The omission of a close relation from the bounty of a testator raises a presumption in favour of some undue influence. The probative force of such a testament rises and falls in inverse ratio to its unreasonableness.

12. The more unreasonable an instrument is, the less probative value it carries. Where the terms of a Will are unusual and the evidence of testamentary capacity doubtful, or due execution doubtful, the vigilance of the court will be roused and before pronouncing in favour of the Will, the court would microscopically examine the evidence to be satisfied beyond all reasonable doubt that the testator was fully conversant of the contents and executed the Will fully aware of what he was doing.

13. Expanding on the care and caution to be adopted by courts, PC NO. 113/11 Page 6 of 14 and presumptions to be raised, in the decision reported as (1864) 3 Sw and Tr. 431 In The Goods of Geale, it was opined that where the person is illiterate or semi literate or the Will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the Will.

14. This affirmative proof of the testator's knowledge and approval must be strong enough to satisfy the court, in the particular circumstances, that the Will was duly executed.

15. One form of affirmative proof is to establish that the Will was read over by, or to, the testator when he executed it. If a testator merely cats his eye over the Will, this may not be sufficient. [see 1971 P. 62 Re Moris). In the report published as (1867) 1 P.D 359 Goodacr Vs. Smith, it was held that another form of affirmative proof is to be establish that the testator gave instructions for his Will and that the Will was drafted in accordance with those instructions.

16. Courts have to evaluate evidence pertaining to the circumstances under which the Will was prepared. If a Will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the Will, probate would not be granted unless that suspicion is removed.

17. As held in the report published as (1838) 2 Moo P.C 480 Barry Vs. Butlin, a classic instance of suspicious circumstances is where the Will was prepared by a person who took a substantial benefit under it. Another instance is as opined in the report published as (1890) 63 LT 465 Brown Vs. Fisher where a person taking benefit under the Will has an active role to play in the execution of the Will.

18. A word of caution. Circumstances can only raise a suspicion if they are circumstances attending or at least relevant to the preparation and execution of the Will itself.

19. How the legal heirs acted and how and when a Will was propounded after the death of the executor are also relevant to decide upon, where the Will is genuine or a created or a procured document.

PC NO. 113/11 Page 7 of 14

20. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. As observed in the report published as AIR 1959 SC 443 H. Venkatachala Iyengar Vs. B.N Thimmajamma and Ors instance of suspicious circumstances would be alleged signatures of the testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable or unfair. Apart from these infirmities, propounder taking a prominent part in the execution of the Will, more so when substantial benefits flow to them are all presumptive of the Will not being duly executed and or of suspicious circumstances.

21. Suspicious circumstances are a presumption to hold against the Will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the Will.

22. Reference to satisfaction of judicial conscience is a heritage inherited by court's since time immemorial for the reason, as noted above, a Will is a solemn declaration as per which the living have to carry out the wishes of a dead person.

The Will propounded by the petitioner is not a registered Will wherein the will propounded by respondent is a registered will and to prove this facts, the respondents have not only relied upon the attesting witnesses i.e Ram Kumar Sharma, who had stated in his affidavit in evidence that the Will was duly executed before the Sub Registrar, Shahdara, but has taken care to examine an official from the Sub Registrar's office, who has appeared as PW-3 (in the connected case) endorsing the statement of the attesting witness Ram Kumar Sharma PW-1 and Sonal Sharma. The certified copy of the said registered Will is Ex. PW2/A (in the connected case). The registered Will stands on a better footing as a presumption is there qua the same to be authentic and genuine document and duly executed. Of course being presumption it is rebuttable. In this context, reference can be made to the judgment in "Gurdial Kaur Vs. Kartar Kaur AIR 1998 SC 2881", wherein it is observed as follows :

"The law is well settled that if there is suspicious PC NO. 113/11 Page 8 of 14 circumstances about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of this court in Rani Purnima Debi Vs. Kumar Khugendra Narayan Deb. AIR 1962 SC 567. It has been held in the said decision that if a Will being registered and having regard to the other circumstances, is accepted to be a genuine, the mere fact that the Will is a registered Will, it will not by itself be sufficient to dispel all suspicious regarding the validity of the Will where suspicious exist. TI has been held that the broad statement of witness that he had witnessed the testator admitting regarding due execution and attestation of the Will. It has been specifically held that registration of the Will by itself was not sufficient to remove the suspicion. Relying on an earlier decision of this court reported in AIR 1959 SC 443, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances, which surrounded the dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the Will, no letters of administration in favour of the propounder could be granted.
The evidence on record through the mouth of one of the attesting witnesses i.e Ram Kumar Sharma, who has been examined by both the parties is to the effect that the testatrix Smt. Roop Wati Sharma executed the Will in favour of the petitioners on 30.09.1994, which was signed and thumb marked by her in his presence and in the presence of Anil Singhal. Both of them have witnessed the same and signed the Will as attesting witnesses. Ram Kumar Sharma has further deposed about his relation with the testatrix by saying that she was her sister-in-law, who was having good health and was not suffering from any disease. She was fully alert and conscious mentally and had admitted the contents of the Will acknowledging the same to be her last Will. Cross examination conducted on behalf of respondent no. 2 to 5 including Petitioner no. 1 herein but there is no substantial cross examination qua the attesting witness, which may shake his testimony. The respondent (petitioner PC NO. 113/11 Page 9 of 14 herein) has tried to establish that subsequent Will was executed by the testatrix on 06.09.2000. In the process, the respondent (Petitioner herein) has conceded, in a way, that the Will dated 30.09.1994 was executed by the testatrix and has qualified it by saying that the same was revoked when the subsequent Will was executed on 06.09.2000. The lethal blow to the case of the respondent (Petitioner herein) comes when the purported attesting witnesses to that subsequent Will as well dated 06.09.2000 i.e Ram Kumar Sharma has categorically stated in his affidavit in evidence and maintained in the cross examination also that the Will dated 06.09.2000 was not witnessed as signed by him as its attesting witness.
Therefore, what emerges on record is that the Will propounded by the petitioner (respondent herein) dated 30.09.1994 still holds the grounds, qua which incidentally respondent has no reservation and has admitted, albeit by inference, that such a Will was executed by his mother Smt. Roopwati Sharma.
It was for the respondent (Petitioner herein) to establish that the Will, executed on 06.09.2000 is the Will, which contains the last wishes of his late mother Smt. Roopwati Sharma and in the process, the earlier Will executed by her and got registered by her on 30.09.1994, was revoked/cancelled and the will propounded by them is the last will of respondent Smt. Roop Wati Sharma. The Will of 1994 is a registered document and as compared to the Will of 06.09.2000, stands on a higher pedestal. The respondent have been able to prove the execution of the same by Smt. Roopwati Sharma, while she was physically and mentally in a fit shape to execute the Will. The attesting witnesses to the said Will have also been examined, who have supported the case of the petitioner whole-heartedly and for that matter, even the respondent Yogender Kumar Sharma has also accepted the existence of the said Will dated 30.09.1994 executed by his late mother. These factors are enough to conclude that the Will dated 30.09.1994 was executed by Smt. Roopwati PC NO. 113/11 Page 10 of 14 Sharma, in a sound disposing mind and in a proper physical shape, which was witnessed by two attesting witnesses, satisfying the requirement of Sec. 63(c) of the Indian Succession Act, 1925 coupled with section 68 of the evidence act. To put a stamp of authenticity and genuineness, the same was got registered.
The Will propounded by the petitioner herein dated 06.09.2000 has been disowned by one of the attesting witnesses i.e. Ram Kumar Sharma, who incidentally has been examined in this case, who has categorically stated that no such Will dated 06.09.2000 was executed by Smt. Roopwati Sharma and that the same does not bears his signatures, when he was confronted with the same. Although, there are two more witnesses to the execution of the Will of 2000, but Sh. Ram Kumar Sharma turned around viz-a-viz the said Will by categorically stating that no Will has been executed and that he had not signed on the Will as an attesting witness, gives a lethal blow to the authenticity and genuineness of the Will. When the very existence of the Will comes under cloud, then, the contents of the same are also of no consequence, inasmuch as the petitioner herein has argued that the Will executed on 06.09.2000 has in effect cancelled all the earlier Wills, executed by Smt. Roopwati Sharma. However, when the execution and existence of the second Will is doubtful then the earlier Will remain intact and enforceable.
The contents of the Wills are important and becomes so in such circumstances to ascertain as to why, if at all, second Will was executed. It has been observed and noted by the Testatrix in her Will dated 30.09.1994 that she is depriving her only son from the properties owned by her and the reasons has been indicated in para no.3 of the Will itself. The Testatrix was apprehensive about her son i.e the petitioner herein, from deviating as a dutiful husband and father. It seems that the allegation of the mother of the respondents and mother of petitioner as well were aware that the petitioner Yogender Kumar Sharma is living with another woman. That is why it seems PC NO. 113/11 Page 11 of 14 para no.3 has been added into the Will specifically, excluding even any future wife or keep of his son and the children from any such alliance from the property in question left behind by the Testratix. In the subsequent Will set up by the petitioner herein, the Testatrix has not given any reason nor tried to explain as to why after six years, she thought it fit to cancel her earlier Will and execute a new one, giving her immovable properties to her son and daughters and excluding her daughter-in-law and the grand children, who were the beneficiaries under the earlier Will of 1994. Whether the petitioner had mended his ways or the daughter-in-law and grand children had misbehaved or did not take care ? Why and what was the reason for their change of heart is not clear.
This becomes relevant and important, especially when she had taken care to indicate as to why she had excluded her own children in the Will dated 30.09.1994. Thus, notwithstanding the testimony of the attesting witnesses to the Will of 2000 i.e Sh. Om Prakash Sharma and wife of other attesting witness Sh. Ram Roop Sharma, who had by that time expired the respondent is unable to ward off the suspicion which has surrounded the execution of the Will propounded by the petitioner dated 30.09.2000.
It is pertinent to mention here that the Testatrix was suffering from Throat Cancer and was under treatment for about four months, prior to her death, which took place on 30.12.2000, as has come in the testimony of Sh. Om Prakash Sharma, examined as PW2 (in the connected matter). Thus, it is apparent that on the date when the Will dated 30.09.2000 was executed, the Testatrix was not physically well. The possibility cannot be ruled out that she was not in a position to speak because of the Throat Cancer, which might have had in all probability affected her ability to speak properly. This fact can be inferred from the testimony of RW2 Sonal Sharma, who has stated in his cross-examination that her grand-mother i.e Testatrix was unable to speak during her last days and had stopped speaking prior to 2-3 months of her PC NO. 113/11 Page 12 of 14 death. Whereas Sh. Om Prakash Sharma has stated in his testimony that the Will dated 06.09.2000 was dictated by her, which was recorded by him. The said Will dated 06.09.2000 is a Notarized Will but Sh. Om Prakash Sharma is not able to clarify as to whether the notary visited the place of Testatrix or all of them including the Testatrix went to the place of the Notary, which puts a big question mark on the authenticity of the Will.
According to Sh Om Prakash Sharma, he had signed only one paper while attesting the Will dated 30.09.2000 and so was the case with the Testatrix, who happened to be his sister as stated by him. The Will in question propounded by the petitioner, whereas contain the purported signatures of the Testatrix on the first page also. The relationship of Sh. Om Prakash Sharma with Testatrix was apparently close one. She must have confided in him and that is why he was asked to became an attesting witness and in these circumstances, he is supposed to remember all these things distinctly and clearly.
The testimony of Smt. Sarla Sharma examined as PW3 also works against the petitioner herein, when she admits that Testatrix Smt. Roopwati Sharma had more love and affection towards her grand-children as compared to her son. She is not aware of the execution of the Will of 2000, but she says that she knows about the execution of the Will in favour of the grand children, i.e respondent herein, by the Testatrix. All these factors, go on to indicate that the Testatrix had all the reasons to execute the Will in favour of the respondents herein, whereas, similar possibility towards her son appears to be very bleak, probably on account of the wayward life of the respondent Sh. Yogender Kumar Sharma.
There is ample evidence on record that he was living socially improper life, away from his family and children possibly with another woman. It can be very well inferred from the testimony of the witnesses that the testatrix was aware that his only son is not caring about his legally wedded wife and PC NO. 113/11 Page 13 of 14 children, the conduct is against the social norms in that case a lady of conventional thinking would certainly strive to protect the interest of her daughter-in-law and grand children. The execution of the Will dated 30.09.1994 is manifestation of such values which according to normal human behaviour and conduct in these circumstances is appropriate and probate, thus, the same brings credibility and authenticity to the Will dated 30.09.1994. Whereas, the Will set up by the petitioner has been afflicted by suspicious circumstances, not supported by one of the attesting witnesses and the physical and mental condition of the Testatrix being delicate, giving all the reasons to disbelieve the Will propounded by the respondent. More so, the non production fo the Will in the earlier civil litigation between the parties where a question mark was there about the rights of the parties in the property, therefore, had there been anything with the petitioner, he would have certainly placed it on record. The suppression/non-production creates doubt about the authenticity of the same. As such in view of the facts and circumstances, both the issues no. 1 and 2 are answered in favour of the respondents and against the petitioner.
RELIEF In view of the above discussion and findings on issues no. 1 and 2 above, the Will, set up by the petitioners is held to be not credible, genuine and legally executed Will, containing the last wishes of Testatrix Smt. Roop Wati Sharma and accordingly, the petition stands dismissed. File be consigned to record room.
Announced in the open court today i.e 16.05.2012 Vimal Kumar Yadav ADJ-02 (North) 16.05.2012 PC NO. 113/11 Page 14 of 14 PC No. 113/11 16.05.2012 Present : None Vide separate judgment dictated and announced, the petition filed by the petitioner stands dismissed. File be consigned to record room.
Vimal Kumar Yadav ADJ-02 (North) 16.05.2012 PC NO. 113/11 Page 15 of 14