Delhi High Court
Santosh Nayar vs State & Ors on 23 September, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd September, 2019.
+ TEST CAS No.74/2018
SANTOSH NAYAR ..... Petitioner
Through: Mr. Manoj Chauhan & Ms. Babita,
Advs.
Versus
STATE & ORS. ..... Respondents
Through: Mr. M.A. Khan and Mohd. Jaid,
Advs. for R-4 with R-4 in person.
AND
+ CS(OS) 212/2019
VAISHALI KAPUR ..... Plaintiff
Through: Mr. Manoj Chauhan & Ms. Babita,
Advs.
Versus
SANTOSH NAYAR & ORS. ..... Respondents
Through: Mr. M.A. Khan and Mohd. Jaid,
Advs. for R-4 with R-4 in person.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Test.Cas. No.74/2018 has been filed by the widow of the deceased
Satyapal Nayar, son of late Bishan Das, resident of property No.B-54,
Sarvodaya Enclave, New Delhi-110017, seeking Letters of Administration
on the basis of the document dated 7th June, 2006 stated to be the validly
executed last Will of the deceased Satyapal Nayar.
Test. Cas.74/2018 & CS (OS) 212/2019 Page 1 of 16
2. The petition was entertained and notice thereof issued to the close
relatives and citation thereof also ordered to be published.
3. Of the near relatives of the deceased Satyapal Nayar disclosed in the
petition as respondents No.2 to 4, respondent No.2 Ravinder Nayar, son of
the deceased Satyapal Nayar and respondent No.3 Amita Mehta, daughter of
the deceased Satyapal Nayar, have filed their no objection, admitting the
document dated 7th June, 2006 to be the validly executed last Will of
deceased Satyapal Nayar. Only the respondent No.4 Vaishali Kapur @
Sangeeta Kapur has filed objections to the grant of Letters of Administration
on the basis of document dated 7th June, 2006 and to which objections reply
has been filed by the petitioner. No rejoinder to the said reply has been filed
by the objector/respondent No.4 Vaishali Kapur.
4. The said objector/respondent No.4 Vaishali Kapur, besides filing
objections aforesaid, also instituted CS(OS) No.212/2019 seeking partition
of property No.B-54, Sarvodaya Enclave, New Delhi of the deceased
Satyapal Nayar, claiming 1/4th share therein on the premise of the deceased
Satyapal Nayar having died intestate.
5. Both proceedings came up before this Court on 2nd May, 2019, when
finding the suit to have been instituted after the Test.Cas. and further finding
both proceedings to be entailing only the question of validity of the
document dated 7th June, 2006 as the validly executed last Will of the
deceased Satyapal Nayar, the need to keep the suit proceedings pending was
not felt and it was ordered that in the event of the Test.Cas. failing, a
preliminary decree for partition of the property declaring the widow, son and
two daughters of the deceased Satyapal Nayar to be having 1/4th undivided
Test. Cas.74/2018 & CS (OS) 212/2019 Page 2 of 16
share in the property would stand passed and conversely in the event of the
Test.Cas. being allowed, the suit shall stand dismissed. The drawing up of
the decree/preliminary decree for partition in the suit was deferred till the
decision of the Test.Cas.
6. As far as Test.Cas. No.74/2018 is concerned, the following issues
were framed on 2nd May, 2019 itself:
"(i) Whether the document dated 7th June, 2006 is the validly
executed last Will of Late Satyapal Nayar? OPP
(ii) Relief."
and the parties relegated to evidence on commission.
7. The proceedings have been listed on recording of evidence on
commission having been concluded.
8. The counsels have been heard. Since passing of a decree in the suit
aforesaid is also dependent upon the outcome of the Test.Cas., the file of the
suit has also been requisitioned but is stated to be immediately not available.
The suit file, on being found, be got listed today.
9. The document dated 7th June, 2006 subject matter of adjudication is as
under:
"WILL
THIS WILL is executed at New Delhi on 7th date of June, 2006
by Satyapal Nayar s/o Late Bishan Das r/o B-54 (GF)
Sarvodaya Enclave, New Delhi 110 017.
That I am a Senior Citizen aged about 81 years. My family
comprises of:
Test. Cas.74/2018 & CS (OS) 212/2019 Page 3 of 16
i) my wife namely Mrs. Santosh Nayar
ii) my only son namely Ravinder Nayar
iii) my first daughter Ms. Amita Mehta
iv) my second daughter Ms Sangeeta Kapur
I have acquired out of my personal savings landed property
comprising of House No. B-54. Sarvodaya Enclave, New Delhi
110 017 which is built upon plot of land admeasuring 456
sq.yds. It is self acquired property. Said property is
comprising of ground floor, first floor and second floor
together with Annexe Block. Out of entire property, I have sold
first floor portion of said property and now I am seized and
possessed of entire ground floor, second floor with roof atop
and Annexe portion for which I am making the present Will.
I hereby demise and bequeath my property No.B-54 Sarvodaya
Enclave, New Delhi 110 017 as follows:
After my death said property shall stand bequeathed unto my
wife (Mrs. Santosh Nayar). She shall be entitled to enjoy all
rental income and benefits by letting out second floor portion
of said property. However, she shall be residing along with
the family of my son Ravinder Nayar.
Post to death of my wife said property shall stand bequeathed
unto my son Ravinder Nayar exclusively who shall be residing
with his family and may at his option let out second floor
portion.
Post to death of my son Ravinder Nayar, said property shall
stand bequeathed upon my grandson Raveesh Nayar to the
exclusion of his sister(s) namely Ms. Tanvi Nayar.
Bequeath is made by me for purposes of having perpetual
succession of said property upto branch of my grandson.
Neither any of my daughters nor their children shall have any
right to claim succession in said property. The succession is to
Test. Cas.74/2018 & CS (OS) 212/2019 Page 4 of 16
take place strictly according to my wishes expressed
hereinabove.
Said property is meant for residential purposes and shall be so
used by its beneficiaries. No one will have any right to
convert the same into any Ashram or Religious Institution or
Math.
In case if my daughters pay visit to their mother or brother
after my lifetime, they shall have right to reside in Annexe
portion (garage block) of the said property. My daughters
shall have right to let out Annexe portion to any tenant, on any
agreed terms and conditions, shall have right to collect, rent
enjoy rent, share rent amongst themselves. However, all
expenses towards electricity consumption, or water charges
shall be borne by these daughters.
I have made this bequeath out of my free will and accord and
in sensible disposition of state of my mind.
I revoke and cancel all my previous Will/Codicils made
hereinbefore. This Will is my last testament and shall prevail
over all other writings.
I have made and signed this Will on day, date and year
aforementioned in presence of attesting witnesses to whom I
have explained my last wishes who have fully understood my
intent and after understanding have signed this Will in token
of its attestation according to my intent and desire.
Sd.
TESTATOR
SATYAPAL NAYAR
ATTESTING WITNESSES:
1. Sd.
2. Sd."
Test. Cas.74/2018 & CS (OS) 212/2019 Page 5 of 16
10. On enquiry, the counsel for the petitioner states that of the two
purported attesting witnesses to the document aforesaid, only one namely
Tuzy Puri has been examined as PW-2.
11. The said Tuzy Puri, in her affidavit by way of examination-in-chief
proved as Ex.PW-2/A, (a) has given her address of Ludhiana, Punjab; (b)
has deposed that she was one of the attesting witnesses to the Will and
testament dated 7th June, 2006 of the deceased Satyapal Nayar; (c) that the
deceased Satyapal Nayar had executed the said Will dated 7 th June, 2006 on
which already Ex.PW-1/2 has been put, with sound and disposing state of
mind and without any coercion and influence and in her presence at point
'A'; (d) that since the deceased Satyapal Nayar had signed the said Will in
her presence, she could identify the signatures of the deceased Satyapal
Nayar at point 'A'; (e) that she had also seen the other witness Dr. Daisy
Ahuja, who was also present at that time and had signed the Will at point
'B' and as such could identify her signatures; (f) that the said Dr. Daisy
Ahuja signed in the presence of deceased Satyapal Nayar; (g) that her own
signatures in the said document were at point 'C'; and, (h) that the deceased
Satyapal Nayar, Dr. Daisy Ahuja and she herself had signed the document
dated 7th June, 2006 on the same day, at the same place and in the presence
of each other.
12. However, the said witness Tuzy Puri, when appeared before the
Commissioner, deposed in her examination-in-chief, only as under:
"I tender my affidavit Ex.PW-2/A towards my examination in
chief. I rely upon the documents mentioned therein. I have seen
Ex.Pw-1/2 (already marked as Mark-A) and it is signed by me
at Point 'C'"
Test. Cas.74/2018 & CS (OS) 212/2019 Page 6 of 16
13. It is worth pointing out that affidavits by way of examination-in-chief
are prepared by Advocates and signed in Advocates offices and/or before the
Oath Commissioner and in a Test.Cas., reference therein to various points on
a document, original of which is before the Court, is meaningless. PW-2
Tuzi Puri, when appeared to tender affidavit by way of examination-in-chief
before the commissioner, appointed to record evidence, identified only her
signatures at Point 'C' on the document dated 7th June, 2006 on which
Ex.PW-1/2 had been put earlier (during the evidence of petitioner examined
as PW-1 prior thereto). PW-2, being an attesting witness to a Will, was also
required to, when appearing in the court/before the Commissioner, identify
points at which the deceased and the other witness had put their signatures
and which she did not and which was/is a fatal error.
14. I have in Manmohan Vs. Baldev Raj MANU/DE/4137/2013 and
Satish Kumar Chojar Vs. Subhashni Chopra 212 (2014) DLT 24 held that
in most cases, the documents as Will, are found to have been proved, not in
examination-in-chief but during lengthy, unnecessary, excessive cross-
examination. So is it in this case also. The counsel for the
objector/respondent No.4, instead of taking advantage of the aforesaid
lacuna left in the examination-in-chief of the attesting witness, during the
cross-examination drew attention of PW-2 Tuzi Puri to point 'A' and point
'B' mentioned by her in her affidavit and asked her when her signatures
were taken and suggested to her that the said signatures were not of the
deceased Satyapal Nayar or the other attesting witness Dr. Daisy Ahuja and
which suggestion was denied. Thus, the lacuna which was left by the
counsel for the petitioner in examination-in-chief of the attesting witness,
Test. Cas.74/2018 & CS (OS) 212/2019 Page 7 of 16
was covered with the assistance of the counsel for the objector/respondent
No.4.
15. In the face of the aforesaid, I have enquired from the counsel for the
objector/respondent No.4, how it could be said that the document dated 7 th
June, 2006 had not been proved as the validly executed last Will of the
deceased Satyapal Nayar.
16. Before recording the contentions of the counsel for the
objector/respondent No.4, I may deal with the aspect of pleadings by way of
objections of the objector/respondent No.4. The counsel for the
objector/respondent No.4, on enquiry, whether the contentions raised were
backed by pleadings, has fairly stated that there are no pleadings in support
of contentions argued.
17. An objector in a Test.Cas. premised on a document claimed to be the
Will, has to specifically plead the suspicious circumstances if any, which can
establish that the document claimed to be the Will is contrary to the trend of
the contemporaneous events at the time of execution thereof. The rule of the
Code of Civil Procedure, 1908 and otherwise generally of pleadings and
evidence, that no evidence beyond pleadings can be looked at, is equally
applicable to Test.Cas. based on Will and in the absence of any pleadings of
suspicious circumstances, the evidence with respect thereto cannot be looked
at.
18. The counsel for the objector/respondent No.4 has first drawn attention
to paragraph 1 of the preliminary objections of the objector/respondent No.4,
in which the objector/respondent No.4 has pleaded that from the very fact
that proceedings with respect to the document dated 7 th June, 2006, claimed
Test. Cas.74/2018 & CS (OS) 212/2019 Page 8 of 16
to be the Will of deceased Satyapal Nayar who died on 19th December, 2009,
have been instituted in or about November, 2018 i.e. after nine years, the
Will is unbelievable. The counsel for the objector/respondent No.4 has
further drawn attention to the reply by the petitioner to the said objections,
where the petitioner has pleaded that though the Will dated 7th June, 2006
was handed over to her by her husband and she had placed it along with
important documents in her house, but after the demise of her husband she
forget where she had placed the document, though all the heirs knew about
the same and that she had found the Will only in September, 2018 and had
immediately thereafter filed the Test. Cas. The counsel for the
objector/respondent No.4 contends that though the objector/respondent No.4
did not press the issue of limitation but what was pleaded by the petitioner to
explain the delay has been controverted by the petitioner while appearing as
a witness. Attention is invited to the cross-examination on 26th August,
2019 of the petitioner appearing as PW-1, where she has deposed that her
husband deceased Satyapal Nayar had not given the Will to her but had kept
it in an Almirah and told her of the same and she had found the Will after
about one week or ten days from the death of her husband and had showed it
to her children at that time and she further deposed that she had found the
Will along with the House Tax papers and she did not find it appropriate to
file the papers related to house tax.
19. The counsel for the objector/respondent No.4 has argued that there is
no explanation, what prevented the petitioner for nine years from filing
Test.Cas. and what necessitated the filing of Test. Cas. in 2018.
Test. Cas.74/2018 & CS (OS) 212/2019 Page 9 of 16
20. The counsel for the objector/respondent No.4 has next drawn attention
to the admission of the petitioner in her cross-examination, that she had not
used the Will anywhere, neither in Municipal Corporation of Delhi (MCD)
nor in Electricity Department, till the filing of the Test.Cas. Attention is
drawn to Lease Deeds Ex.PW-1/R-4/6 & Ex.PW-1/R-4/7 admitted to have
been executed by her with respect to one of the floors of property No.B-54,
Sarvodaya Enclave, New Delhi and had further admitted to not mentioning
of the Will in the said Lease Deeds. It is contended that had there been any
Will, a mention would have been made.
21. The petitioner, in the said Lease Deeds has claimed the property to
have been mutated in her name. I have enquired from the counsel for the
objector/respondent No.4, whether the property was indeed mutated in the
records of MCD in the name of the petitioner.
22. The counsel for the objector/respondent No.4 states that the petitioner
herself in her cross-examination has stated that the Will was not used
anywhere.
23. No merit is found in the aforesaid two contentions.
24. Rather, the aforesaid two contentions as also another contention of the
counsel for the objector/respondent No.4, of the objector/respondent No.4 as
the nominee of the deceased Satyapal Nayar with respect to certain Fixed
Deposit Receipts (FDRs) of the deceased, having encashed the said FDRs
and handed over the amount thereof to the petitioner by cheque, show that
the objector/respondent No.4 also, since 2009 has been admitting the
petitioner to be the sole beneficiary of the estate of her father. I may in this
context notice that while the objector/respondent No.4 claimed to be the sole
Test. Cas.74/2018 & CS (OS) 212/2019 Page 10 of 16
nominee, the petitioner in cross-examination claimed that the petitioner and
the objector/respondent No.4 were joint nominees. No document in this
regard has come forward. The factum of the objector/respondent No.4, in
spite of being the sole nominee as claimed by her, with respect to the monies
in FDRs, paying the said money to the petitioner by cheque, shows that the
objector/respondent No.4, whether knew of the Will or not, at least treated
her mother i.e. the petitioner herein as the sole beneficiary of the entire
estate of the father. Had there been no Will, the objector/respondent No.4
being desirous of a share, would have definitely demanded her share and the
disputes as have arisen now would have arisen then only. The argument
made against the petitioner, of not seeking Letters of Administration till
now, equally applies to the objector/respondent No.4 i.e. of not claiming
share, as is now being claimed, till now.
25. The contention, of the petitioner in the Lease Deeds executed by her
with respect to the portions of the property as sole owner thereof not
disclosing the Will, also is not such a suspicious circumstance which would
invalidate a Will proved in accordance with law by the attesting witness
thereof and in whose testimony no dent could be put and during whose
cross-examination, the objector/respondent No.4 herself specifically drew
attention to the various signatures appearing on the document and got
confirmation from the witness of authenticity thereof. The factum of the
petitioner exclusively dealing with the property to the knowledge of the
objector/respondent No.4 also confirms the objector/respondent No.4's
acceptance of the petitioner's right to do so.
Test. Cas.74/2018 & CS (OS) 212/2019 Page 11 of 16
26. The counsel for the objector/respondent No.4 however on enquiry
draws attention to paragraph (g) of the preliminary objections, where
pleadings in this respect have been made.
27. The next contention of the counsel for the objector/respondent No.4 is
that the petitioner in her cross-examination has admitted the deceased
Satyapal Nayar to have executed registered Lease Deeds Ex.PW-1/R-4/1,
Ex.PW-1/R-4/2 and Ex.PW-1/R-4/3 and which is indicative of the deceased
Satyapal Nayar always registering the documents executed by him. It is
contended that non-registration of the document dated 7th June, 2006 is thus
indicative of the same having not been executed by the deceased Satyapal
Nayar and having been fabricated after his death.
28. I have however enquired from the counsel for the objector/respondent
No.4, whether not the registration of the Lease Deeds is mandatory and on
the contrary, of a Will, is optional.
29. The answer is in the affirmative.
30. Once that is so, no adverse inference can be drawn from the deceased
having documents compulsorily required by law to be registered, registered
and not having a document which was not compulsorily required by law to
be registered, registered. Moreover, it cannot be forgotten that while a Lease
Deed is executed with strangers, a Will is generally in favour of close family
members or relatives and the considerations for having the document
registered cannot thus be said to be the same.
31. The counsel for the objector/respondent No.4 has next drawn attention
to admission in cross-examination of petitioner that the respondent No.2,
Test. Cas.74/2018 & CS (OS) 212/2019 Page 12 of 16
being the only son of the deceased Satyapal Nayar, used to go everywhere
with the deceased Satyapal Nayar including to get documents registered.
32. However nothing turns on that also. Even if a son is always involved
in all acts done by a parent, no adverse inference can be drawn from the son
being not involved in execution of a Will and, which presence of the son can
have adverse inferences. Advocates also, while advising clients in the
matter of making of Will, do not advise in this respect and advise for Wills
to be got attested by friends/relatives who have equal relationship to those in
whose favour the bequest is being made as well as those being deprived
therefrom.
33. I have in this context enquired, whether the objector/respondent No.4
in her objections has pleaded or in her evidence has given any reason for the
purported attesting witnesses to the Will, who are informed to be equally
related to the petitioner and respondents No.2 & 3 who are supporting the
Will as well as to the objector/respondent No.4 who is objecting to the Will,
having any motive or reason to support the petitioner and respondents No.2
& 3.
34. The answer is in the negative.
35. Once the document claimed to be the Will is alleged to be fabricated
and which fabrication essentially has to be with the connivance of the
attesting witness, it is imperative for the objector to not only disclose the
obvious motive of the petitioner or other beneficiary but also disclose the
motive of the purported attesting witnesses in being inimical to the objector,
unless of course the purported attesting witnesses are related only to the
propounder/beneficiary of the Will.
Test. Cas.74/2018 & CS (OS) 212/2019 Page 13 of 16
36. I am even otherwise of the view that the clause aforesaid in the
document claimed to be the Will, wherein the daughters of the deceased
have not only been granted a right to reside in the annexe portion of the
property of the deceased but also the right to let out the said portion itself is
demonstrative of the Will having not been fabricated for the benefit of the
petitioner or for the respondent No.2. Had the document been fabricated for
the benefit of the respondent No.2, being the son of the deceased and the
petitioner, extra care would have been taken, as is generally taken in
forgery/fabrication and such a clause would not have occurred in the
document.
37. The only other argument of the counsel for the objector/respondent
No.4 is that both the attesting witnesses are admittedly residing at Ludhiana
and Gwalior and there is also an admission of a large number of other family
members of the deceased residing at Delhi. It is contended that the same is a
suspicious circumstance as it would have made more sense had one of the
local relatives been attesting witnesses. Attention is also drawn to the cross-
examination of PW-1 and PW-2 to suggest that there are inconsistencies in
the versions of the visit of PW-2 Tuzi Puri.
38. A person, while making a Will, is cautious in choosing witnesses and
if seeks advise of a legal professional, is also advised to be careful. The
person/s chosen to be the witnesses are ones who enjoy the absolute faith of
the testator and who in the event of the document being challenged, would
not only depose but depose fearlessly. The two purported attesting
witnesses as aforesaid are found equally related to those who are
propounding/supporting the Will as well as those who are objecting and
Test. Cas.74/2018 & CS (OS) 212/2019 Page 14 of 16
there is no explanation or reason for their being inimical to the
objector/respondent No.4. If the deceased choose them above the others, this
Court cannot go into the question why one person was chosen as attesting
witness and not the other who was easily available.
39. As far as the inconsistency is concerned, I do not find any in the
versions of PW-1 and PW-2 qua visit of PW-2 from Ludhiana on the date of
purported execution of the document.
40. No merit is thus found in the objections of the objector/respondent
No.4 Vaishali Kapur to the document dated 7 th June, 2006 propounded as
the validly executed last Will of the deceased Satyapal Nayar. The
objections are dismissed.
41. Test. Cas. 74/2018 is allowed.
42. Subject to the petitioner depositing the requisite stamp duty as per the
valuation report of the property and further subject to the petitioner filing
before this Court an Administration Bond of the said value with one surety
of the like amount.; Letters of Administration with copy of the document
dated 7th June, 2006 as the validly executed last Will of the deceased
Satyapal Nayar, is ordered to be issued with respect to ground and second
floors with roof at top with annexe situated at B-54, Sarvodaya Enclave,
New Delhi belonging to the deceased Satyapal Nayar, to his
widow/petitioner Santosh Nayar.
43. Test. Cas. No.74/2018 is disposed of.
Test. Cas.74/2018 & CS (OS) 212/2019 Page 15 of 16
44. CS(OS) No.212/2019 having been filed on the premise of intestacy of
the deceased Satyapal Nayar and not on the basis of the Will dated 7 th June,
2006, is dismissed.
45. It is made clear that this Court has not gone into the interpretation of
the document dated 7th June, 2006 and it will be open to the parties to take
appropriate proceedings in assertion of their rights, if any in the property.
46. Decree sheet be drawn up.
47. The parties are left to bear their own costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 23, 2019 'bs'..
(corrected & released on 5th November, 2019) Test. Cas.74/2018 & CS (OS) 212/2019 Page 16 of 16