Delhi District Court
Anu Sohal vs State on 22 March, 2025
IN THE COURT OF SH. SHIV KUMAR,
DISTRICT JUDGE-02(WEST DISTRICT),
TIS HAZARI COURTS :DELHI.
Probate Case No.- 11/2013
New Probate Case No. 15889/16
DLWT010002112013
Smt. Anu Sohal
W/o Sh. Rajesh Kumar Sohal
R/o A-1/60, First Floor,
Paschim Vihar,
New Delhi-110063
Versus
1. The State ( Govt. of N.C. T)
2. Mrs Priya Dutta
W/o Sh. Deepak Dutta
R/o BE/40, Hari Nagar, New Delhi
3. Sh. Paras
S/o Sh. Rajinder Takural
R/o A-1/80, Paschim Vihar, New Delhi
4. Mrs Champa Sharma & Champa Rishi
W/o Sh. Virender Mohan
R/o H. No. 94/9, Shivaji Park,
New Delhi-110026
Also at:
H. No. 25, Punjabi Bagh Apartments,
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 1 of 67
SFS DDA Flats, Gate No. 1,
Rohtak Road, New Delhi-63
5. Sh. Dalip Singh
R/o A-1113/14, Gurudware Wali Gali.
Jahagir Puri
New Delhi
6. Smt. Sweety
W/o Sh. Praveen Sachdeva
H. No. 1690 A Sec. 6
Karnal ( Haryana)
7. Smt. Kusum Malhotra
W/o Shri Sushil Malhotra
R/o H. No. 876, Sector-40-A,
Chandigarh
8. Ms Yogita
D/o Sh. Rajinder Kumar Gupta
R/o A-1/137, Paschim Vihar,
New Delhi
9. Smt. Ritu Gupta
W/o Sh. Rajinder Kumar Gupta
R/o A-1/137, Paschim Vihar,
New Delhi
......Respondents
PETITION UNDER SECTION 276 OF THE INDIAN SUCCESSION ACT
1925 FOR GRANT OF PROBATE OF THE PROPERTIES LEFT BY LATE
SMT. SWARN CHOPRA W/O LATGE SH. RAMESH CHOPRA
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 2 of 67
Date of institution of the case : 27.02.2013
Date of for judgment reserved : 27.02.2025
Date of pronouncement of judgment : 22.03.2025
JUDGMENT
1) Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 of the Indian Succession Act, whereby the petitioner has sought grant of letter of Probate of Will of the estate of deceased Smt. Swaran Chopra W/o late Sh. Ramesh Chopra.
CASE OF THE PETITIONER, AS PER HER PETITION:
2) According to the petition, the case of the petitioner in nutshell is that the petitioner alongwith her family is residing at A-1/60, First floor, Paschim Vihar, New Delhi-63. It is further averred that the property bearing no. 79, measuring 200 sq. yards in Block A-1, situated at Paschim Vihar, New Delhi ( hereinafter referred to as the 'suit property') had been purchased by the husband of late Smt. Swaran Chopra( hereinafter referred to as 'the deceased').
3) It is further averred in the petition that the petitioner served the deceased at the time of need just like a real daughter. The petitioner used to stay for almost entire day time as a matter of routine for providing her day to day needs and the she also used to stay during night time in order to take care of the deceased. It is further averred PC No. 15889/16 Anu Sohal Vs State & Ors. Page 3 of 67 that the petitioner used to park her scooty bearing no. DL4SB Q 8779 inside the suit property. It is further averred that the almirahs containing valuable items such a gold and silver jewellery, fixed deposits etc. are lying within the suit property and the keys of the said almiraha are with the petitioner.
4) It is further averred in the petition that the deceased and her husband neither had any siblings nor children nor any other relatives as per class I of schedule of the Hindu Succession Act 1956 to take care of them. It is further averred by the petitioner that the husband of the deceased, unfortunately, expired on 02.06.2011 and since then the deceased had been under the care of the petitioner being an old lady. The deceased had also left of heavenly abode on 14.01.2013.
5) It is further averred by the petitioner that the deceased, out of love and affection for the petitioner, during her life time, executed a registered Will dated 01.06.2012, thereby bequeathed the suit property in favour of the petitioner. It is further averred that earlier also the deceased had executed a registered Will dated 20.03.2012 which was subsequently superceded by the last and final Will dated 01.06.2012 ( herein after referred as "Will in question''). It is further averred in the petition that in the earlier Will dated 20.03.2012, the petitioner was the beneficiary to the same extent as in the present Will dated 01.06.2012).PC No. 15889/16 Anu Sohal Vs State & Ors. Page 4 of 67
6) It is further averred in the petition that before the execution of both the Wills dated 20.03.2012 and 01.06.2012, the deceased had obtained the necessary medical fitness certificates. In view of above facts, the petitioner prays to allow the present petition and grant probate in favour of the petitioner in respect of suit property i.e. bearing no. A-1/79, measuring 200 Sq. Yds. Paschim Vihar, New Delhi-110063 alongwith other movable properties mentioned in the Will dated 01.06.2012.
7) On filing of the present petition, citation for general public was published in newspaper " The Tribune" dated 20.04.2013. Notices of the petition were issued to the respondents. Respondent no. 2, Respondent no. 4 & respondent no. 5 appeared in person in the court on 30.07.2013. On that day, Respondent no. 6 & 7 appeared in the court through their counsel. None appeared on behalf of respondent no. 3, 8 & 9 despite being served.
8) As per judicial record, written statement has been filed on behalf of R-2 on 27.02.2013, written statement filed on behalf of R-4 on 30.08.2013, written statement filed on behalf of R-5 on 22.10.2013, objections has been filed on behalf of R-6 & R-7 on 25.07.2013 and amended objections have been filed on behalf of R-6 & R-7 on 22.10.2013.
9) The reply filed on behalf of R-2 is neither signed by R-2 nor PC No. 15889/16 Anu Sohal Vs State & Ors. Page 5 of 67 by her counsel. So, this reply cannot be considered as valid reply. Reply filed on behalf of R-5 is also not signed by R-5 but it bears signatures of ld. counsel for R-5. So, this reply can also not be considered.
10) No reply/objections has been filed on behalf of R-3, R-8 & R-9 in the present case.
11) After 27.01.2014, only R-6 & R-7 have appeared through their counsels from the respondents. The other respondents did not appear in the court thereafter. Respondent no. 5 has filed the written statement but she did not appear after 27.01.2024 for contesting the present case.
CASE OF RESPONDENT NO. 5 AS PER HER WRITTEN STATEMENT.
12) Respondent no. 5 also filed his written statement in this case and submitted that he was the colleague with Mr. Ramesh Chopra, the husband of late Smt. Swarn Chopra. It is contended that late Sh. Ramesh Chopra treated the respondent no. 5 like his son, since he was issueless and had developed a deep foundness for him. It is further contended that he took care and responsibility for the well being of Mr. Ramesh Chopra during his later years and he also used to come and enquire about the well being of Mrs. Swarn Chopra PC No. 15889/16 Anu Sohal Vs State & Ors. Page 6 of 67 from time to time. Especially after the demise of Mr. Ramesh Chopra.
13) It is further contended that the petitioner never visited Mrs Chopra/the deceased or took care of her during illness, either before or after the expiry of Mr. Ramesh Chopra. It is further contended that he never seen the petitioner at the suit property, on the other hand, it was always Mrs Kusum Malhotra who used to visit the ailing Mrs. Swaarn Chopra and took care of her, in times of crises. It is further contended that, Mrs Kusum Malhotra, used to visit ailing Mrs Chopra and took care of her health, just as she did when Mr. Ramesh Chopra was alive. It is contended that the Will dated 01.06.2012 being relied upon by the petitioner is a false document, deserving no credence from this Hon'ble Court.
CASE OF RESPONDENT NO. 6 & 7 AS PER THEIR OBJECTIONS
14) Respondent no. 6 & 7 have filed separate objections in the present case. The objections of respondent no. 6 & & are on the same line and even copy of the each other and have been filed by one counsel.
15) Respondent no. 7 & 7 have specifically denied the factum, legality and validity of the alleged Will dated 20.03.2012 and 01.06.2012. It is contended by them that petitioner has fabricated the PC No. 15889/16 Anu Sohal Vs State & Ors. Page 7 of 67 alleged Wills with a view to grab the property in question. It is further contended that the present petition filed by the petitioner is without any cause of action, or that petitioner is a property grabber and is out to adopt any means to grab the property of a neighbour, who had nothing to do with the deceased and petitioner has manipulated and fabricated the documents with a view to usurp the suit property without knowing the deceased testatrix who was not the owner of the suit property.
16) It is further contended that late Sh. Ramesh Chopra, was the owner of the suit property. It is further contended that Sh. Ramesh Chopra, during his life time, had executed a Will dated 12.08.2006 in favour of Smt. Kusum Malhora, whom he treated like his daughter and whereby he had bequeathed the entire suit property. It is further contended that Sh. Ramesh Chopra was instrumental in financially helping Smt. Kusum Malhotra and he got her married and in fact performed "Kanyadan" of Smt. Kusum Malhotra and their families have been on regular visiting terms and also looked after them like their parents.
17) It is further contended that the petitioner is guilty of fraud and forgery. It is further contended that the present petition is false, frivolous and vexatious or that petition is bad for mis-joinder of parties as the parties impleaded has nothing to do with the estate left by late Sh. Ramesh Chopra. It is further contended that none of the PC No. 15889/16 Anu Sohal Vs State & Ors. Page 8 of 67 respondents other than respondent no. 6 & 7 are the relations, near or distant, of the deceased Sh. Ramesh Chopra.
18) It is further contended that present petition is based on falsehood as is apparent from bare perusal that the signatures on the first pages of the Will are different from the signatures allegedly put by the deceased before the office of Sub-Registrar. Accordingly, the document termed as a Will is a manipulated, forged and concocted document with a view to grab the property in question. It is contended that the petitioner has no locus to file the present petition.
19) It is further contended that the deceased, Smt. Swarn Chopra was neither capable nor competent to execute the Wills relied upon by the petitioner. It is further contended that late Sh. Ramesh Chopra, during his life time, executed a Will dated 12.08.2006, in presence of late Smt. Swaran Chopra. Hence by forging and fabricated a document and propounded it an alleged Will of the deceased, the petitioner has committed criminal offence and thus rendered herself liable to be prosecuted under Indian Penal Code.
20) It is further contended that the alleged Will propounded by the petitioner in the suit are nothing but an act of fabrication committed by her in active connivance with Shri Jagdish Lal and Smt. Champa Rishi alleged to be the attesting witnesses of the Wills. It is further contended that the alleged Wills are surrounded by suspicious PC No. 15889/16 Anu Sohal Vs State & Ors. Page 9 of 67 circumstances. It is further contended that the deceased Smt. Swarn Chopra was not keeping well, even during the lifetime of her husband and she had no vision in one eye because of Glucoma and in her other eye, the vision was less than 50%. It is further contended that the deceased was hard of hearing and was using hearing aid in both her ears.
21) It is further contended that petitioner has misappropriation of cash, jewellery and immovable property of late Sh. Ramesh Chopra and the petitioner got the pension account of Mrs. Swaran Chopra transferred from the branch of SBI at one Lal Market, Paschim Vihar to SBI Branch, Jwala Heri Market, Paschim Vihar, New Delhi with a view to facilitate misappropriation of her account and locker as the employee of SBI, who is posted at Jwala Heri Branch, is her close friend and is living on the ground floor of the house where petitioner is occupying the first floor. It is further contended that the petitioner managed to transfer the account without the knowledge of the deceased and the respondents and even manipulated the nomination form by getting her name incorporated as the nominee of the deceased, whereas she is not even remotely connected or concerned with the Chopra family.
22) It is further contended that the petitioner was a self imposed neighbour as Sh. Ramesh Chopra and Smt. Swarn Chopra were not dependent on anybody for any of their needs as they had hired a PC No. 15889/16 Anu Sohal Vs State & Ors. Page 10 of 67 maid who was with them throughout day and night and the respondent no. 6 and Smt. Kusum Malhotra were also visiting them regularly and taking care of their medical needs. It is further contended that the petitioner managed to operate the locker on 25.02.2013, in active connivance with the officials of the Bank and who allowed her to operate the Locker knowing fully well that that she was not related to the deceased and she took away all the FDRs, Jewellery, original other important documents pertaining to suit property and the Chopra family. It is further contended that Smt. Kusum Malhotra has also taken steps to initiate proceedings of probe against the bank and their concerned employees for their misdeeds.
23) It is further contended that the petitioner has misused and grossly abused the provisions of law for her illegal financial benefits and the law is not meant for the same. It is contended that the alleged Will dated 20.03.2012 and 01.06.2012 are surrounded by suspicious circumstances.
24) It is further contended that the petitioner by abusing the process of law has also filed a civil suit bearing no. 677 of 2013 before Hon'ble High Court of Delhi impleading respondent no. 6 & 7 and their husbands as the defendants praying for grant of decree of declaration of title and permanent and mandatory injunction qua the property in question and recovery of mesne profits which is neither in conformity of provisions of law nor is maintainable.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 11 of 6725) Petitioner filed replications to the objections of respondents and denied all the objections of the respondents and reiterated the contents of her petition.
26) On the basis of the pleadings, the following issues were framed vide order dated 09.04.2014:-
1. Whether the present petition is bad for mis-
joinder of parties? OPR 6 & 7
2. Whether the petitioner has no locus-standi to file the present petition? OPR-6 & 7
3. Whether the Will dated 01.06.2012 executed by testatrix Smt. Swarn Chopra is a valid, legal and genuine Will? ? OPP
4. Whether the petitioner is entitled to the grant of Probate in respect of the aforesaid Will dated 01.06.2012, as prayed for? OPP
5. Relief
27) Parties were directed to adduce evidence.
EVIDENCE OF PETITIONER
28) In order to prove his case, the petitioner has examined 9 witnesses.
29) Sh. Jagdish Lal, one of the attesting witness, appeared in PC No. 15889/16 Anu Sohal Vs State & Ors. Page 12 of 67 the witness box as PW-1 and tendered his affidavit in evidence as Ex PW-1/1. It is pertinent to mention here that PW-1 was re-examined vide order dated 09.03.2017 and after seeing the original Will dated 01.06.2012, PW-1 identified his signatures and thumb impressions at point A & B respectively on the Will dated 01.06.2012. He also identified the signatures of deceased testatrix at point C and the signatures of another attesting witness Ms Champa Rishi at point D on the Will Ex. PW-1/A.
30) PW-1 after seeing the original Will dated 20.03.2012, identified his signatures and thumb impressions at point A & B respectively. He also identified the signatures of deceased testatrix at point C and the signatures of another attesting witness Ms Champa Rishi at point D on the Will Ex. PW-1/B. PW-1 has been duly cross- examined by ld. counsel for respondent no. 6 & 7.
31) Ms Anu Sohal, the petitioner appeared in the witness box as PW-2 and tendered her evidence by way of affidavit Ex. PW- 2/A. She reiterated the contents of her petition in her affidavit and relied upon the following documents:
1. Ex. PW2/1A: Original Will dated 20.03.2012.
2. Ex. PW2/1B: Original Will dated 01.06.2012.
3. Ex. PW2/2 : Original medical fitness certificate of deceased.
4. Ex. PW2/3 : Original medical fitness certificate of PC No. 15889/16 Anu Sohal Vs State & Ors. Page 13 of 67 deceased.
5. Mark A : Photocopy of records of bank nomination
6. Mark B : Photocopies of civil proceedings
7. Ex. PW2/4 : Original death certificate of deceased.
8. Mark B1 (Colly): Photographs of last rituals of deceased testatrix.
9. Ex. PW2/6 (Colly) : Copies of complaints dated 22.01.2013, 11.02.2013, 01.03.2013, 05.03.2013, 14.03.2013 and 07.04.2013.
10. Mark H : Photocopy of complaint dated 13.03.2013.
11. Ex. PW2/7 (Colly): Complete record of mutation proceedings obtained from MCD. PW-2 was duly cross-examined by ld. counsel for respondent no. 6 & 7.
32) Sh. Rakesh Kumar, appeared as PW-3 and he tendered his evidence by way of affidavit Ex. PW-3/A. PW-3 supported the petitioner and deposed regarding execution of Will by the deceased. He was duly cross-examined by ld. counsel for the respondent no. 6 & 7.
33) Dr. A.K. Gupta, appeared in the witness box as PW-4 and tendered his evidence by way of affidavit Ex. PW-4/. He relied upon two original medical certificate, which are already exhibited as Ex. PW-2/2 dated 19.03.2012 and Ex. PW-2/3 dated 31.05.2012. PW-4 further deposed that the contents of both the said medical certificates PC No. 15889/16 Anu Sohal Vs State & Ors. Page 14 of 67 are in his own handwriting and under his signatures.
34) Sh. Satya Prakash, Branch Manager from State Bank of India, Lal Market appeared as PW-5 and brought the summoned record i.e. record of saving bank account in the name of late Sh. Ramesh Chopra having account no. 10440067005. He further deposed that as per record brought by him the above said account has been closed on 24.07.2012 and prove the authenticate copy of statement of account as Ex. PW-5/A.
35) PW-5 further deposed that he has also brought the record pertaining to saving bank account in the name of late Smt. Swarn Chopra, having account no. 10440067038, having present balance of Rs. 2308/-. He further deposed that the said bank account is operative as on date. He proved the authenticated copy of statement of account as Ex. PW-5/B which bears his signatures at points A, B & C.
36) PW-5 further deposed that the locker facility is not available in their branch since the day of its opening in the year 1990 till date. He further deposed that there is no FDR available in the records of the bank in the name of late Smt. Swaran Chopra and late Sh. Ramesh Chopra, since the day of opening of the above said bank accounts.
37) Sh. Sandeep Bhasin, Deputy Branch Manager from State Bank PC No. 15889/16 Anu Sohal Vs State & Ors. Page 15 of 67 of India, Jawala Heri Branch, Paschim Vihar, appeared in the witness box as PW-6 and deposed that he has brought the summoned record i.e. statement of account no. 10663686614 ( old no. 01190005096) of Smt. Swaran Chopra and exhibited the same as Ex. PW-6/2 (Colly 14 pages) alongwith certificate under section 65- B of Indian Evidence Act with Section 2(a) and Section 2A of Banker's Book Evidence Act as Ex. PW-6/1 and also brught the statement of account no. 10663740561 ( old No. 01190018251) of Sh. Ramesh Chopra, since 26.12.1995 to 11.10.2011 and the same is exhibited as Ex. PW-6/3 ( Colly 11 pages). PW-5 has been duly cross-examined by ld. counsel for respondent no. 6 & 7.
38) . PW-6 has also brought the FDR (STDR) bearing Account no. 31809882755 in the name of Smt. Swaran Chopra, R/o A-1/79 Paschim Vihar, value of Rs. 10 lacs dated 29.06.2011 with the maturity dated 25.03.2014 as Ex. PW-6/4, another FDR (STDR) bearing account no. 31141240690 in the name of Smt. Swaran Chopra, with the value of Rs. 2,79,776/- dated 29.06.2011 with the maturity dated 04.01.2013 as Ex. PW6/5, another FDR ( STDR) bearing account no. 31141240500 in the name of Smt. Swaran Chopra, SBI (06623), Jawala Heri Market, Delhi with the value of Rs.2,79,776 dated 29.06.2011 with the maturity dated 04.01.2013 as Ex. PW6/6, the certified copy of Receipt of Nomination Facility for Locker dated 11.04.2012 as Ex. PW-6/7 alongwith the confirmation Nomination Facility dated 19.9.2011 in favour of Ms Anu Sohal in PC No. 15889/16 Anu Sohal Vs State & Ors. Page 16 of 67 respect of the Savings Bank Account bearing no. 01663686614 made by the Account holder, namely Smt. Swaran Chopra as Ex. PW-6/8, the certified copy of another FDR (STDR) bearing account no. 31141240500 regarding the confirmation receipt of Nomination dated 11.04.2012 made by Smt. Swaran Chopra, in the name of Anu Sohal as Ex. PW-6/9, the certified copy of another FDR (STDR) bearing account no. 31809882755 regarding the confirmation receipt of Nomination dated 11.04.2012 made by Smt. Swaran Chopra, in the name of Smt. Anu Sohal as Ex. PW-6/10 alongwith the certified copy of another FDR (STDR) bearing account no. 3114124690 regarding the confirmation receipt of Nomination dated 11.04.2012 made by Swaran Chopra, SBI ( 06623) in the name of Smt. Anu Sohal as Ex. PW-6/11, alongwith the certified copy of the Nomination Entry in the Savings Account No. 10663686614 nominated by the account holder Swaran Chopra in the name of Smt. Anu Sohal, obtained from the original Nomination Register, SBI, Jawala Heri Market, Delhi ( OSR) as Ex. PW-6/12.
39) PW-6 has also deposed that he has also brought all the records of original records of above said STDR'S ( FDR's) bearing nos. 31147909304 of the value of Rs. 10 lacs made from the savings account no. 10663740561 dated 27.04.2010 (OSR) along with the request letter dated 27.06.2011 on behalf of Smt. Swaran Chopra wife of late Sh. Ramesh Chander Chopra for the renewal of the said FDR in the name of Smt. Swaran Chopra after the death of her PC No. 15889/16 Anu Sohal Vs State & Ors. Page 17 of 67 husband late Sh. R.C Chopra and the death certificate dated 13.06.2011 of late Sh. R.C. Chopra as Ex. PW6/13A (Colly, 3 pages back to back).
40) PW-6 further deposed that he has brought all the records of original records of above said two STDR'S (FDR's) bearing nos. 30155495469 of Rs. 2 lacs alongwith the another STDR (FDR) bearing no. 30155496462 of Rs. 2 lacs from the Savings account no. 10663686614 of Smt. Swaran Chopra dated 30.03.2007 alongwith the request letter dated 27.06.2011 on behalf of Smt. Swaran Chopra wife of Sh. Ramesh Chander Chopra for the renewal of the said two STD'S (FDR's) in the name of Smt. Swaran Chopra after the death of her husband late Sh. R.C Chopra and the death 13.06.2011 of late Sh. R.C. Chopra, the said two STDR's (FDR's), all are seen in original (OSR) were finally renewed in the name of Smt. Swaran Chopra after the death of her husband late Sh. R.C. Chopra. PW-6 further deposed that the same is mentioned at the back of the said two original STD's ( OSR) which are finally renewed on 29.06.2011 with the account no. 31141240690 as well as with the account No. 31141240500 on 29.06.2011 with the value of Rs. 2,79,776/- each. All the above said record mentioned in this para are Ex. PW6/13 B ( colly, 4 pages back to back).
41) It is pertinent to mention here that on 19.09.2018, after the cross-examination of PW-6, ld. Counsel for the petitioner requested PC No. 15889/16 Anu Sohal Vs State & Ors. Page 18 of 67 the court for re-examination of PW-6, which was allowed and PW-6 was re-examined and he deposed that he has brought the originals of Ex. PW-6/4 to Ex. PW-6/6 (OSR) and original of Ex. PW-6/7 i.e. nomination facility in respect of locker no. 1312 (OSR). He further deposed that he has also brought the records of legal opinion prior to payment of saving accounts/FDRs/STDR and contents of locker alongwith the other requisite connected papers, as Ex. PW-6/14 (colly) ( total 29 pages).
42) PW-6 further deposed that he cannot tell the reason of dates mentioned on Ex. PW6/13B relating to FDR no. 390792. According to him the said FDR renewed for 36 months and the same might have again renewed for another 24 months for better rate of interest with the maturity date for 30.03.2012. He further deposed that it is correct that on 30.03.2012 Smt. Swarn Chopra was alive. The said FDR with its maturity dated 30.03.2012 was in the name of late Smt. Swaran Chopra, at the request of late Smt. Swaran Chopra itself. He further deposed that they take legal opinion Ex. PW-6/14, in a case where there is a dispute as there was a complaint moved on behalf of Smt. Kusum Malhotra on 18.01.2013. PW-6 has been duly cross-examined by ld. counsel for respondent no. 6 & 7.
43) Sh. Harish Pal, official from the office of Sub-Registrar IIA appeared as PW-7 and deposed that he has brought the summoned record i.e. two Wills. First Will executed by Smt. Swaran Chopra PC No. 15889/16 Anu Sohal Vs State & Ors. Page 19 of 67 W/o late Sh. Ramesh Chopra in favour of Smt. Anu Sohal, which was duly registered vide registration no. 1612 in Book No. 3, Volume No. 359 dated 21.03.2012 and another Will executed by Smt. Swarn Chopra W/o late Sh. Ramesh Chopra in favour of Smt. Anu Sohal W/o Sh. Rajesh Kumar Sohal, which was duly registered vide registration no. 2754 in Book No. 3, Volume no. 373 dated 01.06.2012 and the Wills are already exhibited as Ex. PW-1/A and Ex. PW-1/B respectively. ( The witness has compared the same from his record and state that these are the same Wills which were registered in their office as per the earlier part of his deposition). PW-7 has been cross-examined on behalf of respondent no. 6 & 7.
44) . Inspector Antriksh Alok, ATO, from P.S. Paschim Vihar appeared in the witness box as PW-8 and brought the summoned i.e. copies of five complaints dated 22.03.2013, DD No. 59 B dated 11.02.2013, DD No. 33 A dated 01.03.2013, DD No. 72B dated 05.03.2013 and DD No. 57 dated 14.03.2013 are marked as Mark PW-8/1 to PW8/A5. PW-8 further deposed that the record brought by him also contains photocopy of one more complaint of Smt. Kusum Malhotra. The copy of such complaint is also retained on record and marked as Mark PW8/B. According to witness , the matter is still under investigation and charge sheet is yet to be finalised and submitted). PW-8 has been cross-examined on behalf of respondent no. 6 & 7.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 20 of 6745) Sh. Satpal Yadav, Zonal Inspector, official from the office of Keshav Puram Zone appeared as PW-9 and brought the summoned record. He deposed that as per their record, property No. A-1/79, Paschim Vihar, New Delhi is mutated in the name of Smt. Swarn Chopra W/o Sh. Ramesh Chopra. Mutation was done on the basis of documents submitted by her. PW-9 further submitted that he has been shown the coy of all such documents from judicial record which is already Ex. PW-2/7 (Colly) ( running into 18 pages) and he say that this is correct as per their record except the fact that the conveyance deed available on their record is only a photocopy (Original seen and returned). In the cross-examination PW-9 deposed that mutation is only for the purpose of house tax and not for ownership. PW-9 has been cross-examined on behalf of respondent no. 6 & 7.
46) On 25.03.2019, the petitioner has closed her evidence. Thereafter evidence has been led only on behalf of respondent no. 6 & 7.
EVIDENCE ON BEHALF OF RESPONDENT NO. 6 & 7.
47) On behalf of respondent no. 6 & 7 total four witnesses have been examined.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 21 of 6748) Ms Kusum Malhotra, respondent no. 7 appeared in the witness box as DW-1 (it should be RW-1) and she tendered her evidence by way of affidavit Ex. DW-1/A, wherein she reiterated her objections taken in her written statement. She relied upon the Will dated 12.08.2006 as Ex. DW-1/1 and death certificate of Sh. Ramesh Chopra as Ex. DW-1/2. DW-1 has been duly cross-examined by ld. counsel for petitioner.
49) Ms Priya Dutta, has appeared in the witness box as RW- 2 being a summoned witness and deposed that she has been shown two Wills Ex. PW1/A and Ex. PW1/B. She deposed that she has been shown as beneficiary in both the Wills. She further deposed that she is not aware of these Wills. She cannot say whether the aforesaid Wills are genuine or not. She does not know who had got prepared the aforesaid Wills. RW-1 further deposed that she knows that the address of the property is A-1/79, Pachim Vihar, New Delhi. She does not know who had given the names of the beneficiaries in the aforesaid Wills. She has not received any benefit as shown in the aforesaid Wills.
50) RW-2 further deposed that she knows Smt. Swaran Chopra and her husband Mr. Ramesh Chopra, who used to visit in Maharaja Agrasain Hospital, Punjabi Bagh. They used to come to her for medical check up and treatment. She had been visiting their house also. She had visited the house of Mr. Ramesh Chopra during his PC No. 15889/16 Anu Sohal Vs State & Ors. Page 22 of 67 life time, who died in his presence in Maharaja Agrasin Hospital.
51) RW-2 further deposed that after the death of Mr. Ramesh Chopra, she had visited twice the house of Smt. Swaran Chopra to inquire about her health and condition. She further deposed that she stopped going there as Ms Anu Sohal used to be there and they started ignoring her. Thereafter she visited once on the call of Smt. Swaran Chopra as she was not feeling well.
52) . RW-2 further deposed that there was no relationship between Ms Anu Sohal and Smt. Swaran Chopra. Ms Anu Sohal is just a neighbour there. She further deposed that according to her, the Wills shown to her are wrong and bogus Wills. Smt. Swaran Chopra was so sacred from Ms Anu Sohal that she was afraid of talking to anybody visiting the house. She know Smt. Kusum Malhotra always used to accompany Mr. Ramesh Chopra for his treatment and check up. What she knows is Kusum Malhotra is the close relation of Smt. Swaran Chopra and Mr. Ramesh Chopra. Smt. Kusum Malhota was treated as their daughter. They also performed her Kanyadaan.
53) RW-2 further deposed that she had been keeping very good relations with Chopra family. There are several other relations of late Smt. Swaran Chpra and Mr. Ramesh Chopra who are resident of Delhi in Pitampura and Rajouri Garden. She knows all of them.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 23 of 6754) Mrs Champa Rishi @ Champa Sharma, respondent no. 4 appeared in the witness box as RW-3 and deposed that she is personally known to Mrs. Swaran Chopra and they had been colleagues together in the school while working. She was a frequent visitors to the house of Smt. Swaran Chopra and has association of almost 40 years. She gone to the house of Smt. Swaran Chopra and upon her instructions she had appended her signatures only once on the Will. She does not know in whose favour, the Will was executed. She again said the said Will, was in favour of Anu. She does not remember the date of Will on which she had signed. She does not know why Smt. Swaran Chopra had executed the Will. RW-3 further deposed that she knows that husband of Mrs Swaran Chopra had also executed a Will but she does not know the details of it.
55) The witness was shown the written statement dated 30.08.2013 filed on record which is marked as RW-3/A and on seeing the written statement, the witness submits that signatures at point A & B are not her signatures.
56) In her further examination, RW-3 deposed that Smt. Swaran Singh was very sick, neither she could see properly nor hear properly. She was so weak that she could not move independently and used to move with help of somebody. Her heath condition was very deteriorated and she was not able to hear properly. RW-3 further deposed that she used to read out Sunder Kand to Smt. PC No. 15889/16 Anu Sohal Vs State & Ors. Page 24 of 67 Swaran Chopra. She further deposed that whenever she used to ask Smt. Swaran Chopra, as to why she executed the Will, initially she did not tell anything to her, thereafter, she told her that she was forced to execute the Will.
57) Sh. Dalip Singh a summoned witness appeared in the witness box as RW-4 and tendered his evidence by way of affidavit Ex. RW-4/A. In his affidavit he deposed that he is a summoned witness and has learnt that he has been named as one of the beneficiaries in the alleged Will purportedly executed by late Smt. Sawaran Chopra. He further deposed that he was working with Sh. Ramesh Chopra in Railway since 1974 and he was very close to him as he used to treat him like his younger brother. RW-4 further deposed that he had very close family relations with Sh. Ramesh Chopra and Smt. Swaran Chopra. He further deposed that Sh. Ramesh Chopra was an exclusive owner of property no. A-1/79, Paschim Vihar, New Delhi-110063. Sh. Ramesh Chopra and Smt. Swaran Chopra were not blessed with any child of their own. He further deposed that he retired from Railway in the year 2008 and till the death of Sh. Ramesh Chopra died on 02.06.2011 and he was regular visitor to him.
58) RW-4 further deposed in his affidavit in evidence that Sh. Ramesh Chopra during his life time told him that he had executed a Will in favour of Smt Kusum Malhotra, whom he used to treat as his PC No. 15889/16 Anu Sohal Vs State & Ors. Page 25 of 67 daughter. He further deposed that since Sh. Ramesh Chopra had executed a Will of his property during his life time, thereafter his wife was not competent to execute any Will. RW-4 further deposed that he wanted to give 25% share of his property in his favour but he declined to accept and requested to given to his family members. He further deposed that Smt. Swaran Chopra was hard of hearing as well as had a very poor vision.
59) RW-4 further deposed that he shifted from the colony ( Paschim Vihar) after the death of Shri Ramesh Chopra. Till then Anu Sohal was not visiting the house of Chopras. Anu Sohal started visiting Smt. Swaran Chpra after the death of Sh. Ramesh Chopra. Anu Sohal pretended to serve Smt. Chopra on her own in her old age. He deposed that the Wills got executed by Anu Sohal is a fraudulent Act to ururp her property and she got the Wills executed from Smt. Swaran Chopra by misrepresentation.
Arguments on behalf of of petitioner
60) It is argued by ld. counsel for the petitioner that the petitioner has been appointed as an executor in the Wills by the deceased, by way of implication though not in express words. It is further argued that in case, court comes to conclusion that petitioner is not appointed as an executor then letters of administration may be issued to the petitioner.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 26 of 6761) Ld. Counsel for the petitioner has argued that the petitioner has duly proved the Will in question by examining one of the attesting witness PW-1 and has fulfilled the requirements of section 63 of Indian Succession Act and section 68 of the Indian Evidence Act.
62) Ld. Counsel for petitioner further argued that the another attesting witness of the Will i.e. Ms Champa Sharma @ Champar Rishi has initially supported the case of the petitioner by filing written statement but later on she was won over by respondent no. 6 and become hostile to the petitioner and the hostile version of Ms Champa Sharma is not reliable and does not create any doubt in the proof of due execution of Will in question.
63) Ld. counsel for the petitioner further argued that Will in question is a registered Will and presumption of genuineness is attached to the proceedings conducted in the office of Sub-Registrar for registration of the Will.
64) Ld. counsel for the petitioner further argued that the suspicious circumstances alleged by respondent no. 6 & 7 are not real, germane and valid.
65) Arguments on behalf of Respondent no. 3.
66) Ld. counsel for respondent no. 3 has argued that both Wills of PC No. 15889/16 Anu Sohal Vs State & Ors. Page 27 of 67 the deceased are forged and fabricated. It is further argued that deceased has never executed any Will in favour of the petitioner. It is further argued that petitioner has failed to prove both wills.
67) It is further argued that medical certificates of the deceased issued by Dr. A.K. Gupta, are forged and fabricated. It is further argued that Dr. A.K. Gupta has never medically examined the deceased and never issued the medical certificate during her life time. It is further argued the clinic of Dr. A.K. Gupta at a far distance from the house of the deceased and there is no reason for the deceased to get medical treatment from Dr. A.K. Gupta. It is further argued that Dr. A.K. Gupta has not maintained any record regarding treatment of the deceased. It is further argued that Dr. A.K. Gupta, has issued the medical certificates of the deceased by taking money from the petitioner.
68) It is further argued that the deceased has no relation with the petitoner and there is no reason for the deceased to execute two Will in favour of the petitioner. It is further argued that the Wills of the deceased are surrounded by suspicious circumstances and the same have not been removed by the petitioner.
69) It is further argued that the petitioner has operated the bank locker and has withdrawn the amount from the bank account of the deceased after the death of the deceased, in connivance with bank PC No. 15889/16 Anu Sohal Vs State & Ors. Page 28 of 67 officials. It is further argued that the petitioner has mis-appropriated the properties of the deceased. So, the petitioner is not entitled for getting Probate of the Wills in question.
Arguments on behalf of Respondent no. 6 & 7
70) Ld. counsel for respondent no. 6 & 7 has argued that the petitioner has claimed probate and letters of administration, in respect of two Wills whereas as per settled law, Probate/letter of administration can be claimed only for one Will.
71) It is further argued by ld. counsel for respondent no. 6 & 7 that Late Smt. Swaran Chpra was not competent to execute the Will in question in respect of property bearing no. A-1/79, Paschim Vihar, New Delhi as the said property was purchased by late Sh. Ramesh Chopra, who bequeathed the same by way of registered Will dated 12.08.2006 in favour of Smt. Kusum Malhotra.
72) It is further argued by ld. counsel for respondent no. 6 & 7 that the Wills in question are surrounded by suspicious circumstances which have not been explained and dispelled by the petitioner.
73) There is no justification for executing second Will by the deceased just after 2 months and 7 days & making change in distribution of assets.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 29 of 6774) The medical certificate of the deceased has been got issued from the doctor after the death of the deceased and after making payment to the doctor, so it is not reliable.
75) Attesting witness of the Will in question namely Smt. Champa Rishi has demolished the case of the petitioner and has proved that the Wills are a bundle of fraud and have not been executed by the deceased.
76) Some of the beneficiaries have neither been impleaded as one of the respondents nor has been brought in the witness box. Sh. Dinesh Arora has played an important rule in looting the money of the deceased by way of execution of Will in question.
77) The deceased was staying alone after the death of her husband and was suffering from Glucome and had poor eye sight and hard of hearing, at the time of alleged execution of Wills by the deceased.
78) It is further argued that none of the Wills reflect the reasons for executing the second Will. However, it is very simple to understand that Smt. Swaran Chopra had nothing in mind including the execution of Will under but has been mislead to signing the Will some other garb.
79) The signatures of the deceased have been obtained on the PC No. 15889/16 Anu Sohal Vs State & Ors. Page 30 of 67 Wills by fraud in the garb of some other pretext. The Wills in question have been got executed from the deceased for garbing her property, in connivance and associate of other interested persons.
80) The written statement alongwith affidavits filed on behalf of Sh. Dalip Singh, Ms Priya Dutta and Ms Champa Sharma are bogus, forged and concocted.
81) Forgery and manipulation has been made in bank records by the petitioner.
ISSUE -WISE FINDING My issue wise findings are as under:-
Issue no. (3) Whether the Will dated 01.06.2012 executed by testatrix Smt. Swarn Chopra is a valid, legal and genuine Will? ? OPP
82) The onus to prove issue no. 3 is upon the petitioner and in order to prove this issue, the petitioner has examined nine witnesses who are as follows:
(I) PW-1 Sh. Jagdish Lal, is one of the attesting witnesses to the Will.
(ii) PW-2 Ms Anu Sohal ( Petitioner herself).
(iii) PW-3 Sh. Rakesh Kumar ( brother-in-law of petitioner)
(iv) PW-4 Dr. A.K. Gupta ( who issued medical certificate of sound mind to the deceased).PC No. 15889/16 Anu Sohal Vs State & Ors. Page 31 of 67
(v) PW-5 Sh. Satya Prakash ( Branch Manager of SBI).
(vi) PW-6 Sh. Sandeep Bhasin ( Deputy Branch Manager, SBI).
(vii) PW-7 Sh. Harish Pal, ( CDV, Sub-Registrar-II A, Punjabi Bagh)
(viii) PW-8 Insepctor Antriksh Alok.
(ix) PW-9 Sh. Satpal Yadav, Zonal Inspector, NDMC, Delhi)
83) Before adjudicating the issue no. 3, I would like to discuss the relevant statutory provisions of law which are discussed in succeeding paras.
Statutory provisions involved in the present case for deciding the issue no. 3.
84) The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 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".
85) Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.
86) The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 32 of 67"63 Execution of unprivileged Wills --- Every testator, not being a 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 directions.
(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 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".
87) The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
"Section 68 of Indian Evidence Act states that 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 Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied.PC No. 15889/16 Anu Sohal Vs State & Ors. Page 33 of 67
88) The principles for proving the Will have been well settled, in catena of judgments by Hon'ble Supreme Court of India as well as by Hon'ble High Court of Delhi. Some of the judgments have been mentioned below to appreciate the law, applicable on the facts of the present case.
89) In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down 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 68 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 PC No. 15889/16 Anu Sohal Vs State & Ors. Page 34 of 67 suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder 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 propounder 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 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 circumstances that the test of satisfaction of the judicial conscience has been evolved.
That test emphasises 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."
90) In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & PC No. 15889/16 Anu Sohal Vs State & Ors. Page 35 of 67 Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles in order to prove the Will and the same are as under; -
i. This court has to consider two aspects:
firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a)The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b)It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c)Each of the attesting witnesses must have 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 such signatures:
(d)Each of the attesting witnesses shall sign the PC No. 15889/16 Anu Sohal Vs State & Ors. Page 36 of 67 Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to PC No. 15889/16 Anu Sohal Vs State & Ors. Page 37 of 67 consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same.
However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
91) In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court made reference to FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia PC No. 15889/16 Anu Sohal Vs State & Ors. Page 38 of 67 which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid custom of the testator. These are as under:
I. 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 last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be PC No. 15889/16 Anu Sohal Vs State & Ors. Page 39 of 67 vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.
IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw& Tr. 431 In The Goods of Geale, it was opined that where a 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.
V. 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 casts his eye over the will, this may not be sufficient.
VI. 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.
VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of PC No. 15889/16 Anu Sohal Vs State & Ors. Page 40 of 67 suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.
IX. 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.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
92) In a case titled Inder Bala Bose vs Maninder Chandra Bose AIR 1982 SC 133, the Hon'ble Supreme Court has held that "any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally in a normal situation or is not expected of a normal person."
93) The Hon'ble Apex Court in a case titled Krishna Kumar Birla vs Rajendra Singh Lodha & Ors on 31 March, 2008 has held as PC No. 15889/16 Anu Sohal Vs State & Ors. Page 41 of 67 follows:
"The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will."
"A question of title arising under the Act cannot be gone into the proceedings. Con- struction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
94) PW-1 has deposed in his examination in chief by way of affidavit deposed that he and Smt. Champa Rishi were called by the deceased to become witness in her last and final Will dated 01.06.2012, for bequeathing property in question in favour of the petitioner and of her movable properties in favour of other beneficiaries.
95) PW-1 further deposed that the deceased apprised him and to Smt. Champa Rishi, about her reason for executing the Will dated 01.06.2012 by superseding her previous Will dated 20.03.2012.
96) PW-1 further deposed that the deceased/testatrix had appended her signatures on the said Will in his presence and the said Will was registered in the office of Registrar/Sub-Registrar, SR-IIA- Punjabi Bagh, Delhi in his presence. PW-1 further deposed that the contents of the said last and final Will were explained to all the PC No. 15889/16 Anu Sohal Vs State & Ors. Page 42 of 67 parties, who were present on the said date i.e. 01.06.2012, before the Sub-Registrar and the same were understood and admitted as correct by all the parties including him.
97) PW-1 further deposed in examination in chief by way of affidavit that the deceased testatrix had been apprised about the contents of the said last and final Will dated 01.06.2012, in her vernacular language, in his presence as well as in the presence of another attesting witness namely Smt. Champa Rishi by the said Registrar and thereafter the deceased had voluntarily put her signatures on every page of the said Will dated 01.06.2012 alongwith her finger and thumb impression, at the reverse side of the first page of the said Will dated 01.06.2012.
98) PW-1 further deposed that the said Registrar had taken the deceased in some other room ( chamber) alone in order to ascertain her state of mind, her free will and consent or any other undue influence or coercion or pressure from any side and finally acknowledged the fact that she was in a fit state of mind on the said date and was executing the said Will dated 01.06.2012 with her free will and consent and there was no undue influence or coercion or pressure from any side.
99) PW-1 further deposed that the deceased testatrix, after understanding the contents of the said Will, voluntarily put her PC No. 15889/16 Anu Sohal Vs State & Ors. Page 43 of 67 signatures on every page of the said Will alongwith her finger and thumb impression over the same, in a fit state of mind along with her own free will and consent and without any undue influence from any side. PW-1 further deposed that after the signatures as well as the thumb impression of the deceased testatrix over the said Will, he had appended his signatures over the said last and final Will dated 01.06.2012 as witness thereof after understanding its contents in all respects and testifying its execution and genuineness.
100) PW-1 further deposed that the another attesting witness namely Smt. Champa Rishi had also put her signatures over the said Will dated 01.06.2012, in his presence in the office of the Registrar, Delhi on the said date. He further deposed that he again acknowledge/admit his signatures as well as the signatures, thumb and finger impression of late Smt. Swaran Chopra (deceased testatrix) alongwith the signatures of another attesting witness namely Smt. Champa Rishi @ Champa Sharma over the said Will.
101) During cross-examination, PW-1 deposed that the Will was got typed by the deceased herself and he was present at that time but he does not know the name of the scriber of the Will.
102) During cross-examination following question was put to PW-1 and he replied as follows:
Q. What is the reason that you cannot identify the PC No. 15889/16 Anu Sohal Vs State & Ors. Page 44 of 67 signatures of Champa Rishi on the Will Ex. PW- 1/A?
Ans: I cannot identify her signatures.
He further deposed that Champa Rishi signed the Will Ex. PW-1/A & Ex. PW-
1/B at the office of Sub-Registrar, Punjabi Bagh, Nangloi. He also deposed during cross-examination that first of all, Smt. Swaran Chopra signed the Will, thereafter he signed the Will and lastly, Smt. Champa Rishi signed the Will Ex.
PW-1/A & Ex. PW-1/B. He further deposed that he identified the signatures of Smt. Champa Rishi, because she had signed the above said Wills in his presence.
103) It does not create doubt upon the signing of the Will in question by witness Smt. Champa Rishi, if PW-1 stated that he cannot identify the signatures of Smt. Champa Rishi as PW-1 has clearly stated that the Will in question was signed by the witness Smt. Champa Rishi in his presence and he identified her signatures on the Will in question as she signed it in her presence.
104) PW-1 is the neighbour of the deceased and has been residing PC No. 15889/16 Anu Sohal Vs State & Ors. Page 45 of 67 there since 2000. The deceased was residing opposite to her house and he used to meet her frequently. PW-1 denied the suggestion that he alongwith Smt. Anu Sohal and other locality members took the deceased to the office of sub-registrar by mis-representing that property in question would be transfer in her name.
105) PW-2/petitioner has deposed that she used to take care of deceased testatrix like her daughter. She also used to provide her entire medical needs like administering medicines, taking care of her clothes and other day to day care as well as management/upkeep of her house with the help of maid namely Premlata @ Prema. PW-2 further deposed that the keys of the suit property were in her hands as the deceased testatrix herself had handed over the said keys to her, during her life time.
106) PW-2 further deposed that she used to stay for almost entire day time alongwith the deceased testatrix in the suit property just like her daughter. However, sometimes she used to stay during night time also, in order to take care of the deceased testatrix, in order to provide her a sense of security as she was an old and lonely lady.
Therefore, some of her own belongings were also kept in the suit property. Since she used to spend substantial day and night time in the suit property, hence, she used to park her scooty permanently, as such, she was continuously in the actual and physical possession of the suit property till 11.02.2013.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 46 of 67107) PW-2 further deposed that the deceased testatrix had executed both Will dated 20.03.2012 and 01.06.2012 in a healthy free state of mind and good physical health without any undue force or coercion. She further deposed that the fitness certificate was also obtained by the deceased testatrix herself from Dr. A.K. Gupta before executing the above said both registered Wills of the then relevant time. The original copies of her medical fitness certificates dated 19.03.2012 and 31.05.2012 are already on record and the same are exhibited as Ex. PW-2/2 and Ex. PW-2/3.
108) In the cross-examination, PW-2, in response to a specific question that what care you had been taking of late Smt. Swarn Chopra, relied that she was taking care of Smt. Swaran Chopra like family members for example they are living as mother and daughter and she used to take care of her food what she has to eat. She used to take care about the daily needs and her visits to markets. She also used to stay with her in the night on her request and was taking care of all her daily needs.
109) During cross-examination respondent no. 7/ Smt. Kusum Malhora/DW-1 has deposed that as disclosed to her by late Smt. Swaran Chopra, Anu Sohal was the care taker of late Sh. Ramesh Chopra, again said Anu Sohal was the care taker of late Smt. Swaran Chopra. Respondent no. 7 has admitted the fact that the petitioner PC No. 15889/16 Anu Sohal Vs State & Ors. Page 47 of 67 was taking care the deceased during her life time. As per RW-3 Smt. Anu Sohal used to visit the deceased and also sometime used to stay over night at the house of the deceased. Therefore, it is proved that petitioner was visiting the deceased and also sometime used to stay over night at the house of the deceased and was taking care of the deceased, during her life time.
110) In response to another specific question that who had gone for registration of the above said two Wills, PW-2 deposed that she alongwith her husbabd, Smt. Swaran Chopra, Smt. Champa Rishi had gone together and one Sh. Jagdish Lal came of his own separately. PW-2 further deposed that they went in their car.
111) DW-1/Respondent no. 7 has deposed that the present petition is based on falsehood as is apparent from bare perusal that the signatures on the first pages of the Will are different from the signatures allegedly put by Smt. Swarn Chopra before the office of Sub-Registrar. DW-1 further deposed that this establishes that the document was created for some other purpose but substituted the pages to make it an alleged Will, accordingly, the document termed as a Will is a manipulated, forged and concocted document with a view to grab the property in question.
112) The respondent no. 6 & 7 have not examined any handwriting expert to prove that the Will in question does not bear the signatures PC No. 15889/16 Anu Sohal Vs State & Ors. Page 48 of 67 of the deceased. The respondent no. 6 & 7 have failed to prove that the Will in question is forged and fabricated document.
113) The contention of respondent no. 6 & 7 is that respondent no. 7 was treated as daughter by the deceased and her husband and her Kanyadan was also done by them. In order to prove the said contention, the respondents have not placed any documentary evidence. The respondents have not placed any photographs of the respondent no. 7 with the deceased and her husband, DW-1 has deposed in her cross-examination that there is no written document pertaining to her adoption by both the deceased couple. In response to court question, how long did you live with the deceased couple prior to your marriage, DW-1 deposed that she used to live only with her biological parents at Ambala but visited the deceased couple quite often. DW-1 further deposed that they also used to visit their frequently.
114) In view of the above said facts, it is held that the respondents have failed to prove that respondent no. 7 was treated as daughter by the deceased and her husband.
115) The respondent no. 6 & 7 have alleged that the deceased was suffering from Glucoma and have poor eye sight and was hard of hearing.
116) During cross-examination of DW-1 following questions have PC No. 15889/16 Anu Sohal Vs State & Ors. Page 49 of 67 been asked to her:-
Q. Do you have any document to show that late Ms Swaran Chopra was suffering from Glucoma?
Ans: The treating doctor has been examined in the court and that is the bigest evidence in this regard.
Q. I put it to you that no doctor who has
treated late Ms Swaran Chopra for her
glucoma problem has been examined in the
court?
Ans: I do not know anything.
117) DW-1 has deposed that she never took Ms Swaran Chopra of
her said ailment to any doctor. No medical document of the
deceased has been placed on record by respondent no. 6 & 7.
Respondent have also not examined any doctor to prove the above said ailment of the deceased. Therefore, it is held that the respondents are failed to prove that the deceased was suffering from Glucoma, having poor eye sight and was of hard of hearing.
118) RW-2 stated that she does not know about the Wills of the deceased. She further stated that she cannot say whether the Wills of the deceased are genuine or not. The testimony of RW-2 is not helpful to the respondents for proving that the Wills of the deceased PC No. 15889/16 Anu Sohal Vs State & Ors. Page 50 of 67 are not valid.
119) RW-2 has also deposed that deceased was so scared from Ms Anu Sohal that she was afraid to talking to anybody visiting the house. As per RW-2, she visited twice at the house of the deceased.
Whe she visited only two times at the house of the deceased, it is not disclsoed by her as to how she formed this opinion. RW-2 has not narrated any incident due to which deceased was scared from Ms Anu Sohal. RW-2 has not mentioned the reason for the deceased for afraiding from Ms Anu Sohal. The respondent no. 6 & 7 have not stated about this fact either in their pleadings or in their evidence. RW-3 who was working with the deceased in school and was frequent visitor of the deceased for almost 40 years has not stated that the deceased was scared from Ms Anu Sohal. RW-4 who is claiming himself in close relation with the deceased has also not stated about the above said fact. RW-2 has not made any complaint to anyone regarding scaring of deceased from Ms Anu Sohal. In view of the above said fact, it is held that the above said testimony of RW-2 that deceased was afraiding from Ms Anu Sohal is not reliable.
120) In the cross-examination RW-3 in response to a specific question that can you tell upon which Will out of the above said Wills you had singed, the RW-3 stated that she cannot tell and even she cannot identify by seeing both Wills as to which Will is bearing her signature. In further cross-examination RW-3 has identified her PC No. 15889/16 Anu Sohal Vs State & Ors. Page 51 of 67 signatures at point RA6 and RA7 on the supporting affidavit of her written statement Mark X but in chief she denied her signatures on her written statement Mark RW-3/A at point A & B.
121) RW-3 in her cross-examination further deposed that she had engaged one advocate for putting appearance on her behalf in the court. RW-3 further deposed that she had received summons for appearance in the present suit in the year 2012-2013. RW-3 identified her signatures at point A & B on Will Ex. PW-1/B and admitted the execution of Will by Smt. Swaran Chopra. RW-3 further stated that she cannot say if Will Ex. PW-1/A was executed in her presence. RW-3 further identified her signatures on written statement Ex. RW-3/A at point A & B. RW-3 further deposed that she went to the Sub-Registrar office for registration of Will alongwith Smt. Swaran Chopra. She further deposed that she would have put her signatures on the written statement and supporting affidavit on the asking of the advocate who was consulted by her for taking advice.
122) RW-3 has deposed in her examination in chief that " Whenever I used to ask her as to why she executed the Will, initially she did not tell anything to me, thereafter, she told me that she was forced to execute the Will."
123) RW-3 in the cross-examination in response to a specific PC No. 15889/16 Anu Sohal Vs State & Ors. Page 52 of 67 question that have you ever disclosed the factum of force used against the deceased testatrix at the time of executing the Will in question Ex. PW-1/A and Ex. PW-1/B during the life time of the deceased testatrix, to any third person including relatives of the deceased, she stated that she has not informed to any person and had not taken any steps for the cancellation of the said Will.
124) If deceased was forced to execute the Will then she would have made complaint regarding coercion and RW-3 being close friend of the deceased also would have made complaint to the police. RW-3 is also respondent no. 4/RW-3 in the present case. On being served summons, respondent no. 4 appeared in court on 30.07.2013 and she submitted in court that she had received copy of petition on that day and sought time for filing reply/objections. Thereafter on 22.10.2013, respondent no. 4/RW-3 appeared through her counsel Sh. Sohit Chouhary and filed her written statement. During her examination in chief, respondent no. 4/RW-3 that signatures at point A & B on written statement Mark RW-3/A are not her signatures. During cross-examination, respondent no. 4 identified her signatures on affidavit filed with written statement at point RA6 & RA7 (MarkX). Respondent no. 4/RW3 further deposed, during cross- examination that she had engaged an advocate for putting appearance on her behalf in the court. She also admitted receiving of summons from court. During her further cross-examination conducted on 12.10.2023, respondent no. 4/RW3 admitted her signatures on her PC No. 15889/16 Anu Sohal Vs State & Ors. Page 53 of 67 written statement Ex. RW3/A at point A & B but in the cross- examination, she denied her signatures on the written statement.
125) The above said testimony proves that the written statement Mark RW3/A was filed by respondent no. 4 in the court through her advocate and she initially falsely denied her signatures on the written statement.
126) The conduct of RW-3 clearly shows that she is not truthful witness. The written statement was filed by her. In the written statement, respondent no. 4 has mentioned that she was requested to become attesting witness in the Will by the deceased. The deceased narrated the contents of the Will, to some extent regarding the benefit in the name of Anu Sohal & respondent no. 4, to respondent no. 4 and after understanding the same, she become the attesting witness and went to Sub-Registrar office at her own free will and consent. Respondent no. 4 has not denied the contents of petition in her written statement and submitted that she has no objection if the prayer made by the petitioner is allowed.
127) From the above said testimony of RW-3, it is proved that she had voluntarily signed the Will in question, at the instance of deceased and deceased was not under coercion, if deceased was under coercion at that time then the deceased as well as respondent no. 4 would have made complaint. Respondent no. 4 would have PC No. 15889/16 Anu Sohal Vs State & Ors. Page 54 of 67 filed objection in the court by stating the abovesaid fact of coercion in her written statement. So the testimony of respondent no. 4 that deceased was coerced to execute the Will in question is unbelievable. Moreover, respondent no. 4 has also not disclosed the name of the person who coerced the deceased to execute Will in question.
128) RW-4 Sh. Dalip Singh deposed during his examination in chief by way of affidavit Ex. RW-4/A that the deceased was not competent to execute the Will in question, the deceased was had of hearing as well as had a very poor vision. The Will got executed by Ms. Anu Sohal is a fraudulent act to usurp her property and Ms. Anu Sohal has got executed the Wills from the deceased by misrepresentation.
129) RW-4 deposed that he never appeared before this court with respect to present case. Thereafter specific question was put to witness as to whether he appeared before this court on 30.07.2013 and RW-4 stated that he does not remember. RW-4 admitted the receiving of copy of petition but stated that he does not aware about the contents of the petition. RW-4 further stated that he never filed the reply/objections in the present petition at any time.
130) On 28.03.2024, when RW-4 was confronted with written statement filed on his behalf in court, he admitted his signatures at point A but denied his signatures at point B by saying that signatures PC No. 15889/16 Anu Sohal Vs State & Ors. Page 55 of 67 at point B does not appear to be his signature. On 20.05.2024, RW- 4 stated that he has not filed written statement Mark RW-4/A & accompanying affidavit Mark RW4/X-I. He further stated that signatures at point A are his signatures but at point B are not his signatures. He again said both signatures are not his signatures. He also denied his signatures on the Vakalatnama filed by counsel Sh. Shivam Batra.
131) RW-4 during his cross-examination on 20.05.2024 stated that he has never received the copy of the present petition. He further stated that the statement made today regarding not receiving the copy of petition is correct statement and statement made in court on 28.03.2024 regarding receiving the copy of petition is incorrect. He stated that he appeared once in 2013 in the present case before this court.
132) The witness has given contradiction answer in his examination. In his examination in chief, he denied his appearance before court in the present case but during his cross-examination, he stated that he does not remember and thereafter he deposed that he appeared once in 2013. Initially, RW-4 stated that he received copy of petition but thereafter he denied receiving of coy of petition. Initially he admitted his signatures at point A on Mark RW4/X-I but later on he denied his signatures.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 56 of 67133) As per court record, RW-4 who is respondent no. 5 appears in court on 30.07.2013 and on 22.10.2023. Written statement with affidavit was filed on her behalf, though the written statement is signed only by his counsel and does not bear signatures of respondent no. 5. However, the accompanying affidavit bears the signatures of R-5. The respondent no. 5 has continuously changed his version during his examination and it made RW-4 un-reliable witness. Moreover, respondent no. 5 has not disclosed who has committed fraud with the deceased and how the said fraud was committed and who told him about the said fraud. Manner of fraud has also not been disclosed by respondent no. 5. From the testimony of respondent no. 5, it is not proved that any fraud was played by the petitioner with the deceased for execution of Will in question.
134) It is proved that the petitioner was taking care of the deceased who was living alone after the death of her husband. It is quite natural for the deceased to execute Will in favour of the petitioner. The deceased has also giving share to other persons who have close affection with the deceased and served the deceased during her life time. Mere presence of petitioner at the time of execution of Will, without playing any active role in execution of the Will does not make Will doubtful.
135) The respondents have contended that the deceased was not the owner of the suit property and has not capacity to execute the Will in PC No. 15889/16 Anu Sohal Vs State & Ors. Page 57 of 67 question. It is also argued on behalf of the respondents that the petitioner has operated the locker of the deceased and has withdrawn amount from the bank account of the deceased, after the death of the deceased. The present petition is a probate petition and being probate court, this court has not to decide the title of the suit property. It is not within the domain of this court to determine as to who is or was owner of the suit property. This court has also not to decide about the consequences of the acts committed by the parties after the death of the deceased. This court has not to decide as to whether any of the party has mis-appropriated the property of the deceased or not. It is settled law that the Probate court is only concerned with the genuineness and validity of the Will of the deceased. Probate is to decide whether the documents put before it is a valid Will of the deceased or not. Reliance is placed upon the judgment of Hon'ble Supreme Court of India, given in a case titled Krishna Kumar Birla Vs Rajinder Singh Lodha & Ors. civil appeal no. 2277 of 2008, decided on 31.03.2008.
136) The Will in question is a registered Will. PW-7/Sh. Harish Pal, from the office of Sub-Registrar has appeared in the court as a witness and has brought the record of the above said Will and has proved the registration of the above said Will.
137) The Will in question is a registered Will. Hon'ble High Court of Delhi in a case titled Smt. Veena Khanna Vs State & Anr.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 58 of 67(Supra) has held as follows:
"61. The Will dated 05.06.1979 Ex.
PW1/2 was duly registered by the office of the Sub-Registrar-District I-Delhi on 05.06.1979. The facum of registration of the Will in the present case creates a presumption that a registered document is validly executedas held in the case of Prem Singh & Ors. Vs Birbal & Ors., 2006 (5)) SCC 253. However, in the case of Rani Purnima Debi and Anr. Vs Kumar Khagendra Narayan Deb and Anr., AIR 1962 SC 567, the Apex Court observed that mere registration in itself is not sufficient to dispel all suspicion which exist without submitting the evidence to a close examination, though the factum of registration is an important circumstances in favour of the Will being genuine if cogent evidence is led in this regard to its registration".
138) In the present case, Will in question is a registered Will. Hence, in view of the above said judgment, the fact of registration of Will is also an important circumstances regarding genuineness of the Will in question.
139) PW-1 has proved that the Will in question was executed by the deceased voluntarily, in her sound disposing mind and she was aware of the Will at the time of execution of the same. It is also proved that the second attesting witness Smt. Champa Rishi/RW-3 had signed the Will in question voluntarily at the instance of the PC No. 15889/16 Anu Sohal Vs State & Ors. Page 59 of 67 deceased. The respondents have failed to prove that the deceased was coerced or fraud with the deceased for execution of Will in question.
140) Therefore, in view of my foregoing discussion, I hold that Will in question Ex. PW1/A is a legal, valid, genuine and last Will of the deceased and has been duly executed by the deceased in sound disposing mind. The Will in question fulfills the requirements of section 63 of Indian Succession Act. Hence, issue no. 3 is decided in favour of petitioner and against respondents.
Issue No. 1, 2 & 4141) Issues no. 1, 2 & 4 are taken together being interconnected.
142) It is settled law that the petition cannot be dismissed on the ground of mis-joinder of parties.
143) During arguments it is contended on behalf of respondent no. 6 & 7 that all the beneficiaries of the Will have not been impleaded as party in the petition by the petitioner but in the objections filed by respondent no. 6 & 7, the respondents has taken the objection that the petition is bad for mis-joinder of parties and name of respondents have been created with malafide intention and in attempt to achieve the nefarious goals of the petitioner. It is further contended that none of the respondents except no. 6 & 7 are the relatives of the deceased.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 60 of 67144) In the objections, R-6 & 7 have objected the impleading of other respondents but during arguments ld. counsel for R-6 & 7 has argued that the petition is bad for non-joinder of parties. The respondents are taking contradictory pleas in their objections and in their final arguments. It is admitted fact by the respondents that the beneficiaries mentioned in the Will are not the relatives of the deceased so, in case, the deceased died intestate, the beneficiaries had not any right to succeed the estate of the deceased. The presence of all beneficiaries is not necessary for deciding the present probate petition.
145) The plea of non-joinder of necessary parties has not been taken by the respondent no. 6 & 7 in their objections and no issue in this regard has been framed, so, now the respondents cannot take this objection as their objections is beyond their pleadings and also deemed to be waived off. In view of the above said discussion, it is held that the petition cannot be dismissed on the ground of mis- joinder of parties.
146) The petitioner is one of the beneficiaries in the Will in question, so the petitioner has the locus standi to file the present petition.
147) During arguments, ld. counsel for the petitioner has submitted PC No. 15889/16 Anu Sohal Vs State & Ors. Page 61 of 67 that the petitioner has been appointed as an Executor in the Will by the deceased by way of implication so, petitioner is entitled for grant of Probate of the Will in question and he relied upon judgment of Hon'ble High Court of Delhi titled Rajesh Sharma Vs Krishan Kumar Sharma, 2007 (7) AD (Delhi)1 and the relevant para of the said judgment is as follows:
13. It was also argued by learned Counsel for the respondent that since the deceased has not named the executor of the will, therefore, the petition for probate would not lie. He has cited an authority reported in Vinod Bahl v. State , in support of his case. The next submission made by learned Counsel for the respondent was that the present petition is not in accordance with the law laid down under Section 276 of the Indian Succession Act as also not in accordance with the Delhi High Court Rules, Schedule III and Section 19(1) of the Court Fees Act, 1870.
14. These arguments carry no conviction. It must be borne in mind that Section 222 of the Indian Succession Act, 1925, lays down:
222. Probate only to appointed executor " (1) Probate shall be granted only to an executor appointed by the Will."
(2) The appointment may be expressed or by necessary implication.
It is, therefore, crystal clear that the appointment of executor can be expressed or by necessary implication.
PC No. 15889/16 Anu Sohal Vs State & Ors. Page 62 of 6715. A bare look on the will in question provides sufficient inkling towards the fact that the appellant was given the powers of executor impliedly. The relevant paras of the Will are reproduced to understand the position clearly and unequivocally:
Now, I hereby declare that my son, Shri Rajesh Sharma shall be my only legal heir to inherit all my assets and properties after my death. He shall be my only legal heir entitled to take possession and inherit all the rights, connections, interest, title etc. in my all movable and immovable properties as mentioned above or in my all movable or immovable properties that I may acquire after the execution of this Will. My son, Shri Rajesh Sharma shall be fully authorised to get the immovable properties transferred/mutated in his name in the records of the Delhi Development Authority, NDMC, Municipal Authority or any other Government authorities or Departments. More precisely, I once again state that no-one else including my husband, my sons except Shri Rajesh Sharma or my daughtersor any other person claiming to be my legal heir shall have any right, title, interest, connection or to share in my any movable or immovable properties or assets. My most lovable son, Shri Rajesh Sharma is my only legal heir and I have rested all my rights in him in all my movable or immovable properties after my death.
xxxx Further, my husband Shri Ram Mohan Sharma also have one son from his first wife whose name is Krishan Kumar Sharma. My this step-son, Shri Krishan Kumar Sharma, his wife and children or any person claiming for and on their behalf also shall have no right, title, interest or connection of whatsoever nature with my any properties or assets.PC No. 15889/16 Anu Sohal Vs State & Ors. Page 63 of 67
Further, if my husband dies before me and whatever assets I may acquire, inherit or devolve upon me on his death such as fixed deposits with Banks, shares, properties or any other deposits, assets etc. shall also be inherited by my only son Shri Rajesh Sharma.
The above-cited paragraphs of the will in question clearly depict the same that the appellant and nobody else was given the powers to execute the will. He was given the authority to get the immovable properties transferred/mutated in his name in the records of the Delhi Development Authority, NDMC, Municipal Authority or any other Government authorities or departments. The appellant is, therefore, entitled to grant of the probate. I, therefore, set aside the order passed by the learned trial court and grant probate in respect of the will in favor of the appellant. The court below is hereby directed to issue the probate to the appellant after completion of all necessary formalities.
148) I have perused the Will dated 01.06.2012. In the Will, the deceased has permitted the petitioner to use the suit property for residential purpose and for the purpose as permitted by the law of the land and further stated the petitioner has absolute rights that she can transfer the suit property in her name. It is also mentioned that the suit property shall be named as Chopra Mension. The ground floor will be Satsang Hall with few rooms and kitchen for accommodation of satsangies and monthly at least once Sunder Kand discourse followed by langar has to be done, one or two floors can be rented to generate funds for running Satsang and maintainance of building. In PC No. 15889/16 Anu Sohal Vs State & Ors. Page 64 of 67 the Will, it is mentioned that amount of Rs. 17 lacs shall be paid and distrubuted by the petitioner within 30 days of the said amount being transferred in the account of the said.
149) By reading the Will in question, it is clearly established that duty has been imposed upon the petitioner to maintain the suit property, using ground floor for Satsang Hall and conducting Sunder Khad discourse every month. Petitioner has also given duty to distribute amount of 17 lacs among the other beneficiaries of the Will, as per amount mentioned in the Will. Therefore, the above said facts established that the petitioner has been appointed as an Executor in the Will by the deceased to deal with her properties by way of implication though not in express words.
150) Petitioner is also one of the major beneficiaries in the Will in question, so in case, she has not been appointed as an Executor by implication or by expresses word then she will be entitled to receive letters of administration. If the petitioner has claimed relief only for issuance of probate and not for issuance of letters of administration, even then letters of administration can be issued to the petitioner.
151) I have perused the judgment titled Smt. Veena Khanna Vs State & Ors. 2024, DHC, 3469., the Hon'ble High Court of Delhi in the above said judgment has held as follows:
"113. Pertinently, the petitioner is only a legatee and not the executor of the Will dated 05.06.1979 Ex. PW1/2. Yet PC No. 15889/16 Anu Sohal Vs State & Ors. Page 65 of 67 a prayer has been made for the grant of a Proabte instead of a Letter of Administration.
114. According to Section 222(1) of the Indian Succession Act, 1925 a probate shall be granted only to an executor appointed by the Will.
115. The Madras High Court relying on Vatsala Srinivasan ( Supra), in Madhy vs Vairamanai, CRP No. 3381/2021 decided on 27.10.2022 observed that even though the legatee had prayed for Probate, considering that the proceedings for Probate and a Letter of Administration serve the same purpose of benefiting the legatee, the court can very well grant a Letter of Administration to the sole legatee, the court can very well grant a Letter of Administration to the sole legatee instead of a Probate, if he succeeds in proving the validity and the genuineness of the Will.
116. It is therefore, held that the present petition seeking for a Probate is hereby treated as a petition for Letter of Administration, for grant of which the petitioner is entitled."
152) In view of the fore going discussion, it is held that the petitioner has been appointed as an Executor in the Will in question by way of implication by the deceased. So, the petitioner is entitled for issuance of Probate in respect of the Will in question. Accordingly, issues no. 1, 2, & 4 are decided in favour of the petitioner and against the respondents.
RELIEF
153) In view of above discussion and findings, the present petition is allowed and it is ordered that certificate of Probate of the Will PC No. 15889/16 Anu Sohal Vs State & Ors. Page 66 of 67 dated 01.06.2012 Ex. PW-1/A be issued to the petitioner under the seal of this court in the form set forth in Schedule VI of Indian Succession Act, 1925, subject to following conditions:
(i) furnishing of requisite court fees on the value of movable and immovable properties of the deceased coming into the hands of the petitioner.
(ii) and further subject to furnishing of administration-
cum-surety bond to the amount of the value of movable and immovable properties of the deceased coming into the hands of the petitioner.
154) Further, the petitioner is also directed to file the inventory of immovable property within six months and final statement of account within one year from the date of receipt of formal Probate certificate. The formalities of issuance of Probate certificate be completed within six months from the date of the judgment, as per Section 290 & 291 read with Section 317 of Indian Succession Act.
155) In the end, needless to emphasize that the question of title, share or ownership of immovable property mentioned here-in-above has not been decided by this Court.
Digitally signed by SHIVSHIV KUMAR Date:
KUMAR 2025.03.22 Announced in the open court (Shiv Kumar ) 18:15:44 +0530 on 22st March, 2025 District Judge-02 (West) Tis Hazari Courts Delhi.PC No. 15889/16 Anu Sohal Vs State & Ors. Page 67 of 67