Delhi District Court
Ashok Kumar Sharma vs State on 16 December, 2019
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, SHAHDARA
KARKARDOOMA COURTS: DELHI.
PC 31/16
Ashok Kumar Sharma
R/O 01/3013, Gali no.16
Ram Nagar, Loni Road
Shahdara
Delhi-110032
..... Petitioner
V
1. State
2. Usha W/O Kailash Sharma
R/O H. No 1030, Sector-3
Vasundhara
Ghaziabad-201012
UP
3. Meena W/O Sudhir Arora
R/O 9/148, Chiranjeev Vihar
Ghaziabad
UP
4. Baby Lakshita D/O Late Pardeep Sharma
(Minor through her natural guardian/mother Pooja Sharma)
5. Pooja SharmaW/O Late Pardeep Sharma,
Both R/O 159-A, Pocket-F
G.T.B Enclave
Dilshad Garden
New Delhi
... Respondents
Date of Institution : 05.03.2013
Date of Argument : 29.11.2019
Date of Judgment : 16.12.2019
PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 1/20
JUDGMENT
1. Will is an instrument by which a person makes a disposition of his property to take effect after his death. It is a solemn document by which a dead man entrusts to the living to carrying out of his wishes. Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. It is a unilateral document and takes effect after the death of the person making it. It can be revoked or altered by the maker of it at any time he is competent to dispose of his property. Any person can make Will at any time in his life. Will is enforceable only after death of a testator. The petitioner filed the present petition under section 276 of Indian Succession Act, 1872 (hereinafter referred to as "the Act") for grant of Probate in respect of Will dated 06.10.2010 (hereinafter referred to as "Will in question") stated to be executed by late Shanti Devi (hereinafter referred to as "the testatrix") in his favor. The petitioner pleaded as under:-
The testatrix was actual and exclusive owner of the property bearing no.1/3013, measuring 100 sq. yards out of khasra no.147 situated in the area of village Chandrawali, Shahdara, Delhi and now in the abadi of Gali no.16, Ram Nagar, Loni Road, Shahdara, Delhi-110032 (hereinafter referred to as "the property"). The testatrix purchased the property from the petitioner vide Sale Deed registered on 05.07.2003. The testatrix expired on 08.02.2011. Ramesh Chand Sharma, husband of the testatrix expired before her death. The testatrix and Ramesh Chand Sharma were having four children i.e. two daughters Usha, the respondent no.2 and Meena, the respondent no.3 and two sons Ashok Kumar Sharma, the petitioner and Pradeep Sharma who expired on 03.11.2009 leaving behind wife Pooja Sharma, the respondent no.5 and daughter Baby Lakshita, the respondent no.4 as legal heirs. The petitioner took care of the testatrix during her lifetime. The testatrix out of love and affection executed Will in question in PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 2/20 respect of the property in favor of the petitioner which was registered with Sub Registrar SR-IV A, Shahdara, Delhi vide registration no.835 in Book no.3, Volume no.76 at page no.28-29 on 07.10.2010 in the presence of the witnesses namely, Pradeep Kumar Sharma r/o 1/10371, Gali no.1, West Gorakh Park, Delhi and Sudheer Arora r/o 9/148, Chiranjeev Vihar, Ghaziabad, U.P. The testatrix bequeathed the property in favor of the petitioner vide Will in question which is the last will executed by the testatrix. The testatrix was the resident of Delhi and the property is situated in Delhi. The petitioner is residing in Delhi. The petition is filed within time and there is no delay in filing of the present petition. There is no impediment in granting the Probate in favor of the petitioner on basis of Will in question executed by the testatrix in respect of the property. The petitioner prayed that the Probate be granted in his favor in terms of Will in question executed by the testatrix in respect of the property.
2. The citation of the petition was published on 16.04.2013 in newspaper 'The Statesman'. Notice of the petition was also pasted at the conspicuous part of the court complex. The respondent no.4 was a minor and accordingly vide order dated 05.10.2013 Sh. R.K. Sharma, Advocate was appointed as Court Guardian for respondent no. 4.
3. The respondent no. 4 through Court Guardian and respondent no.5 filed respective written statement. The respondent no.4 in preliminary objections stated that the petition is not maintainable as the Will in question is false, fabricated and manipulated and Will in question does not disclose the names of the legal heirs of the testatrix. The petitioner wants to grab the share of the respondent no.4 and 5 in the property. The petitioner has not appeared with clean hands. The respondent no.4 & 5 were thrown out from the matrimonial home in the month of June, 2010 after the death of Pradeep Sharma i.e. the father of the respondent no. 4. The respondent no.4 in reply on merits denied the other allegations of the petitioner.
PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 3/20 The respondent no.5 in preliminary objections stated that the petitioner has not appeared with clean hands and filed the present petition on the basis of false, fabricated, forge and manipulated documents. The respondent no.5 on reply on merits stated that the Will in question is false, fabricated and manipulated by the petitioner. The testatrix in Will in question did not mention the names of her legal heirs including the respondent no.5. The respondent no.5 also denied the other allegations of the petitioner.
4. The petitioner filed respective replication to the written statement of the respondent no.4 and 5 wherein the petitioner reasserted facts as mentioned in the petition.
5. The respondent no.2 Usha Sharma and respondent no.3 Meena Arora vide proceedings dated 01.07.2013 stated that the testatrix executed Will in question in favor of the petitioner prior to her death. The respondent no. 2 and 3 do not have any objection if the Probate is granted in favor of the petitioner.
6. Vide order dated 13.05.2014, the following issues were framed:-
(1)Whether the testatrix Smt. Shanti Devi executed a valid Will dated 06.10.2010 in favour of her son/petitioner and if so, whether the petitioner is entitled for the grant of Probate of the Will? OPP (2) Relief.
7. The petitioner examined him as PW1, Pradeep Kumar Sharma as PW2, Manoj Kumar, Clerk, Sub-Registrar IV-A, Shahdara as PW3 and Sudheer Kumar Arora as PW4. The petitioner as PW1 and PW4 Sudheer Kumar Arora tendered their respective affidavit in evidence which are Ex.PW1/A and Ex.PW4/A. The petitioner as PW1 relied on documents which are Ex.PW1/1 to Ex.PW1/3. PW3 brought the relevant record pertaining to the registration of Will. The petitioner's evidence was ordered to be closed vide order dated 28.03.2016.
The respondent no.5 examined her as R5W1 and father Surender Kumar PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 4/20 as R5W2 who tendered their respective affidavit in evidence which are Ex.R5W1/A and Ex.R5W2/A. Sh. R.K. Sharma, Court Guardian for respondent no.4 vide proceedings dated 09.03.2017 stated that the evidence to be led on behalf of the respondent no.5 be read as evidence on behalf of the respondent no.4. The evidence of the respondent no.5 was ordered to be closed vide order dated 08.11.2017.
8. Sh. Rajiv Singh, Advocate for the petitioner heard. The petitioner and the respondent no.4 and 5 filed respective written arguments which are considered. Record perused.
ISSUEWISE FINDING IS AS UNDER ISSUE NO 1 Whether the testatrix Smt. Shanti Devi executed a valid Will dated 06.10.2010 in favour of her son/petitioner and if so, whether the petitioner is entitled for the grant of Probate of the Will?
OPP
9. A Will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. As per Section 2(h) of the Act Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. Section 63 of the Act mandates that the testator has to sign or affix his mark in the presence of two or more attesting witnesses. It is not necessary that the two attesting witnesses should simultaneously be present to witness the execution of the Will. Section 276 of the Act deals with manner in which a petition for Probate is required to be instituted. The combined reading of Section 63 of the Act and Section 68 of the Indian Evidence Act, 1872 makes clear that a person propounding Will must prove that Will was duly and validly executed and this cannot be done by simply proving that the signature on the Will is that of the testator but by also proving that the attestations made on Will are in the manner as required by clause (c) of Section 63 of the Act. As per Article 137 of the Limitation Act, 1963 period for institution of a petition for grant of probate is three years which commences when the right PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 5/20 to apply for probate accrues to the petitioner.
10. A Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Act. It would be ideal to expect proof with mathematical certainty. In H. Venkatachala Iyengar V B. N. Thimmajamma & Others, 1959 SCR Supl (1) 426 the Supreme Court considered true legal position regarding proof of Wills. It was observed that it would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Act and it would be ideal to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. It was further observed as under:-
(T)here is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is pro-
pounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and tes- tament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he un- derstood the nature and effect of the dispositions and put his signature to the document of his own free will. Or -
dinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, how- ever, be cases in which the execution of the will may be sur- rounded by suspicious circumstances. The alleged signature PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 6/20 of the testator may be very shaky and doubtful and evi-
dence in support of the propounder's case that the signa-
ture, in question is the signature of the testator may not
remove the doubt created by the appearance of the
signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspi- cions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coer- cion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in exe- cuting the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances to which we have just referred, in some cases the wills pro-
pounded disclose another infirmity. Propounders them-
selves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspi- cious circumstance attending the execution of the will and the propounder is required to remove the said suspi-
cion by clear and satisfactory evidence.
In Jaswant Kaur V Amrit Kaur, (1977)1SCC369 the Supreme Court regarding suspicion in execution of Will observed that suspicion generated by the distrustful circumstances cannot be removed by the mere PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 7/20 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 when the Will was made or that those like the wife and children of the testator, who would normally receive their due share in the estate, were disinherited because the testator might have had seen reasons for excluding them. It was underscored that it was obligatory for the propounder to remove all legitimate suspicions before the document could be accepted as the last Will of the testator.
In Jagdish Chand Sharma V Narain Singh Saini (Dead) through Legal Representatives and others, (2015) 8 SCC 615, the Supreme Court observed as under:-
A propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he understood the nature and effect of the disposition and further that he had put his signature to the testament on his own free will and that he had signed it in presence of two witnesses who had attested it in presence and in the presence of each other. . . . though on the proof of the above facts, the onus of the propounder gets discharged, there could be situations where the execution of a Will may be shrouded by suspicious circumstances such as doubtful signature, feeble mind of the testator, overawed state induced by powerful and interested quarters, prominent role of the propounder, unnatural, improbable and unfair bequests indicative of lack of testator's free will and mind etc. In all such eventualities, the conscience of the Court has to be satisfied and thus the nature and quality of proof must be commensurate to such essentiality so much so to remove any suspicion which may be entertained by any reasonable and prudent man in the prevailing circumstances. It was propounded further that where the caveator alleges undue influence, fraud and coercion, the onus, however, would be on him to prove the same, and on his failure, probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 8/20 validly with a free will and mind.
11. In Prakash Soni V Deepak Kumar, Civil Appeal No 6388 of 2009 decided on 15 September, 2017 decided by the Supreme Court, the entire case centers around the proof of due execution of the alleged executed by the deceased who died on 18.11.2001. The deceased allegedly executed Will in question before the Oath Commissioner on 18.11.2001 in the early hours. The witnesses on behalf of the respondents deposed that there was no cordial relationship between the ap- pellant and the deceased for ten years prior to her death. They also deposed about the cancellation of the nomination made earlier in favor of the appellant. Admit- tedly Will was executed between 7 to 8 a.m. on 18.11.2001 and after few hours she expired on the very same date. The attesting witness and other witnesses who were allegedly present at the time of the execution of the Will admitted that the hands of the deceased were shivering while signing Will and the deceased was very weak and was administered drip. The health condition of the deceased had deteriorated when the drip was being administered. It was observed as under:-
The propounder of the will was not successful in proving that the will was executed in a healthy state of mind as well as body of the deceased and without any pressure. The will is surrounded by suspicious circumstances. The condition of the testator's mind and body was very feeble and de- bilitated. The signature of the testator was allegedly taken on the death bed while she was administered drip. The dis- positions made in the will may not be the result of the testa- tor's free will and mind. In such cases, the Court would nat- urally expect that all legitimate suspicions should be com- pletely removed before the document is accepted as the last will of the testator. The presence of such suspicious circum- stances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testa- tor. Since there are many suspicious circumstances narrated above, and as we are satisfied that the dispositions made in the alleged will may not be as a result of testator's free will and mind, the Civil Court as well as the High Court are not justified in coming to the conclusion that the will is duly ex- ecuted by the deceased. The respondents being the pro- pounders of the will have failed to satisfy the judicial con- science of this Court regarding due execution of the will.
PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 9/20 Since the suspicious circumstances relate to the genuineness of the signatures of the testator, as well as the condition of the testator's mind and the dispositions made in the will be- ing unfair, the judgment of the High Court restoring the judgment of the Civil Court is liable to be set aside.
In Sanjeev Juneja V State & Others, FAO 368/1999 decided on 27 September, 2017 by the High Court of Delhi the appellant was one of the sons of the testator who passed away on 15.02.1991 leaving behind Will and testament executed and registered on 19.10.1990. The appellant filed a petition for grant of probate in respect of Will. The petition was contested by some legal heirs of the deceased. The petition was dismissed. Hence Appeal. The testator was aged about 77 years in October, 1990 was a well-educated person holding the degrees of B.A. and LL.B and was conversant with different language. The testator served till about 1974 as Section Officer with Life Insurance Corporation (LIC) and was the owner of immoveable property. The testator suffered paralytic stroke in July, 1987. The High Court of Delhi referred H.Venkatachala Iyengar V B.N. Thimmajamma, AIR 1959 SC 443 and Shashi Kumar Banerjee V Subodh Kumar Banerjee, AIR 1964 SC 529 wherein principles governing mode of proof of a Will before a probate court were discussed and it was held that onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.
The Patna High Court in Shri Devi V Dewanti Devi, MA No.449 of 2012 decided on 26 July, 2016; the Madhya Pradesh High Court in Ramjilal & another V Mahila Hargobai & another, S.A. No.14/2002 decided on 4 July, PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 10/20 2019; The High Court of Delhi in Desh Raj Gupta V State & others, FAO (OS) No.237 OF 2009 decided on 14 July, 2010; the Kerala High Court in Devassykutty V Visalakshy Amma, RSA.No. 1128 of 2003(A) decided on 29 June, 2010 also made similar observations.
12. The petitioner in written arguments submitted that the testatrix executed Will in question Ex. PW1/3 in favor of the petitioner which was registered on 07.10.2010 in the presence of PW2 Pradeep Kumar Sharma and PW4 Sudheer Arora who proved genuineness and authenticity of Will Ex. PW1/3. The respondent no 2 and 3 have already given No Objection in favor of the petitioner. The respondent no.4 & 5 could not prove that Will in question Ex. PW1/3 was false, fabricated and manipulated. The testatrix executed Will in question Ex. PW1/3 in the state of sound mind and out of free will without any fear and fraud.
The respondent no.4 and 5 in written submissions stated Will in question Ex. PW1/3 does not contain details of the legal heirs of the testatrix. Pradeep Sharma, who was the father of the respondent no.4 and husband of the respondent no.5 expired on 03.11.2009 and thereafter, the respondent no.4 & 5 were thrown out from the matrimonial home. The respondent no.4 & 5 being the surviving legal heirs of late Pradeep Sharma are entitled for shares in the property. The attesting witnesses examined by the petitioner are interested witnesses and their respective testimony cannot be relied upon. The sale of the property in favor of the testatrix by the petitioner vide Sale Deed dated 04.07.2003 Ex. PW1/1 is void ab initio and due to this reason, the respondent no.4 & 5 are also the co-sharers in the property. There are material contradictions in the testimony of the petitioner.
13. The petitioner pleaded that the testatrix was the owner of the property and bequeathed the property to him vide Will Ex.PW1/3 which was also her last Will. There is no impediment in granting Probate in favor of the petitioner in respect of Will Ex.PW1/3. The petitioner in affidavit Ex.PW1/A also deposed said facts.
PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 11/20 The petitioner in cross-examination deposed that his father purchased the property in his name in the year 1982 and the testatrix purchased the property from him for a sale consideration of Rs.3,00,000/- vide Sale Deed Ex.PW1/1. The testatrix at the time of death was aged about 72 years. The petitioner did not accompany the testatrix at the time of the execution of the Will Ex.PW1/3 but subsequently improved the testimony by deposing that he took the deceased to the Deed Writer. The respondent no.4 and 5 left the matrimonial home after the death of his younger brother Pradeep Sharma. The testatrix was not suffering from any ailment. The testatrix was mentally fit and in the sound disposal mind. The petitioner admitted that the testatrix suffered a heart attack about 8-10 years prior to her death but denied the suggestions that the testatrix suffered severe heart attack subsequently or that the testatrix was suffering from gout and arthritis or the testatrix was diabetic. PW4 Sudheer Arora, brother-in-law and PW2 Pradeep Sharma one of close friends of the petitioner came at the seat of Deed Writer to become witnesses in the Will. The petitioner took the deceased to the office of Sub-Registrar in his own car. The petitioner was not present at the time of the execution of the Will before Deed Writer and not allowed to enter into the office of the Sub-Registrar where Will was registered. The petitioner brought back the testatrix after registration of the Will. PW2 Pradeep Sharma after 1-2 months of the execution of the Will informed the petitioner that a Will was executed by the testatrix in his favor as. The petitioner denied the suggestions that the testatrix did not call PW2 Pradeep Sharma and PW4 Sudheer Arora in the office of the Sub-Registrar or that he himself called PW2 Pradeep Sharma and PW4 Sudheer Arora or that the petitioner prepared a false and fabricated Will in his favour in collusion with PW2 Pradeep Sharma and PW4 Sudheer Arora to grab the share of the respondent no.4 & 5 or that due to this reason, the names of the all family members of the testatrix are not mentioned in the Will.
14. The petitioner examined attesting witnesses Pradeep Sharma as PW2 and PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 12/20 Sudheer Arora as PW4. PW2 deposed that the petitioner is his friend and due to this reason, he knew the testatrix who executed a Will in his presence in the month of October, 2010 and at that time the petitioner, the testatrix, PW4 Sudheer Arora and Deed Writer were also present. Will was executed in the compound of Sub-Registrar SDM, Nand Nagri in favor of the petitioner. The testatrix first put her thumb impression and then signature on the Will in presence of the petitioner, Deed Writer. PW2 signed the Will after it was signed by the testatrix in the presence of the testatrix, PW4 Sudheer Arora and Sub-Registrar. PW4 Sudheer Arora thereafter put his signature on Will as attested witness in the presence of testatrix, PW2 and the petitioner. PW2 in the cross-examination admitted that he knew the petitioner for the last 15-20 years and the testatrix. The testatrix was physically and mentally fit and was in sound disposing mind. PW2 met the testatrix 3-4 times after execution of the Will. PW2 was called by the testatrix in the office of Sub-Registrar, Nand Nagri and PW4 came along with the testatrix. The petitioner also accompanied the testatrix in the office of Sub-Registrar, Nand Nagri. The petitioner waited outside the chamber of the Deed Writer. Firstly, the testatrix put her thumb impression and thereafter PW2 signed as attested witness and after PW2, PW4 put his signature on the Will. The petitioner was standing outside the gate of the office of the Sub-Registrar at the time of the execution of the Will. PW2 denied the suggestion that PW2 and PW4 in collusion with the petitioner fabricated the Will. PW4 in affidavit Ex. PW4/A deposed that the testatrix was his mother in law and wanted to make a Will in favor of the petitioner in respect of the property. PW4 on asking of the testatrix reached at the office of Sub Registrar, Nand Nagri to become a witness in execution of Will and met the testatrix, PW2 and the petitioner outside the office. The testatrix first put her left thumb impression and then PW2 put his signature and thereafter PW4 put his signature on Will in presence of Sub Registrar. PW4 in cross examination deposed that he did not go to the house of the testatrix before coming to the office PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 13/20 of Sub-Registrar on 07.10.2010. The testatrix was aged about 64/65 years at the time of her death and died at his residence. First they went to the Deed Writer who wrote Will and thereafter they reached at the office of Sub-Registrar. The Sub-Registrar obtained thumb impressions of the testatrix after making inquiries from her and thereafter PW2 and PW4 put their signatures on Will. PW4 denied suggestions that age of the testatrix was 75 years or that the testatrix was ailing for a long time prior to her death or that he came to the office of Sub-Registrar at the request of the petitioner and not at the request of the testatrix. PW3 brought relevant record pertaining to Will Ex.PW1/3 from office of Sub Registrar.
15. The respondent no 4 and 5 alleged that Will Ex.PW1/3 was a fabricated document as the testatrix did not mention names of all her legal heirs. The respondent no 4 and 5 examined the respondent no 5 as R5W1 and father of the respondent no 5 as R5W2. The respondent no5 in affidavit Ex. R5W1/A deposed said facts. The respondent no 5 in cross examination deposed that she was having good and cordial relationship with the testatrix. The testatrix was suffering from diabetes, BP and heart problem and underwent angiography also. The respondent no5 denied suggestions that the testatrix was hale and healthy and was not having any disorders with regard to her health or that the respondent no 5 misbehaved with the testatrix or that the testatrix executed Will Ex.PW1/3 out of her free will and volition in respect of the property. The respondent no 5 admitted that she was given share in property situated at Ram Nagar through court settlement. R5W2 in affidavit Ex. R5W2/A deposed that Will Ex. PW1/3 is a false and fabricated document. The respondent was not given her due share and the petitioner grabbed the property through Will Ex. PW1/3. R5W2 in cross examination denied suggestion that the respondent no 5 was giver her due share in the properties of the testatrix. R5W2 was not aware whether the testatrix was in her sound mind and health at the time of execution of Will Ex.PW1/3.
16. It is reflecting from combined and analytical reading of respective and PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 14/20 evidence of the petitioner and the respondent no 4 and 5 is that the testatrix was actual and exclusive owner of the property which the testatrix purchased from the petitioner vide Sale Deed Ex.PW1/1. The testatrix expired on 08.02.2011 as reflected from death certificate Ex. PW1/2 and her husband Ramesh Chand Sharma expired before her death. The testatrix was having four children i.e. two daughter, the respondent no.2 and 3 and two sons, the petitioner and Pradeep Sharma who expired on 03.11.2009 leaving behind wife, the respondent no.5 and daughter, the respondent no.4 as legal heirs. The respondent no.4 and 5 left the matrimonial home after the death of Pradeep Sharma. The testatrix executed Will in question Ex. PW1/3 in respect of the property in favor of the petitioner which was registered on 07.10.2010 in the presence of the PW2 and PW3. PW2 is close friend and PW4 is brother in law (jija) of the petitioner. The testatrix at the time of death was aged about 70 years. The petitioner also accompanied the testatrix at the time of the execution of the Will Ex.PW1/3. The testatrix suffered a heart attack about 8-10 years prior to her death. Will in question Ex.PW1/3 was executed in the compound of Sub-Registrar SDM, Nand Nagri. The relevant portion of Will in question Ex.PW1/3 is verbatim reproduced as under:-
I, hereby declare that this will is made out without any force, fear or undue influence.
This testament shall take effect only after my death and till such time I shall continue to own and enjoy the above said property.
I, the above named Testator hereby bequeath my above said property with all the rights, title and interest and declare that if I die possessed off, the above said property to the beneficiary shall own, keep, hold and enjoy and shall have absolute rights, title and interest and no relation of mine shall be entitled to claim any right, title or interest therein. If any one raises any objection against my said will, the same shall be considered as null and void before the Court of Law.
That after my death my heirs shall have no claims, title or interest in the said property. Any objection to be raised by PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 15/20 them regarding this Will should be deemed as null and void and ineffective.
In the end I declare that I have made this Will voluntarily without any outside pressure, in full possession of all my faculties' wits and senses.
17. Regarding physical and mental condition of the testatrix there is no evidence to prove that the testatrix was not in sound disposing mind at the execution of Will in question Ex.PW1/3. The testatrix only suffered heart attack ten years prior from her death as per admission of the petitioner in his cross examination and there is no evidence to prove that thereafter the testatrix remained under physical and mental infirmity. The petitioner in cross examination specifically deposed that the testatrix was not suffering from any ailment and was mentally fit and in the sound disposal mind. The petitioner denied the suggestions that the testatrix suffered severe heart attack subsequently or that the deceased was suffering from gout and arthritis or the testatrix was diabetic. PW2 in the cross-examination also admitted that the testatrix was physically and mentally fit and was in sound disposing mind. PW4 also denied suggestion that the testatrix was ailing for a long time prior to her death. There is nothing in cross examination of PWs which can reflect that the testatrix was not in fit state of mind at the time of execution of Will in question Ex.PW1/3 in favor of the petitioner. The respondent no 5 in cross examination deposed that the testatrix was suffering from diabetes, BP and heart problem and underwent angiography and denied suggestion that the testatrix was hale and healthy and was not having any disorders with regard to her health R5W2 was not aware whether the testatrix was in her sound mind and health at the time of execution of Will in question Ex.PW1/3. The respondent no. 4 and 5 could not prove that that the testatrix was not in sound disposing mind at the time of execution of Will in question Ex.PW1/3. The petitioner from quality and quantity of evidence led by him proved that the testatrix executed Will in question Ex.PW1/3 in sound disposing mind and execution of Will in question Ex.PW1/3 PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 16/20 is not surrounded by any suspicious circumstance. The testatrix did not expire immediately after execution of Will in question Ex.PW1/3. The respective testimony of PW2 and PW4 amply proved that the testatrix executed and signed Will in question Ex.PW1/3 in their presence and they signed Will in question Ex.PW1/3 as witnesses.
18. The respondent no 4 and 5 raised objections by stating that the testatrix did not mention names of all her legal heirs and the petitioner wants to deprive the respondent no 4 and 5 from their shares in the property. As mentioned hereinabove apart from the petitioner, the testatrix was having another son Pradeep Sharma who expired on 03.11.2009 leaving behind the respondent no.5 and the respondent no.4 as legal heirs. The testatrix did not mention her all legal heirs in Will in question Ex.PW1/3 and by executing Will in question Ex.PW1/3 in favor of the petitioner the testatrix did not give any share in the property. If the testatrix did not give share in the property to the respondent no 4 and 5 and did not mention names of all her legal hairs in Will in question Ex.PW1/3 it does not mean Will in question Ex.PW1/3 is surrounded by suspicious circumstances.
19. The Supreme Court in Uma Devi Nambiar V T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana V Pentakota Seetharatnam, (2005) 8 SCC 67 observed that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. It was observed in Uma Devi Nambiar that a will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 17/20 held to be a suspicious circumstance especially in a case where the bequest has been made in favor of an offspring. In P.P.K. Gopalan Nambiar V P.P.K. Balakrishnan Nambiar, 1995 Supp (2) SCC 664 it was observed that it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. In Rabindra Nath Mukherjee V Panchanan Banerjee,(1995) 4 SCC 459 it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. The Supreme Court in Mahesh Kumar (dead) by LRs. V Vinod Kumar & Others, (2012) 4 SCC 387 observed that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unnatural or unusual" in the decision of the testator (the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents. The High Court of Delhi in Hari Singh & another V State & another, 2010 (120) DRJ 716 after following Uma Devi Nambiar observed as under:-
Courts are not expected to be satisfied that a bequeathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have made it. ... There is nothing in law that prescribes that the testamentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 18/20 should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner.
20. There is no material contradiction in the testimonies of PWs examined by the petitioner sufficient to create suspicion regarding execution of Will in question Ex.PW1/3. The petitioner by leading appropriate evidence removed all suspicious circumstances regarding execution of Will in question Ex.PW1/3 as raised by the respondent no 4 and 5. The respondent no 4 and 5 could not raise real, germane and valid suspicious features regarding execution of Will in question Ex.PW1/3.
There is nothing unnatural or unusual in the decision of the testatrix to give the property to the petitioner to exclusion of the respondent no 4 and 5. The respondent no 5 in cross examination admitted that she was given share in property situated at Ram Nagar through court settlement. The respondent no 5 could not enjoy good relation with her in laws including testatrix after death of her husband. The respondent could not prove any suspicious circumstance in execution of Will in question Ex.PW1/3. The testatrix executed a valid Will Ex.PW1/3 in favor of the petitioner and the petitioner is entitled for grant of Probate on basis of Will in question Ex.PW1/3. Issue no 1 is decided in favor of the petitioner and against the respondent no 4 and 5.
ISSUE NO 2 Relief
21. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370 case it was observed that the truth should be guiding star in the entire judicial PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 19/20 process. Truth alone has to be the foundation of justice. This view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012)6SCC430. In view of findings on issue no1 the petition is allowed. The petitioner is granted probate in respect of the Will in question Ex.PW1/3 executed by the testatrix Shanti Devi dated 06.10.2010. The probate be issued subject to the petitioner furnishing requisite non-judicial stamp duty on the valuation of the property within 30 days from today and the petitioner executing the administrative bond for the value of the property. The certified copy of the judgment be not issued to the petitioner till the stamp duty is furnished. File be consigned to record room.
Digitally signed byANNOUNCED IN THE OPEN SUDHIR SUDHIR KUMAR
COURT ON 16.12.2019 KUMAR JAIN
Date: 2019.12.21
JAIN 16:03:02 -0500
(DR. SUDHIR KUMAR JAIN)
DISTRICT & SESSIONS JUDGE, SHAHDARA
KARKARDOOMA COURTS, DELHI
PC 31/16 ASHOK KUMAR SHARMA V STATE & OTHERS 20/20