Delhi District Court
Sh. Sanjay Kumar Vohra vs State on 31 October, 2019
IN THE COURT OF MS. SAVITRI : ADDL. DISTT. JUDGE-02,
WEST DISTRICT : TIS HAZARI COURTS: DELHI.
PC-16083/16
Sh. Sanjay Kumar Vohra,
S/o Late Sh. Ram Lal Vohra,
R/o 900, Four Storeyed,
Tagore Garden Ext.
Near Holy Child School,
New Delhi-110027.
........Petitioner
Versus
1. State
2. Ms. Neetu,
W/o Sh. Pawan Arora,
R/o Rani Bagh, Delhi.
At present :-
R/O 627, II Floor, DDA Flats,
Vishal Enclave, New Delhi-110027.
3. Smt. Babita Khanna,
W/o Sh. Surender Khanna,
R/o C-7/311, Ground Floor,
Lawrance Road, Keshavpuram,
Delhi-110035.
.....Respondents
PROBATE PETITION U/S 264/276 OF INDIAN SUCCESSION ACT
FOR GRANT OF PROBATE/LETTER OF ADMINISTRATION TO
THE WILL DATED 23.01.2008 & 19.02.2010 EXECUTED BY LATE
SMT. RAMA VOHRA
Date of institution of the case : 20.09.2011
Date of reserving the judgment : 16.10.2019
Date of pronouncement of Judgment : 31.10.2019
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 1 of 37
JUDGMENT
1. The present petition has been filed by petitioner Sh. Sanjay Kumar Vohra for grant of probate/letter of administration in respect of property No. 627, II Floor, DDA Flats, Vishal Enclave, New Delhi-110027 (hereinafter referred as suit property) based on will dated 23.01.2008. Another will dated 19.02.2010 had also been placed on record, as per which, the deceased had bequeathed all her immovable properties in favour of the petitioner. As per him, both these wills were executed by his late mother Smt. Rama Vohra (hereinafter referred as deceased) in his favour, of her own free will. The deceased expired on 29.04.2011. It is also important to note that the husband of deceased was alive at the time when will dated 23.01.2008 in respect of immovable property, referred above, was executed. He expired only on 14.01.2009.
2. The respondents no. 2 and 3 are the two sisters of petitioner.
Respondent no-2 has contested the petition, whereas, respondent no-3 has been proceeded ex-parte.
3. In her objections, respondent no-2 Smt. Neetu Arora has taken a ground that the petitioner has filed the present case on the basis of forged and fabricated wills and has concealed material facts. In fact, deceased had sold the suit property to the objector by way of registered GPA, registered will, agreement to sell and receipt, all dated 16.11.2006 and had also handed over the possession of suit property to her and since then the objector had been residing therein as its owner. The deceased PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 2 of 37 had also handed over the previous chain of documents to her.
4. Further that the petitioner was very disobedient and disrespectful towards his parents and never took care of their day to day needs. The situation turned worse after the petitioner got married in the year 1999 as both he and his wife started harassing and pressurizing the deceased to transfer the suit property in his name. In order to buy peace, the deceased, had given him a sum of Rs. 1,50,000/- as his share in the suit property. The petitioner had already taken his share from the properties of deceased on 10.10.2001 itself in the following manner :-
1. Rs. 40,000/- in cash;
2. Rs. 50,000/- by way of cheque bearing no. 500555, dated 03.11.2001, drawn on Bank of Baroda;
3. Rs. 50,000/- by way of cheque bearing no. 978179, dated 03.11.2001, drawn on Bank of Baroda,
4. Remaining Rs. 10,000/- balance was given to him at the time of vacation of suit property which he undertook to vacate on 25.11.2001.
In this manner, the total amount of Rs. 1,50,000/- was received by him and he vacated the suit premises on 25.11.2001 and he shifted to his flat bearing no. 900, 4 storeyed, Tagore Garden Extension, Near Holy Child School and has been residing there since then till date.
5. The petitioner had also signed an agreement to that effect, which was also counter signed by his wife Smt. Suman Vohra PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 3 of 37 and the agreement was witnessed by two attesting witnesses.
6. After having sold the suit property to the objector, the deceased had no right or title to the suit property or to execute the wills in question. Further, the objector had been incurring the expenditure towards maintenance and treatment of her mother, who suffered from tuberculoses and many other diseases. She also served her like dutiful daughter.
7. Further ground has been taken that will dated 23.01.2008 is doubtful and fabricated as it does not bear the number and name of the alleged notary public, who attested it, on the seal of alleged notary. Also, the name, signature or even initials of the alleged notary did not appear on the will. Had the deceased intended to bequeath the suit property to the petitioner, she would have done it by way of registered will.
8. Another ground is that none of the wills bear the actual signature of deceased and the petitioner had forged her signature on the same. The deceased used to mention her complete name alongwith surname 'Rama Vohra', whereas, on the alleged wills her signature are depicted as 'Rama' Further, the deceased was suffering from different diseases since the year 2008 and was not in sound disposing mind at the time of execution of alleged wills. Further ground has been taken that the alleged signatures of deceased on both the wills are quite different from each other making it obvious that the petitioner has fabricated the same just to grab the movable and immovable properties of the deceased and she never executed PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 4 of 37 any such documents in favour of petitioner and petitioner has forged these documents in connivance and collusion with the alleged attesting witnesses.
9. Another ground has been taken that even the objector had no concern with the suit property now as she had sold the same to Sh. Pawan Kumar Arora (her husband) by way of registered GPA, will, agreement to sell and receipt on 23.06.2009. Further that during her lifetime, the deceased had not got cancelled the registered GPA and other transfer documents, which she had executed in favour of objector. The deceased had been residing with the objector till her death and the petitioner had not cared to spend even a single penny nor devoted any time on treatment and care of deceased. Even, the last rites of deceased were performed by objector by making expenditure from her own funds.
10. The petitioner filed reply to the objections, wherein, the contents of the petition have been affirmed and those of the objections have been denied and a ground has been taken that the alleged documents in favour of the objector were not genuine. The same were signed only by her husband as a witness on all the documents while the alleged second witness i.e. father of parties Sh. Ram Lal Vohra had not signed the agreement to sell, receipt and affidavit as witness. Therefore, these documents were forged and fabricated. In fact, the deceased had lodged a report on 25.06.2009 regarding the fact that the previous chain of documents with respect to suit property had gone missing. It is now proved that the objector had committed PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 5 of 37 theft of the same. The petitioner denied having received any share from the properties of deceased. In fact, he had received the amount of Rs. 1.5 Lakhs out of the sale proceeds of property, owned by his late father and bearing no. 77/86/84, Katra Atma Ram, Near Chamelian Road, Bara Hindu Rao, Delhi-110006, which was sold for Rs. 6 Lakhs in the year 2001 by his late father Sh. Ram Lal Vohra. He also denied having shifted out of suit property on 25.11.2001, after receiving his share and he had voluntarily shifted to Tagore Garden Extension house and also due to paucity of accommodation. Regarding the objections to execution of wills, it is mentioned that the wills were executed in accordance with law. Further, it has been stated in the reply to the objection that petitioner and his wife had taken care of all the necessities of his parents and the respondent no-2 was in illegal possession of the suit property. The parents had been living intermittently with the petitioner in his house. Neither the objector nor her husband had any concern with the suit property.
11. The objector had also filed rejoinder to the reply of her objections by petitioner affirming the contents of her objections and denying the contents of reply to objection, wherein, she had taken a categorical stand that the deceased was not competent to execute the wills in question as she had already sold the suit property to the objector, before execution of wills.
12. After completion of pleadings, following issues were framed by my Ld. Predecessor Judge vide order dated 12.11.2014 :-
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 6 of 37ISSUES
1) Whether the will dated 23.01.2008 executed by testatrix Smt. Rama Vohra is a valid, legal and genuine will? OPP
2) Whether the petitioner is entitled to the grant of Probate/Letter of Administration in respect of the aforesaid will dated 23.01.2008, as prayed?
OPP
3) Relief It is important to note that no issue was framed with respect to the second will dated 19.02.2010 regarding movable assets of the deceased because counsel for petitioner had made a statement on dated 12.11.2014 that the petitioner did not want to press for probate/letter of administration with respect to second will. Therefore, the petition was treated as one for grant of probate/letter of administration only with respect of will dated 23.01.2008.
PETITIONER'S EVIDENCE
13. In order to prove his case the petitioner has examined himself as PW-1 on affidavit Ex PW-1/1, which is on the lines of his petition. He relied upon will dated 23.01.2008 and will dated 19.02.2010. He also relied upon a police report dated 25.06.2009, lodged by deceased regarding misplacing the chain of documents relating to suit property. As per the petitioner's evidence affidavit, he had served a notice/letter dated 05.05.2011 on the objector requiring her not to create any third party interest in the suit property and also vacate the same PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 7 of 37 within the period of 15 days. The letter alongwith postal receipt is Ex PW-1/E (Colly). He also relied upon plaint of civil suit filed by him against the objector.
14. During his cross-examination by Ld. Counsel for objector, the witness denied having received Rs. 40,000/- in cash from the deceased while admitting that he had separated from his parents in the year 2001, who were residing in the suit property. He further deposed that he received Rs. 1 Lakh through cheque from his mother but denied the suggestion that on the back side of the cheque he had written that he had received his share from the suit property. During further cross-examination, he deposed that the objector/respondent no-2 had been residing in the suit property since the year 2006-07. He denied the suggestion that his deceased mother used to write complete name 'Rama Vohra' while signing or that she never signed as 'Rama'. He denied the suggestion that the will in question was forged and fabricated document and the deceased never appeared before the notary public or that it was for this reason that the will does not mention the name of notary public. The witness denied any knowledge if the deceased had executed GPA, Agreement to Sell, Will and Receipt etc. of suit property but in the next breath he admitted that he had filed a civil suit challenging the said documents.
15. PW-2 is the police witness from PS Khyala. He produced the NCR Register before the court mentioning the report dated 25.06.2009 and also the roznamcha containing the details of said complaint. During his cross-examination, he deposed that PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 8 of 37 police had not carried out any investigation on the NCR. Perusal of these documents reflects that a complaint was lodged on 25.06.2009 that the deceased had gone to Raghuvir Nagar on that day for some work. She was carrying original documents of suit property in a bag and the bag was lost somewhere after falling down. The deceased had also acknowledged the receipt of NCR. She had signed as Rama Vohra, her complete name.
16. PW-3 Smt. Asha Rani is an attesting witness to the will dated 23.01.2008. She has led her evidence by way of affidavit Ex PW-3/A, wherein, she has mentioned that she is related to deceased as deceased was wife of younger brother of her husband. Further, that she had seen the deceased affixing signature on the will dated 23.01.2008. The deceased had affixed her signature in the presence of two witnesses, PW-3 and husband of deceased herself. The will was executed by deceased and signed by PW-3 and the other attesting witness late Sh. Ram Lal Vohra in presence of each other on 23.01.2008. She has proved the will as Ex PW-3/1 and identified the signature of deceased, herself and other attesting witness upon the document.
17. During her cross-examination by Ld. Counsel for objector on 07.02.2017, the witness deposed that the petitioner was residing separately from his mother since last 5-6 years. She denied the suggestion that he was living separately from his mother since 25.11.2001. Interestingly, petitioner himself has admitted this fact. In her further cross-examination the witness PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 9 of 37 deposed that the objector had been residing in the suit property since last 8-9 years and admitted that she had been residing since October 2006.
18. When the witness was shown the set of sale documents of suit property relied upon by the objector, she identified the signatures of deceased on the same at ten places from points-A to J but denied the suggestion that deceased had transferred the suit property in favour of objector on 16.11.2006. She denied the suggestion that deceased was suffering from tuberculoses and other ailments. The witness has admitted that she did not read out the contents of will to the deceased (as the witness did not know the English language). The witness further deposed that she had signed the will at the house, where deceased had been residing and there was no advocate present at that time nor any other person was present than the executant and the two witnesses. She denied the suggestion that the deceased had not signed the will in question in her presence or that she had not bequeathed the suit property to the petitioner. She admitted that the stamp of notary were not put in her presence nor had the person who put the stamps signed the will in her presence. The witness also admitted that deceased used to write her full name as signature i.e. 'Rama Vohra'.
RESPONDENT'S EVIDENCE
19. Objector Smt. Neetu Arora has examined herself as RW-1 vide evidence affidavit Ex RW-1/A, which is on the lines of her objections. She relied upon following documents :-
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 10 of 371. Original agreement between the petitioner and the deceased as Ex RW-1/1. Perusal of this document reveals that the petitioner had received sum of Rs. 1.5 Lakhs from the deceased on account of his share in his parents' property and he had acknowledged that he had no further right to demand or claim anything from them.
The document was witnessed by two persons and duly signed by the petitioner as well as the deceased. This document was executed on stamp paper of Rs. 10/-, which was purchased on 09.10.2001. The petitioner was also confronted with this document during his cross- examination.
2. Acknowledgment, bearing the signatures of petitioner as Ex RW-1/2. Perusal of this document reveals that there are two account payee cheques bearing Nos. (i) 500555, issued from account no. 13497; and (ii) 978179, issued from account no. 13805, both dated 03.11.2001, both drawn on Bank of Baroda, Najafgarh Road, New Delhi, for Rs. 50,000/- each and issued by the deceased in favour of petitioner. There is an undertaking on the backside of photocopies of these two cheques, purportedly signed by the petitioner, in the following words :-
"मम 25.11.2001 कक मककन खकलल कर दददगक"
It means that he promised to vacate the suit property on 25.11.2001 after the receipt of sum of Rs. 1.5 Lakhs PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 11 of 37 towards full and final satisfaction of his share in the same.
3. Original registered GPA, Will, Agreement to Sell, Affidavit and original Receipt with respect to suit property, which were executed by the deceased in favour of objector on 16.11.2006.
20. During her cross-examination, by Ld. Counsel for the petitioner, the witness deposed that her deceased mother was not of sound mind at the time of her death at the age of 65 years because she suffered from TB. She further deposed that she and her husband both were doing private jobs and she was working since 2-3 years prior to her marriage, but none of them paid income tax. She earned Rs. 3000-4000/- per month while her husband was earning Rs. 11000-12000/- per month. She denied the suggestion that the petitioner used to look after her deceased parents and also bore their expenses. She denied the suggestion that she never looked after her parents. She further deposed that she had shifted to the suit premises in the year 2006 and used to take care of her ill parents while denying the suggestion that she deliberately shifted there in order to grab the property of her deceased mother.
21. During further questioning, she deposed that her deceased mother had purchased the suit property in the year 1995. She admitted that prior to 1995 her parents were living at 77/86/84, Katra Atma Ram, Chamelian Road, Bara Hindu Rao, Delhi- 110006. As per the documents, the deceased had purchased PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 12 of 37 the suit property for Rs. 42,000/- and the objector purchased the same from her for Rs. 40,000/- in the year 2006. She denied the suggestion if the market value of the property in November 2006 was 7-8 Lakhs or that it consisted of four rooms, toilet, bathroom, kitchen and balcony. She denied the suggestion that the Bara Hindu Rao property was owned by her father, who sold the same in the year 1995 and out of the sale proceeds she was given Rs. 1,50,000/- by her parents vide document Ex RW-1/2 (it is the case of the petitioner that this document is undertaking of the petitioner about vacating the suit premises on 25.11.2001. Her stand is that this amount was paid to the petitioner as his share in the suit property, where after he vacated the same on 25.11.2001. After selling the Bara Hindu Rao property in the year 1995, the suit property was purchased from the sale proceeds in the same year. This suggestion during cross-examination also makes it clear that the Bara Hindu Rao property was sold in the year 1995 itself and the averment in evidence affidavit of petitioner that this property was sold in the year 2001 for Rs. 6 Lakhs and he had received Rs. 1.5 Lakhs out of the sale proceeds is false. Also, in this way the petitioner admits the receipt of full amount of Rs.1.5 lakhs, which he had denied during his evidence and had admitted the payment of cheques amounting to Rs. 1 Lakh only). Perusal of the same also reveals that undertaking is written on the backside of photocopy of two cheques of Rs. 50,000/- each in favour of petitioner. She denied the suggestion that she had stolen all the documents of suit property in favour of her mother and voluntarily deposed that these documents were given to her by her deceased mother PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 13 of 37 when she sold the suit property in November 2006 to the objector. She denied the suggestion that her mother had lodged a police report in respect of documents.
22. In response to further cross-examination, she deposed that petitioner had tried to dispossess her from the suit property on the day of "Kriya" Ceremony of the deceased and the petitioner had never agitated/asserted his legal right to suit property during the lifetime of deceased. She voluntarily deposed that he did not do so because he had known the fact that she had purchased the property from the deceased mother in the year 2006. She denied the suggestion that the deceased had never sold the suit property to her.
23. In response to another question, she deposed that her parents had told the petitioner that they had sold the suit property to her. She denied the suggestion to the contrary. She denied the suggestion that deceased had executed will in favour of the petitioner and he was claiming his legal rights after the deceased expired. She further deposed in response to question put by Ld. Counsel for petitioner that deceased had given sum of Rs. 1.5 Lakhs to the petitioner on account of his share in the suit property. Thereafter, he had purchased the house no. 900, Near Holy Child School, Tagore Garden, Delhi, and resided there after November 2001. She denied the suggestion that petitioner and his wife regularly visited the suit property and took care of the deceased parents of the parties. She also denied the suggestion that even the parents used to regularly visit and reside intermittently at the house of petitioner.
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 14 of 37She admitted having received the letter of petitioner regarding vacating the suit property and deposed that she did not reply to the same as she was at advanced stage of pregnancy.
24. She denied the suggestion that she has fraudulently withdrawn the sum of Rs. 30,000/- from the account of deceased in the month of February 2011. She denied the suggestion that she was never in a good financial condition to purchase the suit property or that the sale documents in her favour were forged and fabricated or that deceased had never sold the same to her during her lifetime. In response to the documents of sale she deposed that the papers were typed by advocate on the instructions of parties i.e. her parents, herself and her husband and all the documents were executed in one day. The sale price was already fixed by the deceased 3-4 days prior to the execution of documents. After executing sale documents in her favour, her parents also resided with her. She denied the suggestion that her deceased mother was getting treatment/medicines from ESIC Dispensaries through the petitioner or that she had never extended any financial help for her treatment. The objector had taken a ground that she had sold the suit property in favour of her husband for Rs. 3 Lakhs after the death of her father. She denied the suggestion that she had fraudulently and with malafide intention had shown sale of suit property in favour of her husband. She denied the suggestion that she had not spent this amount on treatment of her deceased mother or that she could not produce any document in that behalf due to the reason that she never required/spent the amount for treatment of deceased.
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 15 of 3725. Since, all the questions, as mentioned in this paragraph, were beyond the scope of jurisdiction of court in probate proceedings, my Ld. Predecessor Judge had directed the counsel for petitioner to confine the cross-examination to the facts in issue. Already some questions out of the scope of probate proceedings were allowed to be asked as the objector had taken a ground of having owned the suit property after sale of the same by deceased in her favour. Also, since another suit between the same parties challenging the sale documents in favour of objector and her husband was also pending adjudication before this Court only, common evidence was recorded in both the files.
26. She denied any knowledge about the deceased executing the will in question favouring petitioner, whereby suit property was bequeathed to him.
27. She deposed that she had not filed any probate petition till date in respect of will executed by deceased in her favour. She volunteered to say that she had not done so because her mother had sold the suit property to her. It is important to note that the will favouring the objector forms a part of set of documents of sale, which as per her, were executed by deceased in her favour. She denied the suggestion that deceased never sold the suit property to her or that she never handed over the previous chain of title of property to her.
28. In response to further questioning, she deposed that the petitioner knew that she had purchased the suit property from PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 16 of 37 the deceased mother and in fact both her parents had already told about the same to the petitioner, apart from the objector herself. She denied the suggestion that she had disclosed the sale documents in her favour for the first time when she filed reply/objections to the probate petition. She denied the suggestion that the petitioner had shifted to Flat no. 900, 4 Storeyed, Tagore Garden Extension, Near Holy Child School, with the consent and permission of his parents. She also denied the suggestion that her parents had more love and affection towards the petitioner than towards their daughters i.e. the objector and other sister.
29. She denied the suggestion that her late father had witnessed the will dated 23.01.2008 executed by her deceased mother in favour of petitioner or that the petitioner had performed all his duties as a son during their lifetime and even afterwards. She denied the suggestion that she had filed false affidavit of evidence.
30. RW-2 is the official witness from the office of Sub-Registrar, where the will dated 16.11.2006, which was a part of set of documents in favour of objector, was registered. He proved the will.
31. Evidence affidavit of husband of the objector Sh. Pawan Arora has been filed on record. It is on the same lines as the objector. It is mentioned in his evidence affidavit that he and his wife had been looking after the deceased parents of his wife and both of them have shifted to the suit property. The petitioner never PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 17 of 37 bothered even to inquire the well being of his parents when he shifted from the suit property in the year 2001, after receiving his share. He also mentioned about sale of suit property in favour of his wife by his deceased mother-in-law. He also mentioned about execution of sale documents by objector in his favour. It is mentioned in his evidence affidavit that the petitioner has forged and fabricated the will in question dated 23.01.2008 in connivance and in collusion with the witnesses in order to harass him and his wife and to grab the suit property.
Though the evidence affidavit has been filed on record, it was never tendered in evidence and the Ld. Counsel for objector had made statement regarding closing RE after examination of RW-2 itself. Hence, it shall not be read in evidence.
32. Before proceeding to decide the present probate petition let me discuss in nutshell, the relevant legal provisions and judicial pronouncements.
33. 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". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 18 of 37
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
34. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 19 of 3735. 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:-
"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".
36. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 20 of 37 signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
37. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68. Proof of execution of document required by law to be attested.--- 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 PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 21 of 37 provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
38. Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
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 PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 22 of 37 making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky 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 PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 23 of 37 even in the absence of such pleas, the very circumstances surrounded 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. "
In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The 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 signatures 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. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 24 of 37 testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied)
39. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle 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. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. 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 held to be a PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 25 of 37 suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] 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 circumstances, 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. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee 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. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied)
40. Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case 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 unatural 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, adding that :-
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 26 of 37"Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
41. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary 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 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."
(emphasis supplied)
42. Naveen Bhatia through LRs, Vs. Raj Kumari Bhatia & Ors.
decided by late Hon'ble Justice Valmiki J. Mehta of our own High Court and reported as 2017 (165) DRJ 511, holding as follows :-
"A trial court commits legal error by going into issues of title of the properties because a PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 27 of 37 Probate Court only decides the validity or invalidity of execution of the will. Whether or not the testator did or did not have title to the properties which were subject of bequests under the will or that actually someone else had title or that the testator had title only of some of the properties and not all of the properties or that testator had only part interest and not full interest in the bequeathed properties etc. etc. are all issues which have to be decided by a civil court in a civil suit between the parties whenever and where ever disputes will arise with respect to title of a particular property."
ISSUEWISE FINDINGS
43. I have gone through the record of case file and have heard the arguments advanced by Ld. Counsel for parties and considered the case laws cited above and my issuewise findings are as follows :-
ISSUE NO-1
1) Whether the will dated 23.01.2008 executed by testatrix Smt. Rama Vohra is a valid, legal and genuine will? OPP
44. The case of the objector is that her mother used to write her complete name 'Rama Vohra' as her signature and she has assailed the will in question on this ground that it contains her alleged signatures only as 'Rama'. Perusal of will shows that it actually contains her signature as 'Rama'. Even, the attesting witness, examined by the petitioner has admitted the fact that deceased used to write her complete name while signing. Therefore, it is an important circumstance, which creates doubt PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 28 of 37 about the execution of will in question by the deceased.
45. The objector has taken a stand that deceased had sold the suit property to her but the petitioner has taken a ground that she has fabricated the sale documents and had also committed theft of the earlier chain of documents. The only attesting witness examined by the petitioner has admitted that the sale documents of suit property, which is a complete set of registered GPA, registered will, Affidavit and Receipt, all dated 14.11.1995, bear the signature of deceased, therefore, the petitioner has been unable to show forgery or fabrication by the objector.
46. Perusal of death certificate of deceased, which is an undisputed document between the parties, shows that she expired while living at the suit property. The petitioner was admittedly living separately in 900, Four Storeyed, Tagore Garden Ext. house since the year 2001 itself. He has not led any positive evidence to show that he used to take care of his parents or they used to visit him intermittently. His suggestions to that effect have been emphatically denied by the objector. It is admitted position that the petitioner has been residing in the suit property since long i.e. around the year 2006-07 and both the parents also resided with her only. In this manner, she has been able to show that she was taking care of both the parents and maintaining them during their old age.
47. The petitioner has admitted having received a sum of Rs. 1 Lakh vide two cheques of Rs. 50,000/- each from his mother in PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 29 of 37 the month of November 2001. Though, he denied the cash payment of Rs. 50,000/- (40,000 + 10,000/-). Though, he has admitted that he vacated the suit property in the month of November 2001 but he denied his undertaking in Hindi language at the back of photocopy of cheques to that effect. The cheques were issued in the year 2001 and admittedly encashed soon after. His mere denial of the undertaking does not disprove this document. The writing in original as has been made on the photocopy would not have been done on the original cheques. Perusal of this document also reflects that deceased had written her full name as signatures. The petitioner had admittedly received money and vacated the suit property in the year 2001. In view of these over all facts, it is clear that the petitioner had actually furnished the undertaking to vacate the suit premises as is the case of the objector. he has lied about the undertaking dated 05.11.2001 regarding promising to vacate the suit premises on 25.11.2001. This undertaking has been attributed to the objector during her cross-examination, which is very absurd and makes no sense.
48. The petitioner has taken a ground that he received the amount of Rs. 1 Lakh from the sale proceeds of the Bara Hindu Rao house of the deceased couple (parents of parties) but this cannot be true because he has admitted that this house was sold way back in the year 1995 itself. If he was to be given any money from the sale proceeds of the said house, it would have been done in the year 1995 itself. Also, it is an admitted position between the parties that the suit property was purchased in the year 1995 after disposal of Bara Hindu Rao PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 30 of 37 property. Under these circumstances, the money received would have been utilized for purchase of suit property.
His own statement regarding receiving the amount in November 2001 and vacating the suit premises clearly establishes that he was given this amount towards his share in the suit property.
49. This becomes even clearer when the documents placed on record by the objector are perused. One of which is Ex PW- 3/DA, later on re-numbered as RW-1/1. This document also bears the signature of deceased as her complete name. The stamp paper for making this document was purchased in the month of October 2001 i.e. quite near to the point of time when the petitioner was paid money and he vacated the suit property. This document mentions that petitioner has received Rs. 1.5 lakh from the deceased mother, the testatrix on account of his share in his parents' property. It is clearly mentioned in the document that after receiving this amount of Rs. 1.5 Lakhs he had no right to demand or claim anything from them. During entire cross-examination of the objector, not a single question has been put to her to dispute the authenticity of this document. Also at the stage of final arguments, the counsel for petitioner has not raised any objections to the admissibility in evidence and proof of this document. Therefore, this document is deemed to have been admitted by the petitioner.
50. In the light of this, it is clear that petitioner had lied about receiving only Rs. 1 Lakh from his mother and the version of PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 31 of 37 objector that he had received Rs. 1.5 Lakhs towards full and final settlement of his all claims in his parents' property, is correct. This document was signed by the petitioner and deceased both and was duly witnessed by two people, one of whom is the father of petitioner, late Sh. Ram Lal Vohra.
51. In the light of foregoing facts, the execution of will in question by the deceased appears very doubtful. More so, when the deceased had herself sold the suit property to the objector. The objector has produced before the court not only the set of sale documents in her favour but also the previous chain. The alleged complaint regarding loss of these documents, relied upon by the petitioner also bears the signature of deceased as only 'Rama' on the acknowledgment of receipt of NCR from police station Khyala. This is contrary to the position admitted by the witness of petitioner himself that the deceased used to write her full name 'Rama Vohra' while signing any document. This circumstance makes it doubtful whether the deceased had even lodged any such police report herself.
52. Further, perusal of contents of this NCR shows that the deceased had allegedly misplaced the documents while she had gone somewhere outside her house and was carrying a bag, which contained the chain of documents. It is totally unlikely that the objector would find these documents from the place where the deceased misplaced them and misappropriate the same. This story put forth by the petitioner is false on the face of it in the circumstances explained above and has been cooked up. I discard the same. Rather, it appears that the PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 32 of 37 petitioner was even aware of the objector having sold the property to her husband on 23.06.2009. It was due to this reason that he immediately lodged the missing report regarding loss of documents on 25.06.2009 i.e. within two days of transfer of property by the petitioner in favour of her husband. The version of the objector that she received the chain of previous ownership documents from her mother in the year 2006 when mother sold the suit property to her, is held to be truthful by me.
53. The petitioner has even questioned the meager amount of Rs.
40,000/- consideration for selling the suit property, which as per him was Rs. 7-8 Lakhs in the market, though he has not adduced any evidence to prove this aspect. The sale consideration does appear to be on the lower side but there are more than one factors to explain the same. The petitioner was already given Rs. 1.5 Lakhs towards his share in the suit property. The petitioner being in the same relation to the deceased as him, was also entitled to receive the same amount. Secondly, she was the one who was looking after her aged and infirm parents till their last breath. She won over their hearts naturally in these circumstances. She and her husband were also maintaining the old aged couple despite the fact that the old couple already had a son i.e. the petitioner. Considering the Indian family value system, the parents must have naturally felt very grateful and indebted to their daughter, therefore, there was nothing unusual in receiving a very petty amount as consideration of sale. These documents of sale, when executed by testatrix, were also witnessed by Sh. Ram Lal Vohra, her husband and father of parties, proving the case of PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 33 of 37 the objector very strongly that the deceased had voluntarily sold the sale property to her without any fraud, forgery, fabrication or illegalities.
54. This aspect that the property was already sold to daughter, makes execution of will in favour of son with respect to same property, very doubtful. Though, this aspect whether the testatrix owned the suit property or not is irrelevant in probate petition but still in the peculiar facts and circumstances of the present case, it is worthwhile to take note of the same.
55. Having discussed in detail about the surrounding circumstances, now I proceed to examine the will in question as placed on record. It is an unregistered document, hence, requires closer scrutiny before deciding upon its genuineness. It is purportedly attested by some notary public but surprisingly only his name as one Surender Kumar appears in the stamps affixed on the document but his registration number as notary is nowhere reflected.
56. The authenticity of this document was disputed by the objector vehemently. Under these circumstances, it was the duty of petitioner to call for the records from the office of the concerned notary, if any. The only attesting witness to the will, examined by petitioner, clearly denied ever having visited any notary/advocate or signing in his presence. She is otherwise also very unreliable witness because she denied even the facts which were admitted by the petitioner himself. She did not know anything about the contents of will. The entire petition PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 34 of 37 and the petitioner evidence is silent as to whether the deceased had read the will before signing the same or if someone had read over the same to her. It is not the case of the petitioner, if any one had explained the contents of the will to deceased. It was a genuine will nothing prevented its registration with the concerned authorities as was done in the year 2006 while executing sale papers in favour of objector. It is not proved that the testatrix and alleged witnesses had signed before the alleged notary by whom it is claimed to have been attested rather the evidence of the only attesting witness examined totally negates this aspect.
57. Last but not the least, even the signature of the deceased does not contain her full name as is the case with all the other documents, which she executed. I have noted that in the acknowledgment of NCR regarding lost documents as well as in the will in question the signature of deceased contains her first name as 'Rama'. It is the case with only these two documents none of which inspires any confidence.
58. Not only this, though not pressed, the second will dated 19.02.2010 contains totally different signatures of deceased than the one on the will in question. The difference is visible by naked eye by even to a layman, making it clear that the purported signature of deceased on the NCR as well as on the will in question did not belong to her and were actually forged by someone else. This must have been either the petitioner or someone in collusion with him because it was the petitioner, who stood to gain by way of execution of the will in question.
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 35 of 3759. Another very important suspicious circumstance is that the deceased had chosen to disinherit her husband, though, it is not the case of the petitioner that the couple was not on cordial terms with each other. In the circumstances of the case, no special reasons are reflected as to why the deceased would have decided to disinherit her life partner and bequeath the only asset in her possession to only the petitioner to the exclusion of all other legal heirs, particularly her husband, in the absence of any disharmony in relations, that too when the son/petitioner had already received his share from the suit property.
60. Yet, another unusual circumstance in the will is that it mentions following words as heading :-
"FAMILY DEED OF WILL (SPOUSE)"
61. These words are generally not found in any will, which is another suspicious circumstance.
62. It is admitted position that the objector had been living in the suit premises since the year 2006 and the petitioner never even attempted to disturb her peaceful possession till the time the deceased and her husband remained alive. He served a notice of vacating the suit premises only after the parents were no more. This fact indicates towards a strong possibility that he was very much aware that the suit property had been sold by the deceased to the objector, with knowledge and concurrence of her husband (father of parties) and of her own free will. The petitioner found an opportunity to act upon his dishonest PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 36 of 37 intentions after their death and with that intention, served notice upon objector regarding vacating the suit premises.
63. The burden to explain the above mentioned circumstances rested upon the shoulders of petitioner, which he miserably failed to discharge. In the light of the foregoing discussions, I believe the version of objector and discard that of the petitioner. Accordingly, I hold that the petitioner has failed to prove that the deceased had executed a valid and enforceable Will dated 23.01.2008, as claimed by him. Therefore, the issue no. 1 is decided in favour of objector and against the petitioner.
Issues No. 2 & 32) Whether the petitioner is entitled to the grant of Probate/Letter of Administration in respect of the aforesaid will dated 23.01.2008, as prayed? OPP AND
3) Relief
64. The natural corollary of the above discussion is that the petitioner is not entitled for probate/Letter of Administration on the basis of aforesaid will. Both these issues are decided in favour of objectors and against the petitioner. The petition fails and is dismissed. File be consigned to record room.
Announced in the open court SAVITRI
CHAUDHARY
Digitally signed by SAVITRI
CHAUDHARY ATTRI
on 31st day of October 2019
Date: 2019.10.31 15:45:17
ATTRI +0530
(SAVITRI)
Addl. District Judge-02 (West)
Tis Hazari Courts: Delhi
Note :- The above judgment has been dictated directly on computer and shorthand dictation was not given to the stenographer.
PC No. 16083/16 Sanjay Kumar Vohra Vs. State & Ors. Page 37 of 37