Delhi District Court
Sh. Satish Kumar vs State (Govt. Of Nct Of Delhi) on 30 August, 2019
IN THE COURT OF MS. SAVITRI : ADDL. DISTT. JUDGE-02,
WEST DISTRICT : TIS HAZARI COURTS: DELHI.
PC-15903/2016
Sh. Satish Kumar,
S/o Late Sh. Ram Chander,
R/o H. No. 51-A, Tyagi Vihar,
Behind Police Quarters, Nangloi,
Delhi-110041.
........Plaintiff
Versus
1. State (Govt. of NCT of Delhi)
2. Sh. Umed Singh (since deceased)
Through his LRs -
i) Smt. Anita Devi
W/o Late Sh. Umed Singh
ii) Sh. Darvesh Kumar,
S/o Late Sh. Umed Singh
iii) Sh. Deepanshu,
S/o Late Sh. Umed Singh
iv) Miss. Sonia
D/o Late Sh. Umed Singh
All R/o H. No. 51-A, Ground Floor,
Tyagi Vihar, Behind Police Quarters,
Nangloi, Delhi-110041.
v) Smt. Pooja,
W/o Sh. Manoj Kumar,
D/o Late Sh. Umed Singh,
R/o H. No. 483, H-1 Block,
Jahangir Puri, Delhi-110033.
PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 1 of 30
3. Sh. Anoop Singh,
S/o Late Sh. Ram Chander,
R/o H. No. 51-A, First Floor, Tyagi Vihar,
Behind Police Quarters, Nangloi,
Delhi-110041.
4. Smt. Bimla Devi,
W/o Sh. Jai Kishan,
R/o Village & P.O. Ataal, Tehsil - Sampla,
Distt. Rohtak, Haryana.
5. Smt. Kamla Devi,
W/o Sh. Sushil Kumar,
R/o H. No. 3026/36, Street No-4,
Near Kabari Market, Ranjeet Nagar,
Patel Nagar, New Delhi-110008.
6. Smt. Sushma,
W/o Sh. Sanjeev Kumar @ Bittoo,
R/o H. No. 225, Block-C,
Gauri Shankar Enclave, Part-I,
Prem Nagar, 3rd, Kirari, Suleman Nagar, Delhi.
.....Defendants
PROBATE PETITION U/S 276 OF INDIAN SUCCESSION ACT FOR
GRANT OF PROBATE IN RESPECT OF WILL DATED 27.02.2008
EXECUTED BY LATE RAM CHANDER
Date of institution of the case : 23.08.2014
Date of reserving the judgment : 05.08.2019
Date of pronouncement of Judgment : 30.08.2019
JUDGMENT
1. The present petition has been filed by petitioner Sh. Satish Kumar on the basis of registered will dated 27.02.2008, which as per him was executed by his late father Sh. Ram Chander, hereinafter referred as deceased, with respect to property no. 51-A, measuring 105 sq. yds. forming part of Khasra No. 34/25, situated in colony known as Tyagi Vihar, Nangloi, falling in the PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 2 of 30 area of village Nangloi Jatt, Delhi-110041, hereinafter referred as suit property. It is admitted position that the petitioner was residing in the suit property with the deceased, when deceased expired on 22.09.2013. Further, that the wife of deceased had predeceased him.
2. The private respondents are other children of the deceased i.e. two sons - respondents no-2 and 3; and three daughters - respondents no. 4 to 6.
3. After the notice of the petition was issued, the respondents entered appearance and respondent no-4 did not contest the petition and filed her 'No-Objection' in favour of the petitioner. Other respondent nos. 2, 3, 5 and 6 filed their joint objections. It is important to note that during the pendency of the present petition, respondent no-2 Sh. Umed Singh expired and accordingly his LRs were brought on record and memo of parties was amended.
4. The grounds taken in the objections are that the alleged will is forged and fabricated and no such will was ever executed by the deceased. Further that the plaintiff has filed another litigation in Jhajjar Courts, Haryana, on basis of one more will of deceased dated 18.09.2013, but has concealed this fact in his petition. It is further mentioned that the deceased had filed a suit for possession, recovery of mesne profits, damages and permanent injunction titled, "Ram Chander Vs. Umed Singh & Ors." As the title suggests that this case was filed by deceased against respondents no. 2 and 3 and their wives. Till disposal of the above mentioned suit filed by deceased, on merits, it cannot be decided as to who is actual owner of the suit property.
PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 3 of 305. Another objection was taken that the deceased was not owner of the suit property as only the GPA, Agreement to Sell, Affidavit and Receipt etc. were executed in his favour by the previous owner, when he purchased the suit property on 06.07.1981 and he did not become owner in the absence of registered sale deed. Since, he was not owner, he had no authority/competence to execute any will with respect to the suit property.
6. Further, an objection has been taken that deceased was only symbolic purchaser of this property. In fact, it was purchased from the money of his parents and wife; therefore, the property was ancestral and respondents are co-owners of the suit property and for this reason also, deceased was not competent to execute the will in question as he was not absolute owner of the suit property. It is settled law that the question of title is irrelevant in the proceedings of grant of probate/letters of administration.
7. Yet another objection has been that deceased was physically and mentally sick and could not understand conspiracy of petitioner due to his old age. The petitioner committed conspiracy in collusion with attesting witnesses Sh. Jagdish Prasad and Sh. Satya Narain, who were his close friends and were of criminal nature. The deceased used to consume liquor with petitioner in absence of other family members and the present forged will was created taking advantage of liquor addiction of deceased.
8. It is further mentioned in the objections that towards the last stage of his life, the deceased had realized that the petitioner was misusing love and affection of deceased towards him and PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 4 of 30 never lost any chance to cheat him. In fact, the civil suit referred above was also filed by the deceased due to undue pressure/influence of petitioner. Deceased realized all this at fag end of his life and regretted his conduct towards both his other sons and their wives and pronounced in presence of all family members and close relatives on 21.09.2013, just one day before his death that he would withdraw the above suit and give his properties at Delhi and Jhajjar to all his three sons equally. Further, that he would distribute the money lying in his pension account to all his daughters and grand children. The petitioner had opposed this decision of the deceased and threatened that the deceased would face consequences of his repentance. The very next day, the deceased suddenly died. While the respondents were eager to know the cause of sudden death, shrouded in mystery, the petitioner opposed the postmortem of his dead body.
9. It is also important to note that an amendment application of respondents with respect to their WS was allowed by my Ld. Predecessor Judge, the amendments being not much material. This development had taken place after issues had already been framed and even the petitioner had been examined.
10. Petitioner filed rejoinder/reply to the objections, wherein, he denied the contentions of objectors and reiterated the averments made in the petition, mentioning that the respondents no-2 Sh. Umed Singh and respondent no-3 Sh. Anoop Singh and their wives used to abuse, beat and misbehave with deceased and therefore deceased had disowned them and their children of his properties and had asked them to vacate the suit property. When they refused, the deceased had filed a civil suit against PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 5 of 30 him. It is denied in the replication that the deceased felt repentance about any of his actions against the above mentioned persons. Rather, he was not even having talking terms with any of them and pursued his civil suit against them, vigorously. Prior to his death, deceased had given clear instructions to the petitioner in presence of several persons that the petitioner would not let the above mentioned Sh. Anoop, Sh. Umed, their wives and children to even touch the dead body of deceased and also would not give them any share out of the property bequeathed in his favour by deceased. Regarding the resistance to postmortem, a stand has been taken that it is a false and concocted story as his father did not die suddenly and there was no occasion for conducting postmortem.
11. After completion of pleadings, following issues were framed by my Ld. Predecessor Judge vide order dated 16.11.2015 :-
ISSUES
1) Whether the deceased Sh. Ram Chander executed a valid and enforceable Will dated 27.02.2008 as claimed by the petitioner? OPP
2) Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP
3) Whether the petition is liable to be dismissed for the objections raised by the respondent/ objector no. 2,3,5&6 in the written statement.
4) Relief PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 6 of 30 PETITIONER'S EVIDENCE
12. In order to prove its case the petitioner has examined himself as PW-1 on affidavit Ex PW-1/A, which is on the lines of his petition. He placed on record the following documents :-
1. Original will dated 27.02.2008 as Ex PW-1/1;
2. Death Certificate of deceased as Ex PW-1/2; and
3. Death certificate of wife of deceased and mother of petitioner namely, Smt. Angoori Devi as Ex PW-1/3 (as per this document she expired on 16.05.2007).
13. During his cross-examination by Ld. Counsel for contesting respondents, he deposed that he knew about the will prior to death of deceased as the deceased had handed over the same to him about 2-3 months prior to his death. But, petitioner had not told about the same to anyone in his family or in relation. He denied the suggestion that his mother used to sell milk and give her earnings to his deceased father or that the suit property was purchased by mother from her earnings. He denied the suggestion that respondent Umed Singh and his children used to look after the deceased and deposed that he himself used to take care of the deceased. He also denied the suggestion that respondent Anoop incurred medical expenditure of treatment of his (petitioner) son Aditya when the child suffered from dengue in the year 2013. The witness admitted that the deceased used to attend family functions of his brothers/respondents Anoop and Umed. He denied the suggestion that the attesting witness Jagdish and his sons were facing criminal cases related to forgery and cheating. He denied the suggestion that he has PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 7 of 30 forged the will in question in collusion with Jagdish and his sons. Regarding death of deceased, the witness deposed that he had suddenly died on 22.09.2013 around 1-1.30 AM (midnight) as he was heart patient since last 5-6 years before death. The food intake of deceased was very little for two days prior to death. Further, that he informed all relatives regarding death of deceased, immediately and that he and his son were present with the deceased from 11.00 PM to 1.30 AM, on the night of his death. He denied the suggestion that the deceased informed all relatives and family members, prior to his death, that he had cancelled all his wills and was withdrawing civil suit against Anoop and Umed. He denied the suggestion that he and his son committed murder of deceased in order to restrain him from doing aforesaid. It is important to note that this suggestion was observed to be irrelevant by my Ld. Predecessor Judge.
14. He denied the suggestion that the deceased never handed over the will in question to him. He admitted that the deceased had also prepared another will regarding his village property, on 18.09.2013, after the will in question was executed. He admitted that he had not filed any petition on basis of will dated 18.09.2013. This question in cross-examination, in fact, negates the contention of the respondents as taken by them in objections that petitioner had filed a litigation in Jhajjar Courts, Haryana regarding the village property, on the basis of later will dated 18.09.2013.
15. The witness admitted that the deceased had disowned respondents Anoop and Umed Singh, both. The asking of this question in cross-examination itself deals a serious blow to the case of respondents themselves. Further, the witness denied PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 8 of 30 the suggestion that the suit property as well as the land at village was ancestral properties. He denied the suggestion that he was deposing falsely.
16. PW-2 is one Jagdish Prasad, one of the attesting witness of the will in question. He has also led his evidence by way of affidavit Ex PW-2/A. It is mentioned in his affidavit that he is nephew (brother's son) of deceased and had known both parties to present case as they were cousins. The witness was residing in neighbourhood of the deceased and used to meet him very frequently. Further that in the month of February 2008, deceased told him that he had decided to bequeath the suit property in favour of petitioner and asked the witness to accompany him and stand witness of his will at the time of execution and registration before the concerned Sub-Registrar.
17. It is further mentioned in his affidavit that on 27.02.2008, the deceased asked the witness and one Sh. Satya Narain (the other attesting witness) to accompany him and all three went to the office of Sub-Registrar, Nangloi. There the deceased got a deed of Will prepared from a document writer under his own instructions. The deed writer accordingly prepared the same, read over and explained the contents in Hindi to deceased as well as to the witness and Sh. Satya Narain. Next it is mentioned that the deceased signed each page of the will and thereafter the witness appended his signature on the last page of will as first attesting witness and thereafter Sh. Satya Narain signed as second attesting witness. The deed writer pasted photograph of deceased on first page of the will. Thereafter, the will was presented in the court of Sub-Registrar for registration, who verified its contents from the deceased in presence of the PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 9 of 30 two attesting witnesses. Then the deceased put his thumb impressions and finger prints on the document in the office of Sub-Registrar. The witnesses also put their thumb impressions on reverse side of first page of the will. Thereafter, their photographs were taken in the office of Sub-Registrar. Lastly, it is mentioned in the affidavit that deceased was in sound disposing mind and good health, at that time and had executed the will in question of his own free will without any force, pressure or misrepresentation. The witness identified the thumb impression and signature of deceased, himself and that of Sh. Satya Narain at different points, marked in the document.
18. During his cross-examination by Ld. Counsel for respondents, the witness, who was aged about 65 years, deposed that he had retired as TI from DTC and had cordial relations with the petitioner as well as his other brothers. He volunteered to say that he never drank with deceased, though both of them used to share tea and snacks together at the house of each other. The witness further deposed that respondent Umed Singh and Anoop used to quarrel with the deceased while the petitioner never quarreled with him. The witness tried to mediate a settlement between them but Umed Singh and Anoop did not heed his advice. The witness was asked the question, if he liked the petitioner. The witness replied in affirmative and volunteered to say that he liked Anoop and Umed Singh also. In response to further questioning, the witness deposed that he had attended the marriage ceremonies of all the children of the deceased and participated all the functions and had also invited the deceased to participate in the functions that took place at the house of witness.
PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 10 of 3019. Regarding the events on 27.02.2008 regarding preparation, execution and registration of will, the witness deposed on the lines of his evidence affidavit. He denied the suggestion that the will was bearing forged signature of the deceased. The witness admitted the suggestion that the deceased was slightly inclined towards petitioner and volunteered to say that it was because the petitioner used to take care of the deceased. The witness further deposed that deceased was disturbed because of family dispute as Umed and Anoop were troubling him since about five years prior to execution of will and the deceased, who was a heart patient had suffered heart attack after three years of execution of will. The witness also deposed that deceased never consumed liquor. He denied the suggestion that he was not present at the time of execution of will at Sub-Registrar office or that it was not executed or that deceased had not executed and signed the same. He also denied the suggestion that the will was not read over to him or the same was not understood by him. He further denied that he was deposing falsely under the influence of the petitioner.
20. PW-3 Sh. Satya Narain is the other attesting witness. This witness is also related to the parties, as mentioned in the affidavit of evidence Ex PW-3/A. He had also known both the sides as his grand father was the real brother of grand father of the parties in the present case. Also, he was residing in a nearby colony, where the deceased used to live and remained in frequent touch with him. Regarding the aspect of preparation, execution and registration of will on 27.02.2008; he has deposed on the same lines as Sh. Jagdish Prasad (PW-2). For the sake of avoiding repetition, I am not discussing the contents of his PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 11 of 30 evidence affidavit.
21. During his cross-examination, the witness deposed that he was on cordial terms with both the parties. Further, the deceased was educated man and had worked in post office (This is an admitted position).
22. The witness admitted that the deceased had filed a civil suit against Anoop and Umed Singh. He further deposed that he had tried to persuade the deceased about withdrawing the suit but he had not agreed for doing the same and had disclosed to the witness that Anoop and Umed did not love/care for him. The witness further deposed that the deceased never consumed liquor. In response to another question, the witness deposed that the petitioner did not visit Sub-Registrar office. The witness further deposed that when he asked the deceased as to why he was executing a will in favour of the petitioner only, he had told him that it was his will and he could execute in anybody's favour. He denied the suggestion that the will was not executed in his presence or that the deceased had not executed or signed the same. Further, he denied the suggestion that he was deposing falsely under influence of the petitioner. Both the attesting witnesses have deposed that they did not tell anyone in their own houses about the will. Their deposition is also similar about the time of execution of the will.
23. PW-4 is the witness from Sub-Registrar office and brought the certified copy of the will as available in their record. Nothing relevant was asked during his cross-examination. Rather, the Ld. Predecessor Judge had disallowed the questions asked from him.
PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 12 of 30RESPONDENT'S EVIDENCE
24. Respondent no-3 Sh. Anoop Singh has examined himself as RW-1 vide evidence affidavit Ex RW-1/A, which is on the lines of his objections. During his cross-examination, he admitted that will bore his father's photograph but denied that the purported signature of the testator on the same, belonged to deceased. He further deposed that he had never seen his late father signing any paper or document (though, deceased was educated). This diminishes the value of his assertion about the signatures on will. He denied the suggestion that he had not got the will examined by any CFSL or handwriting expert as he was well aware that it was a genuine will and contained signature and thumb impression of deceased.
25. He also admitted that the later will dated 18.09.2013 did not include the suit property (It related to some property in Jhajjar, Haryana). He also admitted filing of suit for possession of suit property against him and other family members, by the deceased. He further deposed that the suit property was purchased from the funds contributed by him and his late mother.
26. Regarding his grand parents, the witness deposed that both of them had expired prior to his birth in the year 1975. Interestingly, the property was admittedly purchased in the year 1981, when the witness was about six years of age only. He further deposed that his grand father owned agriculture land measuring 10.5 bighas and this land was never sold. The witness further deposed that his late father, the deceased had retired from post office as post master. The witness further deposed that at the PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 13 of 30 time of purchase of the suit property in the year 1981, his elder brother Umed Singh was aged about 18 years and had started working/earning only in the year 1982. He denied the suggestion that the deceased was absolute owner of suit property and was competent to execute the will of the same, being its absolute owner. These facts clearly establish that the suit property was purchased by deceased of his own funds. Though, this aspect is irrelevant for deciding the present petition. The witness also denied the suggestion that the present duly registered and valid will was executed by deceased in favour of petitioner in sound disposing mind and without any pressure or coercion.
27. Objector Smt. Anita Devi, widow of late respondent Sh. Umed Singh, has examined herself as RW-2 vide evidence affidavit Ex RW-2/A, which is on the lines of her objections.
28. During her cross-examination, she deposed that she got married with Umed Singh, son of deceased, in the year 1988 and admitted that she was not aware as to what had happened in the family of deceased prior to her marriage. She denied the suggestion that she, her late husband, her brother-in-law Anoop and his wife used to beat, harass and misbehave with the deceased after death of her mother-in-law in the year 2007 (prior to execution of will in question). She admitted filing of suit for possession by the deceased against her and other family members, as mentioned above. She further deposed that deceased was in service at post office. She denied the suggestion that the suit property was purchased by the deceased on his own earnings or that it was his self acquired assets or that he was its absolute owner. She also denied the PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 14 of 30 suggestion that deceased executed valid and registered will in favour of petitioner in sound disposing mind without any pressure or coercion.
29. The respondent no-6 Ms. Sushma, daughter of deceased, had also filed her evidence by way of affidavit but she was not allowed to lead evidence because she did not lead evidence even after sufficient opportunities were afforded to her. Even, her application alongwith that of respondent no-5 to lead evidence was dismissed by my Ld. Predecessor Judge vide order dated 27.02.2017, which has not been challenged.
30. Before proceeding to decide the present probate petition let me discuss in nutshell, the relevant legal provisions and judicial pronouncements.
31. 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.
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.PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 15 of 30
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.
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.
32. 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.PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 16 of 30
(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".
33. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his 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.
34. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 17 of 30"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 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."
Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13 th 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.PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 18 of 30
2. Since Section 63 of the Succession Act requires a will to be attested , it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by 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 PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 19 of 30 the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion, etc, in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances 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 PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 20 of 30 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 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)
35. 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 PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 21 of 30 (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 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)
36. 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 PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 22 of 30 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 :-
"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."
37. 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) PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 23 of 30
38. 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 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
39. I have gone 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 :-
ISSUES NO-1 & 3
1) Whether the deceased Sh. Ram Chander executed a valid and enforceable Will dated 27.02.2008 as claimed by the petitioner?
OPP AND
3) Whether the petition is liable to be dismissed for the objections raised by the respondent/ objector no. 2,3,5&6 in the written statement. OPR PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 24 of 30
40. Both these issues are connected with each other. Hence, taken up together.
41. The deceased was an educated man and retired as post master and remained alive for more than five years after execution of the will in question. The will has been duly registered before the concerned Sub-Registrar. Thus, there is a presumption of it having been validly executed. I am conscious of the fact that registration of will and actual proof its execution are two different aspects. The requirements prescribed under law for execution of a valid will are satisfied in the present matter for the reasons that the respondents have not been able to prove on record that deceased suffered from any mental incapacity so as to be unable to take rational decisions or to be incapable of understanding the consequences of his actions. Admittedly, he remained ill for only 2-3 days prior to his death.
42. The will was witnessed by two persons and both of them have been examined in the present case. Both of them have deposed in consistent manner and their testimonies are in sync with each other. There is no contradiction between their evidence. During their extensive cross-examination, nothing material which could have impeached their credit, could be elicited. Both of them were near relatives of deceased and living nearby to the residence of deceased. They were, therefore, quite natural witnesses when the deceased chose to execute his will.
43. Even, at the cost of the repetition, whether or not the deceased had an absolute title to the suit property, is beyond the purview PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 25 of 30 of present petition as the question of title is irrelevant in probate/grant of letters of administration, the only factor meriting consideration being whether the will was validly executed and was expressing genuine intention of deceased, in the given factual matrix or if it was surrounded by any suspicious circumstances. The deceased had admittedly purchased the suit property in the year 1981, when his children were small and still dependent upon him. He had purchased the same on basis of GPA, Agreement to Sell etc. and the previous owner had not executed registered sale deed in his favour but this fact is irrelevant in view of the reasons already discussed.
44. The factum of deceased having filed a suit for possession against the contesting respondents i.e. two sons namely Anoop Singh and Umed Singh and their wives, is an admitted position. The case of the petitioner is that he was the only son, who was taking care of the deceased. The deceased had lived with him till his last breath and on the night of his death, the petitioner and his son were sitting with him from 11.00 pm to 1-1.30 am. The fact that deceased expired while residing with petitioner, is an admitted fact. Additionally, the fact that only the petitioner used to take care of the deceased, is corroborated by the evidence of two attesting witnesses also. Under these circumstances, there was nothing unnatural in the deceased choosing to bequeath the suit property in favour of petitioner and disinheriting his other two sons. In fact, as per the attesting witnesses, the deceased did not listen to even them when they suggested that he should withdraw the suit for possession, which he had filed against his two sons and their wives. The petitioner has stated during cross-examination that the PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 26 of 30 deceased had instructed him before his death that none of the persons against whom he had filed the suit, should be allowed to touch his body, after his death. Also, that the petitioner should not give them any share in the suit property, bequeathed in his favour, even after his (deceased) death. The bald assertion of respondents that the deceased was addicted to liquor, which he used to consume with the petitioner, has been emphatically refuted by the petitioner witnesses, who deposed that deceased never consumed liquor during his lifetime. It was quite natural that they would have been aware of this fact being near relatives as well as neighbours of the deceased. Also, the deceased remained alive for long after executing the will in question. Had he actually been under any pressure at the time of execution of the will, he could have easily revoked it afterwards. These circumstances prove that the deceased had executed the will of his own free will and not under any kind of influence/pressure by the petitioner.
45. It is also admitted position that the second will executed by deceased in the year 2013, does not deal with the suit property. Also, it is important to note that the will in question does not deal with Haryana property, which is subject matter of the will of year 2013. Therefore, the contention that the will in question was not the last will of deceased, is negated in peculiar facts and circumstances of the case and I hold that the will in question was last will of deceased so far as the suit property is concerned.
46. In view of the above, it is clear that the contesting respondents have not been able to prove any circumstances, which would even prima facie show that the execution of the will was PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 27 of 30 shrouded in any mystery or was clouded by any suspicious circumstances. Their claim that deceased died in the mysterious circumstances and petitioner opposed postmortem have been denied and the attending circumstances have been duly explained by the petitioner in his evidence, which also inspire confidence. In these circumstances, my view is that the respondents have been unable to establish their claim regarding this aspect.
47. Therefore, I hold that it has been proved on record that the deceased had executed a valid and enforceable will dated 27.02.2008. Issue no-1 is, therefore, decided in favour of petitioner and against the contesting respondents. The objections raised to the will relating to title of deceased i.e. whether he was not absolute owner due to lack of registered sale deed of suit property in his favour or it being an ancestral property are irrelevant. The objections regarding contribution in purchase of the suit property having been made by grand parents of objectors and their mother and therefore terming the property as ancestral, are neither relevant nor proved. Rather, this objection has been disproved by the evidence of respondents themselves as both of their grand parents had already expired many years prior to the purchase of the suit property. Further, their bald assertion regarding their mother earning money by selling milk, has been promptly denied by the petitioner.
48. In view of foregoing discussion, issue no-3 is also decided against the respondents and in favour of the petitioner.
PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 28 of 30 Issue No. 22) Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed?
OPP
49. In the present case, the petitioners have prayed for grant of Pro-
bate in respect of the Will dated 27.02.2008 executed by late Sh. Ram Chander. However, perusal of the said Will (Ex. PW- 1/1) reveals that petitioners have not been named as Executor(s) therein and therefore, keeping in mind Section 222 of Indian Succession Act which provides that probate shall be granted only to an Executor appointed by the Will, the petitioner is held entitled only to Letters of Administration in respect of the property mentioned in the said Will.
ISSUE NO-4 RELIEF
50. In the light of above discussion and observation, petitioner is entitled to letter of administration in respect of suit property bearing No. 51-A, measuring 105 sq. yds. forming part of Khasra No. 34/25, situated in colony known as Tyagi Vihar, Nangloi and other movable assets mentioned in Annexure-A, annexed with the petition on furnishing Administration bond cum surety bond of Rs. 56,44,546/- (Fifty Six Lakh Forty Four Thousand Five Hundred and Forty Six only) as agreed by the petitioner.
51. Further, the petitioner is directed to file the inventory of all the immovable properties within six months and final statement of PC No. 15903/16 Satish Kumar Vs. State & Ors. Page 29 of 30 account within one year from the date of receipt of formal letter of administration. The formalities of issuance of Letter of Administration shall completed by the petitioner within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
52. It further clarified that the question of title, share or ownership of immovable properties mentioned hereinabove is not decided by this Court.
53. File be consigned to the Record Room.
Digitally signed by SAVITRI SAVITRI CHAUDHARY
Announced in the open court CHAUDHARY ATTRI Date: 2019.08.31
on 30th day of August 2019 ATTRI 14:49:19 +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. 15903/16 Satish Kumar Vs. State & Ors. Page 30 of 30