Delhi District Court
Smt. Monika Kapoor vs The State Of Nct on 16 February, 2016
IN THE COURT OF SH. SANJAY KUMAR : ADDL. DISTRICT
JUDGE (WEST)-02, TIS HAZARI COURTS:DELHI
Probate Case No. 50/10
Unique ID Case No. -02401C0376172010
Smt. Monika Kapoor,
W/o Sh. Rajiv Kapoor,
D/o late Sh. Pran Nath Mehta,
R/o O-16, Second Floor,
Gali No. 21, New Mahavir Nagar,
New Delhi-110018. .... Petitioner
Vs.
1. The State of NCT
Through Chief Secretary,
I.P. Estate, New Delhi.
2. Sh. Rajesh Mehta,
S/o Late Sh. Pran Nath Mehta,
R/o L-2/36A, First Floor,
New Mahavir Nagar,
Near Tilak Nagar,
New Delhi-110018.
3. Smt. Amita Pujara
W/o Sh. Tirlok Pujara,
D/o late Sh. Pran Nath Mehta,
R/o B-2/231, Sector-6,
Rohini, Delhi.
4. Smt. Rajani Kumar
W/o Sh. Akhil Kumar
D/o late Sh. Pran Nath Mehta,
R/o KG-I/87, Vikaspuri,
New Delhi. ..... Respondents
PC No. 50/10 Page no. 1/13
Date of institution of the case : 25.08.2010
Date of reserving of judgment : 08.02.2016
Date of pronouncement of judgment : 16.02.2016
JUDGMENT
1. A petition under Section 276 of the Indian Succession Act, 1925 for grant of Probate filed in respect of immovable built up property bearing LIG Flat No. 27, Hastsal, Uttam Nagar, New Delhi of Late Smt. Rajinder Mehta, wife of late Sh.Pran Nath Mehta, filed.
2. In brief the facts are that the petitioner has been residing and in possession of LIG Flat No. 27, Hastsal, Uttam Nagar, New Delhi. Smt. Rajinder Mehta W/o Late Sh. Pran Nath Mehta (hereinafter referred to as 'the deceased') was the absolute owner of LIG Flat No. 27, Hastsal, Uttam Nagar, New Delhi, by virtue of conveyance deed dated 13.10.2003. Deceased had executed a Will on 30.05.2005, whereby petitioner has become the sole Executor of the Will. The Will has been registered at Sub Registrar Office, Janakpuri vide registration no. 17993 in Addl. Book No. III, Vol. No. 7400 registered on the same day.
3. It is stated that on 30.05.2005 deceased executed the last Will and appointed the petitioner as Sole Executor. It is further stated that at the time of executing of the said Will, deceased was in his full senses and hail and hearty. There was no pressure or threat on her from any person to execute the Will. Deceased personally appeared before the Sub Registrar, PC No. 50/10 Page no. 2/13 Janak Puri on the date of the getting of the registered Will along with witnesses.
4. It is stated that deceased died on 25.10.2008 leaving behind legal heirs, namely, Sh. Rajesh Mehta, Son, Ms. Amita Pujara, Daughter, Ms. Rajani, Daughter and Ms. Monika, Daughter. It is stated that the last Will of the deceased was duly executed and witnessed by the witnesses and also bears the photographs and signatures. It is prayed that probate of the Will dated 30.05.2005 executed by deceased Sh. Rajinder Mehta may be granted in favour of the petitioner.
5. Upon filing the present petition, notice of the same was issued to respondents/LRs of deceased. Citation for public was published in daily Newspaper 'Statesman' dated 20.04.2011. Notice was also served to State through Collector.
6. Perusal of record shows that the valuation report in respect of immovable property in question i.e. LIG Flat No. 27, Hastsal, Uttam Nagar, New Delhi was not called from the concerned Collector and accordingly, the said valuation report has not been filed on behalf of the SDM.
7. Respondent nos. 2 and 3 filed the objections. The respondent no. 4 failed to appear despite service and proceeded ex-parte vide order dated 27.04.2011.
PC No. 50/10 Page no. 3/138. The respondent nos. 2 and 3 have filed objections and taken preliminary objections that the present probate petition has been filed on the so called executed Will of the deceased. It is stated that the said Will was got executed by the Petitioner from the deceased mother in a very tactful manner, as she did not disclose the factum of said Will to the deceased and put her in dark. It is stated that the deceased was not so qualified to read and write English language but she was able to put her signatures in English. It is not mentioned that the Will was read over to her in vernacular. Therefore, the present probate petition is liable to be quashed. It is further stated that respondent no.2 used to pay Rs.2000/- to the deceased for her maintenance. Respondent nos. 2 and 3 were loved by their deceased mother but petitioner used tact, muscle power and by extending threats got prepared the alleged Will. The mother never agreed to execute the alleged Will ousting respondent nos. 2 and 3 from her movable and immovable properties, therefore, the said Will is outcome of cheating, fraud and cannot be trusted, therefore, liable to be dismissed.
9. On merits, all the averments and contents are denied and contents of preliminary objections reiterated. It is stated that the father of the respondents and petitioner with love and affection got registered the property in question in the name of deceased, therefore, she cannot be said to be absolute owner. It is further stated that the deceased at her own did not execute Will but she was duped. She was not disclosed about the contents of the Will which were typed in English language.
PC No. 50/10 Page no. 4/13It is stated that the witnesses shown in the said Will are family friends of the petitioner, who acted on the instructions of the petitioner. The said Will also affixed with old photograph of deceased, otherwise she was quite old and not able to even walk. It is stated that the petition is liable to be dismissed.
10. Rejoinder/reply filed by petitioner to the objections of respondent nos. 2 & 3. All the contents of objections are denied and contents of petition are reiterated.
11. On the basis of pleadings of the parties, my Ld. Predecessor framed the following issues vide order dated 07.07.2011:
1. Whether the petitioner is entitled for probate of will dated 30.05.2005 executed by Smt. Rajinder Mehta, as prayed for? OPP
2. Relief.
12. Petitioner in order to prove the present case, examined herself as PW1 Ms. Monika Kapoor and PW2 Sh. V.K. Gangwal, Attesting Witness and PW3 Sh. R.K. Thakur, Record Keeper from the office of Sub Registrar-II, Basai Darapur, Delhi. As per statement of Ld. Counsel for the petitioner Sh. R. Vasudev, petitioner evidence was closed on 29.01.2014.PC No. 50/10 Page no. 5/13
13. Respondents examined RW2 Sh. Rajesh Mehta and RW3 Ms. Amita Pujara and as per statement of Sh. Pradeep Kumar Shukla, Counsel for the respondent nos. 2 and 3 dated 26.10.2015 respondent nos. 2 & 3 evidence was closed.
14. I have heard Ld. Counsel for the petitioner Sh. R. Vasudev and Ld. Counsel for the respondent nos. 2 and 3 Sh.Pradeep Kumar Shukla and also gone through the written arguments filed by the parties.
15. In order to appreciate respective contentions and giving the findings on issues, let us peruse the principles of law applicable in the present facts and circumstances of the case.
16. Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unprivileged Will.
Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there PC No. 50/10 Page no. 6/13 must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
17. For proving the Will, the propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are establish, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience PC No. 50/10 Page no. 7/13 of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Reliance is placed on H. Venkatachala Iyengar Vs B.N. Thimmajamma, ( (1995) Supp.1 SCR 426 and Rani Purnima Devi Vs Kumar Khagendra Narayan Dev, ( 1962) 3 SCR 195.
18. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear evidence that the puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
19. Now my findings on issues are as follows:
PC No. 50/10 Page no. 8/13ISSUE NO.1
20. At the outset I would first deal with the objections taken by respondent nos. 2 and 3. The main objections taken by the respondent nos. 2 and 3 are that the petitioner had tactfully and without disclosing factum to the deceased mother got executed the Will in question. Further, stand taken is that in the Will deceased did not include her all movable and immovable properties and there is cheating, fraud in execution of the Will of the deceased, Ex. PW1/4. RW2 Sh. Rajesh Mehta appeared in the witness box and proved his affidavit as Ex. RW2/A. In the affidavit, the facts deposed in consonance with the objections taken on record. In the cross-examination, he deposed that his job was touring job and used to travel out of Delhi for 15 to 20 days. He admitted that the Will in question had been executed by the deceased mother but this fact was never disclosed to him. He came to know about the existence of Will only after month of death of his mother and he made no effort to check from the Sub Registrar's office. To a specific question, he replied that "in his personal view deceased mother must have done under threat and pressure of the petitioner. No one has told him about using of muscle power/threat on the deceased mother by the petitioner or her husband to execute the Will in question".
21. RW3 Ms. Amita Pujara also appeared in the witness box to prove her affidavit as Ex. RW3/A. In the cross-examination she admitted that the flat in question was registered in the name of the deceased mother. She was also put a specific PC No. 50/10 Page no. 9/13 question about using tact of muscle power by extending threat upon deceased mother by the petitioner to execute the Will. Her answer is that it was her personal view. She further deposed that no one has told her about using of muscle power or threat on deceased mother by the petitioner or her husband to execute the Will in question.
22. I have gone through the detailed testimony of RW2 Sh. Rajesh Mehta and RW3 Ms. Amita Pujara. Both the witnesses are silent on the important facts regarding the cheating, fraud, using of muscle power or one can say the undue influence by the petitioner on the deceased mother for executing the Will in question. There is no iota of evidence brought on record by the respondent nos. 2 & 3 to prove their plea of tactfulness, use of muscle power, fraud and cheating by the petitioner. Both the respondents miserably failed to establish that the Will in question suffers from the said infirmities which may result in disbelieving the genuineness of Will or prove that the Will in question not a genuine Will.
23. Now coming to the testimony of petitioner Ms. Monika Kapoor, who appeared in the witness box as PW1 and proved her affidavit as Ex. PW1/A. She further proved copy of conveyance deed of property in question Ex. PW1/1, death certificate of deceased Ex. PW1/2, death certificate of her father Sh. Pran Nath Mehta as Ex. PW1/3, Will Ex. PW1/4 and her Identity through Voter Card as Ex. PW1/5. In the cross- examination, she deposed that her father was a businessman PC No. 50/10 Page no. 10/13 and mother was housewife. The property in question was purchased by his father in the name of mother. She denied the suggestion that her mother did not visit the office of Registrar for registration of Will Ex. PW1/4. She denied that she managed the Will without consulting her brothers and sisters. Ld. Counsel for the respondent nos. 2 & 3 did not put any question or suggestion regarding the objections taken on record i.e. the tactfulness, use of muscle power, cheating or fraud through which petitioner alleged to have got registered Will in question from deceased mother. The cross-examination is totally silent on this important aspect of non-genuineness of Will Ex. PW1/4.
24. PW2 Sh. V.K. Gangwal, Attesting Witness appeared in witness box and proved his signatures on the Will at point 'Y' and identified the signatures of testatrix at point 'X'. He further deposed that the second witness also signed the Will and all signed in the presence of eath other. In the cross- examination, he deposed that Smt. Rajinder Mehta came to his office and at her instructions, the Will was drafted. She did not explain the details of her family members. He further deposed that he has drafted the Will on 30.05.2005. No suggestion or question put to Attesting witness by the Counsel for the respondent nos. 2 and 3 on the important aspects i.e. the objections taken. No suggestion or question put to shake the veracity and truthfulness of the Attesting witness.
PC No. 50/10 Page no. 11/1325. PW3 is Sh. R.K. Thakur, Record Keeper from the office of Sub Registrar - II, Basai Darapur. In the cross-examination, he deposed that the document was not registered in his presence and he has no personal knowledge. This witness proved that the deceased got registered the Will in question at Sub Registrar's office on 30.05.2005.
26. I have perused the testimony of PW1 Ms. Monika Kapoor, PW2 Sh. V.K. Gangwal and PW3 Sh. R.K. Thakur and gone through the record. As already discussed herein above that in order to prove the genuineness of the Will, as per Section 63 of the Indian Succession Act, it has to be proved that Testator should sign and affix his mark to the Will. There should be two Attesting or more witnesses as each of the said witnesses must have seen the Testator signing or affixing his mark and each of one should sign the Will in the presence of Testator. The testimony discussed herein above fulfill all essential ingredients on the basis of testimony of PW2 Sh. V.K. Gangwal, Attesting witness. As already observed the objections taken by the respondent nos. 2 & 3 are not proved on record. On the other hand, petitioner on the testimony of herself as PW1 and PW2 Sh. V.K. Gangwal, attesting witness proved that the deceased Smt. Rajinder Mehta executed a legal, enforceable and genuine Will on 30.05.2005 and same was registered with the Sub Registrar, whereby bequeathed property in question i.e. LIG Flat No. 27, Hastsal, Uttam Nagar, New Delhi, in favour of petitioner. In the petition, it is averred that Testator appointed petitioner as sole Executor. However, after going PC No. 50/10 Page no. 12/13 through the Will Ex. PW1/4, the Testatrix did not appoint any Executor for probate of the Will. Hence, on the basis of above observation and discussion, the issue is decided in favour of the petitioner and against the respondent.
ISSUE NO. 2 (RELIEF)
27. On the basis of findings on issue no.1, the petitioner is entitled to letter of administration in respect of property No. LIG Flat No. 27, Hastsal, Uttam Nagar, New Delhi with annexed registered Will Ex. PW1/4 on furnishing of requisite court fee and administration bond for a sum equivalent to valuation report to be filed by the SDM, with one surety of the like amount. Further, the petitioner is directed to file inventory of immovable property within 6 months and final statement of account within one year from the date of receipt of formal letter of administration.
28. It is further clarified that question of title, share and ownership of the property mentioned above is not decided by this Court.
29. File be consigned to Record Room after filing of valuation report by the SDM concerned.
Announced in the open court today the 16th day of February, 2016.
(Sanjay Kumar) ADJ-02,West/Delhi 16.02.2016 PC No. 50/10 Page no. 13/13 PC No. 50/10 Page no. 14/13