Delhi District Court
Sh. Anil Kumar Punj vs The State on 3 July, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL. DISTRICT
JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 21/10
New P.C. No. 16114/16
Sh. Anil Kumar Punj
S/o Sh. Sat Prkash Punj
R/o SFS Flat No. 15-B, Pocket DG-II,
Block 'D',Vikas Puri, New Delhi. ......Petitioner
Versus
1. THE STATE
2. Smt. Raj Dulari Pabbi
W/o Sh. O.P. Pabbi
R/o 1404, Kaveri Apartments,
Nandi Enclave, Bansharari,
Bangalore - 560085. .....Respondents
Date of institution of the case : 07.04.2010
Date reserved for judgment on : 03.07.2018
Date of pronouncement of judgment: 03.07.2018
JUDGMENT
1. A petition under Section 276 of the Indian Succession Act for grant of Probate in respect of "Will" dated 10.06.2009 duly executed by deceased Sh. Ram Murti Joshi, son of late Sh. Gurdas Ram has been filed.
2. In brief the facts are that Shri Ram Murti Joshi S/o Late Shri Gurdas Ram R/o Flat No. 136, C-2/C, Pocket-2, Janakpuri, New Delhi died at Delhi on 23.12.2009 (hereinafter referred to as "deceased"). He was the brother of the grandfather of the petitioner and was having his fixed place of PC No. 21/10 Anil Kumar Punj Vs State 1/33 residence at Flat No. 136, C-2/C, Pocket-2, Janakpuri, New Delhi. The deceased prior to his death on 23.12.2009 executed his last Will whereby he bequeathed his immovable property bearing Flat No. 136, C-2/C, Pocket-2, Janakpuri, New Delhi (hereinafter referred to as the 'property in question') in favour of the petitioner. The Will is annexed to the declaration of Shri A.C. Dutt S/o Sh. L.R. Dutt, R/o DG-2/228-C,Vikas Puri, New Delhi, one of the attesting witness of the Will as it will be seen from the said declaration that the same was duly executed by the deceased in the presence of the witness, whose name appears at the foot thereof.
3. It is stated that the deceased did not appoint any Executor in his Will. The petitioner being the grandson of the brother of the deceased is entitled to his estate and to claim probate/letter of administration of the Will of the property of the grandfather's brother. At the time of death, the deceased was a widower as his wife Smt. Bimla Joshi died issueless on 31.12.1996. However, the deceased had one married sister living in Bangalore as specified in the affidavit annexed with the petition.
4. It is stated that the petitioner has not filed any previous petition for grant of probate/letter of administration with regard to the estate left by deceased under the Will dated 10.06.2009. The details and particulars of the immovable property left by the deceased for which probate/letter of administration is required is mentioned in the Schedule -A attached with the petition.
PC No. 21/10 Anil Kumar Punj Vs State 2/33
5. Petitioner seeks that necessary orders for the grant of probate/ letter of administration on the basis of Will dated 10.06.2009 with regard to the immovable property mentioned in the Schedule 'A' left by the deceased may be passed in favour of the petitioner.
6. Upon filing of petition, notices were issued to relatives of deceased and State through Collector and citation to general public got published in daily newspaper "The Statesman".
7. The valuation report in respect of immovable properties were called from the concerned SDM/Collector, accordingly valuation report in respect of immovable property bearing Flat No. 136, Block-C-2/C, Pocket-II, Janakpuri, New Delhi is received as Rs. 3,96,575/-.
8. Objection to the petition were filed on behalf of Mrs.Raj Dulari Pabbi, Sister of the deceased. In the preliminary objections, it is stated that the alleged Will dated 10.06.2009 in respect of deceased Sh. Ram Moorty Joshi is a forged document. It is stated that otherwise the alleged Will is not maintainable U/S 222 of the Indian Succession Act as no appointment of Executor of the Will.
9. It is stated that the deceased was a retired official of the Government of India and he used to sign on every document in his own handwriting, while in the alleged forged Will, there are no signatures of the deceased Sh. Ram Moorty Joshi which shows that the Will is a forged one. The petitioner has not come to this PC No. 21/10 Anil Kumar Punj Vs State 3/33 Court with clean hands and has suppressed the material facts. On 10.06.2009, the deceased was not in sound disposing mind and not competent to execute any Will.
10. On merits, most of the averments made in the petition are denied as wrong and incorrect. The relationship of petitioner and the deceased is admitted. It is stated that since there is no Executor in the alleged Will, the petitioner is not entitled for claim of Probate of the forged Will under the Indian Succession Act. The petitioner has not truly set-forth Schedule-A in respect of the immovable and movable properties of the deceased. The deceased was retired official of Government of India, Ministry of Defence and was drawing pension from the Government and he was also having his Bank Account with the Central Bank of India, Janak Puri Branch, New Delhi and also having lot of movable properties in his possession but the petitioner has not set forth the said movable property in Schedule -A.
11. It is stated that the petitioner is not entitled for grant of Probate of the alleged forged Will. Objector seeks to dismiss the petition of the petitioner with cost.
12. Petitioner filed reply/replication to the objections filed by Smt. Raj Dulari Pabbi. In which he denied the averments made in the objections and reiterated the averments made in the petition. It is stated that on 10.06.2009, Shri Ram Murti Joshi was in sound disposing mind and he executed the Will voluntarily. It is admitted that Smt. Raj Dulari Pabbi is the sister of the deceased Sh. Ram Murti Joshi but is is denied that she is residing in Janak PC No. 21/10 Anil Kumar Punj Vs State 4/33 Puri, New Delhi. It is stated that the Objector has herself written various letters to this court fro Bangalore stating that she is unable to attend this court as she has to come all the way from Bangalore. It is stated that the objections of the Objector are vague and baseless.
13. On the pleadings of the parties, the following issues were framed by Ld. Predecessor on 12.05.2011:
1. Whether the petitioner is entitled for probate of Will dated 10.06.2009 executed by Sh. Ram Murti Joshi, as prayed for? OPP
2. Whether the Will dated 10.06.2009 is forged and fabricated documents?OPR
3. Whether the testator was not in sound disposing mind on 10.06.2009? OPR
4. Relief.
14. In support of his case, petitioner Sh. Anil Kumar Punj got examined himself as PW1; Sh. Krishan Kumar, LDC from the office of Sub Registrar-II, Janak Puri, New Delhi as PW2; Sh. Saranjit Singh Bindra, Head Cashier, Central Bank of India, Janak Puri, New Delhi as PW3; Sh. Baljeet Kaur as PW4; and Ms. Aruna Sood as PW5.
15. The Objector Smt. Raj Dulari Pabbi got examined herself as RW1 and thereafter, as per statement of Sh. K.K. Dutta, Ld. Counsel for the Objector/ respondent evidence on behalf of the Objector was closed on 26.08.2014.
PC No. 21/10 Anil Kumar Punj Vs State 5/33
16. I have heard Sh. Rajiv Kapoor,Counsel for the petitioner and Sh. K.K. Pahuja, Counsel for the Objector Mrs.Raj Dulari and perused the material on record. My findings on issues are as under:
ISSUE NO. 2 & 3First I am taking up issue no. 2 & 3. In order to decide the above issues, let us peruse the provisions and principles of law laid down by the Apex Court.
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.
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.
PC No. 21/10 Anil Kumar Punj Vs State 6/33
19. 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.
20. 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 PC No. 21/10 Anil Kumar Punj Vs State 7/33 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".
21. 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.
22. 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 PC No. 21/10 Anil Kumar Punj Vs State 8/33 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."
17. The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with PC No. 21/10 Anil Kumar Punj Vs State 9/33 mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of PC No. 21/10 Anil Kumar Punj Vs State 10/33 the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
( emphasis supplied)
18. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the PC No. 21/10 Anil Kumar Punj Vs State 11/33 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 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 PC No. 21/10 Anil Kumar Punj Vs State 12/33 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)
19. In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar ( supra), the Supreme Court culled out the following propositions:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. And subject to the process of the court and capable of giving evidence. (3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is prsoved to be the last will and PC No. 21/10 Anil Kumar Punj Vs State 13/33 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 susbtantial 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 circusmtances 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 ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is 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 PC No. 21/10 Anil Kumar Punj Vs State 14/33 of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied)
20. 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 PC No. 21/10 Anil Kumar Punj Vs State 15/33 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)
21. 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 PC No. 21/10 Anil Kumar Punj Vs State 16/33 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 "(A)ny 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."
22. 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. 21/10 Anil Kumar Punj Vs State 17/33
23. In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, 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 testatrix 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 direction.
(b) The signature or mark of the testatrix, 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 testatrix PC No. 21/10 Anil Kumar Punj Vs State 18/33 sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix 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 testatrix, 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.
20.2 Section 68 & 71 of the 1872 Act:
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:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall PC No. 21/10 Anil Kumar Punj Vs State 19/33 have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to PC No. 21/10 Anil Kumar Punj Vs State 20/33 be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
24. The onus of issue no. 2 & 3 is on the respondents. Respondent no. 2 Smt. Raj Dulari appeared in witness box as RW- 1 and proved her affidavit Ex. RW-1/1. In the affidavit she deposed the fact which are already brought on record by the PC No. 21/10 Anil Kumar Punj Vs State 21/33 petition's witnesses and taken the main defence that Will Ex. PW- 1/2 dated 10.06.2009 of deceased is forged and fabricated document and obtain under coercion by petitioner Sh. Anil Kumar Punj. No document proved on record by the respondent no. 2. In the detailed cross-examination she stated that the address given by her of C4E/11/144, Janakpuri where she has been residing since 1972 but no documentary proof has been filed on record. She admitted that she had received the court summons at Banglore address. She admitted that deceased was having another brothers, namely, Sh. Ram Rakha Punj who expired prior to Sh. Ram Murti. RW-1 testified that her parental family was at Jalandhar, Punjab. She does not remember when deceased Sh. Ram Murti shifted to Delhi. She deposed that the marriage of Sh. Ram Murti Joshi was solemnized at Ludhiana and deceased was expired in December, 2009 and at that time she was at Bangalore.
25. She further deposed that in the year 2008 she came to met Sh. Ram Murti Joshi when he was admitted in Park Hospital, Kesho Pur as she same to know through her grand son Shikhar. She denied that she has been living at Bangalore and not aware of the health of deceased Ram Murti Joshi. She denied that wife of petitioner, Sh. Anil Kumar Punj informed about hospitalization of deceased. She deposed that she could not admit or deny that from the hospital deceased went to the house of petitioner, Sh. Anil Kumar Punj. She admitted that petitioner, Sh. Anil Kumar Punj used to take him to hospital and also to the bank for withdrawal of pension and other functions and also used to take care as she was staying in Banglore. She admitted that she never met deceased Ram Murti Joshi after December 2008 till PC No. 21/10 Anil Kumar Punj Vs State 22/33 he expired in December 2009. However, she introduced the fact that on 10.06.2009 she telephonically talked to Sh. Ram Murti Joshi. In the affidavit she taken a stand that deceased Ram Murti Joshi was not able to speak properly due to his physical condition. This is the day when the Will Ex. PW-1/2 was executed and registered. So it contrary to her defence and objections of respondent no. 2 Smt. Raj Dulari that deceased Ram Murti Joshi was not mentally and physically fit on 10.06.2009 because she herself talking to him.
26. She further stated the facts that petitioner and his mother took the thumb impression of deceased forcibly on papers when she had sent a Rakhi through grand son. This is highly unbelievable because she always resided at Banglore and once visited Delhi when she was informed in the year 2008. There was no occasion to Sh. Ram Murti Joshi to talk to her either on 10.06.2009 or on occasion of Rakhi. She is not aware that deceased Ram Murti used to visit bank for withdrawal of pension till his death. She is aware these two facts which she has introduced in the cross-examination. She even not attend the funeral and last rites. He had visited Delhi in February, 2010 on the occasion of marriage function of her daughter in law. She did not visit after the death of her real brother Sh. Ram Murti Joshi and it is also not on record when she had paid homage to the departed soul. However, she admitted in the cross-examination that petitioner Anil Kumar Punj used to take care of deceased Sh. Ram Murti Joshi and his last rites are also performed by petitioner. The keys and possession of the flat of deceased was also with petitioner.
PC No. 21/10 Anil Kumar Punj Vs State 23/33
27. She further admitted that since only Anil Kumar was taking care of deceased Sh. Ram Murti Joshi hence he executed his Will in favour of Sh. Anil Kumar Punj. She admitted that deceased Sh. Ram Murti was competent to executed the will but he had not executed the Will Voluntarily. However, there is no oral or documentary evidence to this effect. She denied that Will Ex. PW-1/2 dated 10.06.2009 is a genuine registered document and deceased Ram Murti Joshi executed the Will voluntarily.
28. The respondent no. 2 Mrs Raj Dulari has examined herself as RW-2 and her affidavit is based on the evidence led by the petitioner. Her testimony established that she was resident of Bangalore and hardly visited Delhi. She had throughout visited once to deceased Ram Murti Joshi when he was admitted in 2008 probably petitioner's family must have informed her being the real sister. She never visited and taken care of deceased Ram Murti Joshi who was residing alone in the flat prior to 2008. She admitted that petitioner Anil Kumar Punj and his family got admitted deceased and taken care and also take care of him of his bank and other works. She has introduced new facts in the cross-examination which are not part of pleadings nor the affidavit Ex. RW-1/1.
29. The testimony of RW-1 established that she is testified wrong statement with regard to telephonically conversation with deceased Ram Murti Joshi on 10.0-6.2009 or later on on the festival. She even not care to pay homage after the death to visit Delhi. The respondent no. 2 failed to bring on record any evidence orally or documentary to establish that the Will Ex. PW-1/2 dated 10.06.2009 of deceased Ram Murti Joshi is forged and fabricated document.
PC No. 21/10 Anil Kumar Punj Vs State 24/33
30. I have also gone through the written arguments filed on behalf of respondent no. 2. Ld. Counsel for respondent no. 2 in the written arguments submitted that no medical certificate filed on record of any Doctor that deceased was sound mind at the time of execution of the will nor any declaration regarding possessing of good health and sound mind was recorded on the Will itself. Ld. Counsel has forgotten the important fact that respondent no. 2 herself stated in the cross-examination that she herself telephonically talked to deceased Ram Murti Joshi on 10.06.2009 on the day of execution of the Will. If she is saying the wrong statement then the objection is contrary to the stand of respondent no. 2. Even otherwise PW-4 Ms Baljeet Kaur, the attesting witness proved the fact with regard to execution and registration of the Will. Nothing brought on record during the cross-examination about the fact that certificate of doctor is required.
31. The other contention with regard to withdrawing of the money from the bank of the deceased. It is admitted that deceased was under treatment of cancer since 2008. The cheques bearing the thumb impression of deceased and the amount was withdrawn as per cheque issued by deceased Ram Murthi Joshi. In the written statement no such defence is taken. No question has been put to PW-3 in the cross-examination regarding medical certificate, therefore, I do not find any merit in this contention of ld. Counsel for respondent no. 2.
32. The respondent no. 2 herself was resident of Banglore and never visited the deceased and no objection taken about how the deceased Sh. Ram Murthi Joshi remain alone there from PC No. 21/10 Anil Kumar Punj Vs State 25/33 31.12.1996 till 2008. It is admitted that since 2008 petitioner and his family was taking care of deceased. The petitioner had introduced his friend, Sh. Varun Kumar, Advocate to Sh. Ram Murti Joshi for preparation of draft of the will but he never participated or influenced. No evidence brought on record by respondent no. 2 in this regard.
33. Ld. Counsel for respondent no. 2 relied on judgment of Joseph Antony Lazarus (D) by L.Rs Vs A.J. Francis, AIR 2006 Supreme Court page 1895. I have gone through the same, however in the written objections in affidavit Ex. RW-1/A, respondent no. 2 has not mentioned even a single suspicious circumstance surrounding the execution and registration of te will. It is an after thought that there were suspicious circumstances. In the present facts and circumstance, the examination of advocate who drafted the will does not effect the petitioner's case because one of the attesting witness has been examined as per Section 68 of Indian Evidence Act. In the case relied appears that two signatures of the deceased testatrix, however, in the present case no such fact is involved, therefore the relied case of Joseph Antony Lazarus ( Supra) is distinguishable.
34. Another judgment relied by respondent no. 2 is of Dayawanti (Appellant) Vs Rukma D Swarna & Others ( Respondent), 2011 ( 4) RCR ( Civil) SC Page 856. In the case relied the deceased testator died within 15 days of the execution of the Will, however, in the present facts and circumstances the deceased/testator live for six months. Therefore no suspicious circumstance arise. However, in the PC No. 21/10 Anil Kumar Punj Vs State 26/33 present case the deceased testator put his thumb impression in the presence of attesting witnesses and also appeared before Sub-Registrar. Therefore, this judgment is also distinguishable.
35. Another judgment relied by ld. Counsel for respondent no. 2 is of Vijay Sethi & Others Vs State & Others" 2015 (5) RCR ( Civil ) Delhi High Court Page 283. The case relied by the counsel for respondent no. 2 is where deceased testator was in the habit of putting signatures but only put his thumb impressions. However, in the present case deceased started putting thumb impression since March 2009 three months prior to execution of the Will, therefore, no such suspicious circumstance proved on record.
36. Lastly, ld. Counsel for respondent no. 2 relied on judgment of Subhash Nayyar Vs Registrar, University of Delhi & Others, 2014 (1) RCR (Civil) Delhi High Court, Page 810. In the case not a single suspicious circumstances pleaded and proved by respondent no. 2. In this case the attesting witness is alive and appeared in witness box, therefore, the judgment of Subhash Nayyar ( Supra) is also no help to respondent no. 2.
37. In view of above observation and discussion respondent no. 2 failed to discharge the onus of issue no. 2 & 3, therefore, same are decided in favour of petitioner and against respondent no. 2.
38. Issue No. 1The onus of issue no. 1 is on the petitioner who examined in total five witnesses. Petitioner appeared in the PC No. 21/10 Anil Kumar Punj Vs State 27/33 witness box as PW-1 and proved his affidavit Ex. PW-1/A, death certificate of Sh. Ram Murti Joshi dated 23.12.2009 as Ex. PW-1/1, Will dated 10.6.2009 as Ex. PW-1/2.
39. In the detailed cross-examination he admitted that deceased Ram Murti Joshi had his own flat No. 136, C-2, Pocket-2, Janak Puri, Delhi. The deceased was residing with him since 2008. The Will Ex. PW-1/2 was typed by his Advocate Mr. Varun but he was not able to tell his number of his premises. He is not able to tell the Chamber No. or office number but he is friend of petitioner. He explained that deceased Ram Murti had desired to draft the will, therefore, Mr. Varun was arranged. He came to the petitioner's residence and met Sh. Ram Murti Joshi. He admitted that deceased was a patient of prostrate cancer which was detected in 2008. He deposed that deceased was not in position to write but he was in position to speak and hear.
40. He admitted that the attesting witness Baljeet Kaur and A.C Dutt also known to him. He further explained that on 10.06.2009 both the attesting witnesses came to his residence and deceased Ram Murti had told them to be the attesting witness to his will and told this fact to Mr. Varun Advocate. He admitted that when the will drafted or prepared name of Baljit Kaur was not typed but later on written by Advocate Varun. He admitted that he alongwith his mother took the deceased Ram Murti to the Sub Registrar Office.
41. He further explained that when deceased Ram Murti asked the attesting witnesses to come for attestation of the Will in his absence. He further clarified that deceased Ram Murti PC No. 21/10 Anil Kumar Punj Vs State 28/33 himself got the Will typed from District Center, Janak Puri and he came to know in the evening on 10.06.2009 when he return from the office. The will was shown by deceased to petitioner after 2-3 days of its registration. He admitted that his mother was also with deceased testator at Sub- Registrar office but did not enter in the office as she was not allowed. He also did not enter into the office of Sub-Registrar. No witness signed in his presence the Will Ex. PW-1/2. Deceased Ram Murti also not put his thumb impression in his presence. He denied the suggestion that thumb impression of deceased Ram Murti was procured on Ex. PW-1/2 and attesting witnesses were managed by him. He denied the suggestion that he forged the Will Ex. PW-1/2.
42. PW-2 Sh. Krishan Kumar, LDC from the office of Sub- Registrar proved the registration of the will by presenting the registration record of Registrar.
43. PW-3 Sh. Saranjit Singh Bindra produce the pension record of deceased Ram Murti Joshi and proved the cheques drawn on Central Bank of India dated 27.03.2009 and 30.5.2009 which appears the thumb impression of deceased Ram Murti Joshi. This establish that on the day of execution of the Will on 10.06.2009 deceased Ram Murti Joshi was not in a position to put his signature, therefore, he had been putting thumb impression on the cheque for drawing of pension since March 2009.
44. PW- 4 Smt. Baljeet Kaur, the attesting witness is the vital witness who corroborates the execution and registration of the Will dated 10.0-6.2009 by deceased testator, Sh. Ram Murti Joshi and proved the Will Ex. PW-1/2. She identified her PC No. 21/10 Anil Kumar Punj Vs State 29/33 signatures and thumb impression of deceased on the Will Ex. PW- 1/2.
45. In the detailed cross-examination she testified that she knew the deceased testator for the last 7-8 years. Sh. Ram Murti had asked her on telephone to come to the Sub-Registrar office. She alongwith Sh. A.C Dutt, another attesting witness went to the office of Sub-Registrar where petitioner and his mother were also reached separately. Sh. Ram Murti was on wheel chair but she is not aware whether he was suffering from cancer at that time. In her presence the contents of Will were not explained to deceased Ram Murti in Hindi. She admitted that due to cancer deceased Ram Murti was not able to speak properly. She deposed that she does not know if Ram Murti was also suffering from paralysis, a new disease introduced in the cross-examination by counsel for respondent no. 2.
46. She deposed that she was aware of if Sh. Ram Murti Joshi was admitted in Park Hospital. She denied the suggestion that Ram Murti did not execute any Will in favour of Sh. Anil Kumar Punj. She denied that because of Anil Kumar she is the attesting witness.
47. The testimony of PW-2 Ms Baljeet Kaur established that on 10.06.2009 she went to the office of Sub-Registrar. She put her signatures in the presence of deceased/testator as well as in the presence of other attesting witness. The copy of Will is Ex. PW-1/2. It further established that all appeared before the Sub-Registrar as on the last back page photographs of deceased/testator and both witnesses were affixed. The first PC No. 21/10 Anil Kumar Punj Vs State 30/33 page back side of the will also appears the finger prints and thumb impression of deceased Ram Murti Joshi.
48. In my considered opinion both petitioner and his mother did not influence in execution of the Will althugh they were taking care of deceased Ram Murti Joshi since 2008 being the grand uncle. The deceased was able to only hear and speak established on record because even respondent no. 2 had a telephonic conversion with him on 10.06.2009. Because of his illness and his old age deceased was not able to sign properly. It is established on record that since March 2009 deceased has been putting his thumb impression on the cheques, therefore, he put his thumb impression on the Will Ex. PW-1/2.
49. In my opinion, it is not established on record that petitioner or his mother pressurized or influenced or coercion the deceased Ram Murti Joshi to put thumb impression on the Will. Petitioner is only facilitate by providing Advocate known to him Mr. Varun. It is admitted that Will was executed by deceased Ram Murti Joshi about six months prior to his death. The circumstances also established that only the petitioner and his family looking after him being grand uncle. The deceased was residing alone and he was detected cancer in the year 2008. Respondent no. 2 has already admitted that she has been residing at Banglore and never visited and taken care of deceased Ram Murti. Even she has not paid homage after his death.
50. In my considered opinion the testimony of PW-4 Baljeet Kaur established that deceased Ram Murti in sound mind PC No. 21/10 Anil Kumar Punj Vs State 31/33 condition executed the Will Ex. PW-1/2 on 10.06.2009 which further proved on record as per Section 63 of Indian Succession Act. Therefore, petitioner discharged the onus of issue no. 1. Same is accordingly decided in favour of petitioner and against respondent no. 2.
51. In the present case, the petitioner has prayed for grant of Probate in respect of the Will dated 10.06.2009 executed by Late Sh. Ram Murti Joshi S/o late Sh. Gurdas Ram, however the perusal of the said Will ( Ex. PW-1/2) reveals that petitioner has not been named as Executor therein and as such the probate in respect of the Will in question cannot be granted in favour of the petitioner in accordance with the provisions of Section-222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the Will. In these circumstances and in view of the provisions of Section-232 of Indian Succession Act, the petitioner shall be entitled only to Letter of Administration in respect of the property mentioned in the said Will.
Relief
52. In view of finding on issues no. 1 to 3, the petitioner is entitled to letter of administration in respect of flat No. 136, in block No. C-2-C, Pocket-2, Janakpuri Delhi-110058 after obtaining requisite Court fee and administration bond to the total tune of Rs. 3,96,575/- (Rupees Three Lakh Ninety Six thousand Five Hundred Seventy Five only) as agreed by petitioner.
53. Further, the petitioner is directed to file the inventory of the immovable property within six months and final statement PC No. 21/10 Anil Kumar Punj Vs State 32/33 of 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.
54. It further clarified that the question of title, share or ownership of movable property mentioned herein above is not decided by this Court. File be consigned to the Record Room.
(Announced in the open (SANJAY KUMAR)
court on 3rd July, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 21/10 Anil Kumar Punj Vs State 33/33
PC No. 21/10 Anil Kumar Punj Vs State 34/33