Delhi District Court
Sumitra vs State on 15 January, 2019
IN THE COURT OF SH. HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
P.C. No. 4/2016
Sumitra
D/o Kishan Chand
W/o Kesho Singh Yadav
R/o House No. 4179, Gali Ahiran
Pahari Dhiraj
Delhi - 110006
... Petitioner
VERSUS
1. State
2. Dhanesh Yadav
D/o Kishan Chand
Wd/o Mahinder Yadav
R/o Village Kapashera
New Delhi - 110037
... Respondents
Date of institution of the petition : 16.10.2015
Date of arguments : 21.12.2018
Date of pronouncement : 15.01.2018
JUDGMENT
1. The petitioner namely, Sumitra is the propounder of the will dated 31.10.1992 (hereinafter "the will") of her deceased father namely, Kishan Chand and has preferred a petition under Section 276 P.C. No. 04/2016 Sumitra Vs. State Page 1 of 16 of the Indian Succession Act, 1925 (hereinafter "the Act") for grant of probate with regard to the will as per which the petitioner is entitled to the estate of all movable and immovable properties of her deceased father.
2. At the outset, this court observes that in the will under question no executor has been appointed. Section 222 of the Act provides that probate can only be granted to an executor appointed by the will. During the course of arguments on 21.12.2018 it has been admitted by the Ld. counsel for the petitioner that no executor has been appointed in the will by the testator (father of the petitioner herein). Accordingly, probate cannot be granted.
3. However, Section 232 of the Act provides that when deceased has made a will, but has not appointed an executor, or deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee can be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate. It is observed that Section 278 of the Act is the relevant Section which deals with the applications for letters of administration. The petitioner before this court is the beneficiary under the will dated 31.10.1992. Accordingly, by virtue of Section 232 read with Section 278 of the Act, the present petition is treated under Section 278 of the Act - See Sanjay Suri v. State & Ors.1 1 2003 (71) DRJ 446 P.C. No. 04/2016 Sumitra Vs. State Page 2 of 16
4. The factual matrix leading to the filing of the present petition is that Late Kishan Chand died testamentary on 18.09.1993 at village Surherha, New Delhi leaving behind his two daughters namely, Sumitra and Dhanesh Yadav and his wife predeceased him during his lifetime. The schedule of property, which has been detailed in Annexure - "A" of the petition as following:
S.No. Particulars Market value
th
1. 1/5 share in 6-2 bearing As per government Khasra Nos. 34/51 (1-2), circle rate.
58/8(4-16), 9(4-16), 10(2-
10), 12(5-16), 13(4-16), 18(3-6), 19(3-12) total admeasuring 30-14 and to the extent of 1/15th share i.e. (1-1) bearing Khasra No. 192 (13-02), 222(3-0) total admeasuring 16bigha 2biswa situated in village Surehra, Tehsil Najafgarh, District South West, New Delhi.
2. A house situated in village As per government Surehra, Tehsil Najafgarh, circle rate.
District South West, New Delhi.
The petitioner has averred the petition that the deceased father was the owner of the above-mentioned properties. Further, her father on 31.10.1992 in perfect state of physical and mental health, without any pressure, influence bequeathed the above properties in favour of the petitioner by way of will. It is pertinent to mention herein that the one of the daughters of Kishan Chand namely, Dhanesh Yadav along P.C. No. 04/2016 Sumitra Vs. State Page 3 of 16 with Pradeep K. Sinha was the attesting witnesses to the will.
5. The present petition has been filed by one of the daughters seeking probate of will dated 31.10.1992.
6. The court issued notice of the petition to near relatives as per the list of relatives filed by the petitioner, citation be published in English daily Statesman and Hindi daily Jansatta, and also to the concerned collector for filing valuation report of the immovable properties in accordance with law on 01.12.2015.
7. Subsequent to receiving no objections from any quarters with regard to grant of probate/letters of administration in favor of the petitioner and on receiving the valuation report on 02.05.2016, the court proceeded for listing the matter for petitioner's evidence for 20.07.2016.
8. On 22.08.2017, the petitioner stepped into the witness box and deposed in tandem to the petition. Further, on 22.08.2017 Smt. Dhanesh Yadav, the full blood sister of the petitioner who not only was impleaded as respondent No. 2 but also being one of the attesting witnesses to the will in question appeared before the court and deposed that she relies upon the will signed by her father.
9. Apart from filing of the evidence by way of affidavit Ex.PW1/A towards her evidence, the petitioner (PW1) relied upon the following documents:
(a) death certificate of deceased testator Kishan Chand Ex.PW1/1(OSR);
(b) election identity card Ex.PW1/2, and
(c) original will dated 31.10.1992 Ex.PW1/3.P.C. No. 04/2016
Sumitra Vs. State Page 4 of 16
10. Smt. Dhanesh Yadav (PW2) filed her evidence by way of affidavit Ex.PW2/A towards her evidence. PW2 relied upon the following documents:
(a) election identity card Ex.PW2/1;
(b) original will dated 31.10.1992 Ex.PW1/3.
11. The petitioner and the respondent No. 2, who also is one of the attesting witnesses have deposed in their affidavits Ex.PW1/A and Ex.PW2/A that their testator father was in a sound disposing mind at the time of signing the will in question and who without any pressure, influence signed the will and the same is the last will and had not been revoked during his lifetime. PW1 and PW2 deposed that the will was signed by the testator in the presence of the attesting witnesses.
12. On careful perusal and examination of the case record it is observed that the jurisdiction of this court has been invoked by the petitioner, as the deceased at the time of his death not only resided but also had a fixed place of abode within the jurisdiction of this court. The subject properties are also situated within the territorial jurisdiction of this court.
13. The citations in terms of Section 283(1)(c) of the Act, 1925 were published in newspapers "The Statesman" and "Jansatta" on 18.12.2015. The above-said newspapers are on record. The notice was also displayed at the notice board of the court.
14. The notice was also issued to the concerned Collector to file valuation report in response to which SDM/Asstt. Collector-I, Najafgarh filed her report stating the value of subject properties being ₹5,06,77,082.87/- (Rupees Five crores six lakhs seventy seven P.C. No. 04/2016 Sumitra Vs. State Page 5 of 16 thousand eighty two and eighty seven paise only); ₹42,81,657.60/- (Rupees Forty two lakhs eighty one thousand six hundred and fifty seven and sixty paise only); ₹97,31,040/- (Rupees Ninety seven lakhs thirty one thousand and forty only.
15. The proposition of law is well settled that while deciding a petition under Section 278 or 276 of the Act, this court is acting as a probate court. The jurisdiction of the probate court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the proceedings and construction of a will relating to the right, title and interest of any other person is beyond the domain of the probate court - See Krishna Kumar Birla v. Rajendra Singh Lodha.2
16. What is germane for this court to decide is whether the will in question is a genuine will and whether deceased Kishan Chand was of sound mind at the time of signing and attestation of the will. It is the duty of the propounder of the will to prove the will in question in accordance with law. Before this court proceeds further holding whether the will is a genuine or false, forged and fabricated will, an extremely important aspect cannot be lost sight that one of the attesting witnesses to the will namely, Dhanesh Yadav is the daughter of the deceased testator and sister of the petitioner. Further, Dhanesh Yadav has deposed in favour of the will and grant of petition in favour of the petitioner.
17. Another aspect, which needs due mention is the other attesting witness to the will dated 31.10.1992 namely, Pradeep K. Sinha who 2 (2008) 4 SCC 300 P.C. No. 04/2016 Sumitra Vs. State Page 6 of 16 not only signed the declaration to the petition but also filed a supporting affidavit along with the petition. Sadly, Pradeep K. Sinha died on 30.10.2017 and could not depose before the court.
18. A Constitution Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee 3 indicated the focal position in law as follows:
"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 Section 63 of the 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 signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. 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 the 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 3 AIR 1964 SC 529 - p.531, para 4 P.C. No. 04/2016 Sumitra Vs. State Page 7 of 16 will to show that the testator's was not free. In such a case the court would naturally expect that all legitimate suspicion 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 substantial 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 of wholly or in a part near relations."
19. A will is executed to alter the ordinary mode of succession and by the nature of things the will 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 the natural heirs have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring.
20. The Apex Court in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar4 held that it is the duty of the propounder of the will to remove all the suspected features, but there must be real 4 1995 Supp (2) SCC 664 P.C. No. 04/2016 Sumitra Vs. State Page 8 of 16 and valid suspicious features and not fantasy of the doubting mind.
21. In Pushpavathi v. Chandraraja Kadamba5 the Hon'ble Supreme Court held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations.
22. In Rabindra Nath Mukherjee v. Panchanan Banerjee 6 the Hon'ble Supreme Court 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.
23. The petitioners' witnesses have deposed in concurrence about the signing and execution of the will. It is observed that one of the attesting witnesses to the will Ex.PW1/B is not a stranger; PW2 is the full blood sister of the petitioner and daughter of the deceased testator.
24. This court places reliance upon the judgment passed by our Hon'ble High Court of Delhi in Ajay Kumar v. The State & Ors. - FAO No. 39/2017 dated 05.07.20187 wherein His Lordship, Valmiki J.Mehta, J., allowed the appeal under Section 299 of the Act, which challenged the impugned judgment dated 28.10.2006 dismissing the probate petition. Hon'ble High Court allowed the appeal and set aside the impugned judgment and held that the appellant had been successful in proving due execution and attestation of the will dated 5 (1973) 3 SCC 291 6 (1995) 4 SCC 459 7 2014 SCC OnLine Del 2521 P.C. No. 04/2016 Sumitra Vs. State Page 9 of 16 17.08.1999 of late Sh. Amar Singh.
25. In Ajay Kumar's case8 though the contesting respondents did not lead any evidence whatsoever but His Lordship' delineated the provisions with regard to requirement of a valid and enforceable will under Section 63(c) of the Act and procedure how the execution of the will is proved under the provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872.
26. Hon'ble High Court relied upon the ratio of the Hon'ble Supreme Court's judgment in M.B. Ramesh (Dead) by LRs v.K.M. Veeraje Urs (Dead) by LRs and Ors.9 with respect to the validity and proving of will. A will has to be executed in the manner required by Section 63 of the Act. Section 68 of the Indian Evidence Act, 1872 requires that the will is to be proved by examining at least one attesting witness. Section 71 of the Indian Evidence Act, 1872 comes to the rescue of a party who had done his best but would otherwise be let down if other means of proving due execution by other evidence are not permitted.
27. The relevant provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872 read as follows:
Section 63 of the Succession Act "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:
8ibid.9
(2013) 7 SCC 490 P.C. No. 04/2016 Sumitra Vs. State Page 10 of 16
(a)-(b) *****
(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 acknowledgement of his signature or mark, or of 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."
Section 68 of the Evidence 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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
Section 71 of the Evidence Act:
"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."
28. Hon'ble High Court in Ajay Kumar v. The State & Ors. - FAO P.C. No. 04/2016 Sumitra Vs. State Page 11 of 16 No. 39/2017 dated 05.07.201810 observed that technicalities must not come as an insurmountable obstruction to defeat a litigant and once an attesting witness is examined, and his statement if read holistically shows proof of the execution and attestation of the will then the will should be held to be proved.
29. Lastly, Ld. counsel for the petitioner during the course of arguments submitted that there is no legal impediment in allowing the petition, the petition is neither time barred nor hit by Article 137 of the Limitation Act, 1963 (hereinafter "Limitation Act"), as the petition has been preferred by the petitioner within three years from the necessity of seeking probate of the will dated 31.10.1992.
30. The maintainability of the petition on the ground of limitation being mere on the law point, I place reliance upon the judgment passed by the Apex Court in the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur,11 which addressed two questions, firstly, about the applicability of Article 137 of the Limitation Act to probate proceedings and secondly, if the same is applicable whether the petition was within time.
31. The Apex Court concluded that such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created remains to be executed.
102014 SCC OnLine Del 2521 11 (2008) 8 SCC 463 P.C. No. 04/2016 Sumitra Vs. State Page 12 of 16
32. The paragraph No. 16 of Kunvarjeet Singh Khandpur v. Kirandeep Kaur,12 that "In view of the factual scenario, the right to apply actually arose on 9.8.1999 when the proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed within three years, the same was within time and therefore the appeal is without merit, deserves dismissal, which we direct but in the circumstances without any order as to costs."
33. The Hon'ble High Court of Delhi in Rohtas Singh v. State & Ors.13 in paragraph No. 5 of the judgment held as under:
"5. Let me now turn to the each ground given by the court below for holding that the probate petition be dismissed. Before going to the grounds, it is also necessary to state that the courts do not sit in the armchair of the testator to decide whether what he actually bequeathed by the Will ought to have been or ought not to have been done i.e whether certain heirs should not be wholly or partially disinherited. Courts do not go into the moral aspects of the matter as to whether the deceased testator was or was not justified for his reasons in favouring one or more legal heirs as compared to other legal heirs. If the court is otherwise satisfied that there is due execution and attestation of the Will by a person of sound disposing mind and there are found no suspicious/unnatural circumstances, probate of the Will is to be granted, inasmuch as, a 12 supra 13 2014 SCC OnLine Del 2521 P.C. No. 04/2016 Sumitra Vs. State Page 13 of 16 Will is proved like any other document. As already stated above, in the present case the Will is duly proved, both by the attesting witnesses and with a notable point that the Will is a registered Will."
[Emphasis laid]
34. The ratio of Rohtas Singh14 is crystal clear that the probate court is to be satisfied that there is due execution of will and attestation of the will by a person of sound disposing mind and there are found no suspicious / unnatural circumstances, probate of the will is to be granted, inasmuch as, a will is proved like any other document.
35. Before this court, the petitioner has proved the will dated 31.10.1992 of Late Kishan Chand testator as Ex.PW1/3, as per the testimony of the the attesting witnesse namely, Dhanesh Yadav (PW2). The attesting witness PW2 namely, Dhanesh Yadav being the daughter of the deceased testator and full blood sister of the petitioner, who is the propounder of the will dated 31.10.1992 Ex.PW1/3 has deposed to the due execution and attestation of the will.
36. Nothing material has been elicited with regard to the execution, attesting of the will and as well as of the mental soundness of the deceased testator to execute the will.
37. This court observes that the petitioner has not filed any objections to the valuation of the properties in question. Thus, the valuation of the immovable properties as per the concerned collector's report is taken as correct and true value of the immovable properties -
14ibid.
P.C. No. 04/2016Sumitra Vs. State Page 14 of 16 See Section 19-H of the Court Fees Act, 1870.
38. The court's role in matters concerning wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether the same is a product of free and sound disposing mind.
39. In view of the above factual and legal position, I hold that the petitioner has proved that Kishan Chand duly executed the will dated 31.10.1992 in favour of the petitioner and bequeathed the properties - 1/5th share in 6-2 bearing Khasra Nos. 34/51 (1-2), 58/8(4-16), 9(4-
16), 10(2-10), 12(5-16), 13(4-16), 18(3-6), 19(3-12) total admeasuring 30-14 and to the extent of 1/15th share i.e. (1-1) bearing Khasra No. 192 (13-02), 222(3-0) total admeasuring 16bigha 2biswa situated in village Surehra, Tehsil Najafgarh, District South West, New Delhi and a house situated in village Surehra, Tehsil Najafgarh, District South West, New Delhi.
40. Let the letters of administration of the estate of Kishan Chand (deceased) comprising of properties - 1/5th share in 6-2 bearing Khasra Nos. 34/51 (1-2), 58/8(4-16), 9(4-16), 10(2-10), 12(5-16), 13(4-16), 18(3-6), 19(3-12) total admeasuring 30-14 and to the extent of 1/15th share i.e. (1-1) bearing Khasra No. 192 (13-02), 222(3-0) total admeasuring 16bigha 2biswa situated in village Surehra, Tehsil Najafgarh, District South West, New Delhi and a house situated in village Surehra, Tehsil Najafgarh, District South West, New Delhi with the copy of the will dated 05.08.2008 annexed be granted to the petitioners with the seal of this court in the form set forth in Schedule VII of the Act and also, subject to completion of requisite formalities, P.C. No. 04/2016 Sumitra Vs. State Page 15 of 16 such as:
(a) furnishing ad-valorem court fees on the total value of the above properties, and
(b) furnishing of an administration bond by the petitioners alongwith the bond of one surety each.
41. File be consigned to record room only after completion of all due formalities. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2019.01.15 16:53:50 +0530 Pronounced in the (HARGURVARINDER S. JAGGI) open court on Addl. District Judge-02 South West 15.01.2019 Dwarka Courts Complex New Delhi P.C. No. 04/2016 Sumitra Vs. State Page 16 of 16