Delhi District Court
Sh. Lalit Mohan Goel vs State on 26 November, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-20/13/97
In the Matter of:
Sh. Lalit Mohan Goel
s/o late Sh. Vidhya Bhushan Gupta
r/o 58/3, Lucknow Road,
Banarsi Dass Estate,
Delhi .
............. Petitioner
VERSUS
State .......... Respondent
Near Relatives
1. Smt. Asha Gupta (daughter)
w/o Sh. Govind Prasad Gupta
r/o 74, DESU Colony,
Shalimar Bagh, Delhi
2. Sh. Lalit Mohan Goel, ( Petitioner/son)
s/o late Sh. Vidhya Bhushan Gupta,
r/o 58/3, Lucknow Road,
B.D. Estate, Delhi.
3. Surinder Mohan Goel, (son)
s/o late Sh. Vidhya Bhushan Gupta,
r/o 58/3, Lucknow Road,
B.D. Estate, Timarpur, Delhi.
4. Smt. Rashmi Goel, (daughter)
w/o Sh. S.P. Goel,
d/o late Sh. Vidhya Bhushan Gupta,
PC-20/13/97 Page:-1/25
r/o Flat no. 319, Sh. Mahavira Cooperative
Society( Lekview Apartments) Sector IX,
Plot no. 42, Rohini, Delhi.
5. Smt. Poonam Gupta (daughter)
d/o late Sh. Vidhya Bhushan Gupta,
w/o Sh. Vinod Gupta,
5610/1, Halwai Bazar,
Ambala Cantt. Haryana. .......Objector.
Date of Institution: 1.9.97
Date of Assignment to this court: 6.7.13
Date of Arguments: 22.11.13
Date of Decision: 26.11.13
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition for grant of probate in respect of the estate of deceased Sh. Vidya Bhushan Gupta. The brief facts of the case as narrated in the petition are that Sh. Vidhya Bhushan Gupta son of late Sh. Fagu Ram was an ordinary resident of Delhi who died at Delhi on 31.3.1971. As stated late Sh. Vidhya Bhushan Gupta had acquired property bearing no. 58/3, Lucknow Road, Banarsi Dass Estate, Delhi in the partition/division among his brother and sister namely Sh. Swadesh Bhushan Gupta and Smt. Shankuntla Devi. As stated Sh. Vidya Bhushan Gupta and other co-owners constructed the property after taking loan and they had divided their respective shares and PC-20/13/97 Page:-2/25 said property came exclusively to the share of late Sh. Vidya Bhushan Gupta. It was stated that during his life he bequeathed his movable and immovable properties in favour of his wife for lifetime and in favour of the petitioner and Sh. Surinder Mohan Goel absolutely by virtue of Will dated 18.3.1971. It was stated that Smt. Tarawati wife of late Sh. Vidya Bhushan and mother of petitioner died on 8.10.91 and thereafter the petitioner and Sh. Surinder Mohan Goel acquired rights in the property left by late Sh. Vidya Bhushan Gupta. As stated Sh. Vidya Bhushan Gupta was working with Customs and Central Excise department and in second week of March, 1971 on account of his ailment he was admitted in the Willingdon hospital and remained in the hospital from second week of March,1971 till 31.3.1971 and he died in the hospital on 31.3.1971. While he was admitted in the hospital he executed a Will dated 18.3.1971 in the presence of doctors and the attesting witnesses namely Sh. Om Parkash and Sh. Swadesh Bhushan Gupta regarding all his movable and immovable properties. The said Will was never cancelled and the said Will remained to be last Will of the father of the petitioner. It was stated when the said Will was executed Doctor D. Sen Gupta, Medical Officer, Willingdon PC-20/13/97 Page:-3/25 Hospital was present and he certified regarding the health of late Sh. Vidya Bhushan Gupta father of the petitioner. As stated after the death of father and mother of the petitioner, the petitioner acquired a right under the Will dated 18.3.1971 and the petitioner has acted upon the said Will. The petitioner filed an application for mutation in December,1991 with the Zonal Assessor & Collector, MCD for mutation of the property. As stated the petitioner has acted upon the said Will in December,1991 itself after the death of his mother Smt. Tarawati. It was stated that since late Sh. Vidya Bhushan Gupta was working with Customs & Central Excise department and as such after his death all the emoluments, provident funds and gratuity is to be paid to their heirs of late Sh. Vidya Bhushan Gupta. It was stated that heirs applied for the payment of provident funds and gratuity and they submitted a copy of the Will duly attested by Sh. S.M. Aggarwal, the then Magistrate Ist class. The amount of gratuity, provident funds were given to the petitioner, mother and Sh. Surinder Mohan Goel by means of cheque and they have encashed the same. After the death of the mother of parties there had been dispute interse between the objector and the petitioner with regard to the division of the property and as such to resolve the dispute they PC-20/13/97 Page:-4/25 entered into an arbitration agreement dated 11.3.1992 and the matter was referred to arbitrators and at no point of time of execution of the arbitration agreement, reference to Will dated 20.3.1971 was made and only copy of Will dated 18.3.1971 was filed before the arbitrator. It was stated that the petitioner remained in the hospital with his father till he died. It was stated that Will dated 18.3.1971 is the last testament of late Sh. Vidya Bhushan and she had not executed any other Will during her life time. Hence, it was prayed that probate be granted to the petitioner under Will dated 18.3.1971.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed despite service. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper "National Herald" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper "National Herald" on 26.3.1998.
4. Though relation no. 1 Asha Gupta initially filed objections to the present PC-20/13/97 Page:-5/25 petition but later on she filed no objections.
5. In objections filed by relation/ respondent no. 3 Surinder Mohan Goel it was stated that the petitioner has not filed the original registered Will purported to have been executed by late Sh. Vidhya Bhushan Gupta and as such petition is liable to dismissed on this ground. It was stated that the present petition is the counter blast to the petition filed by the objector Surinder Mohan Goel. It was stated that father of the objector Sh. Vidya Bhushan Gupta had executed his last Will which is dated 20.3.1971 in favour of late Tarawati his wife and Smt. Tarawati became the sole and exclusive owner of the property by virtue of said Will. It was stated that Smt. Tarawati, wife of late Sh. Vidhya Bhushan Gupta executed a registered Will dated 30.4.1990 which was duly registered with the Sub Registrar, Delhi during her life time on 3.5.1990 by virtue of which Will she had bequeathed her properties in favour of the objector Surinder Mohan Goel. It was stated that Will dated 18.3.1971 is forged and fabricated and is not the last Will of late Sh. Vidhya Bhushan Gupta. Hence, it was prayed that present probate petition be dismissed.
6. Though Cl. for relation no. 4 Rashmi Goel appeared few times but neither PC-20/13/97 Page:-6/25 filed objections nor no objection to the present petition.
7. Objections were also filed on behalf of relation no. 5 Poonam Gupta though vide order dated 6.1.98 she was proceeded ex-parte. In the objections filed by her execution of the Will dated 18.3.1971 was denied. It was stated that as per the knowledge of the objector, late Sh. Vidya Bhushan Gupta had executed a Will on 20.3.1971 in favour of the mother of the objector i.e. Smt. Tarawati and Smt. Tarawati in turn had executed a Will dated 30.4.1990 which was duly registered with the Registrar of Assurances, Kashmere Gate, Delhi by virtue of which she had bequeathed her properties in favour of the petitioner and Sh. Surinder Mohan Goel. It was stated that objector has been visiting her father in the hospital and had never heard of the execution of Will dated 18.3.1971 nor did he inform the objector about the same. It was accordingly prayed that the present petition be dismissed.
8. Separate rejoinders were filed by the petitioner to the respective objections of the objectors in which case as set out in the petition is reiterated and that of the objectors was denied.
9. Vide order dated 12.10.99 from the pleadings of parties, the following issues were framed:-
PC-20/13/97 Page:-7/25
(i) Whether the Will dated 18.3.71 propounded by petitioner is the last Will and testament of deceased Vidhya Bhushan and it has been executed by him in sound disposing mind and hence it is valid Will ?OPP
(ii) Relief.
10. It is pertinent to mention here that this petition bearing no. 20/13 titled as Lalit Mohan Goel Vs. State as well as petition no. 79/13/98 titled as Surinder Mohan Goel Vs State were consolidated vide order dated 14.11.02 for the purpose of evidence and it was stated that case titled as Surinder Mohan Goel Vs. State be treated as main case.
11.In evidence, petitioner Lalit Mohan Goel produced Sh. Swadesh Bhushan Gupta as O2W-1, Sh. Onkar Dutt Guitt as O2W-2, Dr. D. Sen Gupta as O2W3, Smt. Asha Goel as OW-1, Sh. John Masih as O2W-4, Sh. Gulab Singh as O2W-5, Sh. N.K. Maurya as O2W6, Sh. Lalit Mohan Goel as O2W-7, Sh. S.M. Aggarwal as O2W8, Sh. A.K. Gupta as O2W-9, Sh. S.P. Gupta as O2W10, Sh. Mahender Gupta as O2W-11. Petitioner Lalit Mohan Goel reiterated his case in his deposition. The copy of the Will dated 18.3.1971 was marked as OX/P-1 and attested copy of the same was Ex. PW-1/D-1. Witness O2W-1 Sh. Swadesh Bhushan Gupta stated that the testator, witness Om Parkash and Dr. D. Sen Gupta signed the Will dated PC-20/13/97 Page:-8/25 18.3.71 in his presence and that deceased was in sound disposing mind. Witness Mr. Onkar Dutt Gutti O2W-2 also supported the case of objector Lalit Mohan Gupta and deposed on the same lines as well as identified the signatures of the testator as well as witnesses on the copy of the Will dated 18.3.1971. O2W-3 Dr. D. Sen Gupta stated that in the month of March, 1971, late Sh. Vidya Bhushan Gupta was got admitted by him in the hospital for his kidney ailment and as long he remained in the hospital he looked after him. He also stated that at the time when he issued certificate to late Sh. Vidya Bhushan Gupta he was in full senses and deposing mind and the said Sh. Vidya Bhushan Gupta admitted the contents of the Will Ex. P-1 after hearing the contents of the same. Witness O2W-4 proved reply dated 13.7.09 as Ex. O2W-4/1 and copy of application dated 20.6.09 mark O2W-4/A. O2W-5 Sh. Gulab Singh was official witness from Revenue Department who brought the original application dated 13.3.09 and reply to application dated 15.4.09 was Ex. O2W-5/1, reply dated 8.4.09 was Ex. O2W-5/2. Sh. N.K. Maurya O2W-6was official witness from house tax department and proved application dated 12.12.91 Ex. O2W6/1. O2W-7 Sh. Lalit Mohan Goel also relied upon death certificate of his grand father Ex.
PC-20/13/97 Page:-9/25 O2W-7/1, copies of documents submitted by him with the MCD Ex. O2W-7/2, death certificate of Sh. Phaggu Mal Ex. O2W-7/3, agreement dated 11.3.92 Ex. O2W-7/4, copy of letter and reply received dated 20.3.00 Ex. O2W-7/5, queries raised by him in St. Stephen's hospital was Ex. O2W-7/6 collectively, application to Revenue Department Ex. O2W-7/7, information furnished by M/s Balmer & Lawrie Ex. O2W-7/8, photograph of marriage Ex. O2W-7/9. O2W-8 Sh. S.M. Aggarawal stated that he attested the typed copy of Will Ex. PW-1/D-1 and stated that he had compared the contents with the original before attesting it. O2W9 Sh. A.K. Gupta proved communication of Lalit Gupta dated 23.7.09 Ex. O2W9/1, information furnished by my company to Sh. Lalit Mohan Goel under RTI Act vide communication dated 10.11.11 was Ex. O2W9/2, copy of leave rules was Ex. O2W9/3. O2W10 Sh. S.P. Gupta, Architect stated that he prepared the site plan Ex. O2W10/1 which was issued in pursuance of queries made by Lalit Mohan Goel Ex. O2W10/2 which was earlier mark OW/I/PY. O2W11 Sh. Mahender Gupta proved letter Ex. O2W11/1, affidavit of Mrs. Sangeeta Goel Ex. O2W11/2, original indemnity bond and photocopy of the same Ex. O2W11/3. He identified the signatures of Mrs. PC-20/13/97 Page:-10/25 Sangeeta Goel and Sh. S.M. Goel as he has seen them writing and signing. Mrs. Asha Gupta was also appeared as witness and supported the case of present petitioner Sh. Lalit Mohan Goel.
12. In defence, objector Surinder Mohan Goel produced himself as PW-1, Sh. Prem Chand Gupta as PW-2, Sh. R.K. Aggarwal as PW-3, Sh. Om Prakash as PW-4. Affidavit of one witness Sh. Shanti Swaroop Gupta was though was placed on record but he did not appear in witness box either for tendering the same or for cross examination. PW-1 petitioner reiterated the contents of the petition and placed reliance upon death certificate of deceased Vidhya Bhushan Gupta Ex. PW-1/1, death certificate of Smt. Tarawati Ex. PW-1/2. PW-2 Sh. Prem Chand stated himself to be one of the attesting witness to the Will dated 20.3.1971 which was Ex. PW-2/1. PW-3 Sh. R.K. Aggawal also stated himself to be one of the attesting witness to the Will dated 30.4.1990 which was Ex. PW-4/1 and identified the signatures of Sh. Shanti Swaroop Gupta in English and also the signatures of Smt. Tarawati. Sh. Om Prakash PW-4 also stated himself to be attesting witness of Will dated 30.4.1990 and identified the signatures of other attesting witnesses as well as the testator on the same.
PC-20/13/97 Page:-11/25
13.In defence, objectors produced Smt. Asha Goel as OW-1, Sh. John Masih as O2W-4, Sh. Gulab Singh as O2W-5, Sh. N.K. Maurya as O2W6, Sh. Lalit Mohan Goel as O2W-7, Sh. S.M. Aggarwal as O2W8, Sh. A.K. Gupta as O2W-9, Sh. S.P. Gupta as O2W10, Sh. Mahender Gupta as O2W-11. Objectors Asha Goel and Lalit Mohan Goel reiterated their case as set out in their objections and relied upon Will dated 18.3.1971. The copy of the Will dated 18.3.1971 was marked as OX. Witness O2W-4 proved reply dated 13.7.09 as Ex. O2W-4/1 and copy of application dated 20.6.09 mark O2W-4/A. O2W-5 Sh. Gulab Singh was official witness from Revenue Department who brought the original application dated 13.3.09 and reply to application dated 15.4.09 was Ex. O2W-5/1, reply dated 8.4.09 was Ex. O2W-5/2. Sh. N.K. Maurya O2W-6was official witness from house tax department and proved application dated 12.12.91 Ex. O2W6/1. O2W-7 Sh. Lalit Mohan Goel also relied upon death certificate of his grand father Ex. O2W-7/1, copies of documents submitted by him with the MCD Ex. O2W-7/2, death certificate of Sh. Phaggu Mal Ex. O2W-7/3, agreement dated 11.3.92 Ex. O2W-7/4, copy of letter and reply received dated 20.3.00 Ex. O2W-7/5, queries raised by him in St. Stephen's hospital was Ex.
PC-20/13/97 Page:-12/25 O2W-7/6 collectively, application to Revenue Department Ex. O2W-7/7, information furnished by M/s Balmer & Lawrie Ex. O2W-7/8, photograph of marriage Ex. O2W-7/9.
14.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
15.Issue no. 1 :- Before proceeding to decide this issue, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
16. Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is PC-20/13/97 Page:-13/25 the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of PC-20/13/97 Page:-14/25 administration with Will annexed can be given.
17.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
18. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign 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 testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his PC-20/13/97 Page:-15/25 signatures 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."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested PC-20/13/97 Page:-16/25 and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
19. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as PC-20/13/97 Page:-17/25 evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, 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 deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which PC-20/13/97 Page:-18/25 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 S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
20. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
21. The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the PC-20/13/97 Page:-19/25 property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
22. The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court PC-20/13/97 Page:-20/25 Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has PC-20/13/97 Page:-21/25 been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will.
PC-20/13/97 Page:-22/25 The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
23. Now I have to see whether in the present case the above principles have been duly made out or not. In the present case the the genuiness of Will dated 18.3.1971 alleged to be propounded by Vidya Bhushan is to be looked into. The attesting witnesses to the said Will are Sh. Om Prakash s/o Sh. Jyoti Prakash and Sh. Swadesh Bhushan. Sh. Swadesh Bhushan has appeared in the witness box as PW-1 whereas attesting witness Sh. Om Prakash has not been produced in the witness box by the petitioner. Rather PC-20/13/97 Page:-23/25 this witness Om Prakash is also the attesting witness to the Will dated 30.4.1990 propounded by petitioner in other connected case Sh. S.M. Goel. This witness had deposed against the petitioner in the present case and had been thrashed in cross examination by Cl. for petitioner Sh. Lalit Mohan. It is also argued by the petitioner in the said case connected case that testimony of this witness is not trustworthy, however it is very strange that if one person is not trustworthy for one case then how can be relied upon as a genuine attesting witness for the Will dated 18.3.1971. I am not thrashing the will on other point because even though if one witness would have been produced to prove the Will it would have fulfilled the mandatory requirement but herein when Sh. Om Prakash appeared as witness to objector has refused to identify his signatures and rather stated that he did not sign the Will dated 18.03.1971, hence the Will goes only on this ground.
24.The other point which is to be mentioned is that the original of Will dated 18.3.1971 has not been produced by the petitioner and he has relied upon the typed as well as attested copy of the said Will. Though the attested copy of the Will dated 18.3.1971 from the then First Class Magistrate Sh.
PC-20/13/97 Page:-24/25 S.M. Aggarwal is there on record but the stamp of Magistrate does not bear the date, month or year of the attestation. Even the O2W-7 Sh. S.M. Aggwal during cross examination stated that he did not consider it necessary to mention the year of attestation on any of the pages of the Will Ex. PW-1/D-1. The Will in question i.e. 18.3.1971 is also not a registered Will. Thus, in all these circumstances the suspicious circumstances made out as above have not been sufficiently explained and it cannot be stated that the Will in question was last testamentary disposition of the testator out of free will and without coercion. Accordingly issue no. 1 is decided in favour of the objectors and against the petitioner.
25.Relief:- In view of the above finding, instant petition is hereby dismissed with costs. File be consigned to record room.
Announced in the open court on (AJAY GOEL) 26.11.13 ADJ-12(Central)Delhi. PC-20/13/97 Page:-25/25