Delhi District Court
Manju Mathpal vs State on 17 October, 2023
IN THE COURT OF SH. AJAY GARG, ADDITIONAL
DISTRICT JUDGE - 01, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
PC 109/16
CNR No. DLET01-006670-2015
In the matter of :
Smt. Manju Mathpal
W/o Sh. Chander Prakash Mathpal
R/o A-113, Block-A, New Ashok Nagar,
Shahdara, Delhi-110032
.............Petitioner
Vs.
1. State GNCT of Delhi
2. Smt. Deepa Joshi
W/o Sh. P.C. Joshi
R/o 73 (2nd Floor), Block B,
Dilshad Colony, Dilshad Garden,
Delhi-110095
3. Sh. Anil Kumar Mathpal
Care of Smt. Deepa Joshi
R/o 73 (2nd Floor), Block-B, Dilshad Colony,
Dilshad Garden, Delhi-110095
...........Respondents
Date of Institution : 26.05.2015
Reserved for order on : 17.10.2023
Date of Decision : 17.10.2023
Petition U/s 276 of the Indian Succession Act, 1925 in respect
of the estate of deceased Keshav Dutt Mathpal
JUDGMENT
1. Briefly stating, the instant petition is filed for grant of probate/letter of administration in respect of Will dated 16.01.2012 executed by deceased Keshav Dutt Mathpal in favour PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 1 of 16 of the petitioner being his elder son's wife. The deceased was a Hindu and was governed by Hindu Law. The testator of the Will died on 14.11.2014. By virtue of the instant petition, the petitioner has sought letter of administration/probate in respect of immovable property bearing H.No.A-113, Block-A, New Ashok Nagar, Shahdara, Delhi.
2. The notice of the petition was issued to respondent no.1/State and the respondent no.1 was duly served by way of publication in the newspaper 'Veer Arjun' dated 04.11.2015.
Upon notice, objections to the instant petition was filed by respondent no.2 on the ground that the petition filed by the petitioner is not in accordance with law; the petition of the petitioner is bad for non-joinder of necessary party as Sh. Chander Parkash Mathpal is one of the legal heirs of Late Sh. Keshav Dutt Mathpal who has not been made a party in the present petition, therefore, the petition is not maintainable. It is submitted that the deceased Keshav Dutt Mathpal had never executed Will dated 16.01.2012. The alleged witnesses namely Sh. Vineet Jain and Sh. Rahul Dadwal are the friends/closely known persons of the petitioner and her husband. The deceased was having two sons, namely Sh. Chander Prakash Mathpal and Sh. Anil Kumar Mathpal and a daughter, namely Smt. Deepa Joshi but as per the said Will, he has not bequeathed any property/ share to any of his legal heirs, therefore, the Will in question is shrouded by suspicion. It is further averred that in January, 2012, deceased Keshav Dutt Mathpal was seriously ill and was not in sound state of health and mind and his mental status was not in a position to execute an important document PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 2 of 16 like Will. The property in question is not the self-acquired property of deceased and hence, the alleged Will is not a valid Will in the eyes of law.
On merits, the averments of the petition were denied and prayer to dismiss the petition was made.
Notice of the petition was also issued to respondent no.3 but despite service, none appeared on behalf of respondent no.3. Accordingly, respondent no.3 was proceeded against ex- parte vide order dated 26.09.2015.
3. Rejoinder to the objections was also filed by the petitioner in which the preliminary objections were taken on the ground that the reply filed by the respondent is misconceived and the respondent has suppressed the material facts from this court; the respondent has not come and filed the objections with clean hands; preliminary objections raised by the respondent are false and frivolous. Besides this all other averments of the objections were denied and prayer to allow the petition was made.
4. From the pleadings of the parties, following issues were framed:
1. Whether the petitioner is entitled for the probate of Will in question dated 16.01.2012? OPP
2. Whether the Will in question dated 16.01.2012 is forged and fabricated? OPR2
3. Relief.
5. In order to substantiate the case, the petitioner PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 3 of 16 stepped into witness box as PW1 and tendered her evidence by way of affidavit Ex.PW1/A wherein she reiterated all the averments made in the petition. She has also placed reliance on the following documents:
a) Ex.PW1/1 is death certificate of her Late fatherinlaw Sh.
Keshav Dutt Mathpal.
b) Ex.PW1/2 is death certificate of her Late motherinlaw Smt. Devki Devi Mathpal.
c) Ex.PW1/3 is original Will dated 16.01.2012 executed by Late Sh. Keshav Dutt Mathpal in her favour.
d) Ex.PW1/4 is photocopy of canteen smart card of deceased K.D. Mathpal issued by Ministry of Defence.
e) Ex.PW1/5 is original site plan of the suit property.
f) Mark A is photocopy of public notice published in the newspaper Rashtriya Sahara in its edition dated 14.09.2005 regarding deabarment of respondent no.3 by deceased testator.
g) Mark B is photocopy of the judgment dated 01.09.2006 passed by Hon'ble High Court of Delhi in case titled as K.D. Mathpal Vs. State & Ors. regarding deabarment of respondent no.3 by deceased testator.
h) Mark C is photocopy of voter identify card deceased K.D. Mathpal.
i) Mark D is photocopy of receipt dated 14.11.2014 regarding purchase of fuel for cremation of deceased K.D. Mathpal.
j) Mark E is photocopy of receipt regarding handing over of PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 4 of 16 the dead body of Late Sh. K.D. Mathpal to his eldest son Sh. Chander Prakash Mathpal by Prakash Hospital, Noida.
k) Mark F is photocopy of voter identity card her late mother inlaw Smt. Devki Devi mathpal.
PW2 Sh. Rahul Dadwal is one of the attesting witness of the Will in question. He tendered his evidence by way of affidavit Ex.PW2/A and relied upon the Will already Ex.PW1/3 bearing his signature at point C. Both the witnesses were exhaustively cross examined by ld. Counsel for respondent no.2.
6. Thereafter, petitioner's evidence was closed on 27.08.2018 vide separate statement of Ld. Counsel for petitioner.
7. In defence, respondent no.2 Smt. Deepa Joshi stepped into witness box as RW1 and tendered her evidence by way of affidavit Ex.RW1/A. This witness was exhaustively crossexamined by Ld. Counsel for petitioner.
8. Thereafter, respondent's evidence was closed by court order vide order dated 22.01.2020.
9. Arguments advanced at length by both sides heard. Considered.
10. Ld. Counsel for petitioner argued that the petitioner is the daughter-in-law of deceased Keshav Dutt Mathpal who is PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 5 of 16 the executant of the last Will and testament dated 16.01.2012. Before demise, the executant was employed as an officer with Indian Air Force. The executant through his marriage was blessed with three children namely Sh. Chander Prakash Mathpal, Sh. Anil Kumar Mathpal and Smt. Deepa Joshi and the petitioner is the wife of the eldest son of the executant. During the course of lifetime, the deceased/executant got all his children married and therefore, fulfilled all his liabilities and obligations which was bestowed upon him. The petitioner was a responsible daughter-in-law and took the responsibilities of her family including the executant and mother-in-law emotionally and financially. The wife of the executant predeceased him on 22.12.2013 and this incident shook him to the core and unfortunately thereafter, the executant left for heavenly abode on 14.11.2014 from cardiac arrest. The executant got the respondent no.2 married with full color and zeal and for the same spent considerable sum of money at the time of her marriage in the year 1985. Thereafter, he got the respondent no.3 married. Despite his best efforts, the executant did not receive any affection from respondent no. 2 & 3. Rather, it was petitioner who showered love and respect towards the executant and therefore, he considered it prudent to bequeath his property bearing No. A-113A, New Ashok Nagar, Delhi in favour of the petitioner. He further submitted that the cause of death of the executant nowhere relates it to any kind of neurological problem, rather he died because of cardiac arrest.
Per contra, Ld. Counsel for respondent no.2 submitted that the Will dated 16.01.2012 is a forged Will as in January, 2012, Late Sh. Keshav Dutt Mathpal was seriously ill PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 6 of 16 and was not in sound state of health and mind. The witnesses Sh. Vineet Jain and Sh. Rahul Dadwal are the friends/closely known persons of petitioner and her husband. In the Will in question, there is no name of the executor, therefore, the petitioner cannot file petition under section 276 of the Indian Succession Act, 1925. As per the petition as well as statement of PW1, it has not been proved that the property regarding which the Will has been allegedly executed, was a self-acquired property of the testator as PW1 admitted in her cross-examination that the native place of the executant was at Dwara Haat in Uttarakhand. He further submitted that the thumb impression and signatures were taken on plain papers and later on, the Will was manufactured/ fabricated, thus, it is not the genuine Will executed by the testator. Further, the property in question was purchased from the sale proceeds of ancestral property at native place of respondent no.2 in Uttarakhand. One of the legal heir of deceased was not made a party and hence, the present petition is not maintainable and liable to be dismissed.
11. Heard. Record perused. Considered. On the basis of submissions advanced at bar, pleadings and evidence, my issue- wise findings are as under:-
ISSUE NO.1:
"Whether the petitioner is entitled for the probate of Will in question dated 16.01.2012? OPP"
12. In order to prove this issue, the petitioner examined herself as PW1 and the attesting witness of the Will as PW2. The deceased testator had executed the Will dated 16.01.2012 in PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 7 of 16 favour of his daughter-in-law namely Smt. Manju Mathpal i.e. the petitioner herein thereby excluding the other legal heirs i.e. the husband of the petitioner, respondent no.2 and respondent no.3. Apart from respondent no.2, none of the legal heirs have opposed the present petition.
13. In H. Venkatachala Iyangar v. B.N. Thimmajamma, AIR 1959 SC 443, the Hon'ble Supreme Court laid down the principles which govern the proving of a will. Relevant portion of the said judgment is reproduced hereunder:-
"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 s. 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 mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, 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 PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 8 of 16 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.
Further in "Vidya Sagar Soni v. State, 2006 SCC OnLine Del 965", the Hon'ble Delhi High Court further elucidated the principles relating to the mode of proving the will. Relevant portion of the judgment are reproduced hereunder:-
"5. Section 2(h) of the Indian Succession Act, 1925 defines a Will 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.
6. The legal burden to prove due execution always lies upon the person propounding a Will. The propounder must satisfy the judicial conscience of the Court that the instrument so propounded is the last will of a free and capable testator.
7. A Will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the Will. It is the living who have to establish the Will. It naturally throws a heavy burden on the Court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspicious circumstance explained.
8. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the Will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence. Normally, a Will is executed by a person where he desirous, to either alter the normal rule of succession, or where he desirous to settle his estate in a particular manner amongst the legal heirs. Therefore, though to be kept in mind, as to what is the nature of bequest too much importance cannot be attached to the disproportionate nature of a bequest. However, as observed in (1995) 4 SCC 459 : AIR 1995 SC 1684, Rabindra Nath Mukherjee v. Panchanan Banerjee (dead) by LRs, PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 9 of 16 disproportionate nature of a bequest is no doubt a suspicious circumstance to be kept in mind, but, being a mere suspicion, it is capable of being dispelled by other evidence to show voluntary character of the document.
9. Therefore, the first rule to appreciate evidence is to peruse the Will. Normally, if there is rationality in a Will, a presumption arises about due execution. Of course, being a presumption, it is rebuttable.
10. As observed in AIR 1962 Punjab 196, Smt. Kamla Devi v. Kishori Lal Labhu Rant, the omission of a close relation from the bounty of a testator raises a presumption in favour of some undue influence. The probative force of such a testament rises and falls in inverse ratio to its unreasonableness.
11. The more unreasonable an instrument is, the less probative value it carries. Where the terms of a Will are unusual and the evidence of testamentary capacity doubtful, or due execution doubtful, the vigilance of the Court will be roused and before pronouncing in favour of the Will, the Court would microscopically examine the evidence to be satisfied beyond all reasonable doubt that the testator was fully conversant of the contents and executed the Will fully aware of what he was doing.
12. Expanding on the care and caution to be adopted by Courts, and presumptions to be raised, in the decision (1864) 3 Sw and Tr. 431 in The Goods of Geale, it was opined that where a person is illiterate or semi-literate or the Will is in a language not spoken or understood by the executor, the Court would require evidence to affirmatively establish that the testator understood and approved all the contents of the Will.
13. This affirmative proof of the testator's knowledge and approval must be strong enough to satisfy the Court, in the particular circumstances, that the Will was duly executed.
14. One form of affirmative proof is to establish that the Will was read over by, or to, the testator when he executed it. If a testator merely cats his eye over the Will, this may not be sufficient [see 1971 P.62 Re Moris). In the report published as (1867) 1 P.D. 359, Goodacr v. Smith, it was held that another form of affirmative proof is to establish that the testator gave instructions for his Will and that the Will was drafted in accordance with those instructions.
15. Courts have to evaluate evidence pertaining to the circumstances under which the Will was prepared. If a Will is PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 10 of 16 prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the Will, probate would not be granted unless that suspicion is removed.
16. As held in the report published as (1838) 2 Moo P.C. 480, Barry v. Butlin, a classic instance of suspicious circumstances is where the Will was prepared by a person who took a substantial benefit under it. Another instance is as opined in the report published as (1890) 63 LT 465, Brown v. Fisher where a person taking benefit under the Will has an active role to play in the execution of the Will.
17. A word of caution. Circumstances can only raise a suspicion if they are circumstances attending, or at least relevant to the preparation and execution of the Will itself.
18. How the legal heirs acted and how and when a Will was propounded after the death of the executor are also relevant to decide upon, where the Will is genuine or a created or a procured document.
19. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. As observed in the report published as AIR 1959 SC 443, H. Venkatachala Iyengar v. B.N. Thimmajamma, instance of suspicious circumstances would be alleged signatures of the testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable or unfair. Apart from these infirmities, propounder taking a prominent part in the execution of the Will, more so when substantial benefits flow to them are all presumptive of the Will not being duly executed and or of suspicious circumstances.
20. Suspicious circumstances are a presumption to hold against the Will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the Will.
21. Reference to satisfaction of judicial conscience is a heritage inherited by Court's since time immemorial for the reason, as noted above, a Will is a solemn declaration as per which the living have to carry out the wishes of a dead person."
14. Coming to the issue before hand, primarily the petition has been opposed by the respondent no.2 on the ground that the deceased testator was not in a sound state of health and PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 11 of 16 mind at the time of execution of the Will in question. However, apart from mere bald averments, no evidence to this effect has been led. Contrary to that, petitioner has placed on record the medical documents of deceased testator as per which he was suffering from CVA with seizures disorder at the time of his death. Further, the petitioner has duly examined the attesting witness i.e. PW2 who has categorically stated that the Will in question was executed in his presence and the testator was in sound disposition of mind, he signed it in his presence and at that time, the petitioner was not present. Despite his exhaustive cross-examination, respondent no.2 failed to assail his testimony, thus, his testimony stood the test of veracity. Hence, this contention is rejected.
Secondly, the petition has been opposed on the ground that the bequeathed property was not the self-acquired property of testator and thus, he has no right to bequeath the same in faovur of the petitioner. Ld. Counsel for respondent no.2 contended that the bequeathed property was purchased out of the sale proceeds of ancestral property and thus, the testator has no right to bequeath it in favour of the petitioner herein. However, no supporting document regarding the sale of ancestral property and purchase of the bequeathed property out of the sale proceeds has been placed on record. Even otherwise, in a petition for grant of letter of administration, this court does not delve into the question of title/nature of the property. Hence, this contention is also rejected.
Thirdly, the respondent no.2 contended that since petitioner has not impleaded all the legal heirs of deceased testator which is mandatory under the provisions of Section 276 PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 12 of 16 & 278 of Indian succession Act, she is not entitled for the grant of letter of administration or probate. He further submitted that deceased testator was survived by three legal heirs i.e. the husband of petitioner, namely, Sh. Chander Prakash Mathpal, respondent no.2 Smt. Deepa Joshi and respondent no.3 Sh. Anil Kumar Mathpal. However, the petitioner has chosen not to implead the eldest son of deceased testator, namely, Sh. Chander Prakash Mathpal for the reasons best known to her and thus, the instant petition is not maintainable.
Per contra, ld. Counsel for petitioner submitted that since petitioner is the wife of the eldest son of the testator namely Sh. Chandra Prakash Mathpal, he was not impleaded as a party to the petition. However, upon being objected to by respondents, he got his no objection to the grant of letter of administration in favour of petitioner recorded before the court and ld. Counsel appearing on behalf of respondent no.2 also gave no objection to this effect. Thus, since the eldest son of deceased testator i.e. husband of petitioner namely Sh. Chandra Prakash Mathpal has already given his no objection and the other legal heirs of deceased testator are already on record, the present petition is very well maintainable for the grant of probate/letter of administration.
15. Admittedly, the deceased testator was survived by three legal heirs i.e. the husband of petitioner, namely Chandra Prakash Mathpal, respondent no.2 Smt. Deepa Joshi and respondent no.3 Sh. Anil Kumar Mathpal. Though the eldest son of deceased testator was not named as a party to the instant petition by the petitioner, however, she being his legally wedded PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 13 of 16 wife might have the impression that she being the legally wedded wife of eldest son of testator, he need not to be impleaded as a party to the instant petition. However, on being objected to by the respondent no.2, the eldest son namely Sh. Chander Prakash Mathpal was examined before the court wherein he gave his no objection to the grant of letter of administration in favour of the petitioner. Even otherwise, his non-impleadment as a party to the petition does not go to the root of the matter especially when he has given no objection in this regard. Further, rules of procedure are handmaidens of justice and substantial justice should not be denied on account of procedural lapses. Hence, this contention is also rejected.
Lastly, as far as contention of ld. Counsel for respondent no.2 that petitioner is not entitled to the grant of probate since no executor is named in the Will is concerned, the same holds water. But, at the same time, petitioner is entitled to the Will annexed grant of letter of administration in respect of the estate of the deceased. Thus, applying the principles laid down in "H. Venkatachala Iyangar v. B.N. Thimmajamma (supra)"
and "Vidya Sagar Soni v. State (supra)" it is held that the petitioner is entitled for the grant of letter of administration in respect of the estate of the deceased i.e. property bearing No. A- 113, Block-A, New Ashok Nagar, New Delhi (measuring about 100 sq. yds.) as bequeathed in the Will of the deceased testator, namely, Keshav Dutt Mathpal dated 16.01.2012. Accordingly, this issue is decided in favour of the petitioner.
ISSUE NO.2 :
"Whether the Will in question dated 16.01.2012 is forged PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 14 of 16 and fabricated? OPR2"
16. Onus to prove this issue is upon the respondent no.2. However, apart from mere bald averments, no evidence to challenge the genuineness/veracity of the Will has been led. In these circumstances, since no substantive evidence has been led by the respondent no.2 in support of this issue, this issue is decided against the respondent no.2.
ISSUE NO.3 (RELIEF):
17. In view of the findings of issue No.1, it is held that petitioner is entitled for grant of Will annexed Letters of Administration in respect of the estate of the deceased i.e. property bearing No. A-113, Block-A, New Ashok Nagar, New Delhi (measuring about 100 sq. yds.) as bequeathed in the Will of the deceased testator, namely, Keshav Dutt Mathpal dated 16.01.2012. Accordingly, Will annexed Letters of Administration be issued in the name of the petitioner, in respect of the estate of deceased i.e. property bearing No. A-113, Block-A, New Ashok Nagar, New Delhi (measuring about 100 sq. yds.) as bequeathed in the Will dated 16.01.2012.
However, Letter of Administration will be issued on prescribed form VII but it would be subject to (i) filing of appropriate Court Fee; (ii) Administration Bond, within 1½ months from today and subsequently, (iii) they will furnish full and true inventory of the said property and credits and exhibit the same in the Court within six months from the date of grant of PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 15 of 16 Certificate on prescribed Form No. 178 and (iv) to render true account of said property and credits within one year on prescribed From No.179.
It is clarified that right, title or interest in the aforesaid property, is not decided by this court, in favour of any of the parties.
Accordingly, the petition stands disposed off. File be consigned to the record room after due compliance.
Announced in the open court (Ajay Garg)
On 17.10.2023 Additional District Judge-01
(East) Karkardooma Courts, Delhi
PC 109/16 Smt. Manju Mathpal Vs. State & Ors Pages 16 of 16