Delhi District Court
Dr. Mansa Saxena vs State on 10 May, 2018
IN THE COURT OF SH. SANJAY KUMAR:
ADDL. DISTRICT JUDGE, (WEST)-02, TIS HAZARI
COURTS:DELHI.
Probate Case No.- 71/11
New P.C. No. 15981/16
Dr. Mansa Saxena,
D/o Late Sh. K.N. Saxena (Col.),
R/o 5-B/1, Ground Floor,
Tilak Nagar,
New Delhi-110018. . . . . Petitioner
Vs.
1. STATE
2. Smt. Lalima Saxena,
W/o Sh. U.K. Saxena,
R/o C-3 Block, 310-A DDA SFS Flat,
Janakpuri, New Delhi.
3. Smt. Biboo Johri,
W/o Group Ct. Shri Sandeep Johri,
R/o Flat No. 253, Salaria Enclave,
Sector-21, Dwarka, New Delhi.
4. Dr. Kartik Saxena,
S/o Late Sh. K.N. Saxena,
R/o 5-B/1, First Floor,
Tilak Nagar, New Delhi. ....Respondents
Date of institution of the case : 10.10.2011
Date reserved for judgment on : 21.04.2018
Date of pronouncement of judgment: 10.05.2018
JUDGMENT
1. A petition for grant of Probate of the Will dated 24.02.2009 of the deceased Smt. Usha Saxena under Section 278 of the Indian Succession Act has been filed.
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2. In brief the facts are that the Smt. Usha Saxena was the absolute owner and in possession of property bearing No. 5- B/1, Ground Floor, Tilak Nagar, New Delhi and was residing therein during her lifetime along with the petitioner. Smt. Usha Saxena (hereinafter referred to as 'the deceased') died on 01.12.2010 at Delhi in Deen Dayal Upadhaya Hospital, Hari Nagar, New Delhi.
3. It is stated that the husband of deceased Smt. Usha Saxena had already expired. The petitioner as well as the respondents no. 2 and 3 are the real sisters, daughters of deceased. The respondents no. 2 and 3 are married and resides at the address given in the petition. Respondent no.4 is real brother of the petitioner and respondents no. 2 and 3 and resides at 5-B/1, First Floor, Tilak Nagar, New Delhi.
4. It is stated that the deceased in her life time prior to her death with a sound mind and freewill executed her last registered Will dated 24.02.2009, thereby bequeathing her only property under Will to the petitioner which was registered on 24.02.2009 as document no. 1326 in Additional Book No. 3, Voume No. 7697 on pages 31 and 32 in the office of Sub Registrar, Janakpuri, New Delhi. The Will was registered in the presence of Sh.Rameshwar Sahai S/o Sh. Mahender Sahai R/o B- 4/169, Safdarjung Enclave, New Delhi and Sh. O.N. Saxena S/o Sh. D.N. Saxena, R/o 146, Nithari urf Suthari, Gautam Budh Nagar, Ghaziabad, U.P. The witnesses duly witnessed the execution of the Will, signed and executed by the deceased and their signatures and names appear at the foot of the Will as attesting witness who signed the same in the presence of the PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.2of 44 New No. 15981/16 executant and each other. The deceased also appointed the petitioner as the executor of the said Will dated 24.02.2009. The petitioner being the nominated executor is entitled to claim the grant of Probate of the property in question i.e. 5-B/1, Ground Floor, Tilak Nagar, New Delhi of the deceased.
5. It is stated that the petitioner has truly set forth the details with regard to the property bearing No. 5-B/1, First Floor, Tilak Nagar, New Delhi in respect of which the Probate of the Will annexed is required in Schedule - A. At the time of demise the deceased left behind the legal heirs mentioned in the petition.
6. The petitioner seeks that a Probate in respect of Will dated 24.02.2009 of deceased Smt. Usha Saxena may be granted in favour of the petitioner in respect of property bearing No. 5- B/1, first floor, Tilak Nagar, New Delhi.
7. Respondents no. 2 and 3 filed their 'No Objection' to the petition.
8. Respondent no.4 filed reply/objections to the petition of the petitioner. In the preliminary objections, it is stated that the petitioner has not approached the Court with clean hands and has distorted, manipulated and concealed material and relevant facts pertaining to the present case in order to serve her malafide goals and ulterior motives. The facts mentioned in the present petition are baseless, vague, frivolous and materially contradict the material available on record. The petition is barred by the provisions of Indian Succession Act, 1925.
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9. It is stated that neither any cause of action has been disclosed by the petitioner in the present petition nor any cause of action arose in favour of the present petitioner to file the present petition and the petition liable to rejected U/O 7 Rule 11 CPC. The petition has not been valued properly for the purpose of court fees and jurisdiction. It is stated that the property in question has been purchased and owned by the father of the petitioner and respondents no. 2 to 4. He died intestate and after his death a registered relinquishment deed dated 24.06.1989 was executed by all the daughters of late Sh. K.N. Saxena including the petitioner, in favour of respondent no.4 and their mother late Smt. Usha Saxena, thereby disclaiming all their rights, title and interests in the property in question. The property bearing No. 5-B/1, Tilak Nagar was mutated jointly in the name of testator Smt. Usha Saxena and respondent no.4.
10. It is stated that earlier the property in question was only ground floor and respondent no.4, his family along with his father and mother used to reside at ground floor of the property bearing No. B-5/1, Tilak Nagar, New Delhi and it is only in the year 2008, respondent no.4 got constructed the first floor of the above said property from his own funds due to expansion of his family. The relationship of the petitioner with her father and mother has never been cordial and she has always been rude and abusive to her parents including late Mrs. Usha Saxena. The petitioner always used to threatened of harming herself if they do not act at her instance inasmuch as she never got married only to insult her parents as both of them want her to marry and settle down in life.
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11. It is stated that testator, late Smt. Usha Saxena was neither competent nor has the capacity to execute the alleged Will dated 24.02.2009 in favour of the petitioner. Late Smt.Usha Saxena was not in a sound and disposing mind when the alleged was got signed by her and she was made to sign the alleged Will by playing fraud upon her and under threat, coercion and under ill influence from the petitioner, in collusion with witnesses amongst others. She remained ill most of the time by old age ailments under medication and used to take medicines having somnolent effect. The alleged Will dated 24.02.2009 is bad in law as the same was not executed by late Smt. Usha Saxena in her normal senses and the same was forged and fabricated by the petitioner in order to grab the property in question.
12. It is stated that the petitioner has been desperately trying to achieve an end indirectly which she is not able to achieve directly inasmuch as she has relinquished her share in the property in question as per the last wish of her father, including other daughters, and in order to overcome/overreach the same she forged and fabricated the alleged Will in order to grab the share in the property in question by abusing the process of law. The petitioner has also filed a frivolous and vague suit being Suit No. 421 of 2009 pending adjudication before the court of Ms. Prabhdeep Kaur, Ld. Civil Judge, Delhi in order to create evidence. Late Smt. Usha Saxena being petitioner no.1 in the said suit was never brought to witness box for cross-examination to avoid her testimony as the same would have exposed the ill designs of the petitioner. A bare perusal of the alleged Will make it apparent that no prudent person in his/her senses would have written the alleged Will.
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13. On merits, the averments made in the petition are denied as wrong and incorrect. The answering respondent seeks to dismiss the petition with exemplary cost.
14. The petitioner filed reply to the objections of the respondent no.4, in which she denied the averments made in the objections by the respondent no.4 and reiterated the averments made in the petition. It is stated that the respondent no.4 raised false and baseless objections. Preliminary objections no.1 have been taken only for the sake of plea which are totally meritless. It is admitted that the property in question had been purchased by the father of the petitioner and respondents no. 2 to 4 namely Sh.K.N. Saxena. It is stated that the Will dated 24.02.2009 had been executed by Late Smt. Usha Saxena in sound and disposing mind and after fully understanding what is right and what is wrong. It is further stated that in the Will dated 24.02.2009 late Smt. Usha Saxena stated that "In order to avoid any litigation, dispute, after my demise. I am executing this WILL in respect of all my movable & immovable properties which I may possess at the time of my demise".
15. It is stated that the petitioner is the only person who took care of her mother in her old age. It is stated that late Smt.Usha Saxena in her life time alongwith the petitioner filed suit for Permanent and Mandatory Injunction against the Respondent before the Civil Court and the Civil Court had granted interim injunction against the respondent as late Smt. Usha Saxena had apprehension that she will be thrown from her house by the respondent no.4 with the motive to grab her property.
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16. On the pleadings of the parties, the Ld.Predecessor of this court framed the following issues on 02.09.2013:
1. Whether the present petition is barred under the provisions of Indian Succession Act 1925? OPR-4
2. Whether the petitioner has no cause of action to file present petition? OPR-4
3. Whether the present petition has not been properly valued for the purpose of court fee and jurisdiction? OPR-4
4. Whether the Will dated 24.02.2009 executed by the deceased Smt. Usha Saxena is a valid, legal and genuine Will? OPP
5. Whether the petitioner is entitled to the grant of probate in respect of the above said Will dated 24.02.2009, as prayed for? OPP
6. Relief.
17. In support of her case, the petitioner got examined PW1 Sh. Mokhtar Mehto, Record Keeper from the office of e-Sub- Registrar-II, Basai Darapur; PW2 Dr. Mansa Saxena (petitioner); PW3 Sh.O.N. Saxena; PW4 Sh. Rameshwar Sahai. Thereafter, petitioner evidence was closed as per order dated 11.05.2016.
18. Respondent no. 4 Sh.Kartik Saxena got himself examined as RW1. Thereafter, evidence of respondent no.4 was closed as per order dated 30.11.2016.
19. PW1 Sh. Mokhtar Mahto deposed that he has brought the record pertaining to registration of Will executed by Smt.Usha PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.7of 44 New No. 15981/16 Saxena, registered in their office on 24.02.2009 vide registration no. 1326, book no. 3, Volume No. 7697, pages 31 to 32. He has seen the original Will dated 24.02.2009 executed by Smt.Usha Saxena running in to three pages lying on record and the same is correct as per the record brought by him. The said Will is Ex.PW1/1. In this cross-examination, this witness admitted that the Will Ex. PW1/1 was not registered in his presence. He further admitted that the Will Ex. PW1/1 consists of three pages. He admitted that as per record and as mentioned in certificate (section-60) the pages of Will Ex. PW1/1 on which it is registered is mentioned as page-31 to 32.
20. PW2 Dr. Mansa Saxena tendered her affidavit in evidence as Ex. PW2/A. She proved on record death certificate of Ms. Usha Saxena as Ex. PW2/1 and also relied on Will dated 24.02.2009 executed by deceased Ms. Usha Saxena which is already exhibited as Ex. PW1/1. PW2 in her cross-examination deposed that she did not file suit for permanent and mandatory injunction. She volunteered that her mother had filed the same. She denied the suggestion that she had not filed suit for permanent and mandatory injunction. She has seen summon Ex.PW2/X1, it does not bear her name. To a specific question, she admitted that she was party along with her mother in the above said civil suit. She did not remember whether she had filed a Relinquishment Deed in the above said civil suit. To a specific question, she admitted that she had signed Relinquishment Deed dated 24.06.1989 which is registered as document no. 5957, Addl. Book No.1, Vol. No. 6093 on pages 27 to 28.
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21. PW2 in her cross-examination admitted that as per above Relinquishment Deed she had relinquished her rights in favour of her mother and brother Mr.Kartik Saxena voluntarily. She did not know whether the above said civil suit was dismissed in default. She denied the suggestion that said suit was dismissed in default. She denied the suggestion that she had signed the Relinquished Deed because she had received her share. She admitted that late Col. K.N. Saxena was the sole owner of the property in question. There are four legal heirs of late Col. K.N. Saxena i.e. herself, two sisters and one brother. Her father was army officer and he must have executed a Will being Army Officer and it was delivered by Army Head Quarter at Home but it was taken away by her brother. She admitted that his father had made a Will in favour of her mother. She denied the suggestion that her father never made a Will in favour of her mother. She admitted that no such Will filed on record. She denied the suggestion that no such Will existed therefore not filed on record.
22. PW2 in her cross-examination denied the suggestion that deceased testatrix was under heavy sedatives drugs since 2006. She denied that deceased testatrix was not well versed with the English language reading and writing. She is not in possession of any certificate or degree of her mother. She denied the suggestion that her mother was not having any formal degree therefore, it was not placed on record. She denied that the Will Ex. PW1/1 does not bear the signatures of her mother because she did not know the English language and did not put signatures in English. She was not present where the Will Ex. PW1/1 was executed. She had received theWill through Courier PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.9of 44 New No. 15981/16 from Tis Hazari Court Advocate. She did not know who had sent this Will to her. She denied the suggestion that deceased Usha Saxena was not in position to take decision what is right and what is wrong since 2006. She denied the suggestion that Usha Saxena was taking Alprax and Diazepam on regular basis. She cannot say total pages of the Will. She denied the suggestion that late Usha Saxena did not sign the Will in her full senses and in a sound disposing state of mind.
23. PW3 Sh. O.N. Saxena deposed that he is one of the attesting witness of the Will dated 24.02.2009 executed by Smt.Usha Saxena. He tendered his evidence by way of affidavit Ex.PW3/1. He has signed the Will Ex. PW1/1 at point B, executed by late Ms. Usha Saxena on 24.02.2009 in the office of Sub Registrar, Janak Puri and she was absolutely perfect health and there was no coercion or threat to her at the time of signing of the Will.
24. PW3 in his cross-examination deposed that petitioner is his niece. He admitted that late Col. K.N. Saxena was the sole owner of the property bearing 5B/1, Tilak Nagar, New Delhi. He died on 18.04.1989. He left with legal heirs, namely, wife Smt.Usha Saxena, four children, namely, three daughter and one son, namely, Lalima Saxena, Mansha Saxena, Biboo Johari and Kartik Saxena. He has no knowledge whether deceased brother late Col K.N. Saxena left any Will or not. He volunteered that he must have done as per Army procedure. Every Army Officer filled up a proforma describing the name children and mentioning the percentage of property if owned by the concerned officer.
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25. PW3 Sh. O.N. Saxena in his cross-examination denied the suggestion that late Col. K.N. Saxena did not execute any document being an Army Officer during his life time. He is not aware of the fact that petitioner has also filed a suit against Kartik Saxena, objector. He admitted that the Will dated 24.02.2009 was drafted by Ms. Bindiya Savra. The deceased noted down the points which were drafted by the Advocate. At that time, deceased, his maternal nephew Rameshwar Sahai, he himself were present. He denied the suggestion that he was called by the petitioner to the Chamber of Ms. Bindiya Savara, Advocate. He volunteered that his sister-in-law namely late Ms.Usha Saxena called him at the chamber of Ms. Bindiya Savara regarding the Will. He might have reached at the chamber at about 9.00 a.m. or 10.00 a.m. exactly he does not remember. He denied the suggestion that he did not sign on the already signed copy of Will dated 24.02.2009. He did not remember who introduce him to Advocate Ms. Bindiya Savara. He has not signed any other document except the Will in question as an attesting witness. He denied the suggestion that petitioner introduced him to Ms. Bindiya Savara, Advocate. He denied the suggestion that deceased was illiterate. He denied that in order to support petitioner, he is deposing falsely that deceased was not illiterate. He denied the suggestion that the deceased did not know writing and speaking English language.
26. PW3 in his cross-examination denied the suggestion that he has signed the printed and typed copy of Will. At the first, testatrix signed. Thereafter, other witness Rameshwar Sahai and last he signed the Will. He does not know whether deceased ws seriously ill and taking heavy sedative medicine. He denied the PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.11of 44 New No. 15981/16 suggestion that deceased late Ms. Usha Saxena was taking alphranx and diazepam tablets on regular basis which have high sedative value. He denied the suggestion that he signed on the last paper of the Will without seeing the all contents of the Will. He does not remember the pages of the Will Ex. PW-1/1. He does not remember whether Will also mentioned the name signature and chamber address of Ms. Bindiya Savara. He denied the suggestion that he has signed on the said Will on the request of Mr.Rameshwar Sahai. He admitted that nothing was pasted on the Will when the said Will was signed by him as an attesting witness. He admitted that after signing the Will, he left for his home. He denied the suggestion that deceased late Mrs. Usha Saxena did not know about the contents of the Will when she signed the Will. He denied the suggestion that late Mrs.Usha Saxena did not sign the said Will in her full senses and in a sound and disposing state of mind. He admitted that he knew the contents when he had signed the Will Ex. PW1/1. He volunteered that he know the contents of the Will when it was dictated by advocate.
27. PW4 Sh. Rameshwar Sahai deposed that he is one of the attesting witnesses of the Will dated 24.02.2009 executed by Smt. Usha Saxena. He tendered his evidence by way of affidavit Ex. PW4/1 and it bears his signature at point A and B. He has signed the Will Ex. PW1/1 at point A, executed by late Ms.Usha Saxena on 24.02.2009 in the office of Sub Registrar, Janak Puri.
28. PW4 in his cross-examination deposed that petitioner is his cousin. He admitted that late Col. K.N. Saxena was the sole owner of the property bearing no. 5B/1, Tilak Nagar, Delhi. He PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.12of 44 New No. 15981/16 volunteered that he purchased the above said property. He was died in the year 1989 in train accident. He does not remember the exact date. After his death, he left his legal heirs, namely, late Mrs.Usha Saxena, daughters, namely, Mrs. Lalima Saxena, Dr.Mansa Saxena, Mrs. Biboo Johari and Dr. Kartik Saxena. He did not know as to whether there is any other case between Dr. Mansa Saxena and Dr. Kartik Saxena. He admitted that the Will Ex. PW11 ws drafted by Mrs. Bindiya Savara, Advocate. He denied the suggestion that Dr. Mansa Saxena rang him up to come in the chamber of Mrs. Bindiya Savara. He had reached the chamber of advocate around 9.30 a.m. to 10.00 a.m. He volunteered that on 24.02.2009, he had reached the Sub- Registrar office not the chamber of advocate.
29. PW4 in his cross-examination further deposed that he never visited chamber of advocate. He has signed only the Will as an attesting witness. He denied the suggestion that he had signed already signed copy of the Will dated 24.02.2009 Ex. PW1/1. He denied the suggestion that the petitioner introduced him to the advocate Mrs. Bindiya Savara. On 24.02.2009 the petitioner was not at the Sub-Registrar office, Janakpuri, Delhi. It is wrong to suggest that Mrs.Usha Saxena was illiterate. He does not know about her educational qualification. He volunteered that she could read and understand any newspaper and religious books. He denied the suggestion that in order to support petitioner, he is deposing falsely that deceased late Mrs. Usha Saxena was not illiterate. He denied the suggestion that deceased Mrs. Usha Saxena did not know writing, reading and speaking of English language.
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30. PW4 in his cross-examination denied the suggestion that he had signed typed and printed copy of the Will. He volunteered that initially it was signed by late Mrs. Usha Saxena in front of them then he signed and then Mr. O.N. Saxena signed. He admitted that print out of the Will was not taken out from the printer in front of him. He does not correctly remember who had delivered the printed copy of the Will to the deceased. He did not remember exactly after so many years. However, the print out of the Will may be in the hands of late Mrs. Usha Saxena. Late Mrs. Usha Saxena called him for signing the Will. She called him at the Sub-Registrar office, Janakpuri, New Delhi. He denied the suggestion that late Mrs. Usha Saxena cannot sign in English language. When he reached at the Sub-Registrar office Janakpuri, Delhi, there were four persons present, namely, late Mrs. Usha Saxena, Col. O.N. Saxena, he himself and advocate Mrs. Bindiya. He denied the suggestion that late Mrs. Usha Saxena was seriously ill since 2006. He denied the suggestion that deceased late Ms. Usha Sxena was taking alphranx and diazepam tablets on regular basis which have high sedative value. He denied the suggestion that he signed on the last paper of the Will without seeing the all contents of the Will. He does not remember exactly the number of pages of the Will but the same were not more than four or five. He is not sure whether the name, chamber address of the advocate were mentioned on the Will. He does not remember whether anything else was pasted on the Will when he had signed as a witness. He was free from the Sub- Registrar office around lunch time.
31. PW4 in his cross-examination further denied the suggestion that deceased late Mrs. Usha Saxena did not know PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.14of 44 New No. 15981/16 about the contents of the Will when she signed the Will. He denied the suggestion that late Mrs. Usha Saxena did not sign the said Will in her full senses and in sound and disposing state of mind. He admitted that he knew the contents when he had signed the Will Ex. PW1/1. He denied the suggestion that after signing the Will, he left for home. He volunteered that he remained there till the time whole process was completed. He denied the suggestion that he did not remain till the completion of the process.
32. RW1 Sh. Kartik Saxena tendered his affidavit in evidence as Ex. RW1/A. In his cross-examination he admitted that his affidavit does not bear his signature on each page. He admitted that the property in question is self acquired property of his deceased father. He admitted that after the death of his father, the property in question was mutated in the joint name of his mother late Smt. Usha Saxena and himself. The witness shown the Will Ex. PW1/1 of deceased Testatrix Smt. Usha Saxena. He has gone through the contents of registered Will Ex.PW1/1. He volunteered that the contents of the Will are forged and fabricated. He denied the suggestion that the Will Ex. PW1/1 is not a forged and fabricated document. He denied the suggestion that before death his deceased mother was not residing with him. He had paid the compensation to all his three sisters as per Relinquishment Deed. Today, he does not remember the amount of compensation given to each sister. He denied the suggestion that he did not pay any compensation to any of his sister. He has not filed any record regarding the above said paid compensation to his three sisters.
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33. RW1 in his cross-examination deposed that he has not placed on record any documents to prove the construction ad lavishly renovation of first floor on the property in question by him. He denied the suggestion that his relations with his mother prior to her death were not cordial or he ill treated her. He admitted that his mother had filed a civil suit against him in the year 2008-09. He denied the suggestion that he was forcing petitioner and his later mother to vacate the ground floor of the property in question. He does not remember the suit number today. The witness was shown the certified copy of the plaint of suit no. 135/09 titled as Smt. Usha Saxena vs. Kartik Saxena and same is Ex. RW1/X1. He admitted that he had filed written statement, the certified copy of the same is Ex.RW1/X2. He does not know whether his late mother appeared as a witness in the above said civil case. He has no knowledge whether his late mother appeared as witness and she was not cross-examined on his behalf. He denied the suggestion that when above said civil suit was filed by his mother she was in sound disposing mind and health. As agreed by both the parties, certified copy of the above said suit is collectively exhibited as Ex.RX.
34. RW1 in his cross-examination denied the suggestion that his later mother was not illiterate and could read or write English language. His mother only used to sign in English language but she cannot read and write English language. The witness was shown the report cards of petitioner which bears the signatures of deceased. Witness admitted her signatures on the report cards and same is Ex. RW-1/3 & 4. Again said these documents do not bear the signatures of his mother. He denied the suggestion that later answer is after thought. He denied the PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.16of 44 New No. 15981/16 suggestion that his mother had executed and signed the Will Ex. PW1/1 after understanding the contents of the same. He denied the suggestion that Alprax and Diazepam are the mild sedatives. He has not placed on record any documentary proof regarding the treatment carried out by him to his deceased mother at DDU hospital. He admitted that his deceased mother was the beneficiary of Army Hospital. He has not placed on record any document regarding treatment of his mother at Army hospital. He denied the suggestion that he did not inform to any of his sisters regarding admission of his deceased mother at DDU hospital in the year 2003-04.
35. RW1 in his cross-examination further deposed that today he does not remember the exact date and year. He has not placed on record any documents regarding treatment of Cataract operation of his deceased mother. He does not remember the exact date and year of the said treatment. He denied the suggestion that contents of para no. 17 of his affidavit Ex. RW1/A are wrong and false. He has not filed any police complaint on the basis of averment in his para no. 19 of his affidavit where it is alleged that Will Ex. PW1/1 is forged and fabricated document. He has no knowledge whether his parents had filed complaint against the petitioner as per averment made by him in para 20 of his affidavit. He denied the suggestion that his deceased father was not unhappy with petitioner and with her behaviour. He denied the suggestion that petitioner used to take care of his deceased mother and she was happy with the behaviour of the petitioner. He denied the suggestion that petitioner funded him during his USA visit in the year 1995-96. He denied the suggestion that petitioner also funded in the PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.17of 44 New No. 15981/16 marriage of his sister Bibu Johri in the year 1989. No complaint filed by his sisters and other relatives against petitioner as per allegation as per para 20 of his affidavit. Again said not in his knowledge.
36. RW1 in his cross-examination further deposed that attesting witness Rameshwar Sahai is his cousin. The other attesting witness retired Col. O.N. Saxena is his real uncle (Chacha). He has no knowledge whether above said two attesting witnesses ever filed any complaint regarding the alleged behaviour of petitioner as mentioned in para 20 of his affidavit. He denied the suggestion that his deceased mother had signed in the presence of above said attesting witnesses. He has not filed any complaint with regard to the averment mentioned in para 22 of his affidavit. He denied the suggestion that the contents mentioned in para 22 of his affidavit are wrong and false. He denied the suggestion that on the day of registration and execution of the Will Ex. PW1/1, his mother was in sound disposing mind and health. He denied the suggestion that his mother understood the contents of the Will Ex. PW1/1 at the time of signing the registration of the Will before Registrar. He denied the suggestion that present petition is not filed in order to over come the Relinquishment Deed. He denied the suggestion that he got the Relinquishment Deed made after just two months of death of his father. He volunteered that his mother had got prepared the Relinquishment Deed. He admitted that Relinquishment Deed was got prepared by his mother. He admitted that all sisters happily relinquished their respective share in his favour.
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37. RW1 in his cross-examination denied the suggestion that after relinquishment deed his behaviour got changed (rude) towards his mother and sisters so his mother late Smt.Usha Saxena had to file the suit and got registered the Will. He denied the suggestion that averments made in para 25 of his affidavit are wrong and false. He denied the suggestion that his mother had no role in printing and operating the computer and taking out the print out from the computer before Registrar office. He denied the suggestion that his deceased mother after understanding and properly dictating the facts before making of the will. He was not present at the time of execution and registration of the Will. He has stated facts in para no. 27 in his affidavit Ex. RW1/1 that deceased had no knowledge to operate computer and printer. He has no knowledge whether Sub- Registrar office is a government office. He has no knowledge all work done at Sub-Registrar office as per government rules and regulations. He denied the suggestion that he did not take care of his deceased mother till her death. He denied the suggestion that all the treatment and take care done by his sister Dr.Mansa Saxena prior to death of his deceased mother.
38. In the cross-examination RW1 put to a specific question to give the details of all movable and immovable properties given by him to all his three sisters. He replied that he has not given any his immovable property to his sisters. His five or six may be more drawn on State Bank of Bikaner and Jaipur, Punjab National Bank and State Bank of India handed over to his three sisters in the year 2003, 2004 and 2005. And they were changed in their respective names.
PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.19of 44 New No. 15981/16
39. RW1 in his cross-examination further deposed that he has not filed above said FDRs record in the court. He denied the suggestion that in above said banks he was not having any account. He denied the suggestion that he did not give his five or six may be more FDRs to his sisters. He denied the suggestion that at the time of relinquishment deed whatever amount paid to his sisters was by his deceased mother and not by him. The Relinquishment Deed was executed in th year 1989. He denied the suggestion that he is deposing falsely that he had given his FDRs to his sisters at the time of execution of Relinquishment Deed. He denied the suggestion that on the alleged date of Relinquishment Deed he was a medical student and has no source of earnings.
40. RW1 in his cross-examination denied the suggestion that the Will Ex. PW1/1 bears his deceased mother's signature. He denied the suggestion that the Will Ex. PW1/1 is properly executed and legally registered. He denied the suggestion that the Will Ex. PW1/1 is not manipulated and fabricated. He denied the suggestion that the Will Ex. PW1/1 is properly executed before Sub-Registrar in the presence of attesting witnesses. He denied the suggestion that petitioner has no malafide interest to grab the property. He denied the suggestion that all averments/personal allegations against petitioner are wrong and false. He admitted that the decision not to marry by petitioner is her personal decision has no concern with the Will. Again said not concerned with the Will not said by him. He denied the suggestion that he does not have cordial relations with other two sisters and other relatives. He denied the suggestion that he does not have good intentions with regard to the portion of the PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.20of 44 New No. 15981/16 property in question bequeathed by his deceased mother in favour of petitioner.
41. I have heard Ms Bindiya Savara, ld. Counsel for the petitioner and no oral assistance was given on behalf of respondent no. 4, however, written submissions filed on behalf of petitioner as well as respondent no. 4. I have also gone through the written submissions on behalf of both the parties. My findings on issues are as under:
42. Issue No. 1Issue No. 1 is framed on the plea taken by respondent no. 4 that present petition is barred under provision of Indian Succession Act 1925. No specific provision mentioned by the respondent no. 4 according to which present petition is not maintainable. In the written arguments as well nothing mentioned about the provisions of Indian Succession Act which is applicable and present petition is barred.
43. In my opinion it is a bald plea and not supported by any legal provision or legal precedent, hence I do not find any substance in the plea of the respondent no. 4, hence issue No. 1 is decided against respondent no. 4 and in favour of petitioner.44. Issue No. 2
Issue no. 2 is also based upon the preliminary objections taken by the respondent no. 4 in the written objections that there is no cause of action for filing of the present petition, however, nothing has been explained why the cause of action does not arise. On the contrary as per petition a registered Will PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.21of 44 New No. 15981/16 was executed by late Smt. Usha Saxena on 24.02.2009. The original Will has been filed on record. The deceased Usha Saxena died on 01.12.2010, therefore, there is a cause of action in favour of the beneficiaries and perpounder of the Will. In my considered opinion, there is cause of action for filing of the present, hence issue No. 2 is decided against respondent no. 4 and in favour of petitioner.
45. Issue No. 3Issue no. 3 is also framed on the basis of preliminary objections taken by respondent no. 4 that present petition is not valued properly for the court fees and jurisdiction. Ld. Counsel for respondent no. 4 in the written arguments has not mentioned in which provision of Suit Valuation Act and Court Fees Act is applicable and wrongly filed by the petitioner. Nothing brought on record to substantiate the plea that petition is not properly valued. In my opinion, petition is properly valued as per Suit Valuation Act and Court Fees Act and this court has jurisdiction to try, entertain and decide the present petition and appropriate court fees has been affixed on the petition. I find no substance in the plea of the respondent no. 4, therefore, issue no. 3 is decided against respondent no. 4 and in favour of petitioner.
46. Issue no. 4 & 5 Issue no. 4 & 5 are taken together being inter-
connected.
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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.22of 44 New No. 15981/16 "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.
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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.23of 44 New No. 15981/16 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 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.24of 44 New No. 15981/16 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 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."
PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.25of 44 New No. 15981/16
47. 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 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.26of 44 New No. 15981/16 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 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.27of 44 New No. 15981/16 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)
48. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the 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, PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.28of 44 New No. 15981/16 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 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) PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.29of 44 New No. 15981/16
49. 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 proved to be the last will and 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.30of 44 New No. 15981/16 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 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.31of 44 New No. 15981/16 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)
50. 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 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.32of 44 New No. 15981/16 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)
51. 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 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."
PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.33of 44 New No. 15981/16
52. 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)
53. 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.34of 44 New No. 15981/16 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 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.35of 44 New No. 15981/16 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 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.36of 44 New No. 15981/16 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 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.37of 44 New No. 15981/16 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."
54. The onus to prove the above issues is on the petitioner who examined PW-1 Sh. Mokhtar Mehto, Record Keeper from the Sub-Registrar -II, petitioner Dr. Mansa Saxena as PW-2, Sh. O.N. Saxena, attesting witness to the will as PW-3 and another attesting witness Sh. Rameshwar Sahai as PW-4. The testimony of all the above four witnesses discussed herein above in detail.
55. The fact with regard to the registration of the Will on 24.02.2009 proved by the record brought from the Sub-Registrar office, however, as per Section 63 of Indian Succession Act read with Section 68 of Indian Evidence Act and the principle of law discussed herein above, the attesting witnesses are the vital witnesses to discharge the onus of above said two issues.
PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.38of 44 New No. 15981/16
56. PW-3, Sh. O.N. Saxena, the attesting witness appeared and proved the Will dated 24.02.2009 Ex. PW-1/1 by proving his affidavit Ex. PW-3/1. During the detailed cross- examination he established on record that deceased had noted down the points for drafting by the advocate. He explained the presence of deceased/testatrix, second attesting witness Sh. Rameshwar Sahai and himself, at the time of execution of the Will. The will was drafted and typed at the Chamber of advocate Ms Bindia Savara. He specifically deposed that he signed only the Will and no other document.
57. He further explained and established that first, testatrix signed the will, thereafter other witness Sh. Rameshwar Sahai and lastly he signed the will. He denied the fact that deceased was seriously ill since 2006. He further corroborate the fact that he knew the contents of the will when he signed the will Ex. PW-1/1. He further explained that he also knew the contents when it was drafted by the advocate.
58. PW-4 Sh. Rameshwar Sahai, the second attesting witness also corroborates these facts by affidavit Ex. PW-4/1. The cross-examination further corroborates and proved the fact that will Ex. PW-1/1 was drafted by advocate Mrs Bindia Savara. He further corroborates that he had reached at the Chamber of advocate Ms Bindia Savara on 24.02.2009. He further explained that the petitioner was not present at Sub-Registrar office, Janak Puri on 24.02.2009. The print out of the Will was also taken in his presence. Deceased late Mrs Usha Saxena called him for signing of the will. He further explained that at Sub-Registrar office there were four persons, namely, deceased/testatrix, Mrs Usha Saxena, PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.39of 44 New No. 15981/16 Col. O.N. Saxena, himself and Advocate Ms Bindia Savara. He denied all the suggestions put to him. He further deposed that he knew the contents of the Will.
59. The testimony of PW-3 Sh. O.N. Saxena and PW-4 Sh. Rameshwar Sahai proved and established on record that on 24.02.2009 a Will was executed and got registered by the deceased/testatrix and petitioner was not present during the whole process of execution and registration. They further established that deceased/testatrix dictated the points for drafting of the will thereafter she signed and later on attesting witnesses were signed and lastly the Will was got registered before the Sub-Registrar.
60. Now coming to the objections of respondent no. 4 in the written statement. The objections are taken that respondent no. 4 and late Smt. Usha Saxena were the joint owner of the property and she was not competent to execute the Will. The law is well settled that a Probate Court cannot go into the question to decide the right, title and interest of the parties or the nature of the subject matter of the will. My view is supported by Chiranji Lal Sri Lal Vs Jagjit Singh, ( 1993) 2 SCC 507.
61. It is pertinent to mention here that Will Ex. PW-1/1 explained about the rights of the deceased/testatrix Usha Saxena with regard to the subject matter i.e immovable property bearing No. 5-B/1, Ground floor, Tilak Nagar, New Delhi. The deceased specifically mentioned about half un-divided share in favour of petitioner and half-undivided share in favour of respondent no. 4 Mr. Kartik Saxena. I find no substance in the plea of respondent no. 4 that deceased was not competent to execute the will. PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.40of 44 New No. 15981/16
62. Further, respondent no. 4 taken the written objection that deceased was not in normal senses on 24.02.2009, however, no evidence led to establish that she was not in sound disposing mind, however, improvements have been made during the evidence and in written submission by respondent no. 4 now a new plea taken which is not part of pleadings or evidence that deceased was suffering Hyper Tension, arrhythmias of heart and taking heavy dosage of Alprex and Diazepam tables since 2005. However, nothing established on record that deceased was of un- sound mind on the day of execution of the Will in question. No medical document proved which established that deceased was of un-sound mind on the day of execution and registration of the Will.
63. The respondent no. 4 further taken the objection that will in question is forged and forged by the petitioner in order to grab the property. However, no steps taken to produce any evidence documentary or oral to prove the forgery and fabrication of the Will by the petitioner. On the contrary both the attesting witnesses i.e Sh. O.N. Saxena and Sh. Rameshwar Sahai proved on record that will was genuinely executed and registered on 24.09.2009.
64. It is pertinent to mention here that in the cross- examination of witnesses again respondents tried to put up new case by improving the objections which were not pleaded. He failed to establish that he paid compensation to all his three sisters when Relinquishment Deed relied by him was executed. He has not shown any document to prove his plea. The written statement as per admission was filed by respondent no. 4 Ex. PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.41of 44 New No. 15981/16 RW-1/X2 in a civil suit filed by the deceased having titled Smt. Usha Saxena Vs Kartik Saxena, suit no. 135/09 against him and all the proceedings were proved on record.
65. I have gone through the certified copy the deceased Usha Sexena throughout appeared before the court then how she was not in sense or illiterate as per version of respondent no. 4. The written statement Ex. RW-1/X2 of respondent no. 4 is also not in consequences of the objections taken before this court.
66. The respondent no. 4 in his affidavit made several improvements but no substantive evidence led because they are beyond pleadings and after thought. It is pertinent to mention here that deceased Usha Saxena appeared on 27.03.2010 before the civil court in the above said civil suit and examined as PW-1. She signed the evidence in English, therefore, I find no substance in the plea of respondent no. 4 that she was illiterate and not in senses.
67. I find no substance in any of the objections of respondent no. 4, even otherwise nothing established on record by respondent no. 4 to prove the objections. However, totally new plea taken in the written submissions that will be referred to CFSL. All the opportunities granted to respondent no. 4 to prove the objections but no evidence oral or documentary led but always taken the plea beyond the pleadings and all the improvements are not admissible as per law.
68. On the basis of above observation and discussion, in my considered opinion, petitioner successfully discharged the onus of issue no. 4 & 5, therefore, decided in her favour and against respondent no. 4.
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69. In the present case, the petitioner has prayed for grant of Probate in respect of the Will dated 24.02.2009 executed by Late Smt. Mansa Saxena W/o late Sh. K.N. Saxena, however the perusal of the said Will ( Ex. PW-1/1) 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.
70. Thus, in view of the above discussion and observations, the Letter of Administration with annexed Will dated 24.02.2009 in respect of the property i.e. 1/2 undivided share in property bearing no. 5-B/1, Tilak Nagar, New Delhi ( 150 Sq. Yards) as mentioned in the Will and left behind by the deceased Smt. Mansa Saxena, be issued in favour of the petitioner Dr. Mansa Saxena after obtaining requisite Court Fee and Administration Bond for half of the sum of Rs.1,39,35,968/- the valuation of the subject property as agreed by the petitioner, with one surety of like amount.
71. Further, the petitioner is directed to file the inventory of immovable property within six months and final statement 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 PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.43of 44 New No. 15981/16 months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
72. It is further clarified that question of title, share and ownership of the property mentioned above is not decided by this court.
File be consigned to the record room.
SANJAY Digitally signed by SANJAY
KUMAR
KUMAR Date: 2018.05.11 21:55:44
+0530
(Announced in the open (SANJAY KUMAR)
court on 10th May, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 71/11 & Dr. Mansa Saxena Vs State & Ors. Page No.44of 44
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