Delhi District Court
) Sh. Aditya Sharda vs ) State on 4 December, 2019
IN THE COURT OF MS. SAVITRI : ADDL. DISTT. JUDGE-02,
WEST DISTRICT : TIS HAZARI COURTS: DELHI.
PC-16077/2016
1) Sh. Aditya Sharda
S/o Late Sh. Dev Sen Sharda,
2) Dr. Sunita Sharda,
W/o Sh. Aditya Sharda,
Both R/o Property No-3, Road No-65,
Punjabi Bagh (West), New Delhi.
........Petitioners
Versus
1) State
2) Sh. Vijay Sharda,
S/o Late Sh. Dev Sen Sharda,
R/o A-30, Adarsh Nagar, Ahmedpur,
Bhopal, Madhya Pradesh.
3) Sh. Pramod Kumar Sharda,
S/o Late Dev Sen Sharda,
R/o Sector D-II, Flat No-2538,
Vasant Kunj, New Delhi.
4) Sh. Satish Kumar Sharda,
R/o 1553, Sector-21, Huda Gurgaon.
.....Objectors
PROBATE PETITION U/S 276 OF INDIAN SUCCESSION ACT FOR
GRANT OF PROBATE/LETTER OF ADMINISTRATION TO THE
WILL DATED -- EXECUTED BY LATE -
Date of institution of the case : 19.08.2011
Date of reserving the judgment : 22.11.2019
Date of pronouncement of Judgment : 04.12.2019
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 1 of 49
JUDGMENT
1. The present petition has been filed by petitioners Dr. Aditya Sharda and his wife Dr. Sunita Sharda for grant of Probate based on Will dated 05.12.1997 with respect to estate of late deceased Dev Singh Sharda who was father of petitioner Sh. Aditya Sharda. The deceased expired on 18.01.2001 at Delhi. He was survived by four sons and two daughters. The petitioner Aditya Sharda is his youngest son. The L.Rs details are as follows:-
i. Smt. Susheela Sharda , Widow;
ii. Sh. Satish Kumar Sharda, Son;
iii. Sh. Pramod Sharda, Son (contesting objector); iv. Sh. Vijay Kumar Sharda, Son ;
v. Ms Rama Sharma, Daughter ; and vi. Ms Asha Trikha, Daughter (Ms Asha Trikha had already expired when the present petition was filed).
2. The perusal of this registered Will reflects that the deceased bequeathed his property bearing No. 3, Road No. 65, Punjabi Bagh (West), New Delhi (hereinafter referred as suit property) as follows:-
i. The basement, ground and first floor in favour of petitioner no. 1 & 2 jointly; and ii. The portion above it which was vacant and unbuilt, Vijay Sharda was permitted to construct the same and only reside therein with his family. If he ever intended to sell the same, he had to do so in favour of Aditya Sharda only and none else.PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 2 of 49
3. It is further mentioned in the petition that the deceased has not given any right to any other legal heirs because other two sons namely Satish and Pramod Sharda were well settled and had properties in their names. The two daughters were already married and maximum possible expenditure was made on their marriages by the deceased. The deceased had appointed his wife Smt. Susheela Sharda as the executrix to carry out the bequeath under the will. She had already expired before the present petition was filed in the month of August 2011.
4. Initially, only Sh. Vijay Sharda another beneficiary of the will was impleaded as private respondent while all the L.Rs were mentioned in the list attached with the petition of whom the following filed No Objections to the petition.
i. Dr. Isha & Manish Trikha (two out of three children of Mrs Asha Trikha D/o deceased); and ii. Mrs Rama Sharma, other daughter of the deceased.
5. Objectors Pramod Kumar Sharma and Sh. Satish Kumar Sharda filed their joint objections. Later on, Sh. Satish Kumar Sharda did not pursue the same by leading evidence. Other LRs neither filed objections nor NOC, therefore, Sh. Pramod Sharda is the only contesting objector.
6. After the notice of the petition was issued, the respondents entered appearance.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 3 of 497. In his objections Sh. Pramod Sharda has mentioned that the deceased retired from a government job in the year 1966 which was without any pension or any other retirement benefits. He had no income and had resided in a rented accommodation at Karol Bagh, Delhi with his family till the year 1990. The suit property was allotted to him in the year 1962 by Refugee Co- operative Society. His eldest son Satish Sharda started giving financial support to the family from college time itself and attending evening classes only and provided lot of financial support to his father and brothers and specially in the educational expenses of petitioner Aditya Sharda. The contesting objector himself had also contributed towards the family expenses. All his pay was credited to a joint saving account which he had with the deceased from the year 1969 to 1980. Father had no source of income post retirement in the year 1966 and all the family expenses were borne from this account specially the education and marriage expenses of petitioner Aditya Sharda as he was still a student at the time the deceased had retired without any pension etc. It is also mentioned in the objections that the house in which objector Pramod Sharda lived, was owned by his wife and he had no house in his own name.
8. The petitioner Aditya Sharda and his wife had also stayed with the deceased at the Karol Bagh house, after they came back from Libya in the year 1988 after spending 4-5 years there. They had got married in the year 1982. After the petitioner came back to India in order to help them in setting up a nursing home and for accommodation purposes, it was decided to construct the PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 4 of 49 suit property which was a vacant plot till then. Since deceased had no money, objector Pramod Sharda and Satish Sharda contributed the major part of the construction during the year 1989-90 and the deceased, his wife and the petitioners shifted there in the year 1990 itself. The property was constructed in three floors i.e. basement, ground and first floor. This arrangement was with mutual understanding of all the brothers and their parents. The elder brothers were affectionate towards the petitioner being their younger brother and as he needed space for establishing his medical practice, he was allowed to use the house for said purpose. Also, considering the old age of the parents who needed constant medical attention, it was considered in their interest that the petitioner operated from house itself. Though the old parents were living with the petitioner but other brothers were also taking care of them and used to visit them frequently. Further, the objectors also used to help the parents financially. The deceased had expressed his clear will and desire many times that he wanted to divide the suit property equally among his children and further that the objectors would be additionally compensated for having contributed major chunk of expenditure during construction and there was a consensus amongst the legal heirs in that regard. He used to acknowledge the financial contribution of objectors in running his family, education of petitioner no. 1 as well in construction of the suit property in the year 1990. There was no reason to him to deprive the objectors from succeeding to his property.
9. Further the deceased was unhappy with petitioner no. 2 Smt. PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 5 of 49 Sunita Sharda as she was harsh, disrespectful and rude with the old couple and he did not like her at all. He had complained several times about it to the objectors and other family members. In these circumstance, there arises no question of having bequeathed anything from his property to the petitioner no. 2.
10. It is further mentioned that the deceased was not having sound mental and physical health after the year 1990 and the petitioner no. 1 treated him and provided medical care being a doctor. After the year 1995 the deceased had very frail physical and mental health and was not able to appreciate and judge the correct nature and consequences of his activities. In Feb, 1996 he had gone to Hoshiarpur, Punjab to attend some wedding; his situation got very critical there and he was immediate got back to Delhi and remained under medical treatment of the petitioner and thereafter did not remain in sound disposing mind till his death at the age of around 90 years. Also, he was not in a physical condition to move out of the house or to do any work such as allegedly getting the alleged will registered.
11. A further stand, which was falsified later on, has been taken that petitioners never revealed to any other legal heir including the widow of deceased (mother of parties) about the will for 13 long years (till the petition) and rather waited for her death in the year 2006 while she was the executrix appointed to effect the will.
12. It is further mentioned that in the year 2003 much after the death PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 6 of 49 of deceased the parties herein i.e. the brothers had constructed one more floor of the house with mutual agreement and understanding and had contributed equal amount of money while constructing second floor of the property. (It has been mistakenly mentioned as third floor). Further that in the year 2006 the objector requested petitioner to shift their nursing home from the suit premises to some other place and divide the property equally amongst the legal heirs and also to take care of the aspect of incurring major expenses by them at the time of 1990 construction. Thereafter, the petitioners (wrongly mentioned as objectors) had stopped running the nursing home from the suit premises.
13. It if further alleged that the petitioners kept on postponing the partition issue on one or other pretext. Meanwhile, they also kept some tenants in the ground floor of the house but shared the rent with the objectors. Objectors have denied the will and taken an objection that it is a false, forged and fabricated document nor has it been executed and attested as per law and further, both the attesting witnesses are interested persons. The deceased had died intestate and the objectors are entitled to succeed to his property alongwith other class-I legal heirs.
14. The petitioners filed reply to the objections wherein the contents of petition have been affirmed and those of the objections have been denied. It has been denied that the objectors made any contribution in his education expenses or provided any financial support to his father.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 7 of 4915. The petitioner no. 1 had come back to Delhi in the year 1979 after completing his MD from Banaras since that time it was he alone who had supported his parents till their death. None of the other sons/daughter-in -law ever supported the deceased physically or financially thereafter. The major responsibilities of deceased got over after he got both his daughters married off in the year 1966 and 1970. It is mentioned that though objector Pramod Sharda contributed some amount to the deceased but it was neither regular payment nor in the manner claimed by him. Further it is mentioned that the Vasant Kunj flat may be in the name of his wife but it was funded by him only and by none else.
16. It has been denied that the objectors ever contributed towards the construction of suit property and a stand is taken that in fact the petitioners had earned huge money while staying at Libya from December 1983 to April 1988 and had constructed the suit property with that money. They have denied any contribution by any of the objectors at any point of time towards construction of suit property. They denied any understanding with the objectors regarding construction of nursing home in the suit property.
17. It has been denied that the objectors took any care of the parents after their marriages or that they were having good relations with their parents or helped them financially. It is mentioned that in the year 1985 objector Pramod Sharda took his parents to his house but after few days his wife misbehaved with them and forced the old couple to leave. Objector Satish Sharda did not take care his old parents nor his wife liked it, if he did. The deceased was specially annoyed with objector Satish PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 8 of 49 Sharda as on one occasion when the deceased was away to Ghaziabad to attend marriage of a relative, he got to know that a Ghaziabad plot bought in the name of Satish Sharda was sold by Satish Sharda without the consent of the deceased. It was under these circumstance that the deceased executed the will in question and got the same registered.
18. It has been denied in the reply to objections that the deceased expressed any wish to divide suit property equally among all the legal heirs or that he wanted to compensate the objectors for expenses made by them. The averment regarding ill physical and mental health of the deceased has been refuted in the reply to objections. It is further mentioned that the deceased got unwell due to dehydration at Hoshiarpur but got normal within two days of treatment. He maintained very good health till his death and did Yoga even the age of 90 plus. One month before his death he had attended funeral of a relative and was able to move freely without any support and also had sufficient mental ability. The testator was having very strong will power and was not the kind of person who could be influenced by anyone.
19. It is mentioned that the objectors were aware of the will as petitioners had applied for mutation of the property in their name in the year 2004 and had requested the objectors to furnish NOC for the same in view of the will in their favour but the objectors did not co-operate with them. Further, stand has been taken that petitioners waited all these years for co-operation from the objectors so that matters are not taken to the court and family respect remains intact. When the objectors did not PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 9 of 49 co-operate and refused to give NOC in the year 2011, the petitioners were forced to approach the court. It is also mentioned that in the year 2004 the petitioners had approached all the legal heirs including their mother for NOC required by MCD for mutation.
20. The petitioners have also denied that they had closed the nursing home at suit property due to request of objectors. Rather, it was due to some objections from Health Ministry that they closed the nursing home on their own.
21. After completion of pleadings, following issues were framed by my Ld. Predecessor Judge vide order dated 14.08.2014-- :-
ISSUES
1) Whether the present petition filed on behalf of the petitioners is barred by Limitation? OPR
2) Whether the Will dated 05.12.1997 executed by testator Late Sh. Dev Sen Sharda is a valid, legal and genuine Will? OPP
3) Whether the petitioners are entitled to the grant of probate in respect of the aforesaid Will dated 05.12.1997, as prayed for? OPP
4) Relief PETITIONER'S EVIDENCE
22. In order to prove his case the petitioner no. 1 has examined himself as PW-1 on affidavit Ex PW-1/A, which is on the lines of his pleadings. He relied upon the will in question and PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 10 of 49 documents of suit property. It is admitted position that the deceased was the owner of the suit property which was purchased by him of his own funds. The witness also relied on death certificates of his deceased parents which is also an admitted position. Additionally, he relied upon an application for mutation dated 12.08.2002. (In the pleadings the year for applying for mutation has been mentioned as 2004).
23. During his cross-examination by Ld. Counsel for objectors he deposed that he knew about the existence of will since its execution itself. His mother also knew of the same since its execution. Further, he informed all the legal heirs about the will and requested for their NOC with regard to mutation of the suit property. He deposed that objector Pramod Sharda neither said 'yes' nor 'no' to the NOC and stated that petitioners should continue living in the suit property and NOC would be given in due course. He denied the suggestion that when in 2002 the objectors got to know about the will, they refused to accept it as genuine and valid. He denied the suggestion that his mother had refused to give NOC regarding mutation. He also denied the suggestion that since the objectors as well as mother refused to accept the validity of the will, the suit property has not been mutated in the name of the petitioners. The witness deposed that after 2002 none of the petitioners moved any application for mutation of the property nor gave any notice etc. to objectors for NOC with regard to mutation and existence of will. But in the next breath he denied the suggestion that he had not sent any letter to the objectors after 2002 but again could not PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 11 of 49 produce any such letter. He denied the suggestion that there was an oral understanding with the objectors that he and his wife should continue to reside in the property and later on it could be partitioned. The witness admitted that though his mother was appointed as executor but during lifetime of his mother i.e. till 2006, he never filed any petition or any other proceedings with regard to will. He denied that no such proceedings were filed as the said will never existed. He denied the suggestion that since the will was forged and fabricated, that is why his mother was not one of the beneficiaries, despite being financially dependent on her late husband.
24. The witness denied knowledge as to when the will was drafted, typed and executed by his deceased father and deposed that he got to know of the same may be after few days or few months from one of the attesting witnesses, namely, Mr. Ashish Sharma. (an advocate by profession). The witness also denied knowledge as to when and where the deceased had consulted Mr. Ashish Sharma, the draftsman of the will. Further he never took deceased to Ashish Sharma for execution of the will. Then in the next breath the witness said that he did not remember. After this he deposed that on the day of execution of the will he took his father to Rohini Court on 05.12.1997, which as per him was the day of signing and registration of the will. Further he also picked up another attesting witness Sh. Vijay Sharma, who lived on the way. This deposition is quite contradictory, to say the least. On the one hand witness deposed that he got to know about the will after few weeks/ months of execution, on the other hand he deposed that he had himself taken the deceased to PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 12 of 49 court/Registrar's office for execution of the will. Even more interesting is that he deposed on another occasion that he had knowledge even few days earlier to the execution of the will that two witnesses namely, Ashish and Vijay Sharma would sign the will as attesting witnesses. He denied the suggestion that both these persons became witnesses at his instance in order to forge the will in question.
25. The perusal of the document reflects that it was prepared on 05.12.1997 and registered on 11.12.1997. The witness deposed that he did not read the will and did not know its full contents but had vague idea and had not gone to the office of Sub-Registrar to see the registration. Further that the will was not signed in his presence by testator and witnesses. He denied the suggestion that he conspired with other two attesting witnesses and got signed and executed the will from the deceased under deception as the deceased did not have the sound disposing mind to understand as to what he had done on 05.12.1997 or that the deceased suffered from several diseases and ailments on that day. He further denied the suggestion that he had taken his father to the Chamber of Sh. Ashish Sharma in order to manipulate the execution of the will. The witness deposed that Ashish Sharma is an advocate and is related to him as son of his distant bua while the witness Vijay Sharma is his neighbour and used to visit him often for medical problems. The witness deposed that he did not remember if Ashish Sharma had done any other legal work for the deceased. The witness also did not remember if one or two weeks around 05.12.1997 the deceased again visited Sub-Registrar's office.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 13 of 4926. The witness further deposed that his deceased father was residing with him alongwith his mother, since 1990 and was aged 88 years at the time of will, in 1997. Witness admitted that the deceased was suffering from an osteoarthritis of knee joints for last few years of his life but denied the suggestion that father lived with him because he was suffering from various ailments and required his daily supervision as he is a doctor. He also denied that all the documents with respect to medical treatment of the deceased were in his possession and he had deliberately not filed them before the court.
27. The witness also denied the suggestion that the deceased was not in a position to refuse to do anything asked by him as he was under his supervision. He also denied that he had taken signatures of deceased on some blank papers by deception/ coercion/force and has forged and fabricated the alleged will.
28. The witness denied the suggestion that objectors had been requesting him for partition of suit property since 2002 itself or that the partition was initially postponed on the mutual agreement of all the legal heirs who decided that during lifetime of mother no partition would be done. He denied the suggestion that further construction in the suit property in the year 2001 and 2007-08 was carried out with financial contribution of objectors and other legal heirs.
29. The witness admitted that the deceased had retired in the year PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 14 of 49 1967 (elsewhere it is mentioned as 1966) and there were no pensionary benefits to him. The witness admitted the possibility that the objectors financially contributed in the marriage of sisters. He also admitted that objector Pramod Sharda had given some money to deceased after retirement of deceased. He also admitted that after retirement of deceased, objector Pramod Sharda used to regularly send his salary to the joint account, which he (Pramod Sharda) had with deceased, for 11 years from 1969 to 1980. The witness also admitted that deceased was financially dependent upon Pramod Sharda and other brothers. The witness deposed that he was not aware if Pramod Sharda had sent 5250 dollars (2250 + 2000+1000) to joint account between October 1977 to May 1982 but admitted this possibility. He also admitted that deceased had no personal earning after 1966. The witness admitted that objector Satish Sharda was also working at the time of retirement of deceased but did not remember if he was earning even during his education or not.
30. During his further cross-examination on another date of hearing, the witness suddenly seems to have got smarter. He has deliberately furnished evasive response to some questions regarding funding his educational expenses by the objectors. He expressed unawareness whether after retirement of deceased, the objectors used to finance the expenses on his education and deposed that he used to take money from his father but did not know where from the father arranged it. He denied the suggestion that during the stay of petitioners in Libya, objector P.K. Sharda and his wife used to take care of old parents. The PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 15 of 49 witness claimed to have handed over huge money to his father after he visited India once during his Libya stay. He denied the suggestion that he did not submit the documentary proof regarding handing over money to his father after returning from Libya or sending him 7000 rupees from there in the year 1984 as he had not done so.
31. The witness deposed that he did not remember if objector P.K. Sharda and his wife had visited him or the old parents at suit property and denied the suggestion that during that meeting deceased was not able to identify the visitors i.e. the objector and his wife. He denied the suggestion that the suit property was constructed with the contribution by the objectors as the witness and his wife needed a place to start medical practice, being doctors and the deceased also required constant supervision being old aged and suffering from various ailments or that he did not spend his own savings in constructing the suit property. He also denied the suggestion that the rent collected from the tenants kept in the suit property was shared with the objectors.
32. The witness denied the suggestion that there was great love and affection between objectors' families and their parents or that the deceased used to discuss all family matters with them. The witness denied the suggestion that the relations between deceased and petitioner no. 2 (wife of witness) were not cordial or that she never took care of him properly or that he never liked her or that this fact was well known in the whole family as deceased always used to share it with the objectors and their PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 16 of 49 wives.
33. The witness has denied the suggestions contrary to his stand that the deceased was hale and hearty till his last breath. Though, he admitted that in the year 1995 when the deceased was at Hoshiyarpur, he fainted and lost consciousness and in same unconsciousness state of mind he was brought to Delhi but denied the suggestion that he lost his mental capabilities after this episode and could never regain the same. The witness voluntarily deposed that it was a case of dehydration and deceased recovered completely within next two days. He denied the suggestion that he was deposing falsely with respect to this aspect and had deliberately not disclosed the medical prescriptions and history/medical record of his father on record.
34. The witness denied the suggestion that objectors as well as mother of the parties had rejected the will in the year 2002 itself so the probate proceedings were not filed till the mother's death. He admitted the suggestion that he did not file the probate proceedings during the later years (after mother's death) as he considered that taking the step of approaching the court would be adverse for family ties.
35. PW-2 is Ashish Sharma, advocate. He has led his evidence on affidavit Ex. PW-2/A. It is mentioned in his evidence affidavit that he is distant relative of petitioner no. 1 Aditya Sharda and therefore was in regular touch with the deceased and had drafted the will in question on the instructions of the deceased who was without any influence, coercion or pressure from any PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 17 of 49 quarters. Further that the deceased had signed the will in his presence and after reading its contents. Also, that he himself and the other attesting witness had also signed the will in presence of each other and the deceased. He identified his signatures as well as that of the deceased on the will.
36. During his cross-examination, he deposed that he had appeared in the court on asking of the petitioner and was not summoned by court. He deposed that he was related to both the parties as they are cousins. He was on frequent visiting terms with the petitioners but visited the house of objectors only once that too before the will. He denied the suggestion that he never visited the objectors and did not have cordial relations with them. He further deposed that he had got the will of the deceased typed in his chamber in the presence of deceased himself. Petitioner Aditya Sharda had dropped the deceased in his Chamber had also come back for picking him up after two hours. The witness had not done any legal work for the deceased except the will. He denied the suggestion that the will was drafted in the presence and on instructions of petitioner Aditya Sharda. He denied the suggestion that Aditya Sharda had brought the deceased in his chamber as the deceased was not physically and mentally fit. This witness also deposed like PW-1 that he had accompanied the deceased and the other attesting witness to the Registrar office. He denied the suggestion that the petitioners had manipulated the deceased and had got forged and fabricated the will in question in connivance with the attesting witnesses. He denied the suggestion that the deceased was not in a position to sign, execute the will or to PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 18 of 49 even visit the Sub-Registrar office on the day of allegedly registration as he was ill since long prior to will or was not in sound disposition of mind. The witness emphatically denied the suggestion that deceased was residing with the petitioners as they were doctors and were treating him. He denied the suggestion that he was deposing falsely as he had close terms with the petitioners and had no cordial relations with the objectors.
37. PW-3 is Sh. Vijay Sharma, other attesting witness. His evidence affidavit Ex. PW-3/A is also on the same lines as PW-2 except that he had not drafted the will.
38. During his cross-examination this witness also deposed that he had come to depose in the court on asking of petitioner Aditya Sharda. Regarding his relationship with the deceased the witness deposed that his mother and the deceased were cousins. The witness has been able to stand the test of cross- examination so far as execution, attestation and registration of the will is concerned. In his further cross-examination he deposed that other attesting witness and draftsman of the will Sh. Ashish Sharma, advocate was also in the same relation with the deceased and petitioner Aditya Sharda, as this witness. He also deposed that the witness himself, Aditya Sharda and Ashish Sharma had been brought up together since their childhood and are very close to each other even now. He also denied the suggestions regarding mental and physical incapacity of the deceased at the time of execution of the will and about it being forged and fabricated by the petitioners in-connivance with the PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 19 of 49 witnesses by mis-representing the facts/misleading/pressurizing the deceased. The witness denied the suggestion that he was deposing on instructions of Adiya Sharda and for his benefit, being very close to him.
39. PW-4 is the official witness from the office of Sub-Registrar who brought the record of the registered sale deed of suit property.
40. PW-5 is another official witness from Municipal Corporation. He brought the certified true copy of application of mutation of suit property moved by both the petitions jointly on 12.08.2002. (document is Ex. PW-5/1). He also produced before the court the mutation application of Vijay Sharda, the other beneficiary, of even date (document is Ex. PW-5/2).
41. PW-6 is the official witness from the office of Sub-Registrar who brought the record of the registration of the will.
Though affidavit of evidence of petitioner no. 2 was also filed on record but she did not appear in the witness box hence the affidavit is discarded.
RESPONDENT'S EVIDENCE
42. Objector has examined himself as the only RW-1 vide evidence affidavit Ex RW-1/A, which is on the lines of his objections except for the fact that it does not contain an averment regarding the objectors coming to know of the will for the first time, only after 13 years of its execution.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 20 of 4943. During her cross-examination, the witness expressed a doubt that the signatures on the will in question did not belong to the deceased, though they appeared similar. He also took a ground that either the signature was false or the petitioners had taken the signatures of deceased under coercion/pressure/ fraud/undue influence/deception/mis-representation. This view is quite understandable, considering that the will was not drafted/executed in presence of witness nor was he aware of the same for considerable time, after its execution because as per the petitioners themselves, they had brought the will to the notice of the objectors in the year 2004 when they wanted to get the suit property mutated and the municipal body required NOC of other legal heirs of deceased. There appears to be a mistake in mentioning year 2004 in reply to objections, filed by the petitioners. It was not in year 2004 but in 2002, that they had applied for mutation because this fact that the mutation application was received on 12.08.2002 in the office of Municipal Corporation, is clear from the records of corporation produced by PW-5.
44. The witness was asked during his cross-examination if he ever sought any medical record from the petitioners to seek second opinion about illness of deceased. The witness responded that he asked the petitioner no. 1 for the documents/lab reports but petitioner replied that there was no record with him since he was looking after the deceased at home only. The witness denied the suggestion that he never visited the deceased and seldom met him personally. He denied the suggestion that deceased never suffered from any mental disability which would hamper PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 21 of 49 his free consent in execution of will or that he was fit in the year 1997 at the time of will and even thereafter till his last breath. He denied the suggestion that in Feb. 1996 the deceased only suffered dehydration and was back to normal after treatment for a couple of days. The witness denied the suggestion that he had not placed on record any medical documents of deceased as no such documents existed because deceased was always physically and mentally fit.
45. In further cross-examination, the witness deposed that he got to know about the existence of the will in the year 2002. He admitted the suggestion that in the year 2002 his mother had asked for NOC to the will. He deposed that he refused to give NOC and denied the suggestion that he did not refuse but rather remained non-committal and neither said 'yes' nor 'no'. He denied the suggestion that petitioner asked him to give NOC for the will in the year 2002 or that he lingered on the matter and neither said 'yes' nor 'no'. He denied the suggestions contrary to his stand that he had contributed financially towards the family expenses with his father and in eduction/marriage expenses of Aditya Sharda and in construction of suit property in the year 1989-90 and thereafter. He denied the suggestion that no agreement was entered between him and builder for construction of house because he had not contributed any money for construction. He denied the suggestion that he and his wife were not on cordial terms with the deceased or that his wife ill-treated the deceased. He denied the suggestion that the testator was in sound disposing mind and physically fit at the time of will and even prior to it and also afterwards. He denied PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 22 of 49 that the will was executed by deceased out of his free consent. He denied that the deceased did not give any share to him in suit property as he and Satish Kumar Sharda both were having other properties and were well settled and the two sisters were already married and were given sufficient money during their marriages. He denied the suggestion that deceased had very cordial relations with both the petitioners up to the date of his death and that the will was not a forged, false and fabricated document.
46. Before proceeding to decide the present probate petition let me discuss in nutshell, the relevant legal provisions and judicial pronouncements.
47. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 23 of 49
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.
Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
48. 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:-PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 24 of 49
(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".
49. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 25 of 4950. 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."
Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13 th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
1. Stated generally, a will has to be proved like any PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 26 of 49 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 propounder himself taking a leading part in the making of the will under which he receives a substantial 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 PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 27 of 49 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 circumstances 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 legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in 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 surrounded 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. "
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:-PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 28 of 49
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution 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)
51. The decisions of the Supreme Court in Uma Devi Nambiar Vs. PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 29 of 49 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. BalaKumarishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v.
Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 30 of 49 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)
52. 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 :-
"Any 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."
53. 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 PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 31 of 49 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)
54. Naveen Bhatia through LRs, Vs. Raj Kumari Bhatia & Ors.
decided by late Hon'ble Justice Valmiki J. Mehta of our own High Court and reported as 2017 (165) DRJ 511, holding as follows :-
"A trial court commits legal error by going into issues of title of the properties because a Probate Court only decides the validity or invalidity of execution of the will. Whether or not the testator did or did not have title to the properties which were subject of bequests under the will or that actually someone else had title or that the testator had title only of some of the properties and not all of the properties or that testator had only part interest and not full interest in the bequeathed properties etc. etc. are all issues which have to be decided by a civil court in a civil suit between the parties whenever and where ever disputes will arise with respect to title of a particular property."
CASE LAWS CITED BY PETITIONER
55. Counsel for petitioner relied upon following judgments :-
i. Harinder Pal Singh Vs. State FAO 309/2008, decided by Delhi High Court on 19.11.2010; dealing with the aspect of mental capacity of the testator and duty of objector to lead positive evidence in support of the PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 32 of 49 defence of testator having unsound disposition of mind.
ii. Sri Ram Sharma Vs. State, 2005 117 DLT 174; holding that a party alleging execution of will under undue influence is required to prove the same as attestation and registration are prima facie proof of sound disposing mind.
iii. Prakash Ratan Lal Vs. Mankey Ram, Hon'ble Delhi High Court, CM Main No. 976/2007, CM Appln No. 9885/2007, that evidence cannot go beyond pleadings.
iv. Jai Singh Vs. State Test Case 2 OBJ/2003 dated 13.05.2019, that the wish of testator regarding disposal of his assets must be reflected. The ground alleging forgery of signatures has to be proved by leading forensic evidence.
v. Naveen Bhatia through LRs, Vs. Raj Kumari Bhatia & Ors., AIR 2018 (NOC 760) 270; holding that due attestation, registration, exhaustive and minute details in will are prima facie proof of sound disposing mind of testator. Also, it may be an additional ground to uphold a will, if any objector withdraws his objections.
vi. Mahesh Kumar (Dead) by LRs Vs. Vinod Kumar & Ors., SCC A. No.s 7587-7588 of 2004, laying down that disinheriting ungrateful children is no suspicious circumstance.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 33 of 49vii. Meenu Chhibber Vs. SS Chhibber FAO (OS) No. 205/2013, dealing with limitation in suits qua declaration of forgery. It is not applicable in the given facts and circumstances as it does not deal with the subject matter of present case.
CASE LAWS CITED BY OBJECTORS/RESPONDENTS Ld. Counsel for objectors relied upon the following judgments :-
viii. Romeo Anacelto D'souza Vs. Edgar Havlock D'Souza MANU/MH/2215/2013;
ix. Nirmala Handa Vs. Krishna Kaura 217 (2015) DLT 140;
x. Anil Kak Vs. Kuari Sharda Raje & Ors.
MANU/SC/7520/2008;
xi. Jaswant Kaur Vs. Amrit Kaur (1997) 1 SCC 369;
xii. Gure Vs. Atma Singh & Ors. MANU/SC/0492/1992;
All the above judgments are dealing with suspicious circumstances in execution of will and effect thereof. All these aspects have already been discussed in detail in preceding paragraphs.
ISSUEWISE FINDINGS PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 34 of 49
56. I have gone the record of case file and have heard the arguments advanced by Ld. Counsel for parties and considered the case laws as well as the written submissions filed by them.
57. My issue-wise findings are as follows :-
ISSUES NO-1
1) Whether the present petition filed on behalf of the petitioners is barred by Limitation? OPR
58. The onus to prove this issue was put on the objectors. The ld.
Counsel for objector Pramod Sharda has relied on many judgments to show that the burden to prove that a proceeding is not barred by limitation is on the petitioner/plaintiff and the court is bound to satisfy itself regarding the aspect of limitation even if the defence of limitation has not been raised by the defendants/respondents/objectors. The judgments relied upon by him are as follows:-
i. Desh Raj Hukm Chand Vs. Lachhi Ram, AIR 1933, LAH 404;
ii. Lal Chand Marwari Vs. Rampr Gir (1925-26) 30 CWN 721;
iii. SBI Vs. B.S. Agriculture Industries (2009) 5 SCC 121;
iv. K.S. Nanji Vs. Jatashankar AIR 1961 SCC 1474;
v. Kamlesh Babu Vs. Lajpat Rai (2008) 12 SCC 577;PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 35 of 49
vi. Triro Vs. Dev Raj, AIR 1993 Jammu & Kashmir 14;
vii. Maharastra SRTC Vs. Rao Ji Hari, AIR 1977 Bombay 1;
viii. Mahboob Pasha Vs. Syed Jaheeruddin, AIR 1998 Karnataka 83;
ix. Ajab Enterprises Jayant Vegolies, AIR 1991 Bombay 35;
x. Shankar Dass Vs. Sita Ram, AIR 1956 PEPSU 83; and xi. Surender Kumar Vs. Narayan Ram, AIR 2011, Chattishgarh 138.
59. All the judgments collectively echo the same law point as already discussed above. Ld. Counsel for the petitioners had also fairly conceded to this preposition put forth by ld. Counsel for the objectors that the initial burden to prove the aspect of limitation rests upon the shoulders of petitioners.
60. It is settled law as on date that limitation period for filing petition for grant of letters of administration/probate is three years from the date on which the cause of action arises i.e. the other side disputes the will or does not accept the same. Admittedly, the objector did not co-operate with the petitioners for NOC to be furnished before the Municipal authorities with respect to mutation of the suit property in their favour. The objector was not aware of execution of the will prior to the time when he was requested to furnish NOC for mutation purposes. The petitioner admitted during his cross-examination that despite lack of co- operation by the objector, he did not file the probate proceedings till the year 2011. The petitioner took a stand during cross- examination of the objector that he had requested the objector PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 36 of 49 to furnish NOC in the year 2002. Whereas the objector denied this but admitted that the mother of the parties had requested him to furnish NOC in the year 2003, which as per him, he had refused to give. He denied the suggestions that he was non- committal in as much as he neither said 'yes' nor said 'no'. In light of this clear cut stand of the objector, it was upon the petitioners to establish on record that the petition was filed within the period of limitation. They did not lead any positive evidence on this aspect and made only a bald assertion that objector had finally refused for NOC in the year 2011 which fact was emphatically denied by the objector. The petitioners even did not care to specify the date, month, time or occasion for such refusal as late as in the year 2011. The petitioner also admitted during his cross-examination that he did not approach the court earlier as it would have adversely affected the family ties, thus specifying his real reason for not having come to the court expeditiously ; and indirectly meaning thereby that it was not because of any delay dallying by the objector in furnishing NOC but for maintaining the family ties and protecting the family honour, that he did not approach the court within time.
61. It is no doubt true that the objector had initially taken a false ground regarding having no knowledge of the will till the present petition but this fact by itself does not come to rescue of petitioners to show that the petition was filed within limitation period as they themselves have taken a ground that objector did not furnish NOC to them when they approached him in the year 2002. The petitioner has also stated during his cross- examination that neither he nor his wife approached the objector PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 37 of 49 for NOC after 2002.
62. The objector having refused the request of mother for NOC, in the year 2003 itself, the period of limitation commenced from the moment of refusal and the limitation did not survive beyond the year 2006, therefore, the petitioners have been unable to show that they have approached the court within the period of limitation. Accordingly, I hold that the petition is barred by limitation. Issue no. 1 is accordingly decided against the petitioners and in favour of the contesting objector.
ISSUES NO-2
2) Whether the Will dated 05.12.1997 executed by testator Late Sh. Dev Sen Sharda is a valid, legal and genuine Will? OPP
63. The petitioners have been able to prove that the will in question was duly registered before the concerned authority. It is settled law that the registration affords a prima facie ground for assuming that the will was duly executed. But in order to be valid, legal and genuine, it should be free from any suspicious circumstances. The initial burden to prove the suspicious circumstances is upon the objector. Thereafter, it becomes the duty of the petitioners to dispel the same. I have noticed the following suspicious circumstances in the present case, which have been highlighted by the objector side and mentioned as follows :-
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 38 of 49A. The deceased was around 88 years old man who was totally dependent upon the petitioners for his survival. He was penny less and had no financial means admittedly to support himself and his wife and the couple was under medical supervision of the petitioners too. He was living under the care/custody of the petitioners at least since the year 1990 admittedly. In these circumstances, at the fag end of his life, he could not be said to be free from influence of the petitioner couple so as to be able to dispose of his only asset contrary to their wishes.
B. The will did not see light of the day during the entire lifetime of deceased. It is not the case of the petitioners that it was disclosed to any of the other legal heirs (except mother), during lifetime of deceased. It was not disclosed to any one even after death of deceased until the point when the disclosure became necessary as NOC of other legal heirs was required before mutation of the suit property could be effected in the name of the petitioners. It was not until at least five -six years from the will that the petitioners were forced to disclose the same to the objectors. In fact, admittedly, not only the objector but also no other legal heir (including mother) furnished NOC as requested by the petitioners, till after the petition was filed.
C. It is not the case of the petitioners that the relations PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 39 of 49 between the old couple were not cordial. Under these circumstances, it is very surprising to note that the deceased did not make any provision for subsistence of his dependent wife in the event he died and she survived him. There was not even a condition imposed in the will upon the beneficiaries to maintain the old lady after the old man was no more, what to talk of creating a life interest in the suit property in her favour, as a reasonable man of ordinary prudence, placed in the same circumstances, would naturally do. The bequeath is unjust on this count.
D. Not only this, while the preference to sons over daughters in an ordinary Indian family, in the matters of property, is though unjust yet acceptable norm in our society, bequeathing property to one son in preference to other is something very uncommon and unjust as seem prima facie. Admittedly, the objector had paid his entire salary to his financially dependent father for at least 11 long years (from 1969 to 1980) while extending substantial financial help from 1966 to 1969. During this period, the father had got married two daughters and spent on education and marriage of petitioner no-1 apart from incurring the normal house hold expenses.
Till this time the petitioners were not even married so the question of they taking care of the elderly couple did not arise. The contribution of 5250 US $ by the objector to the father is also more or less PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 40 of 49 admitted by the petitioner during his cross- examination. The properties acquired by objector Pramod Sharda and his other brother Satish Sharda were their self acquired properties and no joint family funds were spent for the same rather it was they who had contributed towards the expenses required to be incurred by father for the family including the petitioner no. 1 Aditya Sharda. Having retired from the government service in the year 1966 itself, the deceased and his wife must have been at least around 80 years of age when they shifted in the suit property in the year 1990 and thereafter stayed with the petitioners continuously. A person aged around 80 years would require regular medical care due to advanced age in order to remain physically and mentally fit because age itself is a disease. Therefore, it is quite understandable that at this age the deceased couple lived with their doctor son and daughter-in law. Though, both the parties have levelled allegations of ill treatment of deceased against each other, none of them has been able to prove the same. Therefore, the contention that the objector was not a dutiful son and deserved to be disinherited, cannot be sustained. More so because the ground for disinheritance has been that the contesting objector the Pramod Sharda and Satish Sharda had houses of their own where they were living comfortably. Merely because they have separate houses purchased from their own funds, could by no means justify their disinheritance because PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 41 of 49 while they are residing in 2-3 BHK flats the suit property was a huge property constructed in three floors on land measuring 300 sq. mtrs approximately and bequeathing the same entirely to the petitioners is unjust and cruel to other legal heirs, to say the least.
E. So far as the respondent no 2 is concerned, the benefit granted to him under the will is that he was given right to raise construction over the already existing building but could only reside there with his family and could not use the premises for any other purposes including renting out. Whereas, the petitioners had even rented out the suit property admittedly. The respondent no. 2/beneficiary had to sell the portion constructed by him only to the petitioners and none else; while none of the other legal heirs could even purchase the same from him, in the event of sale; is also something which does not appeal to logic at all.
F. Quite surprisingly no such limitation was imposed upon the petitioners, who were bequeathed three floors of the suit property, which were constructed on around 900 sq. mtrs. area. They had liberty to even sell off the property or to induct any tenants therein and tenants were admittedly inducted also. Therefore, the argument that the idea behind making such provision in will was to prevent the family property from alienation, loses ground.PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 42 of 49
G. Petitioner no. 2 was not even legal heir of the deceased till the time petitioner no. 1 remained alive. Yet she has been given property in the will alongwith her husband to the total exclusion of all other legal heirs, including even the life partner of the deceased, maintaining whom, was his prime responsibility.
64. All these circumstances are suspicious. The explanation for the same had to come from the petitioners' side. The Ld. Counsel for petitioners has argued that all the other legal heirs have furnished their No Objection to the will in question and the objector had admitted during his cross-examination that the late mother had also asked him to give NOC as demanded by the Municipal Authorities, these facts strongly indicate towards genuineness of the will. In my view, it is not so. There are varieties of reasons because of which a party may either furnish NOC or may not contest a probate petition. Admission of the genuineness of the will is only one of those reasons. Moreover, the fact remains that none of the persons, who have furnished the NOC after the petition, had given NOC in favour of the will earlier at any stage when demanded by the petitioners for mutation of the suit property in the records of municipality. So, this fact is not a ground to assume that the will is genuine.
65. The petitioners have sought to justify the bequeath on the ground that they had been taking care of the old aged couple for long period of time while all other children deserted them. The deceased was very happy with them and unhappy with other sons. Daughters were already married and were well off.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 43 of 49Maximum amount possible was spent in their marriages, hence, the exclusion. The petitioners have failed to establish that the deceased was unhappy with other sons or particularly happy with them. The allegations of ill-treatment of deceased against each other remained unproved.
66. From the admissions of PW-1 himself in cross-examination, it is very much clear that objector Pramod Sharda had also very much taken care of the needs of family after the year 1966, when the deceased had retired without pension and had no source of earnings throughout his life after the retirement and had huge family responsibilities to discharge.
67. Apart from bald averments, none of the parties have been able to establish if the suit property was constructed with or without the contribution of the objector. Both of them have failed to lead any documentary or any other cogent evidence in that regard. Therefore, the fact as to whether objector contributed towards the construction of suit property or not, remains unproved.
68. I reject the stand of objector Pramod Sharda that he had no house of his own and was living in his wife's house, purchased by his father-in-law after some years of his marriage. This never happens like that and the story is totally false. But the fact remains that if the objectors owned houses, the same were purchased from their own earnings and not from any monetary help given to them by the deceased. Rather, it were they, who helped the deceased in discharge of family responsibilities by paying money to him.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 44 of 4969. Another stand taken by the petitioners that the deceased was unhappy with Satish Chand Sharda as he had sold a Ghaziabad property purchased in his name, without the consent of deceased. This bald submission is very vague and lacking in material particulars, such as the date of purchase and subsequent sale, the details of consideration for both transactions etc., hence rejected. Moreover, this is not a ground for disinheriting him, as per the will.
70. It is not the case of the petitioners that they had paid money to the deceased couple for discharge of any major family responsibility. In fact, both of them only claimed to have maintained the parents during their old age. Prior to their marriage, the parents were being maintained by objector Pramod Sharda, till the year 1980 at least. Under these circumstances, there was nothing which warranted any special favour to the petitioner couple by the deceased, by ignoring other legal heirs, even his own wife. In the overall circumstances, therefore, the bequeath was quite unjust and unfair to other legal heirs, most particularly to the widow of the deceased. The petitioners have been favoured out and out in the present will for no special reasons. They were definitely in position to influence the free will of deceased. In the peculiar facts and circumstances of the present case, they could dominate the volition of deceased and he could not dispose of the suit property in such a manner as would have been adverse to the interest of petitioners.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 45 of 4971. Therefore, I am of the view that the will in question was not a product of free volition of deceased rather it appears to have been executed while the deceased was under undue influence of the petitioners. In view of this observation, the arguments advanced by Ld. Counsel for petitioners that deceased had the opportunity to change the will at a later date because he remained alive for more than three years after execution of will, loses significance because it was of no consequence as the circumstances of deceased continued to remain as such till his death. Not only this, for the same reasons the arguments of Ld. Counsel for petitioners that the fact that mother had also admittedly demanded NOC from the objector Pramod Sharda showed she acknowledged the will to be genuine; is also demolished because she was in no different circumstances than her deceased husband. Both the husband and wife were sailing in the same boat.
72. Admittedly, the petitioner no-1 and both the attesting witnesses are on very close terms with each other. In fact, they were brought up together as stated by PW Vijay Sharma himself. Petitioner Aditya Sharda even did not know as to how he was related to PW Vijay Sharma. In my view, he has lied about the same. It is impossible to believe that a man in his 60s does not know such relationship. Witness Vijay Sharma clearly stated that his mother and the deceased were cousins. Therefore, Vijay Sharma and petitioner Aditya Sharda are second cousins. Petitioner Aditya Sharma tried to project PW Vijay Sharma as only his neighbour, who used to visit his clinic some times for medical advice, whereas the truth is otherwise.
PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 46 of 4973. The cross-examination of witness Ashish Sharma suggests that while he was on very close friendly terms with petitioner no-1, he was not even on visiting terms with the objector specially after the will in question. If the will was reflecting the genuine desire of the deceased regarding disposal of his assets, there was no reason for the petitioners to hide it for 5-6 years from its execution. Also, the petitioner Aditya Sharda lied on one occasion about his acquiring knowledge of the will only few weeks/months of its execution. He also tried to conceal from the court that he had dropped and picked up the deceased in the lawyers chamber, when the will was drafted, which fact was elicited during cross-examination of witness Ashish Sharma. In fact, he had very actively participated during preparation, execution, arrangement of attesting witnesses and registration of will, but tried to project otherwise, which is quite important suspicious circumstance for which he has failed to offer any explanation. So far as truthfulness is concerned, the conduct of neither the petitioners nor the objector Pramod Sharda is above board.
74. The objector has taken a ground that the deceased was not in sound disposition of mind around the period of will, till his death. He failed to lead any positive evidence in this regard. His ground that since the deceased had been living with the petitioners and Aditya Sharda had been treating him, he was required to produce before the court the medical documents, which would show the physical and mental well being of testator, is only partially sustainable. Though, old age itself is a disease PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 47 of 49 but it is equally true that every person dying old may not be suffering from declining cognitive abilities. Therefore, in my view it was the initial burden of the objector to show unsoundness disposition of mind or physical illness of deceased around the period of will, which he has failed to discharge. Therefore, it is not proved that the deceased did not have sound disposition of mind particularly as the will was duly registered.
75. But all these facts as discussed above, suggest when taken together, that the stand of objector that the will was drafted by Advocate Ashish Sharma on instructions of petitioners and he remained present at the time of drafting the will in question, is correct. I am also of the view that respondent no-2 Sh. Vijay Sharda was made a limited beneficiary in the will only with a view to give it semblance of just bequeath, on legal advice and for the same reason the mother was made executrix, though disinherited otherwise. It appears that the deceased was used merely as a rubber stamp, to sign the will in question. The will was actually prepared to serve the interest of petitioners and the so called attesting witnesses and the draftsman of will were not independent people and they acted at the behest of petitioners.
76. For the reasons discussed above, I hold that the petitioners have failed to discharge the burden of dispelling suspicious circumstances, which have been raised and proved on record by the objector.
77. In these circumstances, it is not proved that the deceased had executed a valid and enforceable Will dated 20.09.2010, as PC No. 16077/2016 Aditya Sharda & Anr. Vs. State & Ors. Page 48 of 49 claimed by the petitioner. In the light of the law, discussed in preceding paras, mere registration of the will does not entitle the petitioner to grant of letters of administration/ probate in her favour. Accordingly, the issue no. 2 is decided in favour of objectors and against the petitioner.
Issues No. 3 & 43) Whether the petitioners are entitled to the grant of probate in respect of the aforesaid Will dated 05.12.1997, as prayed for? OPP AND
4) Relief
78. The natural corollary of the above discussion is that the petitioner is not entitled for probate/Letter of Administration on the basis of aforesaid will. Both these issues are decided in favour of objectors and against the petitioner. The petition fails and is dismissed.
79. File be consigned to record room.
Digitally signed by SAVITRI SAVITRI
Announced in the open court CHAUDHARY CHAUDHARY ATTRI
Date: 2019.12.05
ATTRI
on 4th day of December 2019 16:51:39 +0530
(SAVITRI)
Addl. District Judge-02 (West)
Tis Hazari Courts: Delhi
Note :- The above judgment has been dictated directly on computer and shorthand dictation was not given to the stenographer.
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