Delhi District Court
Sh. Vijay Kumar Bembi vs State on 10 May, 2019
IN THE COURT OF MS. SAVITRI : ADDL. DISTT. JUDGE-02,
WEST DISTRICT : TIS HAZARI COURTS: DELHI.
PC-15924/2016
Sh. Vijay Kumar Bembi
S/o Late Gopal Das Bembi,
R/o D-1/1, Jiwan Park, Uttam Nagar,
New Delhi-110059.
........Petitioner
Versus
1. State
2. Smt. Arvind Bembi,
W/o Late Vijender Kumar Bembi,
R/o BC-34, Mianwali Nagar, Peeragarhi,
Rohtak Road, New Delhi-110087.
3. Smt. Surekha Dua,
D/o Late Gopal Das Bembi,
R/o 19/247 (2nd Floor), Malviya Nagar,
New Delhi.
4. Mr. Nikhil Bembi,
S/o Late Vijender Kumar Bembi,
R/o BC-34, Mianwali Nagar, Peeragarhi,
Rohtak Road, New Delhi-110087.
5. Master Rohit Bembi,
S/o Late Vijender Kumar Bembi,
through his natural & legal guardian
Smt. Arvind Bembi,
R/o BC-34, Mianwali Nagar, Peeragarhi,
Rohtak Road, New Delhi-110087.
.....Respondents
Date of institution of the case : 22.11.2013
Date of reserving the judgment : 02.05.2019
Date of pronouncement of Judgment : 10.05.2019
PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 1 of 27
JUDGMENT
1. The present petition has been filed by petitioner Mr. Vijay Kumar Bembi for grant of probate in respect of half share of property no. D-1/1, Jiwan Park, Pankha Road, New Delhi (hereinafter referred to as suit property), admittedly owned by late Smt. Sita Rani (deceased) testatrix, who was mother of the petitioner and had executed registered will dated 13.06.2001 with respect to suit property, in favour of the petitioner. It is not in dispute that the testatrix expired on 10.01.2006 at Delhi. The case of the petitioner is that the deceased had also executed joint registered GPA in respect of the suit property, in his favour, on the same date.
2. As per the petitioner, the above will is last will of the deceased. It is important to note that deceased was survived by following class-1 legal heirs :-
1. The petitioner Sh. Vijay Kumar Bembi (son);
2. Smt. Surekha Dua (daughter); and
3. Smt. Arvind Bembi and her two children Master Nikhil and Master Rohit (all the three persons are legal heirs of predeceased son of the testatrix, late Virender Kumar), who was younger brother of petitioner.
3. Thereafter, there is mention of partition suit filed by Mrs. Arvind Bembi and her children against the petitioner with respect to all the assets of deceased, wherein, considering that there was a will with respect to the suit property, the Ld. Additional District Judge trying the partition suit, had directed the petitioner to obtain probate/letters of administration qua the present will, propounded by him in said suit.
4. It is also mentioned in the petition that since the deceased had PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 2 of 27 executed will of suit property favouring petitioner, he be granted probate/letters of administration with the respect to the suit property.
5. After the notice of the petition was issued, the respondents entered appearance. Respondents no. 2, 4 and 5 i.e. Smt. Arvind Bembi and her two sons filed their common objections. They took a preliminary objection that the deceased had died intestate and the purported will was never validly executed by the deceased. The petitioner, in collusion with his wife's brother, got the alleged will typed without any instructions from the testator and had obtained his signatures fraudulently. The deceased was not in sound disposing state of mind to execute the will since the year 2000 as Sh. Gopal Das Bembi, husband of testatrix was bed ridden and not keeping well. Her younger son Mr. Virender had suddenly died in a road accident on 03.02.2001, at the mere 35 years of age, leaving behind his widow and two small children i.e. the objectors. The deceased went in further shock as her husband also died within less than one year of this incident as she was already into a state of shock after sudden demise of her younger son. The husband of testatrix was unable to speak during this period and was admitted in Amar Leela Hospital, Janak Puri. Further, the will was executed under suspicious circumstances and was not attested by independent witnesses. The propounder himself took prominent part in execution of the alleged will and the objectors had been deprived of estate of the deceased without any justification. The deceased never intended to deprive the young widow of her son and two minor grand children of their rightful share in her properties. The attesting witness is none PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 3 of 27 other than brother of wife of the beneficiary himself. The alleged will has been executed taking advantage of her absence as she was away to her parents' house during summer vacations of her children in the month of June 2001.
6. Further, an objection has been taken that alleged will was registered with the office of Sub-Registrar Seelam Pur, whereas, the property in question was situated within the local jurisdiction of Sub-Registrar, Janak Puri.
7. It is mentioned in the objections that objector Smt. Arvind Bembi was compelled to leave her matrimonial house on 14.02.2005 alongwith her two minor children, after having stayed in joint family since the date of her marriage in December 1991, on account of cruelties committed by the petitioner and his wife. They also created various problems affecting studies of her children as petitioner and his wife told her that they could not afford the school expenses of her children and they should be admitted in Government School. On merits, the contents of petition have been vehemently denied.
8. Petitioner filed reply to the objections, wherein, he denied the contentions of objections and reiterated the averments made in the petition.
9. After completion of pleadings, following issues were framed by my Ld. Predecessor Judge vide order dated 02.12.2014 :-
ISSUES
1) Whether the will dated 13.06.2001 executed by testatrix late Smt. Sita Rani Bembi is a valid, legal and genuine will? OPP
2) Whether the petitioner is entitled to the grant of probate in respect of the aforesaid will dated 13.06.2001, as prayed for? OPP PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 4 of 27
3) Relief PETITIONER'S EVIDENCE
10. In order to prove its case the petitioner has examined himself as PW-1 on affidavit Ex PW-1/A, which is on the lines of his petition. She placed on record the following documents :-
1. Death Certificate of deceased testatrix as Ex PW-1/1;
2. The copy of judgment dated 10.07.2012, relating to partnership suit filed by the objectors as Ex PW-1/2; and
3. The details of suit property as Ex PW-1/3;
11. During his cross-examination by Ld. Counsel for respondent/ objector, he admitted that objector Arvind Bembi had been living on first floor of the suit property since the date of her marriage, in joint family and both her children i.e. objectors no. 4 and 5, were born in the same house and they stayed there till 14.02.2005. Arvind Bembi was admittedly working as school teacher at that time. He denied the suggestion that he had abused Arvind and her children and created such circumstances which compelled her to leave the matrimonial house. He denied knowledge that on 13.06.2001, his parents had gone to the office of Sub-Registrar, Seelam Pur, Delhi, for execution of will alongwith brother of his wife Mr. Ashutosh Sehgal, who lived at Krishna Nagar, Delhi, or that Ashutosh Sehgal was dealing in property business. He deposed that he got knowledge of the will on 05.03.2005 when his mother (testatrix) had shown him the same for the first time. It is important to note that there are PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 5 of 27 three wills and witness has deposed with respect to all the three wills. The three wills are as follows :-
1. one executed with respect to suit property by deceased late Gopal Dass Bembi, father of petitioner, which is subject matter of petition no. 15922/16;
2. with respect to the remaining half share of the property no. D-1/1, Jiwan Park, Uttam Nagar, New Delhi, executed by Smt. Sita Rani Bembi, mother of the petitioner, being owner thereof, subject matter of present petition; and
3. with respect to property no. D-1/2, Jiwan Park, Uttam Nagar, New Delhi, executed by late Gopal Dass Bembi, father of petitioner, being owner thereof, subject matter of petition no. 15923/16.
12. He denied the suggestion that on 13.06.2001 Arvind Bembi was at her parents' house alongwith her two children, having gone there due to summer vacations of her children. He denied the suggestion that his father late Gopal Dass Bembi was confined to bed or unable to speak in the year 2001 or that he was not in proper state of mind at that time. He volunteered to say that his father used to sit with him on cash counter at his chemist shop (witness). He denied the suggestion that Advocate Rajiv Sharma (who drafted the will and GPA in favour of witness) was well known to him and Mr. Ashutosh Sehgal.
13. He denied the suggestion that he, alongwith Ashutosh Sehgal, had created such surrounding circumstances at the time of execution of will that the testatrix was made to sign the will. He deposed that he never disclosed to respondent Arvind Bembi about the will being in existence as he got to know of the will from his mother in March 2005 only and by that time Arvind Bembi had already left the matrimonial home. He further PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 6 of 27 admitted the possibility that he declared about the will publicly for the first time in the year 2008 while filing WS in the partition suit. He admitted that his father had told him about the power of attorney executed on the same day as the will. He also admitted the possibility that his father told him about the same in June 2001 itself. As the perusal of photocopy of GPA shows that it was executed by the deceased, in favour of petitioner, for consideration; a question was put to him as to whether he could produce any documentary proof regarding handing over money to his father, which he answered in negative. Regarding the date, on which the amount was paid, he stated that he had handed over some 1.5 to 2 Lakh rupees to his father about 10-15 days prior to execution of the GPA but the perusal of the document reflects that the payment was to be made on the date of registration itself i.e. 13.06.2001 to the deceased testatrix and her husband. The witness further deposed that his deceased father Gopal Dass was under stress as his (witness) deceased brother Virender Kumar had demanded 1.5 lakh rupees from him as Virender had purchased some industrial property in NOIDA in the year 1999.
14. PW-2 is attesting witness Sh. Ashutosh Sehgal. He has also led his evidence by way of affidavit Ex PW-2/A. In his affidavit he stated that the deceased had executed and signed the will in question in his presence and in presence of Advocate Rajiv Sharma, on 13.06.2001. Further, that apart from him the said advocate was also witness to this registered will. Further, that the deceased was of sound mind and had executed the same voluntarily. He also deposed that on the same day deceased also executed an irrevocable GPA jointly with her spouse with PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 7 of 27 respect to suit property and he had also signed the GPA as a witness. The witness proved the will as Ex PW-2/1, being signatory thereof. He identified the signatures of deceased as well as of Advocate Rajiv Sharma on the document, apart from his own signature.
15. During his cross-examination, he admitted that his real sister is married to beneficiary and propounder of will i.e. the petitioner.
He also deposed that deceased Smt. Sita Rani Bembi had reached to the office of Sub-Registrar alongwith her husband Sh. Gopal Dass Bembi on 13.06.2001 of her own and the witness had gone there on asking of husband of deceased testatrix. When he reached, the documents were already prepared. Interestingly, the witness deposed that he got to know on 13.06.2001 itself that both residential properties were being bequeathed in favour of husband of his sister i.e. his Jijaji, the petitioner; but he never informed to any one of them (petitioner or his wife) about the same and they got to know about the will after the death of Smt. Sita Rani Bembi in the year 2006. The witness denied the suggestion that he was in property dealing business and therefore had connection with office of Sub- Registrar, Seelam Pur and that is why he had called deceased couple Gopal Dass and Sita Rani at Seelam Pur Sub-Registrar office. He also denied the suggestion that the will was got registered by him on the instructions of the petitioner. He denied the suggestion that Sh. Gopal Das Bembi and Smt. Sita Rani were not in sound state of mind or were not fit physically. He admitted that the deceased couple suffered heavy shock due to death of their younger son Virender Kumar but denied the suggestion that the petitioner took advantage of the situation PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 8 of 27 and asked the witness to get a will registered in his favour at Sub-Registrar, Seelam Pur office.
16. PW-3 is official witness from the office of Sub-Registrar, who brought the record of registration of will.
RESPONDENT'S EVIDENCE
17. Respondent Arvind Bembi has examined herself as RW-1 vide evidence affidavit Ex R2W-1/A, which is on the lines of her objections. Regarding leaving the matrimonial house on 14.02.2005, she deposed that it was birthday of her child Nikhil and members of her natal family visited her matrimonial house but were abused by petitioner and his wife and both of them created an unpleasant scene, so her parents took her to their house. During her cross-examination, she deposed that she started working as Maths teacher in a school after death of her husband Sh. Virender. She denied the suggestion that her late husband was in business in the year 1999 at Karol Bagh, Delhi, in the name and style of "Medical Engineering Works" or that her brothers Anil and Virender Mehndiratta were partners therein. She further deposed during her cross-examination that her father-in-law, who was already a heart patient, died due to shock of death of her husband and that he even stopped having food after this unfortunate incident. She also deposed that her late mother-in-law Sita Rani Bembi also went in shock after the death of her (witness) husband. Further, that her mother-in-law died in the year 2006 in a road accident at Jiwan Park.
18. She denied the suggestion that the will in question was executed by the deceased or that she was not compelled to PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 9 of 27 leave her matrimonial home. There is a typographical error at the time of recording these two suggestions, as is reflected from the context of her testimony. The two suggestions have, in fact, been recorded as follows :-
1. It is wrong to suggest that the said will in question was not executed by the deceased; and
2. It is wrong to suggest that I was compelled to leave my in-
laws house.
19. Before proceeding to decide the present probate petition let me discuss in nutshell, the relevant legal provisions and judicial pronouncements.
20. 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 his own act during his 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 PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 10 of 27 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 intoxication, 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.
21. 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 PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 11 of 27 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".
22. 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.
23. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 12 of 27"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 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 PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 13 of 27 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 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 PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 14 of 27 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 emphasizes 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:-
"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 PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 15 of 27 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)
24. 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 PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 16 of 27 (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 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)
25. 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 PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 17 of 27 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/his share in the property."
26. 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)
27. Naveen Bhatia through LRs, Vs. Raj Kumari Bhatia & Ors.
PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 18 of 27decided 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."
28. Shyam Sunder & Anr. Vs. Kanti Prasad & Anr. 1 (2018) Civil Law Times 267 (Allahbad) holding that mere fulfillment of statutory requirement of proof of will does not result in automatically ruling out suspicious circumstances;
29. Bharpur Singh & Ors. Vs. Shamsher Singh AIR 2009 (SC) 1766, holding that propounder of a will must offer reasonable explanation to remove suspicious circumstances. It also enumerates some of the suspicious circumstances. Further, it held that the registration of will, by itself would not mean that statutory requirements of proving the will need not be complied with;
30. Yumnam Ongbi Tampha Ibema Devi Vs. Yumnm Joykumar Singh & Ors. (2009) 4 SCC 780, discusses statutory requirements for proving a will;
31. Tikkan Lal Batta through LRs & Ors. Vs. Ashok Kumar & PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 19 of 27 Ors., holding where an attesting witness did not state that the other attesting witness signed in the presence of testator and there was no statement regarding who scribed the will and who had read over the same, disclose no sufficient compliance of Section 63 of Indian Succession Act. Further, it was held that if one attesting witness admittedly did not know the other attesting witness, it is a suspicious circumstance;
32. Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369; and
33. Mohan Singh & Ors. Vs. Ishar Singh (through LRs) & Ors.
AIR 2005 Punjab & Haryana 79 reiterating the settled legal position about the onus to dispel suspicious circumstances being on propounder of will;
34. Bhagat Ram & Anr. Vs. Suresh & Ors. AIR (2004) SC 436, holding that registration of will/codicil does not dispense with need of proving execution and attestation of the same, as per Evidence Act and the endorsements made by registrar are relevant only for the purpose of registration;
35. Janki Narain Bhoir Vs. Narayan Namdev Kadam VII (2002) SLT 361, holding when evidence of the only examined attesting witness did not prove attestation of will by the other attesting witness and the other attesting witness was not examined despite being available, the will could not be held to be proved as required u/s 68 of Evidence Act;
36. Bhagwan Kaur Vs. Kartar Kaur (1994) 5 SCC 135 reiterating the settled legal position that suspicious circumstances, if not reasonably explained, vitiate a will and mere registration of will is of no consequence.
37. Krishna Murari Mangal Vs. Prakash Narain & Ors. AIR (2003) NOC 37 (MP), holding that will is not proved if the PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 20 of 27 evidence of an attesting witness does not show that both attesting witnesses had signed the will after testator signed it.
CASE LAWS CITED BY PARTIES
38. While the counsel for petitioner has not cited any case law, but counsel for objectors has relied upon following judgments :-
1. Jagdish Chand Vs. Narain Singh Saini (dead) through LRs. & Ors. 2015 (8) SCC 615; holding that any deficiency in adherence to mandatory legal provisions of Section 63 of Indian Succession Act, 1922 and Section 68 of Indian Evidence Act, 1872 would invalidate a will as the provisions are mandatory regarding valid execution and attestation of wills. Further that the propounder of the will has to demonstrate that will was signed by the testator and that the testator was in a sound disposing state of mind at the time of execution of will and put his signatures on the will of his own free volition.
2. Ved Prakash Vs. Om Prakash deceased through LRs & Ors. RFA (OS) No. 43-45/2011; reiterates the law laid down in the case mentioned above.
3. Janki Narain Bhoir Vs. Narayan Namdev Kadam VII (2002) SLT 361, (already discussed in preceding paras) holding when evidence of the only examined attesting witness did not prove attestation of will by the other attesting witness and the other attesting witness was not examined despite being available, the will could not be held to be proved as required u/s 68 of Evidence Act.PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 21 of 27
ISSUEWISE FINDINGS
39. I have gone the record of case file and have heard the arguments advanced by Ld. Counsel for parties and considered the case laws cited above. My issuewise findings are as follows:-
ISSUES NO-1 & 2
1) Whether the will dated 13.06.2001 executed by testatrix late Smt. Sita Rani Bembi is a valid, legal and genuine will? OPP
2) Whether the petitioner is entitled to the grant of probate in respect of the aforesaid will dated 13.06.2001, as prayed for? OPP
40. Both these issues are connected with each other, hence, taken up together. No doubt, the will in question is registered. But, there are following suspicious circumstances present :-
1. The will was registered at a far off place and not with the Sub-Registrar, within whose jurisdiction the suit property was located;
2. It is not the case of petitioner that objectors had conducted themselves in such a manner in reference to the deceased testatrix that the testatrix had no love and affection with them or that there existed circumstances, which justified depriving them of the assets of testatrix. The objectors are widow and minor children of pre-deceased younger son of testatrix, who had suddenly expired in a road accident at young age of 35 years. It is important to note that children were PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 22 of 27 aged about 6-8 years at the time of death of their father. Under these circumstances, the provision in the will regarding bequeath of suit property seems very unfair and unjust. even despite the fact that the will was not with respect to all the assets of the deceased;
3. No particular reasons have been disclosed in the will as to why the testatrix bequeathed the suit property only in favour of petitioner while completely depriving the young widow and her small children. There is not even a whisper in the entire will as to who all were the members of family of deceased. There is no mention either of objectors or even her husband Sh. Gopal Dass Bembi or testatrix's daughter respondent Smt. Surekha Dua in the will. It is not the case of the petitioner that the deceased was not having cordial relations with the objectors or her own husband, who was alive at the time of will. It does not appeal to reason that she would deprive everyone in her family except the petitioner, of her assets and would disinherit the objectors as well as her own husband and daughter for no fault of theirs'. Nor has the testatrix mentioned any special reason as to why she wanted to give suit property to the petitioner only. The bequest is unfair and unjust seen in this particular circumstance also;
4. Admittedly, Arvind Bembi was working as school teacher at the time of will, after death of her husband.
Considering the age of her children on 13.06.2001, PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 23 of 27 both of them were school going children too. Under these circumstances, it is highly likely that she went to visit her parents during summer vacations of schools in the month of June 2001, which fell only after few months of death of her beloved husband. Therefore, I hold that the will was executed in absence of objectors and in this light the objectors have been able to prove that absence of Arvind Bembi from matrimonial house was encashed by the petitioner;
5. The deceased was admittedly under state of deep shock due to sudden death of her son, meaning thereby that she had great love and affection for the departed soul, which is natural considering their relationship of mother and son. This is unthinkable that the same person would deprive the young widow and very small children of her son, of her property, which would have otherwise devolved upon them due to operation of law of inheritance;
6. The main attesting witness to the will was none other than real brother of wife of petitioner, the beneficiary and he cannot be called to be an independent witness because considering the nature of his relationship with the petitioner, he was bound to espouse the interest of petitioner. I have been through the evidence of this witness. Though, I do not discard his entire evidence but in my view he has lied on oath so far as he deposed that he never disclosed about the will to either the petitioner or his wife (who are his real sister and jijaji) despite having known the contents of the same PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 24 of 27 on the date of execution itself. I am of the view that he must have disclosed the same to them on the date of execution of the said will or soon after;
7. The petitioner has taken a ground that he was not aware of the will for a long period i.e. till March 2005 when his deceased mother had shown the will to him for the first time. But, it is next to impossible that he did not know about it, particularly in view of the fact that a registered general power of attorney was also executed in his favour with respect to suit property on the same day as the will. Not only the GPA has his photograph but also mentions number of his election I-card as his ID Proof. Therefore, it is clear that the petitioner had lied about fact that he had not visited the Registrar office on the date of execution of certain documents. He has deliberately attempted to conceal this fact from court. Not only this, the registered GPA for consideration, allegedly executed by testatrix in his favour, was also an exercise towards grabbing of suit property; as the petitioner tried to project that he had paid money towards purchase of suit property through GPA but could not submit any proof regarding payments, when asked by the ld. Counsel for objector. I have discussed about the registered GPA only with a view to touch upon another suspicious circumstance with respect to the will in question, otherwise as a probate court, I am conscious of the fact that I am not to decide the issue of title/ownership of the suit property;
PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 25 of 278. Though, the petitioner claimed to have paid money in lieu of GPA executed in his favour by deceased with respect to suit property but he was not even aware as to what amount exactly was paid by him. Not only this, while the petitioner deposed during his cross- examination that he had paid the amount about 10-15 days prior to the execution of GPA, the perusal of GPA reflected that the amount was paid on same day i.e. 13.06.2001, before the Sub-Registrar. It fortifies the assertion of respondents/ objectors that the petitioner was very much present at the time of execution of will, executed on same day and had made the deceased sign the same.
9. The will was withheld by the petitioner for a long time and no probate petition was filed after the death of testatrix in the year 2006. Rather, the petitioner waited for long period before he propounded the will for the first time in the year 2008 in the partition suit, filed by the objectors. Admittedly, he never informed objectors about the will. In these circumstances, it is clear that the will did not see light of day for about six years, which is a significant suspicious circumstance.
10. The beneficiary and his close relative played important role in the preparation and registration of will.
41. The burden to explain the above suspicious circumstances was upon the petitioner but no evidence has been lead on that aspect and hence the suspicious circumstances remained unexplained and the will, surrounded by them. Though, the objectors could not successfully prove lack of sound disposing PC No. 15924/16 Vijay Kumar Bembi Vs. State & Ors. Page 26 of 27 mind of the deceased at the time of execution of will, as was pleaded by them but the suspicious circumstances enumerated above are sufficient to throw the will. The authorities cited above, make it amply clear that mere registration is not a proof of genuineness and voluntariness of the will. Therefore, issues no. 1 and 2 are decided in favour of objectors and against the petitioner.
Issues No. 3Relief
42. 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. The petition fails and is dismissed.
43. File be consigned to record room.
Digitally signed by SAVITRI SAVITRI CHAUDHARY
Announced in the open court CHAUDHARY ATTRI
ATTRI Date: 2019.05.04
on 10th day of May, 2019 07:26:38 +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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