Delhi High Court
Yashoda Gupta vs Suniti Goyal & Ors. on 12 April, 2001
Equivalent citations: AIR2002DELHI20, AIR 2002 DELHI 20, (2002) 1 HINDULR 582, (2002) 1 MARRILJ 707, (2002) 1 RECCIVR 374, (2002) 2 CIVLJ 429
Author: Madan B. Lokur
Bench: Madan B. Lokur
ORDER Madan B. Lokur, J.
1. The Plaintiff is one of the daughters of late Rai Saheb Om Prakash Gupta (hereinafter referred to as the deceased) who passed away on 29th November, 1982. Apart form the Plaintiff, the deceased left behind his widow and four other daughters.
2. The other daughters of the deceased are Defendants No.1 to 4 while the widow was Defendant No.5. The widow has also passed away. It is, therefore, now an unfortunate contest between the Plaintiff and her sisters for the estate of the deceased.
3. According to the Plaintiff, the deceased left behind a plot and a building constructed thereon bearing No.5/17, Shanti Niketan, New Delhi. He also left behind some cash in banks and some securities.
4. The Plaintiff filed a suit for partition of the property of the deceased. She claimed 1/6th share in the property. According to the averments made in the plaint, the Defendants (including the mother) wee trying to dispose of the immovable property and take away the moveable assets of the deceased, thereby depriving the Plaintiff of her legitimate share in the property of the deceased.
5. The Defendants filed their written statement. Although eh written statement is captioned as "WRITTEN STATEMENT OF DEFENDANTS 1 TO 5", it is actually signed by Defendant No.2 for herself and as an attorney of Defendants No.1, 3 and 4. No written statement was filed by Defendant No.5 (the mother).
6. In the written statement filed by Defendants No.1 to 4, it was stated that the deceased had left behind a Will dated 21st October, 1982 which was registered with the Sub-Registrar, Ghaziabad on 17th December, 1982. the original Will was filed and it was submitted that the Plaintiff was disinherited by the deceased. Therefore, a suit for partition of the properties of the deceased was not maintainable.
7. The Plaintiff filed her replication alleging that the Will dated 21st October, 1982 is either a forged Will or a Will obtained under coercion and undue pressure since the deceased was not in a condition, on account of his ill-health, to execute a "proper will, as required under law."
8. On 19th April, 1983, learned counsel for the Plaintiff stated that the immoveable property wold, if sold. fetch Rs. 15 lakhs. Some transfer charges would have to be paid to the Delhi Development Authority (DDA) out of this amount. Slightly upping the sale amount, the Defendants stated that the sale price of the immoveable property be taken as Rs. 16.50 lakhs. The Plaintiff would, at best, be entitled to 1/6th share in this amount. In view of this, the Defendants were willing to sell the immoveable property and secure the interest of the Plaintiff by furnishing a bank guarantee for Rs. 2.75 lakhs (as a minimum guaranteed amount payable to the Plaintiff). Accordingly, the Defendants were allowed to sell the immoveable property, on their furnishing a bank guarantee for Rs. 2.75 lakhs.
9. The Defendants stated that they had no objection if a Local Commissioner was appointed to operate the locker (said to be in the name of the deceased) to evaluate its contents such as the jewellery. The Local Commissioner opened the locker of the deceased on 7th August, 1983 and found it empty.
10. When the case was listed on 17th August, 1983, orders were passed by this Court on several interim applications. At the end of it all, learned counsel for the Plaintiff made a statement that he wanted to withdraw the suit. No order was made on this request because learned counsel for the Defendants sought time to consult his clients since they may want to be transposed as Plaintiffs, the suit being one for partition.
11. Thereafter, Defendant No.2 moved an application for being transposed as the Plaintiff. She also filed an amended plaint in this regard. By an order dated 1st November, 1983 this application was allowed and the amended plaint was taken on record.
12. The Plaintiff later applied for setting aside the order dated 1st November, 1983 but his application was dismissed on 1st February, 1984.
13. Feeling aggrieved by the order passed by this Court on 1st February, 1984, the Plaintiff filed FAO (OS) No.29 of 1984. During the hearing of the appeal on 30th May, 1984, learned counsel for the Plaintiff stated that his client would prosecute the suit diligently. Accordingly, the orders dated 1st November, 1983 and 1st February, 1984 were set aside and the Plaintiff was allowed to continue the suit. There has (fortunately) been no further change in the status of the parties.
14. In the meanwhile, in response to the amended plaint filed by Defendant NO.2, three of her sisters and her mother filed affidavits by way of a written statement to the effect that they accept the Will dated 21st October, 1982. The affidavit of the mother is Exh. DW-6/5 and is dated 24th November, 1983.
15. After the Plaintiff was allowed to once again contest the suit in terms of the order dated 30th may, 1984, she applied for an amendment of the plaint to raise a plea challenging the validity of the Will dated 21st October, 1982.
16. On 2nd November, 1984, learned counsel for the parties agreed that some of the paragraphs in the proposed amended plaint the included in an amended replication. Consequently, it was clarified that the replication filed by the Plaintiff will be treated as a written statement to the case of the Will set up by Defendants No.1 to 5. Thereafter, the Plaintiff filed the amended replication.
17. As regards the sale of the immoveable property, the Defendants furnished a bank guarantee for Rs. 2.75 lakhs as required by the order dated 19th April, 1983. In view of the furnishing and acceptance of the bank guarantee, an order was passed on 6th March, 1984 permitting the Defendants to sell the immoveable property.
18. However, on 8th March, 1984, the Division Bench, while hearing FAO (OS) No. 29 of 1984 restrained the Defendants from selling off the immoveable property. But, while disposing of the appeal on 30th May, 1984 the Division Bench lifted the restraint order.
19. The order dated 30th May, 1984 was challenged by the Plaintiff in the Supreme Court by filing a Petition for Special Leave to Appeal (SLP). The SLP filed by the Plaintiff was disposed of by the Supreme Court on 29th October, 1984 with a direction that Defendant NO.2 (Kusum Rajvanshi) will furnish a bank guarantee of Rs. 5 lakhs as a pre-condition to the sale of the immoveable property.
20. The Defendants furnished a bank guarantee for Rs. 5 lakhs and also sold off the immoveable property.
21. The factual position with regard to the assets of the deceased, therefore, is that the immoveable property owned by him has been sold, no jewellery was found in his locker, but he did leave behind some cash and securities in various banks.
22. On the pleadings before the Court, issues were framed on 16th July, 1985 and they are as follows:-
1. Did late Mr. Om Prakash Gupta execute Will dated 21.10.82? If so to what effect?
2. Should the defendants obtained probate or letter of administration on the basis of the Will before their defense in the suit can be accepted?
3. What are the respective shares of the parties in the estate left behind by later Mr. Om Prakash Gupta?
4. IN case the plaintiff has succeeded to the estate left behind by late Mr. Om Prakash Gupta intestate, has the plaintiff not to be considered in joint possession of the estate?
5. What is the value of the court-fee and jurisdiction?
6.What were the properties left behind by late Mr. Om Prakash Gupta of which partition is claimed?
7. Relief
23. Learned counsel for the parties made their submissions on 8th, 9th, 11th, 16th, 23rd, 24th and 31st January, 2001 when judgment was reserved.
24. During the course of their submissions, learned counsel for the parties agreed that Issue No.2 does not arise. as regards Issue No.3, they were agreed that the shares of the parties would now be 1/5th each. With regard to Issue No.4, it was agreed that this does not arise since the immoveable property has been sold. Issue No.5 was not pressed. With regard to Issue No.6, it was agreed that the properties left behind by the deceased were only the immoveable property (which has since been sold) and cash.
25. In other words, the only issue contested by learned counsel for the parties was Issue No.1, namely, the validity of the Will dated 21st October, 1982.
26. For no apparent reason, the witnesses of the Defendants were examined before the witnesses of the Plaintiff.
27. DW-1 is a Sales Assistant of an arms and ammunition company. His testimony is relevant only to the extent that the deceased deposited a revolver with his company for being sold. The deposit was made on 25th August, 1982. He was unable to say whether the revolver was brought by the deceased or whether the letter of deposit was written by the deceased.
28. DW-2 is an officer of the Unit Trust of India. The importance of his evidence lies in the fact that the deceased transferred some Units from his individual name to the joint names of the deceased and Defendant No.2. This was on 18th October, 1982.
29. DW-3 is one of the attesting witnesses to the Will dated 21st October, 1982. Since he is a martial witness, his testimony will be considered later.
30. DW-4 is an officer of the State Bank of India who testified that the deceased had an account bearing No. 11969/108 with the said bank.
31. DW-5 is the Deputy Chief Officer of the Central Bank of India who stated that the deceased had five fixed deposit receipts which matured in 1984 and the proceeds thereof were credited to the account of the deceased on 16th June, 1984.
32. DW-6 is the husband of Defendant No.2 and one of the attesting witnesses to the Will. I propose to deal with his evidence a little later.
33. DW-7 is one of the daughters of the deceased. She claims to have been present when the deceased executed his Will. Her testimony will also be considered a little later.
34. DW-8 is a clerk in the Indian Bank, Shanti Niketan, New Delhi. He exhibited some documents concerning the locker maintained by the deceased.
35. DW-9 is the Sub-Registrar who registered the Will of the deceased. His evidence is important and will be considered at the relevant stage.
36. Suffice it is to say that it is mainly the evidence given by DW-3 (one of the attesting witnesses to the Will), DW-6 (husband of Defendant No.2), DW-7 (one of the daughters of the deceased) and DW-9 (the Sub-Registrar who registered the Will of the deceased) which is relevant for deciding the dispute between the parties. The evidence given by the other witnesses goes to show that the deceased had some moveable assets which were (at best) dealt with by Defendant No.2.
37. The Plaintiff summoned PW-1, a Record Clerk from Willingdon Hospital who produced some medical records of the deceased. Only one document produced by him, that is, PW-1/6 was referred to during the course of submissions.
38. The Plaintiff appeared as PW-1 (repeated). She also produced the person who typed the Will dated 21st October, 1982 as PW-2. Dr. Vijay Sharma, a medical doctor practicing in Shanti Niketan where the deceased resided was produced as PW-3 and finally the Plaintiffs husband appeared as PW-4. The testimony of all these witnesses is of some importance.
39. The parties also filed a large number of documents on record. However, during their submissions, learned counsel for the parties placed reliance upon some letters, namely, Exh. P-1 and Exh. P-11 and Exh.D-1 to Exh. D-7 written by the deceased.Reference was also made to there documents. In propose to refer to these documents wherever necessary. I do not think it incumbent to refer to each and every document on record, just because it is there.
40. Exhibits P-1 to P-6 are letters written by the deceased to the Plaintiff between October, 1975 and November, 1979. These letters are not proximate enough to warrant serious consideration. Moreover, the Plaintiff was living in Saharanpur (U.P.) during this period. The problem seems to have started (if at all) sometime in 1980 after the Plaintiffs husband retired and their family shifted to Ghaziabad.
41. Exh. P-2 is a letter dated 26th September, 1977 sent by the deceased to the Plaintiff's husband. In this letter, he states that he has a cataract in his eye, which is not yet complete, and an operation in this regard may be performed after a year. From the record, it is not clear whether the operation was eventually performed or not.
42. Exh. PW-1/6 is a consultation record from Willingdon Hospital which indicates that in November, 1978 the deceased (who was 75 years of age at that time) had adenocarcinoma of the prostate or prostate cancer. Exh. P-6 is a letter dated 8th November, 1979 sent by the deceased to the Plaintiff and her husband stating that his prostate gland trouble has revived.
43. The health of the deceased seems to have improved a little later because a per Exh. D-1 which is a letter dated 13th January, 1980 he expressed some anxiety about the health of Defendant No.2 (because of malaria). He also stated that he is quite all right and is ale to spend 10-15 minutes in the sunlight in the compound of his house.
44. A few lines in the first paragraph of this letter exude the warmth that the deceased had for Defendant No.2. He says (as roughly translated):-
"You have to take care of your health for our sake because you take a lot of care of myself and Shantiji (his wife). In this cold season you come from there to here every week, and sometimes you make additional trips. During my illness you have taken much pains and looked after me. I have been lucky to have a daughter like you, and similarly dear Shashi (her husband) is very fond of me." (parenthesis added)
45. This may be contrasted with a business like letter dated 17 March, 1980 (Exh. P-7) written by the deceased to the Plaintiff and her husband. He enquire from the Plaintiffs husband about his "pension matters" and the construction of their house in Ghaziabad. The deceased makes a query about his blood sugar from the Plaintiffs husband. He queries about the marriage of his grandchild and leaves it at that.
46. A few months later, something obviously went wrong. This is because the deceased addressed a letter dated 28th July, 1980 (Exh. D-2) to another daughter who was then living in Bangalore. He says:-
"It is lucky that dear Shashi and Kusum (Defendant No.2 and her husband) shifted from Calcutta to Ghaziabad and are helping me a lot by coming to Delhi frequently for my help. Dear Shashi came here on 24th and took me to Hospital etc. and spent about 5 hours with me. You need not worry as I must pay for my previous lifes sins and due to my helping the most undeserving and faithless person including relations in this life."
47. It does not need much imagination to guess about whom the deceased is alluding to, considering that the Plaintiff had started living in Ghaziabad and having her house constructed as per Exh. P-7.
48. There is, I think, a touch of bitterness in this letter written by the deceased. He expected the Plaintiffs husband (who was a medical doctor) to take some interest in his health. Instead, however, it was only Defendant No.2 and her husband who seemed to take interest in the health of the deceased. This may have rankled the deceased.
49. I think this inference to be well founded because two subsequent letters written by the deceased Exh. P-8 dated 13th August, 1980 and Exh. P-8 (repeated) dated 14th October, 1980 are rather formal in nature. The deceased sends to the Plaintiff cheques of Rs. 50/- each on occasions for the festivals of Teej and Dussehra. There is no mention about his health or anything concerning the Plaintiff. The letters are totally bland and are of a couple of sentences each.
50. Exh. D-3 is a letter dated 10th July, 1981 which the deceased wrote to his daughter (Defendant No.3) in USA indicating his gratitude to "the doctors who take so much interest in my treatment." He also refers to his "great fortune" in the fact that Shashi (husband of Defendant No.2) happens to be in Ghaziabad and helps him frequently. There is absolutely no reference to the Plaintiff (or her husband who is a doctor) in this letter dated 10th July, 1981 and this is what learned counsel for the Defendants sought to highlight. Reference was also made to a letter dated 28th July, 1981 (Exh. P-5) sent by the deceased to the Plaintiff enclosing a cheque of Rs. 50/- on the occasion of the festival of Teej. This letter also consists of only two sentences.
51. It appears that over the years, the relationship between the Plaintiff and her father had become rather formal.
52. Exh. P-9 is a rather melancholic letter dated 13th August, 1981 sent by the deceased to the Plaintiff. He asks the Plaintiff whether she received the gift sent by him for the Teej festival. he tells the Plaintiff no to worry about his problems caused by old age. Nevertheless, he prays to God to take him away from this world.
53. On 7th September, 1981 the deceased sent a letter to three of his daughters at the address of Defendant No.2. this letter, which is Exh. D-4, states that he came back to Delhi on 6th September, 1981. It suggests that two of his daughters had come (from outside Delhi) and were staying with Defendant No.2. The deceased says that he "was very happy to meet all of you & am proud of all of you for the great help you have been rendering to your ailing old father & mother." He adds that "Dear Shashi, Kusum (Defendant NO.2, Tingoo & Pingoo are keeping me & their mother alive by being so near to Delhi & rendering all possible help in medical help etc." He further says:-
"I am really proud of all of you as such devoted sons & daughters are unknown in this Kaliyug."
54. Two things that clearly stand out from this letter are the total absence of any mention of the Plaintiff and apparent lack of assistance being rendered by the Plaintiff to the deceased. It appears to me that the Plaintiff did not visit the deceased while he was at the residence of Defendant No.2 along with two of his other daughters. This is because there is not even a hint of any such visit in Exh. D-4. This was in spite of the fact that the Plaintiff lived barely a kilometre away as per the testimony of her husband PW-4. This is a little surprising. I also find it a bit surprising that while Defendant No.2 and her husband provided medical help to the deceased, the Plaintiff, who was also living near Delhi, did not do so in spite of her husband being a doctor and claiming to be the "medical consultant" of the deceased. At least Exh. D-4 is silent about this.
55. The deceased, as stated in Exh. D-4 came back to Delhi on 6th September, 1981. The husband of the Plaintiff paid him a visit on the 7th of September, 1981. As per the letter dated 9th September, 1981 (Exh. P-10) sent by the deceased to the husband of the Plaintiff, not much of a conversation seems to have taken place between them. According to the deceased, he was tired after his visit to the dispensary but in the very next sentence he mentions his "almost unbearable pain & weakness with great depression". This appears to be wholly incompatible. How could the deceased go to the dispensary (apparently all alone) if he was in unbearable pain? It seems quite clear that the deceased was making up some excuse for not being able to spend time with the Plaintiff's husband. He, however, called the Plaintiff's husband to Delhi, at his earliest convenience, so that he could take his "expert advice" on his various ailments.
56. There could be several reason for this brief visit. The deceased may have been genuinely tired, as stated by him. It is also possible that the deceased may have found it odd that the Plaintiff's husband did not visit him while he was in Ghaziabad, but the Plaintiff's husband chose to visit him in Delhi - and that too, the day after he returned from Ghaziabad. It is also possible that the deceased may have been having "unbearable pain". But, the tenor of the letter and the excuse made leads me to believe that the deceased deliberately avoided having more than a formal meeting with the Plaintiff's husband.
57. That all was not well between the deceased and the Plaintiff's husband is quite clear from a letter written two days later, that is, on 11th September, 1981 (Exh. DW-6/2). This is what the deceased had to say about a visit made by by two of his daughters on 9th September, 1981:-
"Suniti told me some very unhappy things re Dharmendra (husband of the Plaintiff) which shocked me very much & I was so much upset that my old ailments revived such as passing urine 4-5 times in night which used to be once after unani & ayurvedic treatment...
I was most anxious to tell you not to worry about Dharmendra's action as there is no sense in his words used & your help in my ailments & those of Kusums (illegible) will be rewarded by God...
Kindly ask Suniti not to see Dharmendra again. I have sent a letter to Dharmendra to come here so that I may advicehim. My happiness, as you know, is in the happiness of your self, Kusum, Tingoo & Pingoo as all of you have been looking after me & Kusums's mother with unique devotion & affection. Therefore, none of you should worry so long as I am alive as I cannot see you unhappy or worried in any circumstances..."
58. The reference to the letter sent to the Plaintiff's husband is about the letter dated 9th September, 1981 (Exh. P-10). It appears (and this was also the contention of learned counsel for the Defendants) that the deceased called the Plaintiff's husband to Delhi not to take his "expert advice": it was really a ploy to discuss with him what the deceased had been told by his daughter Suniti. This meeting does not appear to have taken place and the deceased had no correspondence with the Plaintiff either on this subject or anything else till March, 1982.
59. The continued warmth that the deceased had for Defendant No.2. and her husband in further reflected in a letter dated 2nd December, 1981 (Exh. D-5) which the deceased wrote to his son-in-law (Suniti's husband) in Bangalore. he says that the had received a letter sent by him a few days ago but could not reply to it earlier "as dear Shashi & Kusum have kindly brought me to Ghaziabad and both are looking after me with extreme care and affection with the result that I am much better now."
60. In the same view, the deceased addressed another letter to his son-in-law in Bangalore on 26th February, 1982 (Exh. D-7). He notes that his conditions has become better. He says in this letter that:-
"This rapid recovery is due to the great devotion and affection of dear Shashi, Kusum, Tingoo and Pingoo who are serving me the whole day. I am here because Ghaziabad is 20 miles from Delhi while Bangalore is 2000 miles and I can pay visits to Delhi when needed without much inconvenience but I will certainly come to Bangalore when I feel like a change of place. Dear Shashi made good arrangement for expert doctors who cured my urinary paid and ailment and now I pass urine through Catheter normally without pain which is a great relief to me."
61. the last letter written by the deceased in Exh. P-11 (dated 8th March, 1982) which he wrote to the Plaintiff. This was while he was living in Ghaziabad with Defendant No.2. He sends her Rs. 50/- on the occasion of Holi. He says that he would have come personally to give his blessings but severe pain in the body and other ailments prevent him from waling or even standing up. This letter is again quite formal and is another reflection of the relations between the deceased and the Plaintiff which were not as one would normally expect them to be. It may be mentioned that this letter is not physically written by the deceased. It is in the handwriting of Defendant No.2.
62. This letter was strongly relied upon by learned counsel for the Plaintiff to contend that around this time, the deceased had become incapable of writing on his own although he was mentally alert enough to make corrections as is apparent from this letter. His physical condition had deteriorated to the extent that he could not even walk or stand up as mentioned in the letter.
63. A complete review of the correspondence on record leads me to conclude that the deceased had excellent relations with Defendant No.2 and her husband. They both took a great deal of interest in his well being and his health. They frequently visited Delhi to look after the deceased or to take him to hospital. Whenever necessary, they shifted the deceased to Ghaziabad to look after him. The wife of the deceased was also unwell and was being looked after the Defendant No.2.
64. On the other hand, the relations between he deceased and the Plaintiff and her husband were not quite normal. In spite of the fact that the Plaintiff husband was a medical doctor, he took little or no interest in the medical treatment of the deceased. It is true that in his oral testimony, the Plaintiff's husband as PW-4 stated that he was in favor of keeping the deceased in a hospital or a nursing home. His son (and I suppose he too) was prepared to "spend every pie for his hospitalisation." May be so. But, the fact is that he deceased was not living in the Plaintiff's house but was living in the house of Defendant No.2. This could not have inconvenienced the Plaintiff in terms of looking after the treatment of the deceased. Under these circumstances, the husband of the Plaintiff could also have taken more than a passing interest in the health of the deceased while he was staying with Defendant No.2 or even while he was staying in Delhi. However, even a passing interest was lacking. It cannot be that the Plaintiff and her husband would be concerned about the deceased only if he was put in a hospital and not otherwise.
65. The correspondence also indicates that relations between the Plaintiff and her sisters were not normal. When two sisters of Defendant No.2 came to visit her in September, 1981, it appears that the Plaintiff did not visit the house of Defendant No.2 even though the deceased was residing in the house at that time. This is a little unnatural.
66. The documents on record also suggest that up to March, 1982, the decease was probably a patient of diabetes, he had cataract; whether it was operated upon is unclear. The deceased was also suffering from prostate cancer. His general health kept fluctuating. At time she was able to look after himself while at other time she needed the assistance of someone else. But it is quite clear to me that he was unable to write anything by March, 1982. He was also unable to read clearly - perhaps because of his cataract. Learned counsel for the Plaintiff did contend that the deceased could read clearly and was also quite meticulous in his approach. He referred to a correction made by the deceased in the letter dated 8th March, 1982 (Exh. P-11) namely, the addition of the words "to her" in relation to his wife. The correction was suggestive of the deceased being meticulous and that be could read. However, I do find a couple of errors which lead me to believe that the eyesight of the deceased was failing. For example, in Exh. P-11, the deceased overlooked "occasion" and "other ailment prevent me from walking of even stand up."
67. There can, however, be no doubt about the fact that the prostate cancer of the deceased was starting to take its toll. The deceased was occasionally in unbearable pain (Exh. P-10). He was, by March, 1982, unable to walk or stand up as stated by him in Exh. P-11.
68. No further documentary evidence was shown to me with reference to the period between March, 1982 and October, 1982 - except a demi-official letter beign Exh. DW-6/4 dated 25th August, 1982 which pertains to the sale of the revolver owned by the deceased. This letter is quite obliviously not in the hand i=of the deceased. Even DW-1 did not say anything to the contrary.
69. In October, 1982 , deceased executed a few documents. He sent two typed letters dated 9th October, 1982 to his bank in Shanti Niketan expressing his inability to operate his account and his locker. He desired that Defendant NO.2 be a joint account holder for the savings account and the locker as well. The request of the deceased was acceded to by his bank. Similarly, the deceased "transferred" his Units in the Unit Trust of India in the joint name of himself and Defendant No.2 on or about 18th October, 1982 as per Exh. DW-6/3.
70. Finally, the Will dated 21st October, 1982 (Exh.DW-6/1). This Will is typed out on three pages. Each page bears the signature of the deceased (at B-1 to B-3). On the reverse of the first of the first page, the deceased signed twice (at B-4 and B-5). These two signatures were at different stages of the registration of the Will. Below B-5 is the thumb impression of the deceased. The thumb impression does not really mean very much, in the facts of the present case. However, what is of importance is that before the Sub-Registrar permitted the deceased to sign at B-5 and put his thumb impression there under, he recorded that the tongue of the deceased had an effect of paralysis (FALIZ KA ASAR) and the deceased had acknowledged (that this is his Will). Apparently, the deceased was, on 21st October, 1982 unable to speak - either at all or coherently - but could respond to a question put to him.
71. It is in this background of the available correspondence that the Plaintiff challenges the validity of the Will executed by the deceased on 21st October, 1982. According to learned counsel for the plaintiff, the Will dated 21st October, 1982 is not genuine.
72. What do the witnesses say in their oral testimony?
73. I am of the view of all the witnesses produced by the parties, DW-9 the Sub Registrar who accepted the Will of the deceased is the most important. He is completely disinterested, and I find him to be truthful. He clearly admitted that the deceased had an effect of paralysis on his tongue. He says that this was noted by him "after observing the mode of his talking and in accordance with rules". It appears that the Sub-Registrar talked to the deceased and did not merely ask him "a" question which made the deceased acknowledge the Will to be his. He rejected the suggestion that the deceased expressed himself "only through signs and not by talking". He goes on to say that the deceased "must have indicated in his words and then only I made the endorsement. In case the executant had indicated the execution in signs I would have definitely made endorsement in respect thereof on the document."
74. The evidence of DW-9 suggests that some conversation did take place between the Sub-Registrar and the deceased. It is this "Conversation" which led him to believe that the deceased had a paralysis of the tongue. The only intelligible answer he got as a result of this "conversation" was that the deceased had acknowledged the Will as his own.
75. The witness does not recall if the deceased required help to stand, but he does say that if it were so, then he would have mentioned it in his endorsement. DW-9 denied the suggestion that the deceased " was not in his senses at that time".
76. DW-3 (Rajesh Vajpai) is one of the witnesses who attested the Will of the deceased. He confirms that the Sub-Registrar did put more than one question to the deceased. In his examination-in-chief the witness says that "The Registrar had even enquired as to why the Will was being made in favor of four daughters only whereupon Shri Om Prakash Gupta had replied that those who had looked after him were beneficiaries under the Will."
77. This witness does go overboard in trying to support the case of the Defendants. For example, he says that he saw the deceased reading a newspaper; he denied the suggestion that the deceased could not write in his hand after March 1982; he, however, stated that the deceased was confined to bed, and then stated that the deceased could walk with the help of a stick and another person. Essentially, therefore, his testimony suggests that the deceased could have been present before the Sub-Registrar on 21st October, 1982 to register his Will, though with some difficulty. No doubt there are embellishments in the testimony of DW-3 but this is more in the nature of a rather fruitless attempt to show his impartiality. This witness should be believed only to the extent that the deceased could respond to a few questions put to him by the Sub-Registrar. Insofar as the rest of his testimony is concerned, it is a case of being more loyal than Caesars wife.
78. DW-7 Sumiti Goel is one of the daughters of the deceased. She normally stays in Bangalore. She came to Delhi in the first week of October, 1982. She denied that her father had cataract or a heart problem but she admitted that he head cancer since 1978. Contrary to what DW-3 says, according to her the deceased could walk without any support. Similarly, contrary to what DW-9 says the deceased had no paralysis in the tongue. This witness also says that the deceased could read and write in October 1982. This is quite contrary to what DW-6 (the husband of Defendant No.2) says, that is, that the deceased "could not write long letters in his hand even of three lines". The documents on record show that during this period, letters sent by the deceased were not handwritten but were typed, as for example the letters sent to his bankers. There is no document handwritten by the deceased between March and October, 1982.
79. I am of the view that DW-7 is an interested witness and she has gone far beyond the case set up by the Defendants. Fro this reason, she should not be believed at all.
80. The last material witness on behalf o the Defendants is DW-6 who is the husband of Defendant No.2 with whom the deceased lived during his last days. This witness also says that the deceased could read about 8-10 days before his death and his mental faculties were normal. He adverts to questions asked by the Sub-Registrar at the time of the registration of the Will. According to this witness, the deceased was mentally alert not only at the time of execution of the Will, but even thereafter.
81. From the cross-examination of DW-6, it appears that the deceased was shifted to Ghazibad in the middle of 1982 because of his failing health. According to DW-6 despite this, the husband of the plaintiff did not visit the deceased. the reason for this, according to the witness, is because in November-December, 1981, the Plaintiff had declined to look after her mother (the wife of the deceased). The witness admits that he was not present when this incident was said to have occurred.
82. With regard to the health of the deceased, DW-6 feigns ignorance of the cataract in the eye of the deceased. He says that the deceased could read and write till November, 1982 but did not produce any evidence in this regard. He, however, admits that the deceased had some heart ailment and was suffering from prostate cancer. The witness says that several medicines were given to the deceased off and on but that he did not keep the prescriptions with him. According to DW-6, the wife of the deceased was rather unwell in 1981. From August-September, 1981 the wife of the deceased stayed with Defendant No.2 till she passed away, except for a fortnight in the end of 1981.
83. DW-6 says that on the date of the execution of the Will that is 21st October, 1982, the deceased could stand on his own with the help of a stick. The witness denied that the deceased was under the influence of any drug or that he could not understand anything.
84. The Plaintiff also entered the witness box as PW-1. According to her, the deceased passed away on 29th November, 1982. He had been living in the house of Defendant No.2 for about six weeks prior to his death, that is, about the middle of October, 1982. But she says that "In October, 1982 he was in unconscious state...He was in such a condition from the very first week of October, 1982. "So, it appears from her examination-in-chief that the deceased was "unconscious" from the first week of October, 1982 onwards. I am of the view that PW-1 does not deserve to be believed in so far the state of the health of the deceased is concerned. She has given a rather exaggerated account the ill-health of the deceased.
85. In her cross-examination, PW-1 denied that she had a strained relationship with her parents. I will deal with this relationship a little later.
86. PW-2 is the person who drafted and typed the Will of the deceased. He is a fair weather witness. He says that "Two-three ladies and two-three men" had given him instructions for drafting the Will dated 21st October, 1982. After he drafted and typed out the Will, these persons took it to the deceased, who was lying in a car, for his signatures. He says the deceased did not read the Will. This witness is a deed write since 1976. He does no seem to remember anything about any other document drafted or typed by him except the Will of the deceased. I fin dit difficult to place credence on this witness, except to a limited extent, namely, when he says that the identification of the executant of a document is done in the room in which the Sub-Registrar stis. I take it to be correct that when the deceased signed his Will for the purposes of registering it, he did so in the room of the Sub-Registrar.
87. The deceased had a doctor in the neighborhood who attended to his medical needs. This doctor appeared as PW-3. He confirmed all the ailments of the deceased and stated that he last saw the deceased in September, 1982 or October, 1982. he says in his examination-in-chief that the deceased was on sedatives and narcotics on a daily basis "but still he was having disposing mind although it is not possible to have very clear mind." His cross-examination did not yield any particular result.
88. The Plaintiff produced her husband as PW-4. He is a medical doctor. he gave a brief resume of the ailments of the deceased. According to him, the prostate cancer of the deceased resulted in his bones being affected by 1980 and his spine in 1981. By 1982, the cancer had spread to the vertebra of the deceased which disabled him. According to this witness "the position was very bad" by March, 1982. According to him, after March, 1982 "cancer spread to ribs and in October 1982 it reached the skull bones. When the cancer reached the skull it affected his brain and his speech."
89. PW-4 says that the deceased used to consult him and his two sons who are also doctors. He says that "In fact I was his medical consultant along with my two doctors sons". Strangely enough, this witness used to visit the deceased (while he was in Delhi) only once a week or "whenever he called Me. My wife used to visit him once in a while when it was convenient." This is rather odd considering the health of the deceased, as stated by PW-4 and considering the fact that this witness was supposed to be the medical consultant of the deceased. He says that the last time he met the deceased was in the first week of October, 1982 (in Delhi). At that time, the deceased was "in the state of sleep and senselessness because of Narcotics and the effect of the cancer of the brain." If this witness is to be believed, the deceased was living in Delhi -all alone - in the state described by him. This witness is silent about what he did when he found the deceased in such a state - more so, when the deceased allegedly used to consult this witness, as per this statement.
90. The relationship between the deceased and the Plaintiff comes out in stark reality from the following statement of her husband PW-4. He says:-
"In the year 1982 I was resign at KK-2 Kavi Nagar, and Smt. Kusum Rajvanshi (Defendant No.2) was residing at 56-KF Kavi Nagar, Ghazibad i.e. about a kilometer away from my house. My mother in law left my place on 8.3.1982 and she probably shifted to Smt. Kusum Rajvanshi where her husband was." (emphasis supplied)
91. When he was asked specifically about the use of the word "probably" he stated that it was not an important matter.
92. The Plaintiff's husband (PW-4) stated that he did not attend the funeral (cremation) of the deceased because he received the news of his demise only after he had returned from a tour. This is fair enough. But then he says that he does not know if his wife attended the funeral because he was not there. Surely, the most natural thing for PW-4 to know from his wife (after he returned from his tour) was about the funeral of her father -but the witness pleads ignorance. This leads me to doubt if the plaintiff attended the cremation of her father. I am aware that in some communities, women do not attend a cremation. But it does not appear to be so in the present case otherwise the answer of PW-4 to the question put to him would have explained the correct position.
93. The re-examination of PW-4 is also revealing insofar as the relationship of the plaintiff (and her family) with the deceased is concerned. The witness is asked:-
Question: When I asked you a question you told me that in the first week of October 1982 Shri O.P. Gupta was in Delhi but when the defendant's counsel asked you a question you said that he was at Ghaziabad from March onwards. What is your explanation and how do you re-concile it?
Answer: They may be shifting him from Ghaziabad to Delhi.
94. So much for this witness being the "medical consultant" of the deceased!!
95. Keeping this background in mind, it is now necessary to examine the contention of learned counsel for the Plaintiff that there was sufficient material to show that the execution of the Will of the deceased was shrouded with suspicious circumstances. But, before doing this, it is necessary to refer to the various decisions cited by both the learned counsel to understand and appreciate the legal position.
96. The main decision relied on by learned counsel for the plaintiff was H. Venkatchala Iyengar v. B.N. Thimma Jamma & Ors., . This was a case where the Will had been duly registered but the Sub-Registrar in whose presence the document was registered was not examined (paragraph 39 of the report)./ However, the test laid down by the Supreme Court (in paragraph 19 of the Report) was that:-
"...in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the documents of his own free will. Ordinarily when the evidence addued in support the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favor of the propounder. In other words, the oneus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
97. The Supreme Court then dealt with some suspicious circumstances. It said in Paragraph 20 of the Report:-
"There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of testators' free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of testator."
98. The Supreme court also dealt with another suspicious circumstance in the following words appearing in paragraph 21 of the Report:-
"Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it sis shown that the propounder has taken a prominent part int he execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstances attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence."
99. There is then a caution given by the Supreme Court to the effect that "...in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validity executed by the testator who is no longer alive." (paragraph 21 of the Report).
100. Taking all this into consideration, the Supreme Court stated its conclusion in the following words:-
"It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties."
101. There are, therefore, three things to be kept in mind, in cases such as this:-
(i) The propounder of a Will has to prove its due and valid execution.
(ii) If there are any suspicious circumstances surrounidng the execution of a Will,, the propounder must remove the suspicions by cogent and satisfactory evidence.
(iii) The application of the above principles depends on the facts and circumstances of each case.
102. Some examples of "suspicious circumstances" were enumerated by learned counsel for the plaintiff by referring to decided cases.
103. In Ram Piari v. Bhagwant & Others, , the Supreme Court dwelt upon one such aspect in paragraph 2 of the Report in the following words:-
"Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicions as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act."
104. Then in paragraph 4 of the Report, it was stated that:-
"Even though it cannot be said to be hard any fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review."
105. Consequently, disinheritance of an heir of an equal degree, without reason, would be suspicious.
106. Reliance was placed on Vellaswamy Servai & Ors. V. L. Sivaraman Servai, AIR 1930 PG 24 wherein it was stated (page 25, column 2) that where the propounder of a Will is its principal beneficiary and he takes "a leading part in giving instructions for the Will and in procuring its execution and registration" would be a suspicious circumstance.
107. In Guro (Smt) v. Atma Singh & Ors., , the Supreme Court mentioned in paragraph 3 of the Report some suspicious circumstances such as "a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit."
108. In Kalyan Singh v. Smt. Chhoti & Ors., , the supreme Court observed as follows in paragraph 18 of the Report:-
"In the normal course, the wife would be the first to be thought of by the husband while executing a will. She should have been the first beneficiary of her husband's bounty unless there was odium or embittered feelings between them. But there is no such evidence and it was not even the plaintiff's case that their relationship was strained. Why then she should be excluded altogether? It is indeed baffling since it runs counter to our societal values."
109. Later, in paragraph 22 of the Report, the Supreme Court took notice of three facts which cast a serious doubt on the authenticity of the Will. These were the fact that the plaintiff therein was the sole legatee, no right whatsoever had been conferred to the testator's wife which was unnatural and finally that the Will had not been produced for many years before the Court or the public authorities even though occasions arose for producing it.
110. In Bhagwan Kaur w/o Bachan Singh v. Kartar Kaur w/o Bachan Singh & Ors., , the Supreme Court reiterated in paragraph 8 of the Report that the propounder of a Will taking an active part in its execution would be a suspicious circumstance and the fact that no provision was made in the Will for the widow of the testator would also be a suspicious circumstances.
111. In Ram Piari v. Bhagwant & Ors., , the testator had disinherited his daughter by executing a Will one day before his death. He bequeathed all his property in favor of the sons of her sister. This was held by the "Supreme Court to be a suspicious circumstance and the Will was not accepted as genuine.
112. However, in Sadasivam v. K. Doraisamy, , the Supreme Court held in paragraph 6 of the Report that divesting of close relations being the purpose of the execution of a Will is normally not a suspicious circumstance.
113. Similarly, in Ravindra Nath Mukherjee & Anr. v. Panchanam Banerjee (dead) by LRs. & Ors., , the Supreme Court held in paragraph 4 of the Report that the whole idea behind the execution of a Will is to interfere with the normal line of succession. Therefore, if a natural heir is not a beneficiary under a Will, it would not be a suspicious circumstance. It was also held in paragraph 7 of the Report that someone has to take necessary steps for the execution of a Will. If he happens to be someone close to the testator, eyebrows are bound to rise but if there are circumstances justifying the conduct of the propounder, they would require to be taken into consideration.
114. In paragraph 8 of the Report, the Supreme Court expressed the thought that a total view has to be taken of all the circumstances and it is only then that the Court should reach a conclusion about the authenticity of a Will.
115. This, I think, has to be the guiding principle along with what the Supreme Court has said in H. Venkatachala Iyengar.
116. Learned counsel for the plaintiff relied upon Dharmadas Mondal & Ors. v. Kashi Nath De, to contend that the mere registration of a Will leads only to a presumption about the validity of the proceedings which took place before the Registrar. It does not have any reference to antecedent proceedings regarding the actual writing of the Will or the mental capacity of the testator or the signing of the Will by the attesting witnesses.
117. A similar view was expressed by a Division Bench of this Court in Prem Chand v. Mool Chand etc., 1983 RLR 522 . It was held that the presumption about the validity of a registered Will can be displaced by proof of suspicious circumstances.
118. Considering the various authorities cited before me, it is quite clear that whether a Will is genuine or not has to be decided on the facts of each case. There is no mathematical equation to determine whether a Will is genuine or not. The authenticity of a Will depends on the circumstances surrounding its execution and the quality of the evidence that is led in respect of its genuineness.
119. What then are the suspicious circumstances which, according to learned counsel for the Plaintiff, invalidate the Will?
120. Three facts intrinsic to the Will are, according to him, very suspicious. The first is the disinheritance of the plaintiff; the second is the complete absence of any mention of the wife of the deceased in the Will - it is not only a case of disinheriting his wife, but a case of not even mentioning about her existence; and the third is the notation of the Sub-Registrar that the deceased had an effect of paralysis of the tongue.
121. Disinheriting the Plaintiff by the deceased is not a suspicious circumstance either by itself or in the totality of the facts of the present case. The deceased explains in his Will why he is disinheriting the Plaintiff. He says that his four other daughters:-
"...have maintained and served me at their best and they have done their best to give me every necessary sympathy at this critical stage of my old age and I am very much pleased with my above mentioned four daughters. The fifth daughter i.e. Yashoda Gupta has not taken any care and was not helpful in my old age..."
122. According to learned Counsel of the plaintiff, three of the other four daughters were residing outside Delhi. They would come to Delhi for a few days or weeks about once a year. There was, therefore, no question of their taking any care or being helpful to the deceased in his old age. He submits that on this basis even they should have been disinherited.
123. Learned counsel for the Plaintiff forgets that there is a qualitative difference in what the other three daughters could do and what head plaintiff could do vis a vis the deceased. The other three daughters could only extend to the deceased their "sympathy at this critical time" of his old age - which they did. There is nothing to suggest that when they were with the deceased in Delhi or Ghazibad, they did not look after the deceased. Indeed, Exh. D-4 which is a letter dated 7th September, 1981 suggests to the contrary, as does the correspondence that the deceased had with his daughters from time to time.
124. Contrast this with what the deceased says in his Will about the Plaintiff. he says that she did not take any care of him and was not helpful in his old age. This is what the deceased believed and he was entitled to his opinion about the conduct of the Plaintiff. It is not possible for me to substitute my opinion for that of the deceased. In any case, the correspondence that I have discussed above as also the oral testimony particularly of PW-4, the husband of the Plaintiff, leads to the same conclusion.
125. Therefore, looked at from any point of view, it is not surprising that the deceased disinherited the Plaintiff.
126. The disinheritance of his wife by the deceased is certainly a suspicious circumstance. As the Supreme Court says in Kalyan Singh, she would have been the first one to be though of by her husband. Disinheriting the wife, as the Supreme Court says in the same Report, runs counter to our societal values. There is absolutely nothing to suggest why the deceased disinherited his wife. Learned counsel for the Defendants suggested that the deceased was confident that his widow would be well looked after and that is why he did not provide for her. He may be right, but the deceased could have surely expressed this confidence in his Will. It is not possible to speculate why the deceased disinherited his wife; the fact is that he did and this is extremely odd.
127. To make matters worse, the Will does not even mention the existence of the wife of the deceased. What is said in the Will is:-
"That I have no son to inherit my properties on the fatal occasion of death and there are five daughters of me and they are all married and reside with their husband as noted below:-..."
128. Apart from the five daughters, the deceased also had a wife who was living at that time. The relations between the deceased and his wife were not ruptured. Even if there is some reason for the deceased to disinherit his wife,. there is no earthly reason for not even mentioning her existence.
129. I am afraid, the onus of removing this suspicion was very heavy on the Defendants but they have failed to adduce any evidence let alone any worthwhile evidence in this regard.
130. As regards the third suspicious circumstance, the Sub-Registrar DW-9 noted on the Will that the deceased had an effect of paralysis on the tongue. The deceased had acknowledged that this was his Will. But in his oral testimony, DW-9 seems to suggest that he had a brief conversation (may even be of two or three sentences) with the deceased. It is apparently this brief "conversation" which led him to believe that the tongue of the deceased had an effect of paralysis and that the deceased could only acknowledge that the Will was his.
131. Given this physical condition of the deceased, can it be reasonably said that he gave verbal instructions to the deed writer to draft a three page Will-the essential portions of which in any case are of two pages? I think the answer to this has to be, prima facie, in the negative, given the endorsement of the Sub-Registrar. The Defendants were required to produce cogent evidence to show that the deceased could and did speak coherently and could and did instruct the deed writer about the contents of his Will. No such evidence is on record.
132. On this aspect of the case, I do not wish to rely solely on the notation of the Sub-Registrar. The other, or "extrinsic" evidence, also points in this direction.
134. There is no dispute about the fact that the deceased was suffering from cancer of the prostate. Learned counsel for the Plaintiff relied on Bailey & Love's Short Practice of Surgery 15th Edition pages 1196-1197 to show that such a cancer also spreads by the blood stream particularly to the bones. It also affects the skull eventually.
135. From sometime in March (Exh.P-11) the deceased was unable to write. Subsequent letters were also not in his handwriting, though they may have been signed by him. He informed his bank that he was unable to operate his account and locker. All this suggests that the cancer was in its terminal stages and had physically debilitated the deceased. It is, therefore, no wonder that his tongue was paralysed and it is extremely doubtful if he could speak at all or in any case coherently. It is unlikely that his Will was drafted on his oral instructions.
136. Learned counsel for the Plaintiff contended that the deceased was not in a sound disposing mind. According to him, the deceased was under heavy sedation and narcotics because of the pain caused by cancer. This is not correct. The Sub-Registrar says 'that the deceased was in his senses. The deceased signed in the presence of the Sub-Registrar more than once. Therefore, I am not prepared to accept this contention of learned counsel for the Plaintiff. Moreover, even PW-3 says that in September or October, 1982 the deceased was having a disposing mind, although not a clear mind.
137. It was also contended that the husband of Defendant No.2 was the propounder of the Will and he took an undue interest in its execution. This submission is also incorrect. The Will was propounded by all the Defendants who were all beneficiaries under it. It is not as if the husband of Defendant No.2 was the sole legatee. Sure, he helped out int he registration of the Will as also its execution but this was in his capacity as the son-in-law of the deceased. There is nothing suspicious about this.
138. There is, however, one suspicious circumstance immediately antecedent to the execution of the Will for which there is no explanation. This is that the assets of the deceased were being transferred by Defendant No.2. As is clear from Exh. DW-6/4 dated 25th August, 1982 the revolver of the deceased was sold for Rs. 12,000/-. By Exh. DW-8/3 and DW-8/4, Defendant No.2 became a joint holder in the bank account and locker of the deceased. Thereafter, cheques were issued from this account. The locker was last operated by Defendant No.2 in October, 1982. When the Local Commissioner appointed by this Court opened the locker on 7th March, 1983 it was found to be empty. The Units issued by the Unit Trust of India in favor of the deceased were transferred in the joint name of the deceased and Defendant No.2.
139. There is no evidence on record to suggest why all this transfer of assets was taking place. Was it to avoid legal complications after the death of the deceased or was it to deprive the Plaintiff of her share in the assets? Given the lack of cordiality between the plaintiff and the Defendants, it appear to be the later. If so, could it not be that the Will of the deceased was also contrived for this purpose? These are some of the question which raise a doubt about the authenticity of the Will of the deceased and which have not been satisfactorily answered.
140. The last suspicious circumstances adverted to by learned counsel for the Plaintiff was the absence of any medical records of the deceased. He said that these records were available with Defendants No.2 but were deliberately withheld. If anything, this submission shows that the Plaintiff and her husband had virtually no interest in the medical problems of the deceased since they, admittedly, had no medical records of the deceased. This clearly points in the direction of a lack of cordiality between the Plaintiff (and her husband who is a medical doctor) on the one hand and the deceased.
141. But yes, it is surprising that no medical records of the deceased were produced by the Defendants. These would have definitely proved the State of health of the deceased. However, it is possible that unlike the correspondence entered into with the deceased, his medical records has not sentimental value and may have been destroyed. I am not inclined to read too much into the absence of the medical records and would prefer to given the benefit of doubt to the Defendants for its non-production. No adverse inference requires to be drawn in this regard.
142. It was also contended by learned counsel for the Plaintiff that the Will contained several grammatical errors which would not, in the normal course, the acceptable to the deceased. I have dealt with a similar contention while dealing with Exh. P-11. I see no substance in this contention.
143. Learned counsel for the Defendants laid great stress on the fact that the Plaintiff carried on adversarial proceedings against her mother till her death. This shows the bad blood that the Plaintiff had against her parents. This may be so, but I am only concerned with her relationship with the deceased and have already held that it was anything but cordial.
144. Reliance was also placed by learned counsel for the Defendants on the affidavit filed the widow of the deceased. She stated in her affidavit dated 24th November, 1983 (Exh. DW-6/5) that she accepts the Will dated 21st October, 1982 as the last Will of her husband. She states that she has not been given anything under the Will and that she does not claim anything there under.
145. Frankly, the widow of the deceased had little choice but to swear an affidavit of this nature. Even while her husband was alive Shakuntala Devi was dependant upon Defendant No.2. The situation could not have dramatically changed in her favor after the demise of her husband. Consequently, I am not inclined to place too much weight on the affidavit of the widow of the deceased.
146. In view of this, I do regretfully feel that the execution of the Will dated 21st October, 1982 (Exh. DW-6/1) is shrouded with suspicious circumstances which have not been satisfactorily explained by the Defendants.
147. It has, therefore, to be held that this Will is neither genuine nor authentic. Issue No.1 is answered accordingly.
148. The question now is of the relief to be granted. Learned counsel for the parties had agreed that if the Will dated 21st October, 1982 is found to be not genuine, then the suit for partition would be maintainable. In that event, a preliminary decree for partition should be made. However, both learned counsel said that their respective clients were tired of this litigation and, therefore, a final decree may be passed. In view of this, I now proceed to pass final orders.
149. On my request, learned counsel for the plaintiff handed over a chart indicating the cash available with the deceased. This chart is unsigned and undated. It is, however, taken on record. As per the chart, an amount of Rs.17,500/- was withdrawn after the death of the deceased. This is evidenced by Exh. DW-8/8 and Exh. DW-8/9. The deceased had five Fixed Deposit Receipt Exh. DW-5/1 to Exh. DW-5/5. These were encashed for a total amount of Rs.42,133.42. As per Exh. DW-6/3, the deceased has 4050 Units with the Unit Trust of India valued at Rs. 40,500/-. The State Bank of India account of the deceased shows a cash balance of Rs. 4,094.93 as per Exh. DW-4/1. There is said to by some other amount lying with the Central Bank on India but there is no evidence to this effect. Therefore, I take it that the deceased had, on his death a cash balance of Rs.1,04,228.35. The Plaintiff will be entitled to her 1/5th share in this amount, which works out to be Rs.20,845.67.
150. The Supreme Court had, by its order dated 29th October, 1984 permitted sale of the immoveable property belonging to be deceased on the Defendants furnishing a bank guarantee of Rs.5 lakhs. it would be appropriate if this amount is held to be the share of the Plaintiff in the immoveable property. consequently, the plaintiff is entitled to encash this bank guarantee for Rs. 5 lakhs.
151. Since the Plaintiff showed little or no interest in the well-being of the deceased, she will not be entitled to interest on the aforesaid amounts.
152. The suit is decreed in the above terms. No costs.