Delhi District Court
Sh. Surinder Mohan Goel vs State on 26 November, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-79/13/97
In the Matter of:
Sh. Surinder Mohan Goel,
s/o late Sh. Vidhya Bhushan Gupta,
r/o 58/3, Lucknow Road,
B.D. Estate, Timarpur, Delhi.
.................. Petitioner
VERSUS
State
Near Relatives
1. Sh. Surinder Mohan Goel,
s/o late Sh. Vidhya Bhushan Gupta,
r/o 58/3, Lucknow Road,
B.D. Estate, Timarpur, Delhi.
............. Petitioner
2. Sh. Lalit Mohan Goel,
s/o late Sh. Vidhya Bhushan Gupta,
r/o 58/3, Lucknow Road,
B.D. Estate, Delhi.
3. Smt. Asha Gupta
d/o Sh. Vidhya Bhushan Gupta,
w/o Sh. Govind Prasad Gupta,
r/o 74, DESU Colony,
Shalimar Bagh, Delhi
4. Smt. Rashmi Goel,
d/o late Sh. Vidhya Bhushan Gupta,
w/o Flat no. 319, Sh. Mahavira Cooperative
PC-79/13/97 Page:-1/37
Society( Lekview Apartments) Sector IX,
Plot no. 42, Rohini, Delhi.
5. Smt. Poonam Gupta
d/o late Sh. Vidhya Bhushan Gupta,
w/o Sh. Vinod Gupta,
5610/1, Halwai Bazar,
Ambala Cantt. Haryana.
......Respondents.
Date of Institution: 3.4.97
Date of Assignment to this court: 6.7.13
Date of Arguments: 22.11.13
Date of Decision: 26.11.13
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition for grant of probate in respect of the estate of deceased Smt. Tarawati. The brief facts of the case as narrated in the petition are that Sh. Vidhya Bhushan Gupta son of late Sh. Fagu Ram was an ordinary resident of Delhi who died at Delhi on 31.3.1971. As stated Sh. Vidhya Bhushan Gupta was the sole and exclusive owner of the property as detailed in annexure-A attached with the petition which was his self acquired properties. It was stated that during his life time he had bequeathed his own immovable properties to his wife Smt. Tarawati by virtue of Will dated 20.3.1971 and Smt. Tarawati became the sole and exclusive owner of the property by PC-79/13/97 Page:-2/37 virtue of said Will. It was stated that Smt. Tarawati, wife of late Sh. Vidhya Bhushan Gupta executed a registered Will dated 30.4.1990 which was duly registered with the Sub Registrar, Delhi during her life time on 3.5.1990 by virtue of which Will she had bequeathed the immovable property detailed in Annexure-A to her both sons namely the petitioner and Sh. Lalit Moahn Goel. It was stated that Will dated 30.4.1990 is the last testament of late Smt. Tarawati and she had not executed any other Will during her life time. Hence, it was prayed that probate be granted to the petitioner under Will dated 30.4.1990 with respect of immovable and movable properties mentioned in schedule-A.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed despite service. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " National Herald" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper " National Herald" on 23.8.1997.
PC-79/13/97 Page:-3/37
4. Initially relation no. 4 was proceeded ex-parte Rashmi Goel vide order dated 5.9.97 but later on, no objection to the present petition was filed on behalf of relations no. 3 to 5. Objections were filed on behalf of relation no. 2. Even later on relation no. 3 Smt. Asha Gupta also filed objections to the present petition after the application was allowed.
5. In objections filed by relation/ respondent no. 2 it was stated that deceased Smt. Tara Wati was not the owner of property bearing no. 58/3, Lucknow Road, Banarasi Dass Estate, Delhi and the said property was owned by late Sh Vidya Bhushan Gupta, father of the objector who during his lifetime executed a Will dated 18.3.1971 in Willingdon Hospital, New Delhi. As stated he remained confined in the hospital from second week of March, 1971 till 31st March,1971. He as stated died on 31.3.1971, however on 18.3.1971 in the presence of doctor and the attesting witnesses namely Sh. Om Parkash, Sh. Swadesh Bhushan Gupta he executed the Will in respect of his movable and immovable properties. As stated the said Will was never cancelled and the said Will remained to be last Will of late Sh. Vidya Bhushan Gupta and Dr. D. Sen Gupta of Willingdon hospital also certified the same regarding the condition of late Sh. Vidya Bhushan Gupta. It was PC-79/13/97 Page:-4/37 stated that under the Will dated 18.3.1971 the mother i.e. Smt. Tara Wati was given a limited right therefore no intimation was sent to any of the departments or authorities regarding mutation of the property in her name, water and electric meters remained in the name of late Sh. Vidya Bhushan Gupta. It was stated that at no point of time the mother of the parties Smt. Tara Wati communicated or informed regarding any second Will dated 20.3.1971 to have been executed by late Sh. Vidya Bhushan Gupta. The department of Custom and Central Excise where deceased Sh. Vidya Bhushan Gupta was working was not informed regarding the execution of the Will dated 20.3.1971. The provident fund was given to the objector Lalit Mohan Goel and Surinder Mohan Goel. After the death of the mother of parties there had been dispute interse between the objector and the petitioner with regard to the division of the property and as such to resolve the dispute they entered into an arbitration agreement dated 11.3.1992 and the matter was referred to arbitrators and at no point of time of execution of the arbitration agreement, reference to Will dated 20.3.1971 was made and only copy of Will dated 18.3.1971 was filed before the arbitrator. It was stated that so long as Sh. Vidhya Bhushan Gupta remained admitted in the PC-79/13/97 Page:-5/37 hospital, the objector attended him till he died. It was also stated that the financial position of late Sh. Vidya Bhushan Gupta was not good and he was being assisted and helped by the objector financially as the objector at that time was working initially with Sh. Ram Fertilizers and Chemicals and thereafter he joined Bank of Baroda. As stated house bearing no. 58, Lucknow Road, Banarsi Dass Estate, Delhi was to be constructed by the co-owners and they were not having sufficient funds and sources at their disposal and as such some of the amount was raised from authorities. It was stated that since the financial position of the father was tight, the objector has joined the service, he paid all the loan through his father so long as he was alive and thereafter he also paid the amount towards the loan alongwith other owners who had taken the loan for the construction of the house. Except his sister Asha the objector Rashmi Goel and others were unmarried at the time of death of Sh. Vidya Bhushan Gupta and objector being the elder in the family arranged all the expenses of the marriage exclusively as the petitioner was not having sufficient income from his service as he joined in only 1972. The liability of house tax, water and electricity were also borne by the objector and the objector is also spending PC-79/13/97 Page:-6/37 money towards the maintenance of property till date. It was stated that the mother of the objector Smt. Tara Wati was aged lady of approximately 75 years and was not having good health. She was in regular treatment of the doctors and in or around March to May,1990 her condition was precarious and she had lost her memory and she became terrified with regard to her health and she even lost her senses in the month of April, 1990. With great efforts and help of the doctors, she could be saved and she improved thereafter in May,1990. When she was lying admitted in the hospital the wife of objector had been visiting and taking care of her and even the objector who was also lying admitted in the hospital for his operation. It was stated when the objector came to know about the precarious condition and loss of memory, senses, the objector against the advise of the doctors, visited his mother to see her and console her in all respect and remained with her in the month of April, 1990. As stated there was no occasion to execute the Will by her at any time in the month of April, 1990. It was stated that deceased Tarawati was illiterate lady and Will dated 20.3.1971 and 30.4.1990 are creation of the petitioner himself. As stated the objector is in occupation of the first floor and second floor and is a joint property PC-79/13/97 Page:-7/37 which has not been divided by meets and bounds. The first floor and second floor are in occupation of the objector and the same are being used as such. One room on the first floor was construction by the objector himself and he has made the entire investment on it. It was stated that the petitioner was once arrested by the Pakistan Government at Vagha Border and he was sentenced by the said Govt. and objector made all efforts to locate him and to get him released. It was denied that the father of the objector had executed a Will dated 20.3.1971 and had given his property to mother of the objector or that mother of objector was exclusive owner of property by virtue of Will dated 20.3.1971. Accordingly it was prayed that the instant petition be dismissed.
6. In objections filed on behalf of relation/respondent no. 3 it was stated that objector is the eldest daughter of late Sh. Vidya Bhushan Gupta and was married in the month of May,1966. She lived in Timarpur at a short distance from the house of his father from 1967 to 1973 and she being the eldest daughter was aware of all the facts which took place in the family till Vidya Bhushan Gupta and Smt. Tarawati remained alive. It was stated that the father of objector was working in Customs & Central Excise, New PC-79/13/97 Page:-8/37 Delhi and had problem in his kidney in the month of January,1971 and his treatment was going on in Willingdon Hospital. It was stated that her father was advised operation and for the same he was hospitalised in the second week of March,1971 where he was being looked after by Sh. Lalit Mohan Goel and the mother of the objector. It was stated that the objector occasionally used to visit the hospital and rest of the time, she used to remain at home to look after the day to day affairs of the house. It was stated that all brothers and sisters excluding the objector were unmarried and objector Lalit Mohan Goel and petitioner herein were major. It was stated that father of the objector died on 31.3.1971 and his last rites were performed by Sh. Lalit Mohan Goel. After the death of her father, her grand father namely Master Phaggu Ram informed all the family members in the second week of April, 1971 that the father of the objector has left a Will dated 18.3.71 in regard to his properties and the said Will was given by the father of the objector to the grand father to hand over the same to the mother of the objector after death. It was stated that before handing over the Will the grand father of the objector read over and explained the Will to all the family members including the objector and the petitioner. As stated PC-79/13/97 Page:-9/37 the Will dated 18.3.71 was seen by the objector and the said Will was signed by the objector and two attesting witnesses namely Sh. Swadesh Bhushan Gupta and Sh. Om Parkash and Dr. D. Sengupta who signed the same regarding the mental state of affair of the father of the objector. After the death of her father Sh. Lalit Mohan Goel was only elder male member in the family and being elder son he used to look after and discharge all obligations. It was stated that father of the objector was working in Customs & Central Excise and for release of the benefits the Will dated 18.3.1971 was produced before his office and in terms of the said Will benefits were released in favour of the mother of the objector and two brothers. Copy of the Will was also produced before the LIC in order to get the amount of the policy and the amount of LIC was obtained in the name of the mother. It was stated that in late 1970 Sh. Lalit Mohan Goel shifted to first floor and the petitioner continued to live on the ground floor and objector continued to meet both the brothers. It was stated that in April, 1990 Sh. Lalit Mohan Goel was admitted in St. Stephens Hospital for operation of Hernia and in the same month the mother of the objector was also admitted for her ailments. The mother of the objector at no point of PC-79/13/97 Page:-10/37 time informed or communicated to any of the family members that she executed a Will in regard to the property. The property as stated continued to remain in the record of the authorities in the name of the father of the objector and the mother never exercised or claimed any right in the property though she was given limited rights under the Will dated 18.3.1971. It was stated that the mother of the objector has not executed any Will dated 30.4.1990 nor her father had executed any other Will except the Will dated 18.3.1971. It was stated that till the death of the mother of the objector nobody in the family disclosed about any Will having been executed by the father after cancelling the earlier Will dated 18.3.71. It was stated that no Will dated 20.3.1971 and 30.4.90 was executed either by the father or the mother. It was stated that after the death of the mother, the dispute arose with regard to the division of the property between the petitioner and Sh. Lalit Mohan Goel and both of them approached the objector in order to sort out the differences and to divide the property by metes and bounds, however later on they entered into an arbitration agreement dated 11.3.92. As stated even at that time no reference of the Will dated 20.3.71 was made or produced before the Arbitrators as now PC-79/13/97 Page:-11/37 revealed to the objector. As stated objector came to know about non production of the Will dated 20.4.71 and 30.4.90 before Arbitrators when the objector received the notice from the probate court. Objector enquired from both her brothers and even both of them came to objector for settlement but the same could not take place. Earlier when a probate petition was filed by the petitioner and by Sh. Lalit Mohan Goel, Sh. Surinder Mohan Goel got the reply prepared and filed through the counsel engaged by him and the same was not prepared on her instructions and therefore fresh objections as above were filed by her. It was stated that the facts disclosed by the petitioner in the present petition are not correct and accordingly it was prayed that the instant petition be dismissed.
7. Separate rejoinders were filed by the petitioner to the respective objections of the objectors in which case as set out in the petition is reiterated and that of the objectors was denied.
8. Vide order dated 15.4.99 from the pleadings of parties, the following issues were framed:-
(i) Whether the Will dated 20.3.71 propounded by petitioner is the last Will and testament of deceased Vidhya Bhushan and it has been executed by him in sound disposing mind and hence it is valid Will ?OPP PC-79/13/97 Page:-12/37
(ii) Relief.
9. It is pertinent to mention here that this petition bearing no. 79/13/98 titled as Surinder Mohan Goel Vs State as well as petition bearing no. 20/13 titled as Lalit Mohan Goel Vs. State were consolidated vide order dated 14.11.02 for the purpose of evidence.
10.In evidence, petitioner produced himself as PW-1, Sh. Prem Chand Gupta as PW-2, Sh. R.K. Aggarwal as PW-3, Sh. Om Prakash as PW-4. Affidavit of one witness Sh. Shanti Swaroop Gupta was though was placed on record but he did not appear in witness box either for tendering the same or for cross examination. PW-1 petitioner reiterated the contents of the petition and placed reliance upon death certificate of deceased Vidhya Bhushan Gupta Ex. PW-1/1, death certificate of Smt. Tarawati Ex. PW-1/2. PW-2 Sh. Prem Chand stated himself to be one of the attesting witness to the Will dated 20.3.1971 which was Ex. PW-2/1 . PW-3 Sh. R.K. Aggawal also stated himself to be one of the attesting witness to the Will dated 30.4.1990 which was Ex. PW-4/1 and identified the signatures of Sh. Shanti Swaroop Gupta in English and also the signatures of Smt. Tarawati. Sh. Om Prakash PW-4 also stated himself to be attesting witness of Will PC-79/13/97 Page:-13/37 dated 30.4.1990 and identified the signatures of other attesting witnesses as well as the testator on the same.
11.In defence, objectors produced Sh. Swadesh Bhushan Gupta as O2W-1, Sh. Onkar Dutt Guitt as O2W-2, Dr. D. Sen Gupta as O2W3, Smt. Asha Goel as OW-1, Sh. John Masih as O2W-4, Sh. Gulab Singh as O2W-5, Sh. N.K. Maurya as O2W6, Sh. Lalit Mohan Goel as O2W-7, Sh. S.M. Aggarwal as O2W8, Sh. A.K. Gupta as O2W-9, Sh. S.P. Gupta as O2W10, Sh. Mahender Gupta as O2W-11. Objectors Asha Gupta and Lalit Mohan Goel reiterated their case as set out in their objections. The copy of the Will dated 18.3.1971 was marked as OX/P-1 and attested copy of the same was Ex. PW-1/D-1. Witness O2W-1 Sh. Swadesh Bhushan Gupta stated that the testator, witness Om Parkash and Dr. D. Sen Gupta signed the Will dated 18.3.71 in his presence and that deceased was in sound disposing mind. Witness Mr. Onkar Dutt Gutti O2W-2 also supported the case of objector Lalit Mohan Gupta and deposed on the same lines as well as identified the signatures of the testator as well as witnesses on the copy of the Will dated 18.3.1971. O2W-3 Dr. D. Sen Gupta stated that in the month of March, 1971, late Sh. Vidya Bhushan Gupta was got admitted by him in the PC-79/13/97 Page:-14/37 hospital for his kidney ailment and as long he remained in the hospital he looked after him. He also stated that at the time when he issued certificate to late Sh. Vidya Bhushan Gupta he was in full senses and deposing mind and the said Sh. Vidya Bhushan Gupta admitted the contents of the Will Ex. P-1 after hearing the contents of the same. Witness O2W-4 proved reply dated 13.7.09 as Ex. O2W-4/1 and copy of application dated 20.6.09 mark O2W-4/A. O2W-5 Sh. Gulab Singh was official witness from Revenue Department who brought the original application dated 13.3.09 and reply to application dated 15.4.09 was Ex. O2W-5/1, reply dated 8.4.09 was Ex. O2W-5/2. Sh. N.K. Maurya O2W-6was official witness from house tax department and proved application dated 12.12.91 Ex. O2W6/1. O2W-7 Sh. Lalit Mohan Goel also relied upon death certificate of his grand father Ex. O2W-7/1, copies of documents submitted by him with the MCD Ex. O2W-7/2, death certificate of Sh. Phaggu Mal Ex. O2W-7/3, agreement dated 11.3.92 Ex. O2W-7/4, copy of letter and reply received dated 20.3.00 Ex. O2W-7/5, queries raised by him in St. Stephen's hospital wasEx. O2W-7/6 collectively, application to Revenue Department Ex. O2W-7/7, information furnished by M/s Balmer & Lawrie Ex. O2W-7/8, photograph PC-79/13/97 Page:-15/37 of marriage Ex. O2W-7/9. O2W-8 Sh. S.M. Aggarawal stated that he attested the typed copy of Will Ex. PW-1/D-1 and stated that he had compared the contents with the original before attesting it. O2W9 Sh. A.K. Gupta proved communication of Lalit Gupta dated 23.7.09 Ex. O2W9/1, information furnished by my company to Sh. Lalit Mohan Goel under RTI Act vide communication dated 10.11.11 was Ex. O2W9/2, copy of leave rules was Ex. O2W9/3. O2W10 Sh. S.P. Gupta, Architect stated that he prepared the site plan Ex. O2W10/1 which was issued in pursuance of queries made by Lalit Mohan Goel Ex. O2W10/2 which was earlier mark OW/I/PY. O2W11 Sh. Mahender Gupta proved letter Ex. O2W11/1, affidavit of Mrs. Sangeeta Goel Ex. O2W11/2, original indemnity bond and photocopy of the same Ex. O2W11/3. He identified the signatures of Mrs. Sangeeta Goel and Sh. S.M. Goel as he has seen them writing and signing.
12.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
13. Issue no. 1 :- Before proceeding to decide these issue I would like to discuss the relevant law and judgments on this point. Section 278 of PC-79/13/97 Page:-16/37 Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
14. Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
PC-79/13/97 Page:-17/37 Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
15.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
16. Section 63 of the Act of 1925 has three several requirements as regards PC-79/13/97 Page:-18/37 the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures 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."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a PC-79/13/97 Page:-19/37 Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
17. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise PC-79/13/97 Page:-20/37 making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator PC-79/13/97 Page:-21/37 shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. PC-79/13/97 Page:-22/37 Smt. Kamla Kunwar and others, (1977)1 SCR 578.
18. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
19. The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its PC-79/13/97 Page:-23/37 attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
20. The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
PC-79/13/97 Page:-24/37 In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a PC-79/13/97 Page:-25/37 will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient PC-79/13/97 Page:-26/37 indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
21. Now I have to see whether in the present case the above principles have been duly made out or not. In the present case though issue had been framed only regarding the Will dated 20.3.71 alleged to be executed by Vidya Bhushan and not regarding the Will dated 30.4.1990 of Tarawati but the petitioner has prounded the Will dated 30.4.1990 and I would be discussing and deciding the genuiness of both the said Wills. The genuiness of Will dated 20.3.71 alleged to be propounded by Vidya Bhushan is to be first looked into since the same is very basis of the whole case of the petitioner that vide said Will his father bequeathed the property in question to his mother Tarawati who vide further Will dated 30.4.90 bequeathed the said property in his favour. It is observed Will dated 20.3.71 is not a registered Will on the first place and secondly the death of the testator occured within eleven days of the execution. The Will dated 20.3.71 had been executed when deceased Vidya Bhushan Gupta was hospitalised and his father was alive. No arrangement PC-79/13/97 Page:-27/37 has been made by the testator qua his father. Will also does not talk about regarding his married daughter Asha Gupta and other two unmarried daughters. Two Will of deceased Sh. Vidya Bhushan Gupta have been propounded by each of the party first being on 18.3.1971 and second on 20.3.71 and there is no recital of Will dated 18.3.71 in Will dated 20.3.71. The influence in these circumstances of the individual party on the testator/person concerned cannot be ruled out specially when it is not clear whether his cognitive faculties were intact or not. There is no certificate to that effect from any doctor. It is to be seen that deceased was alleged to be somewhere aged about 52-55 years at the time of his death and was suffering from kidney disease and his trauma can be visualised. It cannot be expected from a father that he will not make arrangements for his daughters and will leave everything for future with uncertainity. Similarly, as far as Will dated 30.4.90 of Tarawati is concerned though there is gap of 1 ½ years in its execution and death of the testator but it is clear that same was executed in the hospital. Death of Tarawati has taken place in Kalka and the Will dated 30.4.90 is not registered one. There is no certificate of doctor that she was medically/mentally fit for execution of the said Will.
PC-79/13/97 Page:-28/37 Both the Wills did not saw light of the day for considerable long time and it was not acted upon at any point of time before they were pleaded. Moreover, deceased Tarawati herself has not acted upon the Will of her husband dated 20.3.71 for so long time and did not disclose the same to other sons or daughters even though she was in knowledge of the execution of the alleged Will in her favour by her husband. Another interesting factor is that Will dated 20.3.71 should be signed by two witnesses. There is no signatures of Shanti Swaroop Gupta on the said Will and only his name is written meaning thereby that the main ingredient of the execution of the said Will itself is missing. PW-2 has not been able to identify his signatures and the law is favourable to the objectors on this Will when there is inordinate delay for seeking relief on the Will. Both the Will dated 20.3.1971 and 30.4.90 have been alleged to be executed by the respective testators in the hospital and thus the onus is more heavy on the propounder of the Will that executor was in sound disposing mind. Moreover, in Will dated 30.4.90 of Tarawati it is not mentioned that the same was executed in the hospital. Besides that, in the Will dated 20.3.71 name of father of testator Sh. Vidya Bhushan Gupta has been mentioned as late Sh. Faggu PC-79/13/97 Page:-29/37 Ram whereas as per the parties Sh. Faggu Ram was alive at that time meaning thereby the said Will was manipulated after 13.12.1975 when Sh. Faggu Ram expired. Both the parties have not produced any expert opinion on record in respect of genuiness of the signatures of the testators. Rather, the signatures on Will dated 20.03.1971 are shaky. Further, the statement of the witnesses and propounder regarding the knowledge of Will is contradictory, unfair and unjust. There is no explanation for disinheriting the natural legal heir without reason. There is no reason for exclusion of natural legal heir. The propounder has not removed the doubt existing around the Will. No attempt was made to prove that the deceased signed the Will by summoning the bank record, record of pension or any other document to show that the testor signed the Will or that the Will is thumb marked by her. If disputed signatures are not compared with the admitted signatures then the registered document shall have little value. There is no explanation for not producing the Will before the municipal authorities for obtaining mutation/sanction. There is also no explanation as to why the propounder has not summoned the relevant record pertaining to the signatures of the deceased. There is no explanation and no evidence has PC-79/13/97 Page:-30/37 come as to why the place for date was left blank and who has inscribed the date 30. It has also not been explained that when and where and by whom the date 30th was written on the said Will dated 30.4.90. It shows that Will was already written and typed and date was manipulated subsequently without knowledge of the deceased. The Will cannot be said that of the deceased. The testimony of PW-3 examined in this case is unreliable, contradictory and untrustworthy and it is not safe to rely his testimony. The witness claim that he has taken the rough note from the deceased and got it typed at Tis Hazari from the typist. He could not name the said typist. There is no refeference in the Will regarding the taking of rough notes, role played by Shanti Swaroop Gupta and Om Prakash in preparing the draft of the Will. Even he could not point out the portion which was written at their instance. He aslo could not tell the number of pages of the draft. There is no mention in the Will that he took the draft, got it typed or that para 2 of the Will was written at the instance of Om Prakash and Shanti Swaroop. He has also not disclosed the name of the person who was present at that time and corrected the draft. Even he has not verified the rough draft with the typed Will. The language used in the Will, alone shows that an illiterate PC-79/13/97 Page:-31/37 person cannot use the said words. The words used shows that the Will dated 30.4.99 has not been prepared at the instance and dictation of the deceased. It appears that the Will has been prepared by a person having legal knowledge of the requirement of the law, well versed with the language to be used. The Will cannot be said to be of the testator and the testator has not dictated the said Will dated 30.4.90 propounded by S.M. Goel. The testimony of PW4, belies the statement, circumstances and the manner of execution of Will dated 30.4.90. The role played by Om Prakash and Shanti Swaroop as claimed shows that the Will is not of that of the deceased. The testimony of the witness that no blank space was left and no correction was carried out on the Will shows that the Will is manipulated one. This fact alone is a suspicious circumstances and no one has explained who has written the date. Hence it is sufficient to reject the present petition. Further, the testimony of Mr. R.K. Aggarwal(PW-3) is self contradictory regarding the execution and signing of the said Will by the executant and the attesting witnesses. His testimony is also not in consonance with the testimony of Sh. Om Prakash(PW-4) regarding the execution and signing of the Will by the witnesses and their presence.
PC-79/13/97 Page:-32/37 PW-3 has testified that the Will was signed by the attesting witnesses on 30.4.90 wheras Sh. Om Prakash(PW-4) have very specifically and repeatedy stated in his chief that he signed on the said Will on 5.5.90. This is one of the very major contradiction in the testimonies of Pw-3 and PW-4 and this alone creates a suspicion regarding the authenticity of the execution of the Will. The registeration, its execution of Will dated 30.4.90 in the hospital was not explained in the petition. Even the registeration is also doubtful. Sub Registrar has not visited the hospital. There is no explanation with regard to the advocate Mahavir Singh either in the petition or in the statement of the witnesses examined by S.M. Goel and other witnesses. It has not been explained how the signature and stamp of Mahavir Singh, Advocate appeared on the Will. No one has explained who engaged him, when engaged and when and where and what time and place and for what purpose he was called and he put his signatures and stamp on the Will. No one has said regarding his presence, payment and the circumstances under which he was called for. This is also one of the major suspicious circumstance regarding the valid execution of the Will. The propounder has miserably failed to remove the suspicious circumstances in PC-79/13/97 Page:-33/37 this regard also. Sh. Om Prakash, Sh. Shanti Swaroop, attesting witnesses were admittedly not there in the hospital on 3.5.90. The signatures of both of them do not appear on the Will, on which date it was claimed to have been regsitered. The statement of PW-3, R.K. Aggarwal that on 3.5.90 besides him, deceased Om Prakash, Shanti Swaroop were present in the hospital when the officials of Sub Registrar visited the hospital to register the Will is incorrect. The witnesses never appear before the Sub Registrar for registration of the alleged Will. Sh. Om Prakash PW-4 in his examination in chief has never stated that he visited the hospital on 3.5.90.
22. Further, though Cl. for objector has tried to argue that on 30.5.90 Tarawati was discharged but there is some contradiction regarding the nature of her discharge and the Will should not be taken as correct but this argument is not tenable as filmsy. It is also argued that PW-3 claimed on 30.4.90 and 3.5.90 no family member visited the hospital from morning to evening and it is highly improbable that when the head of the family ageing 75 years is admitted in hospital for treatment no family member or relative visited the hospital during the whole day. It was also argued that in St. Stephens hospital nobody is permitted to enter the female or other ward PC-79/13/97 Page:-34/37 without pass/ticket of entry or before 4 p.m.. It was stated that in this case it is specifically stated by the witnesses in their depositions that no specific permission was obtained from the hospital authorities. It was stated that the testimony of the witnesses is at variance with regard to the visit and arrival at the hospital on 30.4.90 the day the Will is said to have been execution. Again all the said arguments being filmsy are hereby rejected.
23.It is further argued by the Cl. for objector that it is very surprising that the propounder of the said Will dated 30.4.90 preferred not to summon any record or any witness from the office of Sub Registrar where the said Will is said to have been registered. It was also stated that even PW-1 in his cross stated that he was not present at the time of registration of Will of his mother but he had presented the application for registration of Will. He also stated that his mother had not authorised in writing to move an application before the Sub Registrar. However, I disagree with the said argument since it is settled law that registeration of the Will is not compulsory and the same is optional one. Accordingly the said arguments are declined. However on other grounds as observed above, suspicious circumstances, have been duly proved. Further it is rightly stated on behalf of the objector PC-79/13/97 Page:-35/37 Asha Gupta that PW-2 tired to prove the Will dated 20.3.1971 of Sh. Vidya Bhushan Gupta but has not been able to prove the signatures as this witness claimed to be having weak eyesight. It is correct that this witness has also not been able to fulfill the mandatory requirements of Sec 68 of Evidence Act as well as Sec 63(3) of Indian Succession Act, 1925. PW-2 even not stated that Vidya Bhushan Gupta has signed Will Ex. 4/1 in his presence and the atteting witneses also signed in presence of each other as well as in presence of Sh. Vidya Bhushan Gupta. Except this witness no other witness has been examined to prove the Will Ex. 4/1 therefore the said Will remained unproved and putting exhibition mark PW-4/1 is of no consequence. Although his affidvit was filed but he was required to testify in this case by oral evidence. Even the deposition of attesting witness to Will dated 30.4.90 Sh. Om Prakash suffers from lot of contradictions as well as suspicious circumstances which shows that he has not only been interesting witness but he has been making false as well as contradictory statements in his cross examination which and accordingly his connivance with the petitioner cannot be ruled out. Though it is made out that Om Prakash was signatory to another Will dated 18.03.1971 propounded by L. PC-79/13/97 Page:-36/37 M. Goel but he refused to identify the signatures on same so his veracity is doubtful.
24. In view of the above strong cloud of suspicion surround both the Will dated 20.3.71 and 30.4.90 and hence it is held that the Wills dated 20.3.71 and 30.4.90 are not genuine and does not depict real intention of respective executants/testators. Thus, in all these circumstances the suspicious circumstances made out as above have not been sufficiently explained and it cannot be stated that the Will in question was last testamentary disposition of the testator out of free will and without coercion. Accordingly issue no. 1 is decided in favour of the objectors and against the petitioner.
25.Relief:- In view of the above finding, instant petition is hereby dismissed with costs. File be consigned to record room.
Announced in the open court on (AJAY GOEL) 26.11.13 ADJ-12(Central)Delhi. PC-79/13/97 Page:-37/37