Delhi District Court
Sh. Amit Swami vs Sh. M. K. Sharma on 26 February, 2022
IN THE COURT OF SH. RAJESH KUMAR,
ADDITIONAL DISTRICT JUDGE-03
EAST DISTRICT, KARKARDOOMA COURTS
PC No. 41/2016
CRN No. DLET010004032012
In The Matter of;-
1. SH. AMIT SWAMI
S/O SH. J. K. SWAMI
R/O 454-455,
MOHALLA MAHARAM,
SHAHDARA, DELHI-110032
2. SH. ANKUR SWAMI
S/O SH. J. K. SWAMI
R/O 454-455,
MOHALLA MAHARAM,
SHAHDARA, DELHI-110032 .....PETITIONERS
VERSUS
1. SH. M. K. SHARMA
S/O LATE SH. LAKHAN LAL SHARMA
R/O 2-B, DEEPA APARTMENTS,
10, I. P. EXTENSION, DELHI
2. SH R. K. SHARMA (DECEASED)
2(A) SMT. SHEELA SHARMA (WIFE)
W/O LATE SH LAKHAN LAL SHARMA
PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 1 of 21
2(B) SH. RAJEEV SHARMA (SON)
S/O LATE SH LAKHAN LAL SHARMA
R/O K. C. 102/4,
KAVI NAGAR, GHAZIABAD, U.P.
2(C) SH. SANJEEV SHARMA (SON) (DECEASED)
S/O LATE SH LAKHAN LAL SHARMA
2(C)(i) MS. ANJALII SHARMA (DAUGHTER)
D/O LATE SH SANJEEV SHARMA
R/O R/O M.S.-1/8, SECTOR-A, JANKIPURAM, (SIC)
ALIGANJ, LUCKNOW, ALIGANJ,
UTTAR PRADESH-226024
2(C)(ii) MR. AYUSH SHARMA (SON)
S/O LATE SH SANJEEV SHARMA
R/O M.S.-1/8, SECTOR-A, JANKIPURAM,
ALIGANJ, LUCKNOW, ALIGANJ,
UTTAR PRADESH-226024
2(d) SH KUSHLENDRA KUMAR SHARMA (SON)
S/O LATE SH R. K. SHARMA
R/O K. C. 102/4,
KAVI NAGAR, GHAZIABAD, U.P.
2(e) SMT. SADHNA SHARMA (DAUGHTER)
D/O LATE SH R, K, SHARMA
R/O A-16, VIVEK VIHAR PHASE-II,
DELHI
3. SH S. K. SHARMA
PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 2 of 21
S/O LATE SH LAKHAN LAL SHARMA
R/O 10, MINI M. I. G. FLATS,
FRIENDS COLONY, NEW SAHGANJ,
AGRA, U.P.
4. SH V. K. SHARMA
S/O LATE SH LAKHAN LAL SHARMA
R/O 4, AMARMANJARI,
BASANT BIHAR, BUNGALOW,
AHMEDABAD, GUJRAT-380058
5. SMT. SARLA DEVI (DECEASED)
W/O LATE SH. MANI SHANKAR SHARMA
5.(a) SH RAKESH SHARMA (SON)
S/O LATE SH. MANI SHANKAR SHARMA & LATE
SMT. SARLA DEVI
R/O 11/127, SECTOR-3, RAJINDER NAGAR,
SAHIBABBAD, GHAZIABAD, U.P.
5.(b) SH RAJEEV KUMAR SHARMA (SON)
& LATE SMT. SARLA DEVI
S/O LATE SH. MANI SHANKAR SHARMA
R/O 11/127, SECTOR-3, RAJINDER NAGAR,
SAHIBABBAD, GHAZAIBAD, U.P.
5.(c) SMT. MEENAKSHI SHARMA (DAUGHTER)
D/O LATE SH MANI SHANKAR SHARMA
& LATE SMT. SARLA DEVI
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R/O B-2, SECTOR-3, BLOCK-10,
ASHA KIRAN APARTMENT,
RAJINDER NAGAR, SAHIBABBAD,
GHAZAIBAD, U.P.
5.(d) SH NISHANT SHARMA (MATERNAL GRAND SON)
S/O LATE SMT. SUNITA SHARMA
(D/O LATE S MANI SHANKAR SHARMA & LATE SMT.
SARLA DEVI)
R/O 55, NIMRI COLONY,
ASHIK VIHAR, DELHI
5 (d) (i) SH. NIRMIT SHARMA (MATERNAL GRANDSON)
S/O LATE SMT. SUNITA SHARMA
(D/O LATE S MANI SHANKAR SHARMA & LATE SMT.
SARLA DEVI)
R/O 55, NIMRI COLONY,
ASHIK VIHAR, DELHI
6. SH VIJAY SHARMA (DECEASED)
S/O LATE SH RADHE KANT SHARMA AND LATE SMT.
PREM
6(i) SMT. PRAMOD BALA SHARMA (WIFE)
W/O LATE SH VIJAY SHARMA
R/O 97, PANDIT WALI GALI, TIKRI KHURD,
NARELA, DELHI-110040
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6(ii) MR. PUNEET SHARMA (SON)
S/O LATE SH VIJAY SHARMA
R/O 97, PANDIT WALI GALI, TIKRI KHURD,
NARELA, DELHI-110040
6(iii) MR. ABHISHEK SHARMA (SON)
S/O LATE SH VIJAY SHARMA
R/O 97, PANDIT WALI GALI, TIKRI KHURD,
NARELA, DELHI-110040
7. SH VINOD SHARMA
S/O LATE SH RADHE KANT SHARMA AND LATE SMT.
PREM
C/O SH SURESH BHARDWAJ
TIKRI P.O.- BOX KHURD,
DELHI-110040
8. SH AJAY KUMAR (DECEASED)
S/O LATE SH RADHE KANT SHARMA AND LATE SMT.
PREM
C/O SH SURESH BHARDWAJ
TIKRI P.O.- BOX KHURD,
DELHI-110040
9. THE STATE
....RESPONDENTS
PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 5 of 21
DATE OF FILING OF THE PETITION : 19.01.2012
FINAL ARGUMENTS HEARD ON : 22.02.2022
DATE OF JUDGEMENT : 26.02.2022
PROBATE PETITIION UNDER SECTION 276 AND 278 OF INDIAN
SUCCESSION ACT, 1925
JUDGMENT
1. As per petition, this is the petition seeking grant of probate of the Will in respect of property bearing house no. 454-455, Mohall Maharam, Shahdara, Delhi-110032 of deceased Smt. Chander Kala Devi (herein after referred to the testatrix) under section 276 and 278 of the Indian Succession Act, 1925 (hereinafter called the Act). The testatrix Smt. Chander Kala Devi is the maternal grandmother of the petitioners and she died on 19.10.1995 at Delhi. The ordinary place of residence of deceased testatrix during her lifetime and at the time of her death was House no. 454-455, Mohalla Maharam, Shahdara, Delhi-110032. Deceased testatrix was a wife of late Sh. Lakhan Lal Sharma who was the exclusive and absolute owner, and in possession of above stated properties.
2. As per petition, late Sh. Lakhan Lal Sharma died intestate, and then all his legal heirs transferred/ relinquished their share in favour of testatrix, and as such said property has been mutated in the name of testatrix and thereafter, testatrix became absolute owner of all movable and immovable properties and other assets of her husband. On 01.02.1994, testatrix had executed her last and final Will and testament in respect of abovesaid property bequeathing the same in favour of her daughter namely Smt. Raj Kumari Sharma w/o Sh. J. K. PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 6 of 21 Sharma who is mother of the petitioners, in the presence of two attesting witnesses. The deceased testatrix as per her wishes given all the properties to Sh. Raj Kumar Sharma in her sound health and disposing mind, without any undue influence, coercion, pressure etc. from any side whatsoever. It is further stated in the petition that the said Will was duly executed and testatrix put her thumb impression on 01.02.1994 after being fully satisfied with the contents of said Will in presence of two attesting witnesses who further attested the said Will in presence of deceased testatrix. The deceased testatrix by way of aforesaid Will had specifically cancelled and revoked all the previous Wills. It is also stated in the petition that one of the attesting witness Sh. Sushil Kumar Jain verified the petition alongwith the petitioners as proof to the execution of the said Will, while the second witness Sh. S. K. Berry had expired. It is further stated in the petition that deceased Smt. Raj Kumari Sharma the mother of both the petitioners died on 18.05.2009 at Delhi whose ordinary place of residence was above said property. Deceased Raj Kumari Sharma left behind two sons who are petitioners in the present petition. It is further stated that by virtue of the above said Will dated 01.02.1994 executed by testatrix Smt. Chander Kala Devi, she became the exclusive and absolute owner of abovesaid suit property. On 20.04.2004 Smt. Raj Kumari Sharma had executed her last and final Will and testament and bequeathed her estate i.e. property bearing house no. 454- 455, Mohall Maharam, Shahdara, Delhi-110032, in favour of petitioners as there is no other legal heirs of testatrix Smt. Raj Kumari Sharma except petitioners. It is prayed that probate of Will dated 01.02.1994 executed by late Smt. Chander Kala Devi and further a letter of administration in favour petitioners in respect of above said property bearing house no. 454-455, Mohall Maharam, Shahdara, Delhi-110032, be granted.
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3. Notice of the petition was directed to be issued to all the respondents as well as to the State through Collector; general public by way of citation in newspapers "Rashtriya Sahara" and also to the near relations of the deceased. One copy of citation was also displayed on the Courts notice board.
4. On being served, the respondent no. 1 Sh. M. K. Sharma and respondent no. 5 Smt. Sarla Devi filed their separate objections. The respondent no.5 has reiterated the same lines as of respondent no. 1. The respondent no. 1 and 5 did not admit the claim of the petitioners, stating the same to be false. As per their objections, that testatrix Late Smt. Chander Kala Devi was not the sole and absolute owner of above said property and consequently, any Will executed by her, even if same is assumed to be correct for sake of arguments, is of no legal consequence. It is submitted that respondents/ legal heirs of late Sh. Lakhan Lal Sharma have not made relinquishment of their share in favour of testatrix. It is further submitted that relinquishment cannot be legally made without any instrument in writing, and no evidence or document in support of aforesaid relinquishment has been placed on record by the petitioners.
5. As per their objections, the respondents denied that the testatrix had executed aforesaid Will dated 01.02.1994 in favour of mother of petitioners. It is further stated that the Will in question is on the face of it is forged and fabricated as the same does not bear the signature of testatrix. It is further stated that the testatrix was well educated and could sign her name properly.
6. It is also stated that at the time of her death, deceased testatrix Smt. Chander Kala Devi was residing with respondent no.1 and could not have executed the said Will in favour of Smt. Raj Kumari Sharma. It is further stated that Smt. Raj Kumari Sharma was never the owner of aforesaid property and PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 8 of 21 therefore, she had no right to bequeath the aforesaid property in favour of petitioners by means of Will. The aforesaid property of Late Mr. Lakhan Lal Sharma is self-acquired property and he died intestate on 04.09.1979 leaving behind 8 legal heirs (wife, 4 sons and 3 daughters), on whom the suit property is devolved in 1/8th undivided share each and after demises of Smt. Chander Kala Devi (expired on 19.10.1995), the aforesaid suit property devolved upon the remaining 7 LRs in equal share. It is further denied that the property in question was mutated in the name of deceased testatrix and it is submitted that even today the property for the purposes of property tax stands in the name of original owner i.e. Sh. Lakhan Lal Sharma. It is admitted that presently the suit property is in possession of the petitioners.
7. Rejoinder/ Reply to the objections filed by respondent no.1 and 5 have been filed by the petitioners which are primarily a reiteration of the contents of the petition as correct.
8. On 14.05.2013, the following issues were framed viz:−
1. Whether the deceased Chandra Kala Devi had executed valid WILL dated 01.02.1994 in favour of Raj Kumari Sharma? OPP
2. Whether the present petition is not maintainable? OPR
3. Relief.
9. In evidence, the petitioners examined three witnesses. The first witness of the petitioners is petitioner no.1 himself Sh. Amit Swami and in support of his case, petitioner filed his evidence by way of affidavit which is Ex. PW-1/1. He also relied on Schedule A regarding legal heirs of late Smt. Chander Kala Devi which is Ex. PW-1/A, Schedule B with respect of immovable property left by Smt. Chander Kala Devi Ex. PW-1/B, her original Will dated 01.02.1994 PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 9 of 21 executed by testatrix in favour of Smt. Raj Kumari Sharma which is Ex. PW- 1/C, photocopy of death certificate of Smt. Raj Kumari Sharma Mark A, original Will dated 20.04.2004 executed by Smt. Raj Kumari Sharma in favour of both the petitioners which is Ex. PW-1/D and the petition filed by the petitioners which is Ex. PW-1/E. He was duly cross examined by ld. Counsel for objector/ respondents. During cross examination, he deposed that he does not remember if testatrix used to visit or reside with her other sons (objectors) and denied the suggestion that testatrix used to regularly visit and reside with her sons. He denied the suggestion that the testatrix died intestate. He admitted that there is no such document in his possession vide which LRs of his maternal grandfather had relinquished their share in favour of his maternal grandmother i.e. testatrix/ Smt. Chander Kala Devi. It is admitted that testatrix died at the residence of respondent no.1 at I. P. Extension, Delhi. He also relied upon photocopy of letter issued by MCD which is Mark A in respect of ownership of testatrix. He also stated that he is not aware whether testatrix had left any other property except the present one. Regarding the Will executed by Smt. Raj Kumari Sharma, the witness stated that it came to his knowledge that a Will was executed in the year 2004 by her. It is also admitted that witness received the Court notice in respect of suit for partition before the Hon'ble High Court of Delhi and thereafter, he searched the document and found the Will in question in his house. The witness further stated that he had not filed any government document to show that testatrix was absolute owner of property in question.
10. The second witness of the petitioner is petitioner no.2 Sh. Ankur Swami and in support of his case, petitioner no.2 filed his evidence by way of affidavit which is Ex. PW-2/1. He was also duly cross examined by the Ld. Counsel for all the respondents. The witness admitted that he had not filed any document to show that testatrix was absolute owner of property in question. The witness PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 10 of 21 during cross examination on the later date, produced ownership document of property bearing no. 455, Mohalla Maharam, Delhi-110032 which are General Power of Attorney Ex. PW-2/A, Agreement to Sell Ex. PW-2/B and receipt Ex. PW-2/C, all dated 21.09.1977. Witness further stated that he does not know where the aforesaid documents were prepared and attested. Witness further stated that he does not know whether the property in question had been purchased by testatrix or not. Witness further stated that testatrix was illiterate. Witness further stated that no document is filed with respect to mutation in favour of testatrix.
11. The third and last witness of the petitioners is Sh. Sushil Kumar Jain who is attesting witness of WILL dated 01.02.1994 executed by deceased Chander Kala Devi. He filed his evidence by way of affidavit as Ex. PW−3/A. As per his affidavit, that he was present when the testatrix had put her thumb impression on the original Will Ex. PW-1/C with her sound health and disposing mind, and he also signed as a witness on the Will on said date and time. It is also stated in his affidavit that he can identify the thumb impression of the testatrix on the said Will. It is also stated in the affidavit that another attesting witness Sh. S. K. Berry also singed on the said Will in his presence and in the presence of testatrix. It is also stated in the affidavit that testatrix had put her thumb impression after understanding the contents of the Will. He was also cross examined by the Ld. Counsel for all the respondents. During cross examination, the witness submitted that he knew testatrix through his friends Sh. S. K. Berry who resides in front of house of testatrix. It is further stated that he was not personally known to testatrix, and he was not called by testatrix. It is further stated that S. K. Berry had asked him to visit the house of testatrix Chander Kala Devi. It is further stated that he was not having any previous intimation of becoming a witness of the Will. It is further stated by the witness that Will Ex.
PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 11 of 21 PW-1/C was not prepared before him but he admitted that Smt. Chander Kala Devi had put her thumb impression on the Will before him and Mr. S. K. Berry had described the contents of Will to testatrix in Hindi. It is further stated that testatrix was in her sound health and disposing mind and she was conscious enough in his presence. Witness further stated that he does not have personal knowledge in respect of ownership of property. Witness further stated that S. K. Berry had told him that testatrix was the absolute owner of said property and wanted to execute the Will in respect of the said property. Witness denied the suggestion that he was deposing falsely.
12. In respondent evidence, respondent no.1 himself examined as RW-1. In support of his evidence, he filed his evidence by way of affidavit which is Ex. RW-1/A. Witness relied upon following documents i.e. MCD bill dated 25.06.1959 Ex. RW-1/1, MCD bill dated 25.06.2010 Ex. RW-1/2, electricity bill dated 15.06.2010 Ex. RW-1/3, death certificate of Lakhan Lal Sharma dated 04.09.1979 Ex. RW-1/4, death certificate of Chander Kala Devi dated 17.11.1995 Ex. RW-1/5, letters and money orders are Ex. RW-1/6 to Ex. RW- 1/9, marriage card dated 27.02.1975 Ex. RW-1/10, receipts of LIC policies are Ex. RW-1/11 to Ex. RW-1/13 and I card of Bharat Electronic Limited (BEL) Ex. RW-1/14. This witness was duly cross examined by Ld. Counsel for the petitioners. During cross examination, he deposed that he does not have any sale deed to show that Sh. Lakhan Lal Sharma was the absolute owner of said property and he also does not have any document to show that both properties are measuring about 175 sq. yrds. The witness denied the suggestion that presently the petitioners are filing the house tax before EDMC in respect of said properties. The witness does not know whether petitioners are paying electricity and water charges to respective authorities. The witness further denied the suggestion that late Smt. Chander Kala Devi was the absolute owner of both the PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 12 of 21 said properties. The witness admitted that the house tax was paid by late Sh. Lakhan Lal Sharma but MCD had never issued any document in respect to the ownership of both the said properties in the name of Lakhan Lal Sharma. The witness further deposed that Sh. Lakhan Lal Sharma expired on 22.08.1979. Witness further stated that he cannot produce any document regarding the fact that Lakhan Lal Sharma had paid house tax to MCD. Witness further stated that testatrix was 10th pass. Witness further stated that he had not filed any document in respect of educational qualification of testatrix but denied the suggestion that she was illiterate. Witness further denied the suggestion that petitioners are co- owners of suit property by virtue of said Will Ex. PW-1/C. Witness further stated that he does not know about the title documents of above said property. Witness further stated that his father was the absolute owner of the said property. Witness further denied the suggestion that he was deposing falsely.
13. No further witnesses were examined by either side.
14. I have heard the submissions made by the Ld. Counsels of both the parties and gone through the record carefully. As issue no.1 and 2 are connected, both these issues are dealt with simultaneously.
15. 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.
PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 13 of 21
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. (AIR 1989 Gujarat 75 (DB) tilted as Vijaya Ben Vs. State).
16. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required (AIR 1998 Madhya Pradesh1 titled as Chandan Vs. Longa Bai).
17. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed above but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court.
18. It has been argued by Ld. Counsel for respondents that testatrix Smt. Chander Kala Devi was not the exclusive and absolute owner of the above said property and also denied that none of the LRs of deceased Sh. Lakhan Lal Sharma ever made any relinquishment in favour of testatrix. It is also argued that no documentary evidence to prove relinquishment in favour of testatrix, have been placed on record by the petitioner, and therefore, testatrix had no right, title or interest over the property in question, qua which the Will had been executed by testatrix, and therefore, the Will Ex. PW-1/C has no value in the eyes of law. It is a settled provision of law that a court acting under the Indian Succession Act for grant of probate acts as the court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the probate proceedings. The probate court do not decide the question of title, or of PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 14 of 21 existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. In the case of Chiranjilal Shrilal Goanka Vs. Jasjit Singh, (1993) 2 SCC 507, the Hon'ble Supreme Court has made pertinent observations about the nature of probate proceeding in the following words:
"The Succession Act is a self-contained Code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. Thus, it does not more than establish the factum of the Will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself."
18.1 Similarly, in the case of Kashi Nath Vs. Dulhin Gulzari, AIR 1941 Patna 475, it was held that in an application for probate of Will or for the grant of letter of administration with the copy of the Will annexed the sole question that arises whether or not the Will is a true one. It is not open to the probate court to decide whether or not the property with which the testator has purported to deal, in fact, belonged to him. Thus, in the present proceedings, the court is not to decide whether the testatrix had no right, title or interest in the property bequeathed by her. This Court shall decide whether the Will dated 01.02.1994 by Smt. Chander Kala Devi in favour of Smt. Raj Kumari was validely executed or not.
19. The onus of proving the Will is on the person propounding the same. The Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 15 of 21 Act. If there are suspicious circumstances surrounding the execution of the Will, the same have also to be dispelled by leading satisfactory evidence by the propounder of the Will before the Will could be acted upon. (Indu Bala Bose & Ors. Vs. Manindra Chandra Bose & Anr. AIR 1982 SC 133; Madhu D. Shinde Vs. Tarabai Aba Shedge (2002) 2 SCC 85, and Sashi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee AIR 1964 SC 429).
20. As stated, petitioners have produced one attesting witness as PW-3 Sh. Sushil Kumar Jain who in his affidavit had stated that testatrix had put her thumb impression on the Will Ex. PW-1/C in his presence and at that time she was in her sound health and disposing mind and conscious enough. He further stated that other attesting witness Sh. S. K. Berry also signed the Will in his presence. He further stated that testatrix about 80-85 years of age when she executed the Will. Another attesting witness Sh. S. K. Berry described the contents of the Will to testatrix Chander Kal Devi in Hindi and she put her thumb impression on the Will while sitting in her room. It is argued on behalf of Ld. Counsel for respondents that deceased was illiterate lady and well conversant in reading and writing Hindi and she had studied up to 10 th standard. It is also argued that testatrix usually send letters to respondent no.1 Sh. M. K. Sharma when he was far from Delhi for his service and she used to acknowledge the money orders sent by him to her. Some old letters/ post cards wrote by testatrix and acknowledgement of money orders by testatrix are filed by respondent no.1 which are Ex. RW-1/6 to Ex. RW-1/9. It is further argued that testatrix was educated lady hence, she need not have put thumb impression on the Will in question. It is further argued that as it is evident from the said Will that it does not have the signature of testatrix, the said Will on the face of it is forged and fabricated. It is further argued that at the time of her death testatrix was residing with respondent no.1 therefore, she could not have executed the PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 16 of 21 said Will. The Ld. Counsel for the objectors/ respondents has argued that the suspicious circumstances pointed out above have not been explained by the petitions, therefore, the petitioners have failed due execution of the said Will.
21. I will now deal with suspicious circumstances pointed out above. It is evident from the evidence of PW-1 that testatrix died on 19.10.1995 and as per the statement of attesting witness PW-3 Sh. Sushil Kumar Jain that testatrix was about 80-85 years of age when she executed the Will. Will was executed on 01.02.1994. Hence, the Will was executed around 20 months prior to the death of testatrix. It has not been submitted by the respondents that deceased testatrix was ill or mentally and physically indisposed during the said period. Attesting witness Sh. Sushil Kumar Jain PW-3, in the cross examination submitted that at the time of putting her thumb impression, the testatrix was in her sound health, conscious enough and disposing mind. He also submitted that she put thumb impression on the Will at her house and contents of the Will were explained to the testatrix by another attesting witness Sh. S. K. Berry.
22. It has been held by Hon'ble Delhi High Court in L.C. Lai and others Vs. State, 2002 VII AD (DELHI) 343, that the burden of establishing sound state of mind of the testator is on the person propounding the Will, but this burden is very light because there is presumption of soundness of mind in favour of every testator. However unless there is cogent material on record to doubt his capacity to dispose, the court must go by this presumption. No evidence, whatsoever, has been produced by the objectors to prove that the testatrix was not having sound disposing state of mind at the time of execution of the Will. No record of medical treatment has been filed to show that the testatrix was lying indisposed or was not having sound state of mind. Even suggestions had not been given to the witnesses to show that testatrix was not having sound state of mind. Hence, PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 17 of 21 there is nothing on record to suggest that the testatrix was not having sound disposing mind at the time of execution of the said Will.
23. As far as thumb impression of the testatrix on the Will is concerned, the respondents have not produced any documentary evidence to suggest that the witness studied up to 10th standard. Respondents relied upon some letters and acknowledgment Ex. RW-1/6 to Ex. RW-1/9 to show that same were written by the testatrix but only photocopies of the same are placed on record. Original of the same were not produced on record. Moreover, perusal of the photocopy of said letters and acknowledgment shows that same are written in Hindi and bears the name of Chander Kala but in absence of any other legally admissible evidence, none of these prove that it was written by testatrix. As per the testimony of PW-3, the testatrix was around 80-85 years of age at time to execution of Will but it is also stated that she was in her sound health and disposing mind. Respondents have not placed on record any evidence to show that testatrix due to old age, has lost control over her senses and has become of unsound mind person. Moreover, mere old age is not sufficient to presume that mental capacity and sound disposing mind has been affected. Testatrix died about after 20 months of the execution of the Will which ruled out the possibility of manipulating the Will and putting undue influence on her mind. Respondent witness No.1 is son of testatrix. According to him, testatrix used to send letters to him and acknowledge the money orders sent by him to her, hence, the witness claims to be acquainted with the handwriting of testatrix to prove that she was literate but no other admitted documents from the school of testatrix or bank etc. have been placed on record by the respondents. Except self-serving statement regarding literacy of testatrix, no other documents have been placed to show that she was literate. Attesting witness PW-3 has categorically stated that testatrix put her thumb impression in his presence on PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 18 of 21 the Will and contents of the same were explained to her in Hindi. For the sake of arguments, if it is presumed that testatrix was literate, it is not necessary that a person who is literate and used to sign, must sign the Will instead of putting thumb impression. Executant, due to old age, might have chosen to put her thumb impression instead of signing due to weakness of body or due to shivering of hands, but as per law putting of thumb impression or any other mark, also validate the Will if due execution of the same is proved. The onus to proof that said Will was forged and fabricated was upon the respondents but they failed to adduce any reliable evidence to discharge the said onus. Section 68 of The 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, then such witness 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. In the instant case, the petitioner's witness PW-3 namely Sh. Sushil Kumar Jain has satisfied the yardstick of execution as required u/s 68 of The Indian Evidence Act.
24. The Will was executed around 20 months prior to death of testatrix. Deceased Raj Kumari Sharma was the daughter of testatrix and also the sister of other respondent. It is nobody case that Raj Kumari Sharma was not related to the deceased or that she was not the daughter of testatrix. It is also nobody's case that Raj Kumari Sharma has any strained relations with the testatrix. As Raj Kumari Sharma was also legal and natural heirs of the testatrix, no suspicious should be raised regarding execution of the Will bequeathing the property in her favour because the whole idea behind the execution of Will is to interfere with the normal line of succession. Disinheritance of other natural heirs from the property cannot constitute suspicious circumstances in the PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 19 of 21 present case as Raj Kumari Sharma was also the daughter of testatrix. Testatrix can pick and choose even from her close legal heirs and the exclusion of respondents despite having good relations with the deceased are not sufficient to treat it as a grave unexplainable suspicious circumstances.
25. In view of the forgoing discussion, I come to the conclusion that the Will Ex. PW-1/C dated 01.02.1994 was executed by testatrix Smt. Chander Kala Devi in presence of two attesting witness in sound state of mind and it is a valid Will of late Smt. Chander Kala Devi in favour of Smt. Raj Kumari Sharma. Hence, there is nothing on record to show as to why the present petition is not maintainable. Respondents have miserably failed to prove as to why, the present petition is not maintainable, and hence, both the issue no.1 and 2 are decided in favour of the petitioners and against the respondents.
26. Issue No.3 (Relief) 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 section 222, 234 & 276(e) and in other cases only letters of administration with Will annexed can be granted. In the instant case, no one has been named as executor of the Will hence, only letter of administration can be issued in such case. Testatrix has bequeathed the property in question in favour of Raj Kumari Sharma by way of Will Ex. PW-1/C, hence, late Smt. Raj Kumari Sharma was beneficiary under the Will. Both the petitioners are sons of Raj Kumari Sharma and they are also her legal heirs. Both the petitioners are also relying upon a Will executed by their mother Raj Kumari Sharma bequeathing the property in question in their favour. In absence of executor, letter of administration may be granted to beneficiary under the Will. Raj Kumar Sharma had already expired. Both the petitioners are neither executors nor beneficiaries under the Will Ex. PW-1/C. As per Section 234 of Indian Succession Act, 1925:-
PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 20 of 21
234. Grant of administration where no executor, nor residuary legatee, nor residuary legatee, nor representative of such legatee.- When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the Will, and letters of administration may be granted to him or them accordingly.
26.1 Though, both the petitioners are neither executors nor beneficiaries under the Will but in view of Section 234 of Indian Succession Act, 1925, letter of administration may be granted to the person who would be entitled to the administration of deceased if he died intestate. In the instance case, both the petitioners are legal heirs of deceased Raj Kumari Sharma and would be entitled to letter of administration of the estate of the deceased if she died intestate.
Hence, letter of administration can be granted in favour of the petitioners.
27. Hence, petitioners are therefore, entitled for grant of letter of administration. Petition is accordingly, allowed. Letter of administration be issued in favour of petitioners with Will Ex. PW-1/C annexed thereto for the due administration of the estate of the deceased in terms of wishes of the testatrix subject to filing requisite court fee and administration bond with surety.
Digitally signed by
28. File be consigned to record room. RAJESH RAJESH KUMAR KUMAR Date:
2022.02.26 14:11:05 +0530 Pronounced in the open Court ( RAJESH KUMAR) On 26.02.2022 Additional District Judge-03 (East) Karkardooma Courts, Delhi PC No. 41/2016 Amit Swami & Anr. Vs. M. K. Sharma & Ors. Page No. 21 of 21