Delhi District Court
Preeti @ Preeti Vihsal vs The State ( Govt. Of Nct Of Delhi) on 11 April, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 05/09
New P.C. No. 16066/16
Preeti @ Preeti Vihsal
W/o Late Sh. Vishal Sharma
R/o Gali No. 6, Kamla Kuteer,
Wazirabad Village,
Delhi- 110084
..........Petitioner
Vs.
1 The State ( Govt. of NCT of Delhi)
2. Sh. Jai Pal Singh Kaushik
S/o Late Sh. Tika Ram Kaushik
3. Kumar Vaibhav
S/o Sh. Jai Pal Singh Kaushik
Both respondent no. 2 & 3
R/o Quarter No.-794, Second floor,
Timarpur, Behind Timarpur Bus stand
Also at:-
Unauthorized occupant
Ground floor, Gali No. 6
Kamal Kuteer, Wazirabad Village,
Delhi
......Respondents
Date of institution of the case : 30.05.2009
Date reserved for judgment on : 13.03.2018
Date of pronouncement of judgment: 11.04.2018
JUDGMENT:
1 A petition under Section 218/276 of the Indian Succession Act for grant of Probate or Letter of Administration in PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 1/33 respect of the immovable property left behind by late Smt. Kamla Singh D/o Sh. Jaganath Seth W/o Jai Pal Singh Kaushik has been filed.
2 In brief the facts are that Smt. Kamla Singh D/o Sh. Jagnath Seth W/o Jai Pal Singh Kaushik (hereinafter referred to as "deceased") was the resident of Kamal Kuteer, Gali No. 6, Wazirabad Village, Delhi-110084 ( hereinafter referred to as ' property in question') and died on 08.04.2009 at Delhi 3 It is stated that deceased, mother of the petitioner and she died intestate leaving behind his immovable property in question consisting one big room, kitchen and latrin, bath room at ground and on first stairs, two big rooms latrin, bath room and some open space and terries i.e one room and open space, measuring area 100 sq. yards.
4 The deceased has left behind the petitioner, respondent no. 2 and respondent no. 3 but respondent no. 2 & 3 are living separately from the deceased from last many years and the deceased had no relations with the respondent no. 2 & 3 i.e. husband and son respectively.
5 It is stated that deceased executed a Will dated 08.03.2009 in the presence of three witnesses, in favour of the petitioner regarding the property in question with her free will and desire, without any fear, pressure and coercion. It is stated that deceased had purchased the property in question from Sh. Surinder Singh S/o Chaudhary Fatheh Singh, by her own account through GPA, Agreement to Sell, Affidavit & receipt, so the PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 2/33 property in question is self acquired property and deceased also nominate her daughter i.e. petitioner as nominee in her service book, before the death. Petitioner seeks probate/letter of administration in her favour.
6 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Statesman" dated 24.08.2009 ".
7 The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Asstt Collector GR-II, Civil Lines, Delhi filed valuation report in respect of property bearing no. Kamal Kutir, Gali No. 6, Wazirabad, Delhi and assessed the value of the same as Rs. 2,50,4,600/-.
8 Respondent no. 2 Sh. Jai Pal Singh Kaushik & respondent 3 Sh. Kumar Vaibhav filed reply/objections to the petition and taken preliminary objection that present petition is filed by the petitioner on the basis of forged and fabricated Will. It is stated that petitioner has concealed the material facts from this Hon'ble court that deceased was suffering from cancer and her treatment was going on in Sant Parmanand Hospital, Civil Lines, Delhi and on 31st January, 2009 her situation became very serious and her health was deteriorated day by day. It is stated that deceased was taken to Rajiv Gandhi Cancer Institute and was admitted in the ICU on 09 th March, 2009 and ultimately expired on 08.04.2009 in the hospital itself.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 3/33 9 It is stated that from the above fact it is clear that deceased was not having sound and disposing mind and even she was not able to think property as she was suffering from cancer and was feeling pain which cannot be tolerated by any cancer patient much less by the deceased. The objector, i.e husband of deceased stated that he was spending huge amount upon his deceased wife and this fact can be proved by the cheques he has received from his department and this fact can further be proved from the medical facility card which the objector has received from his department i.e the Directorate of Education, Delhi and the deceased was also insured alongwith the objector and this insurance was obtained on 12 th January, 2009.
10 It is stated that husband of the petitioner is working as document writer at Sub-Registrar's Office, Kashmere Gate, and other palaces also due to this reason he is able to forge and fabricate the Will specifically in the facts and circumstances the deceased was not able to think properly nor she was able to know what is written on the paper or what she is going to write on the paper.
11 It is stated that petitioner was residing at her in-laws house at F-419, Gali No. 6, Wazirabad Village, Delhi, i.e 60 houses away from the premises where the objector was living with his wife and children and petition is liable to be dismissed on this ground alone. It is stated that deceased was not able to think and speak properly since the day she was shifted from Sant Parmanand Hospital to Rajiv Gandhi Cancer Hospital due to severe pain suffered by her as she was in advance stage of PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 4/33 cancer and ultimately died on 08.04.2009. He was having good relations with his wife and both were having love and affection with his son i.e objector no. 2 and their grand son.
12 It is stated that above said Will was forged and fabricated by the petitioner in collusion with her husband Shri Vishal, who is working as a document writer in the office of Sub- Registrar, Kashmere Gage, Delhi. The petitioner got signed the Will as an attesting witness from her friends after the death of the deceased because the alleged witnesses to the said will never visited the hospital.
13 It is stated that Will dated 08.03.2009 is forged and fabricated and the same has been prepared after the death of deceased and this fact can be easily proved by the facts mentioned by the petitioner in para no. 2 of the petition which is totally correct and the said fact mentioned by the petitioner is totally correct. The petitioner is in the habit of making forged documents and making the false statement. This fact can be easily proved by para No. 10 of the pleadings because the present objector are the legal heirs bing the husband and son of the deceased.
14 It is stated that petitioner with the ulterior motives has mentioned the address Kamal Kuteer, Gali No. 6, Wazirabad Village, Delhi as she was well within the knowledge that he was residing alongwith his wife and children while the petitioner never residing in Kamal Kuteer, Gali No. 6, Wazirabad Village, Delhi and she was residing at F-419, Gali No. 6, Wazirabad Vilalge Delhi. It is denied that objector was living separately from deceased.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 5/33 15 It is stated that though the property was purchased by the deceased with her name but the major contribution was done by the objector Shri J.P.S. Kaushik. The Will dated 08.03.2009 is false and frivolous and the same has been prepared and got attested after the death of deceased as deceased was not able to read, write and sign properly and her signatures and thumb impression was forged by the petitioner.
16 It is stated that no cause of action has ever arose in favour of the petitioner to file the present petition; petitioner has no locus standi to file the present petition; the petition is bundle of lies and the petitioners has not come to this court with clean hands and suppressed the material facts. Respondent no. 2 & 3 seeks dismissal of the petition.
17 Petitioner filed replication to the objections filed on behalf of respondent no. 2 & 3 and reiterated the averment mentioned in the petition. It is stated that the attesting witnesses are school mates of the deceased and because of this reason deceased had very much faith upon them and called at the time of execution of the Will dated 08.03.2009. The witnesses were also present at the time when body of the deceased was taken by petitioner from hospital and cremation took place. Hence the objection of the objection is liable to be rejected.
18 It is stated that relation with the objector was so strained that deceased used to write herself as daughter of and not wife of moreover the objector had been detained only complaint lodged by the deceased in police station in the year 2003 and since the objector did not have any concern with her PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 6/33 but after the death of deceased with malafide intention to grab the property in question illegally objector no. 1 came suddenly in the picture.
19 Respondent no. 2 & 3 also filed rejoinder to the reply of petitioner filed to the objections of the respondents and denied all the averments mentioned in the reply of the petitioner and reiterated the objections taken by them.
20 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 06.09.2011:-
1. Whether the Will dated 08.03.2009 executed by Smt. Kamla Singh is genuinely and validly executed in her sound disposing mind? OPP
2. Whether the petitioner is entitled for grant of Probate of the Will dated 8.3.2009, as prayed for? OPP
3. Relief
21 Petitioner in order to prove her case examined herself as PW-1 and tendered his evidence by way of affidavit Ex. PW- 1/A. She proved the documents i.e. death certificate of deceased Smt. Kamla Singh as Ex. PW-1/1, Site plan of the property in question as Ex. PW-1/2, Will Ex. PW-1/3 and GPA dated 04.11.1986 as Ex. PW-1/4.
22 Petitioner further examined Ms Sushila, the attesting witness to the Will dated 08.3.2009 who appeared in witness box as PW-2 and tendered her evidence by way of affidavit Ex. PW-
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 7/33 2/A. She identified her signatures on Will Ex. PW-1/3 at point A & B and her thumb impression at point E on the back side of the Will. She further deposed that the Will also bears the thumb impression and signatures of her husband, namely, Sh. Kishan Chand at point F. 23 Another attesting witness Ms Saroj Bala appeared in witness box as PW-3 who also tendered her evidence by way of affidavit Ex. PW-3/A. She deposed that Will Ex. PW-1/3 bears her thumb impressions and signatures at point D. Vide separate statement of ld. Counsel for the petitioner, evidence on behalf of petitioner was closed in affirmative on 15.01.2013.
24 Respondent no. 2 Sh. Jaipal Singh Kaushik appeared as RW-1 and tendered his evidence by way of affidavit Ex. RW- 1/A. He rely upon the document i.e copy of his passbook as Ex. RW-1/1, (OSR) copy of passport issued in the name of respondent no. 3 as Ex. RW-1/2 ( OSR), Copy of his ration card as RW-1/3, copy of registration certificate of vehicle bearing registration No. DL1SN 1271 as Ex. RW-1/4, Copy of his voter I-Card as Ex. RW-1/5 (OSR), copy of his Driving License as Ex. RW-1/6 ( OSR), Copy of his PAN Card as Ex. RW-1/7 ( OSR), Copy of Medical Facility Card issued by Delhi Government Employee Health Scheme issued on 31.03.2009 and applied/deposited on 12.01.2009 as Ex. RW-1/8 (OSR), Original Essentiality Certificate dated 30.03.2009 issued by Rajiv Gandhi Cancer Institute & Research Center as Ex. RW- 1/9, Copy of his bank statement as Ex. RW-1/10 and documents Mark A-1 to Mark A-5.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 8/33 25 Respondent further examined Sh. Nikunj Sharma MRD Technician from Rajeev Gandhi Cancer Institute as RW-2 who brought the medical records pertaining to deceased, who died on 08.04.2009 in their hospital. He brought the brief summary as Ex. RW2/B, death summary as Ex.RW2/C and final bills as Ex. RW- 2/D. 26 Respondent further examined Sh. Nand Kishore, Record Clerk, from Sant Parmanand Hospital who brought the record of deceased regarding Upper GI Endoscopy dated 02.02.2009 which was conducted by Dr. P. Maheswari, as Ex. DW3/A. 27 Respondent further examined Sh. Surender Kumar, LDC from Pay and Account office-8, G.T.B. Complex, Shahdara as DW-4 who brought the attested copy of cheque issue register for the period 01.04.2009 to 08.04.2009 in respect of cheque bearing No. 433306 amounting to Rs. 4,72,500/- issued in favour of Rajiv Gandhi Cancer Hospital against the Bill No. 7 dated 06.04.2009. He has no knowledge on whose account the cheque was issued. The record brought by him is Ex. DW-4/A. 28 Respondent further examined Ms Yogita, LDC from Establishment II, as DW-5 who brought the summoned record i.e. Form No. 3, declaration of family bears the signatures of late Smt. Kamla Singh at point X same is Ex. DW5/A. She deposed that attendance register for the period 2008-2009 has been weeded out and order of weeding out of the same is Mark -Z. In the cross-examination she admitted that the signatures at point X on Ex. DW5/A was done in her presence.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 9/33 29 Respondent further examined Mr. Sayed Faizal Huda , Forensic Expert as RW-6. He proved the report dated 27.10.2014 is Ex. DW6/A, which bears his signatures at point A along with the stamp on each page.
30 Respondent further examined Dr. Pawan Mahehwari as RW-7 who deposed that he has examined the patient Mrs. Kamla first time on 31st January, 2009. She complaint difficulty in eating. He advised Gaestroscopy, which was done on 02.02.2009 and which showed narrowing of the food pipe possibly extrinsic compression. He then advised admission and CT scan. After that he have not treated the patient. The patient was referred to a Cancer Hospital. Mark-A1 is the prescription slip which was issued by him after examining the patient Smt. Kamla. Vide separate statement of counsel for the respondent no. 2 & 3, evidence on behalf of respondent no. 2 & 3 was closed on 28.11.2015.
31 I have heard Sh. V. V. Singh counsel for the petitioner and Sh. Manish Pathak, counsel for respondent no. 2 & 3 and also perused the record, evidence led on record, written arguments and citation relied by ld. Counsel for respondent no. 2 & 3 in case Pratap Singh & Anr. Vs State, 157 (2009) Delhi Law Times 731, Delhi High Court filed on 10.04.2018.
Findings on issue no. 1 & 2 32 Both the above issues are taken simultaneously being inter-connected. Before appreciating the respective contentions of both the counsels, let us peruse the law laid down by the Apex Court.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 10/33 The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 11/33 a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 12/33 noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 13/33 33 The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... 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 dispositions in the will? Did he put his signature to the will knowing what it contained? Stated 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 Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 14/33 Even so, 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 dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of 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 favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. 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 the testator's free will and mind. In PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 15/33 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 the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
( emphasis supplied) 34 In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 16/33 the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court.
The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied) 35 In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar ( supra), PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 17/33 the Supreme Court culled out the following propositions:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. And subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally , the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 18/33 making of the will under which he receives a susbtantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circusmtances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is connection with wills, the execution of which
is surrounded by suspicious circumstances that the
test of satisfaction of the judicial conscience has
been evolved. That test emphasises that in
determining the question as to whether an
instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 19/33 absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied) 36 The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 20/33 [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied) 37 Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence would have adopted the same course and would not have given PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 21/33 anything to the ungrateful children from his/her share in the property."
38 In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied) 39 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 22/33 evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a) The testatrix shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testatrix, 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 testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 23/33 signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, 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.
20.2 Section 68 & 71 of the 1872 Act:
68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 24/33 received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 25/33 evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
40 As per record the present petition filed on 29.05.2009 by the petitioner Ms Preeti @ Preeti Vishal. It was pointed out during the course of the argument by the counsel for the respondents that initially the provision was mentioned under Section 218 of Indian Succession Act but later on with pen without seeking liberty add Section 276. Ld. Counsel for the respondent no. 2 & 3 also pointed out the addition in the petition in Para 6 & 12 and the contents of the affidavit where Section 276 is missing. It is highlighted that petition is not verified under Section 281 of Indian Succession Act.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 26/33 41 I have perused the contents of the petition. The typed title does not mention Section 276. It mentions only 218, however, it is specifically mention for grant of Probate or Letter or Administration. As per record it is not established whether the contents written by pen were added prior to filing of the petition or after, especially in Para 6 & 12 of the affidavit. However, the petition is not verified as per Section 218 of Indian Succession Act. In my opinion, it is a irregularity not illegality. It has been cured by examining by two attesting witnesses one PW-2 Smt Sushila and PW-3 Smt. Saroj Bala. In Para 2 there is a mentioning that deceased Kamla Singh died intestate. But after going through the complete contents of the petition, it is a mistake committed by the counsel for the petitioner because the will has already been pleaded specifically for which the present petition for grant of letter of administration/Probate has been sought. In my considered opinion these minor mistakes does not effect the present petition in any manner.
42 I have gone through the contents of the petition. In the petition there is no mentioning with regard to the very vital fact that deceased Kamla Singh was suffering from Cancer on the date of execution of the will or even prior. The petition is silent in this regard, however, the respondents in their written objections bring out the important fact that since 31.01.2009 deceased Kamla Singh was serious and detected with Cancer. She has undergone treatment at GTB Hospital, Sant Parmanand Hospital and Rajiv Gandhi Hospital. It is further apprised that deceased died in Rajiv Gandhi Hospital on 08.04.2009. It has been brought that Will in question dated 08.03.2009 Ex. PW-1/3 is one day prior to admission in Rajiv Gandhi Hospital and she died at the hospital on 08.04.2009.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 27/33 43 The silence on the part of the petitioner with regard to the serious ailment of Cancer of deceased Kamla Singh raises suspicious circumstances. Petitioner also has not even disclosed in respect of treatment of deceased Kamla Singh in her affidavit Ex. PW-1/A. Although in the written objections, respondents have categorically pleaded this fact and also later on filed all the medical documents of treatment of cancer of deceased. I would like to refer to the cross-examination of PW-1 Ms Preeti @ Preeti Vishal. In the cross-examination she maintained that her mother deceased Kamla Singh was not suffering from any disease and used to attend office at GTB hospital as she was working as Sister Incharge. However, she admitted that in the year 2009 she was not well and taken to Sant Parmanand Hospital for back pain. She was advised to go to AIIMS, later on she was advised to Rajiv Gandhi Cancer Hospital. She further admitted that after starting of the treatment within 5-6 days deceased started problem in taking food and suddenly got sick and advised at ICU. The test report diagnosed lungs cancer after 20 days. She admitted that expenditure on medical expenses was around Rs. 7 lacs. She denied that Rs. 4,72,500/- were paid by the Pay & Account Office,Govt. Of NCT of Delhi. She denied that her deceased mother Kamla Singh was seriously ill before 09.03.2009. She denied that deceased Kamla Singh was suffering from Cancer and not able to execute any Will as she was in not in full senses on 09.03.2009.
44 The testimony of PW-1 Preeti @ Preeti Vishal established that she had concealed the material fact with regard to serious ailment of Cancer of her deceased mother Kamla Singh from the court despite the fact that respondents categorically PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 28/33 and especially pleaded even she did not disclosed this fact in her affidavit and testimony, however, she has to admit this fact during her cross-examination.
45 PW-2 Smt. Sushila who taken the stand that she knew the deceased Kamla Singh very well as she was studying at Darya Ganj, Delhi with her being good friend. In her testimony, especially, in cross-examination she maintained the fact that deceased Kamla Singh was not suffering from any disease except the back pain. It is not believable that when a person is suffering from cancer and having food pipe and not able to take food then one cannot detect that she is suffering from such serious disease. The testimony of attesting witness PW-2 Ms Sushila is not believable in this regard. There is no explanation given why Sh. Kishan Chand also signed the Will Ex. PW-1/3 who is husband of Ms Sushila.
46 The other attesting witness PW-3 Smt. Saroj Balal who admitted the fact that deceased Kamla Singh died after one month from the date of her admission on 08.03.2009 due to lungs cancer. However, initially she maintained the stand that Kamla Singh was not suffering from any disease except the back pain. She came to know about the death 2-3 days after the death. Both the attesting witnesses denied the suggestion that Will Ex. PW-1/3 is forged and fabricated. In my considered opinion both the witnesses also concealed the vital fact with regard to the health condition of deceased Kamla Singh that she was suffering from Cancer since January, 2009 and under gone treatment and she was taking food from food pipe.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 29/33 47 The respondents examined RW-2 Sh. Nikunj Sharma, MRD Technician from Rajeev Gandhi Cancer Institute and Research Centre, who produced the medical record of Smt. Kamla Singh, deceased testatrix and proved her brief Summary as Ex. RW-2/A, Discharge Summary Ex. RW-2/B and death Summary as Ex. RW-2/C. He also proved the final bill as Ex. RW-2/D. 48 I have gone through the medical record. As per brief summary of the ailment of the deceased Kamla Singh was treated for lungs cancer. She was given Radiotherapy and later on from 19.03.2009 she was on chemotherapy. As per death summary she was presented with dysphagia, backache and loss of weight for 6-7 months in RGCI on 09.03.2009. She was dignose lungs cancer and two sessions of chemotherapy given from 19.03.2009 to 31.03.2009. She was also put to ICU on ventilator. She under went emergency tracheostomy on 03.04.2009 and finally died due to cardiac arrest on 08.04.2009. The medical record specifically established that she was suffering prior to her death about 6-7 months back and ultimately diagnose lungs cancer and admitted ICU on 09.03.2009 which one day prior to the execution of the Will Ex. PW-1/3.
49 In my considered opinion the above discussed circumstances with regard to the medical treatment and mental and physical health of the deceased Kamla Singh on 08.03.2009 raises serious suspicion in which she has executed the Will Ex. PW-1/3 in the back drop of the available fact that petitioner as well as both attesting witnesses concealed the material fact about her suffering from lungs cancer. It also raises suspicious circumstances when she had under gone Radiotherapy and in the PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 30/33 month of March she was under gone chemotherapy treatment and prior to that the evidence also come on record with regard to the Sant Parmanand Hospital of February 2009 where Dr. Pawan Maheshwari conducted Endoscopy. According to testimony of RW-7 Dr. Pawan Maheshwari he had examined deceased Kamla Singh on 31.01.2009 when she complaint difficulty in eating. It clearly established that since January, 2009 she was not able to eat properly and finally diagnosed with lungs cancer. In my considered opinion, the mental soundness and physical soundness of the deceased Kamla Singh raises suspicious circumstances on 08.03.2009 because on the next day she was got admitted at Rajiv Gandhi Cancer Hospital and died during the treatment on 08.04.2009.
50 Now coming to the Will Ex. PW-1/3. It is written in Hindi language. The writing on will used two different pens. The contents of the Will, address and the signatures of the deceased Kamla Singh with one pen and name of the three witnesses i.e first witness Saroj Bala at first page and two other witnesses i.e Kishan Chand and Sushilla on the second page are of different pen.
51 My attention has been drawn on the signatures of the deceased Kamla Singh at point 'P' on the Will Ex. PW-1/3 and signatures on the Pan Card Ex. PW-1/D1 which was produced during the cross-examination of petitioner Ms Preeti @ Preeti Vishal. Although respondents with the permission of the court examined handwriting expert Mr. Sayed Faizal Huda who has given his expert opinion with regard to these two signatures. He has compared with the photo copy of the Pan Card of deceased Kamla Singh and not with the original documents.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 31/33 52 I have gone through myself the signatures appeared on the Pan Card Ex. PW-1/D1 and on the Will Ex. PW-1/3 at point 'P". The letter 'K" written on Ex. PW-1/D1 and at Will at point P encircled 'P' can be visible from bear eye is completely of different strokes. The one line of 'K" on the Will is curved whereas in the photocopy Ex. PW-1/D1 it is straight. The word 'Singh' is not matching at all with the Pan Card word 'Singh'. In the signatures on photocopy Ex. PW-1/D1 there is no mention of word g & h which appear to be b in the Will encircled P on Ex. PW-1/3. In my opinion prima facie the signatures on the Will of deceased Kamla Singh also raises serious suspicious circumstances.
53 In the present case as per principal of law laid down in H. Venkatachala Iyangar ( Supra) in my considered opinion the present will Ex. PW-1/3 of deceased Kamla Singh is surrounded by suspicious circumstances which are not dispel by the petitioner. The silence in the petition as well in the deposition by the petitioner with regard to serious ailment of deceased from which deceased had suffered lungs cancer also corroborates the surrounded suspicious circumstances. The test of satisfaction of judicial conscious when applied in the present facts and circumstances it resulted that will Ex. PW-1/3 suffered from serious suspicious circumstances and the onus is not discharged by petitioner that the Will Ex. PW-1/3 is last, legal and valid will.
On the basis of above observation and discussion issue no. 1 & 2 are decided against the petitioner and in favour of respondents.
PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 32/33 54 Relief In view of finding on issue no. 1 & 2, the petition filed by the petitioner is dismissed. No order as to cost. File be consigned to record room.
Digitally signed SANJAY by SANJAY KUMAR KUMAR Date: 2018.04.12 21:25:51 +0530 (Announced in the open (SANJAY KUMAR) court on 11th April, 2018 ADJ-02 (West) Tis Hazari Courts Delhi PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 33/33 PC No. 5/09 Preety @ Preeti Vishal Vs State & Ors 34/33