Delhi District Court
Jatinder Kumar Khurana vs Punjab National Bank on 17 May, 2012
IN THE COURT OF CIVIL JUDGEI, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Apoorv Sarvaria, DJS
C.S. No: 143/10
Unique Case ID No. 02403C0313652010
Jatinder Kumar Khurana,
S/o Late Sh. Sohan Lal Khurana,
Kesar Niwas, Behind Fort
Mohalla Telian,
Bathinda - 151001 .....Plaintiff
Versus
Punjab National Bank,
Through its Branch Manager,
Tolstoy Marg Branch, Janpath,
New Delhi - 110001.
Smt. Valarie
W/o Late Sh. S.K. Khurana ..... Defendant No. 1
Sh. Kevin
S/o Late Sh. S.K. Khurana ..... Defendant No. 2
Addresses of Defendant nos. 2 & 3 at:
1508, Coban Road
La Habra Heights,
California 90631 ..... Defendant No. 3
CS No. 143/10 Page 1 of 25
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
DATE OF INSTITUTION : 31.05.2010
DATE OF ARGUMENTS : 21.04.2012
DATE OF DECISION : 17.05.2012
JUDGMENT
1. By filing the present suit, the plaintiff seeks a declaration that he is entitled to operate the locker no. 1264, Type F (hereinafter referred to as "the locker"), and also is entitled to withdraw the amount lying in Savings Bank account no. 0131000500000079 (hereinafter referred to as the "SB account") and FD account 013100TA00000516 (hereinafter referred to as the "FD account") of Late Sh. Surinder Kumar Khurana maintained with the defendant no. 1 Bank alongwith up to date interest. He further seeks a decree of mandatory injunction in favour of the plaintiff and against the defendant no. 1 Bank directing the defendant no. 1 Bank to allow the plaintiff to operate the locker maintained with the defendant no. 1 Bank after getting the duplicate key prepared or breaking open the locker under the Bank Rules after receiving necessary charges from the plaintiff. A further prayer is for another mandatory injunction against the defendant no. 1 Bank and in favour of the plaintiff directing the defendant no. 1 Bank to allow the plaintiff to operate the locker and to withdraw the amount lying in the SB account and FD account maintained with the defendant bank. CS No. 143/10 Page 2 of 25 Background Facts
2. The brief facts are that the plaintiff Sh. Jatinder Kumar Khurana is the real brother of Late. Sh. Surinder Kumar Khurana, both being sons of Late Sh. Sohan Lal Khurana. It is further stated in the plaint that Late Sh. Surinder Kumar Khurana left India and started residing in California, USA where he was the resident of 1508, Coban Road, La Habra Heights, California USA. Late Sh. Surinder Kumar Khurana used to visit India from time to time during his life time and stayed at Delhi as well as in Bhatinda, Punjab with the plaintiff.
3. It is further stated that during the visits of Late Sh. Surinder Kumar Khurana to India he had opened the SB account and also hired the locker in question on 12.07.1993 with the Punjab National Bank, Tolstoy Marg Branch, Janpath, New Delhi110001 which is the defendant no. 1 herein. He also made fixed deposit with the defendant no. 1 Bank for a maturity value of Rs. 1,29,673/ vide FD account which is the subject matter of the suit. It is further submitted that the plaintiff came to know about the SB account, the locker and the FD account on 31.05.2007.
4. The plaintiff has further stated that during his life time, Late Sh. Surinder Kumar Khurana while he was at Bhatinda, Punjab executed a will dated 11.07.1989 at Bhatinda, Punjab bequeathing his entire movable and immovable properties in favour of plaintiff and to the exclusion of other heirs since Late. Sh. Surinder Kumar Khurana had a lot of love and affection towards the plaintiff. It is stated that the CS No. 143/10 Page 3 of 25 plaintiff is not only the beneficiary, but also the executor of the will dated 11.07.1989 of Late Sh. Surinder Kumar Khurana. It is further stated that Late Sh. Surinder Kumar Khurana expired on 26.04.2004 at 1508, Coban Road, La Habra Heights, California USA. After death of Late Sh. Surinder Kumar Khurana, the plaintiff is stated to be the only legal heir entitled to the movable and immovable properties left behind by Late Sh. Surinder Kumar Khurana in accordance with the will dated 11.07.1989. The plaintiff intimated the defendant no. 1 Bank about the factum of death of Late Sh. Surinder Kumar Khurana vide letter dated 31.05.2007 and requested the defendant no. 1 Bank to allow the plaintiff to operate the locker maintained with the defendant no. 1 Bank by getting a duplicate key prepared or breaking open the said locker under the Bank Rules as the original key of the said locker with Late Sh. Surinder Kumar Khurana was misplaced and not traceable. The plaintiff also required the defendant no. 1 Bank to pay the amount lying in credit in the SB account and FD account maintained by the deceased Late Sh. Surinder Kumar Khurana. However, the defendant no. 1 Bank required the plaintiff to submit application as well as indemnity bonds with two sureties to the defendant no. 1 Bank to allow the plaintiff to operate the locker and to pay the amount lying in the credit of SB account and FD account of the deceased Late Sh. Surinder Kumar Khurana. The plaintiff is stated to have submitted the application as well as the indemnity bonds with two sureties with the CS No. 143/10 Page 4 of 25 defendant in the month of June, 2007. However, it is stated that despite the submission of the application as well as the indemnity bonds with two sureties, the defendant no. 1 Bank did not allow the plaintiff to operate the locker by getting the duplicate key or breaking it open. The defendant no. 1 Bank also did not pay the amount lying in the credit in the SB account as well as FD account of the deceased Sh. Surinder Kumar Khurana. The plaintiff wrote letters dated 17.01.2008, 26.06.2008, 18.02.2009 and 05.10.2009 in this regard but he received no response from the defendant no. 1 Bank.
5. It is further submitted that on 28.05.2010, when the plaintiff again met the officials of the defendant no. 1 Bank , the defendant no. 1 Bank required the plaintiff to obtain a court order otherwise they will not recognize the plaintiff as well as the rights of the plaintiff for operating the locker or to withdraw the amount in the SB account and the FD account on the basis of the will dated 11.07.1989. The plaintiff told the officials of the defendant no. 1 Bank that no court order is required to be obtained as per law. However, the defendant no. 1 Bank did not allow the request of the plaintiff. Hence, the plaintiff has filed the present suit.
6. The suit was filed on 31.05.2010. Summons were issued to the defendant no. 1 Bank and thereafter the defendant no. 1 Bank filed its written statement.
7. In the written statement, the defendant no. 1 Bank has raised an CS No. 143/10 Page 5 of 25 objection that without obtaining the probate of the will dated 11.07.1989 from the court, the plaintiff is not entitled to any relief. It is further submitted in the reply that the plaintiff had not approached this court with clean hands and concealed material facts from this court. It is further submitted in the reply that in the absence of a probate certificate, the present suit is an abuse of process of law. It is further submitted in the reply that the defendant no. 1 Bank is bound by the decision of this court and will allow to operate the SB account, the locker and the FD account of Late Sh. Surinder Kumar Khurana as per the direction of this court. However, it be ensured that there is no other will in existence and the will dated 11.07.1989 is genuine and not forged. The defendant no. 1 Bank also pleaded limitation as ground for dismissal of the suit.
8. It is noted that on 18.10.2010, this court directed the plaintiff to file the original documents including the original will dated 11.07.1989 and original death certificate of Late Sh. Surinder Kumar Khurana. The plaintiff was also directed to file an affidavit stating the names of the relatives of Late Sh. Surinder Kumar Khurana. On 20.12.2010, the plaintiff had complied with the order dated 18.10.2010 in its entirety. On 20.12.2010, the plaintiff was further directed to publish a notice in a newspaper having circulation in Bhatinda, Punjab mentioning about the pendency of the present suit and inviting any person desirous of participating in the suit to appear before this court. The plaintiff had CS No. 143/10 Page 6 of 25 effected publication in terms of order dated 20.12.2010 in the newspaper (Statesman) on 29.12.2010.
9. On 14.05.2011, Ms. Valerie and Mr. Kevin (the wife and son of late Sh. Surinder Kumar Khurana) were impleaded as defendants no. 2 and 3 in the present suit. On 06.08.2011, the Ld. Predecessor proceeded ex parte against defendants no. 2 and 3.
Issues
10. From the pleading of the parties, the Ld. Predecessor of this court framed the following issues on 23.08.2011:
1.Whether the suit is barred by the law of the limitation? OPD.
2.Whether Sh. Surinder Kumar Khurana had executed a valid will on 11/07/1989? OPP.
3.Whether the plaintiff is entitled to the mandatory injunctions, as prayed for? OPP.
4.Relief.
Evidence lead by the parties
11. The plaintiff produced 6 witnesses. He examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. Thereafter he was cross examined. The plaintiff further produced Sh. Mohan Inder Singh Arora, Nephew of the plaintiff (Sister's Son of the Plaintiff) as PW2 who tendered his evidence by way of affidavit Ex. PW2/A. Thereafter, PW2 was cross examined. PW2 is one of the surety to the defendant Bank and witness to one of the indemnity bonds. Plaintiff CS No. 143/10 Page 7 of 25 further produced Sh. Bineet Kumar Khurana and Sh. Anup Kumar Sharma as PW3 and PW4 respectively. They tendered their evidence by way of affidavits Ex. PW3/A and Ex. PW4/A respectively. They were the signatories of indemnity bond, surety bond and the application. PW3 is one of the surety to the defendant Bank and witness to one of the indemnity bonds. PW4 is the witness to both the indemnity bonds. Plaintiff further produced Sh. Anil Gupta as PW5 who was the witness to the will dated 11.07.1989 Ex. PW1/1. Thereafter, PW5 was cross examined. The plaintiff also produced Sh. Prem Nath Seth as PW6 who had notarized the will Ex. PW1/1. Thereafter, PW6 was cross examined.
12. On 28.01.2012, the Ld. Advocate for the defendant submitted that the defendant did not wish to lead any evidence. In view of the statement made by the Ld. Advocate for the defendant, the matter was listed for final arguments.
Arguments
13. This court has heard Sh. Mohit Gupta, Ld. Advocate for the plaintiff on 21.04.2012. The Ld. Advocate for the plaintiff reiterated the submissions made in the plaint. In addition, he drew reference to the will dated 11.07.1989 Ex. PW1/1. He further made reference to Ex. PW1/2 which is the death certificate of Late Sh. Surinder Kumar Khurana. He further submitted that Late Sh. Surinder Kumar Khurana had a wife and a son. However, to the knowledge of the plaintiff Late CS No. 143/10 Page 8 of 25 Sh. Surinder Kumar Khurana had taken divorce from his wife during his life time. He further submitted that till year 2007, the plaintiff did not know about the Bank locker, SB account and the FD account maintained by Late Sh. Surinder Kumar Khurana in the defendant no. 1 Bank. He further submitted that on 31.05.2007, the plaintiff wrote a letter to the defendant no. 1 Bank requesting the bank to let him operate and withdraw the amount lying in the credit of SB account and the FD account maintained by Sh. Surinder Kumar Khurana, the deceased. He further submitted that on 23.06.2007, the plaintiff had submitted the surety bonds, indemnity bonds and the application to the defendant bank alongwith the other documents which are Ex.PW1/4 (Colly). Further he made reference to the letter dated 17.01.2008 Ex PW1/5 letter dated 26.06.2008 Ex. PW 1/6 letter dated 18.02.2009 Ex. PW1/7 and letter dated 05.10.2009 Ex. PW1/8 written by the plaintiff to the defendant no. 1 Bank regarding the plaintiff's application and his request for operating the locker and withdraw the amount lying in the credit of SB account and FD account maintained by Late Sh. Surinder Kumar Khurana. He further referred to the postal receipts Ex. PW1/9 to PW1/12 as proof of dispatch of the letters Ex. PW1/5 to Ex. PW1/8 to the defendant. He further submitted that the cause of action arose on 28.05.2008 when the defendant no. 1 Bank refused to give access to the SB account and the FD account as well as the locker and required the plaintiff to obtain the probate certificate from the court. He CS No. 143/10 Page 9 of 25 further submitted that the testimony of the witnesses produced by the plaintiff as well as the documents filed on behalf of the plaintiff proves that the plaintiff is the legal heir of the deceased and is authorised to operate the SB account and the FD account as well as the locker in question.
14. Since there was no appearance on behalf of the defendant no. 1 Bank when the arguments were heard, the defendant no. 1 bank was given liberty to file written note of arguments before 01.05.2012. However, no written submissions have been filed on behalf of the defendant no. 1.
15. This court has heard the Ld. Advocate for the plaintiff and perused the record.
Findings
16. The issue wise findings of this court are as under: Issue No. 1: Whether the suit is barred by the law of the limitation? OPD.
17. The onus to prove the Issue no. 1 was on the defendant. In his examination in chief, PW1 who is the plaintiff himself deposed that he intimated the defendant no. 1 Bank the fact of death of Late Sh. Surinder Kumar Khurana by letter dated 31.05.2007 Ex. PW1/3. He further deposed that on 28.05.2010 when the plaintiff alongwith his son Sh. Bineet Kumar Khurana met the official of defendant no. 1 Bank, the defendant no. 1 Bank for the first time refused the request of the plaintiff to allow him to operate the locker and to pay him the amount CS No. 143/10 Page 10 of 25 lying in credit in the SB account and the FD account of the deceased Late Sh. Surinder Kumar Khurana. In his cross examination, PW1 had deposed that the information regarding the bank accounts and the FDRs was given to him by Sh. Mohan Inder Singh, his nephew who is bank employee himself and the information was given in 2007. He further deposed in his cross examination that he did not inquire about the assets of Late Sh. Surinder Kumar Khurana prior to 2007. In the considered view of this court, on the basis of the deposition of PW1, it is clear that cause of action in the present suit arose on 28.05.2010 when the defendant no. 1 Bank refused the application of the plaintiff to allow him to operate the locker and to withdraw the amount lying in the credit of SB account and the FD account of the deceased Late Sh. Surinder Kumar Khurana. The suit was filed on 31.05.2010. Nowhere in the cross examination of PW1, the defendant no. 1 Bank has put any suggestion regarding the date of refusal of his application. Since the onus to prove the Issue No. 1 is on the defendant, the defendant has failed to do so. Therefore, in the considered view of this court, the suit is within the limitation period as prescribed under Articles 58 and 135 of the Schedule to the Limitation Act, 1963 and is not barred by the law of limitation.
18. Issue no. 1 is decided in favour of the plaintiff and against the defendant.
CS No. 143/10 Page 11 of 25 Issue no. 2: Whether Late Sh. Surinder Kumar Khurana had executed the valid will on 11.07.1989. OPP
19. The onus to prove issue no. 2 is on the plaintiff. The decision on issue no. 2 can be taken by deciding two questions: Whether this Court can decide the question of validity of will when the plaintiff has not obtained a probate of the will dated 11.07.1989? If yes, then whether the will dated 11.07.1989 was validly executed by Late Sh. Surinder Kumar Khurana?
Requirement of probate in Delhi
20. As regards the objection taken by the defendant no. 1 Bank in its written statement that without obtaining the probate of the will dated 11.07.1989 from the court the plaintiff is not entitled to any relief, Sh. Mohit Gupta, learned Advocate for the plaintiff submitted that in Delhi there is no need to obtain probate from a court of law and a will can be proved in a collateral proceeding. In support of his submission, he relied upon the decisions of the Hon'ble High Court of Delhi in Sardar Khushwant Singh & Anr. v. Kirpal Singh 2010 II AD (Delhi) 335, Rajan Suri v. State AIR 2006 Delhi 148, Sardar Prithipal Singh Sabharwal v. Jagjit Singh Sabharwal 1996 (3) AD (Delhi) 281, Aishwarya Dev Chand Katoch v. TM Properties Pvt Ltd 2006 (133) DLT 89, Ranjan Suri v. State 2005 (125) DLT 433, Sardar Prithipal Singh Sabharwal v. Maj. (Retd.) Jagjit Singh Sabharwal 1996 (37) DRJ 643 and Capt. (Retd.) O. P. Sharma v. Kamla Sharma 158 CS No. 143/10 Page 12 of 25 (2009) DLT 631 (DB).
21. Upon perusal of the judgments relied upon by learned Advocate for the plaintiff, this court is satisfied that there is no need to obtain probate in Delhi and a Will can be proved in a collateral proceeding. Mode and manner of proving a Will
22. On the question whether the will dated 11.07.1989 was validly executed by Late Sh. Surinder Kumar Khurana, learned Advocate for the plaintiff has relied upon the decisions of Hon'ble Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma and Ors. AIR 1959 SC 443 and Mahesh Kumar v. Vinod Kumar and Ors. 2012 III AD (SC) 472 dealing with the mode and manner of proving a will. This court has heard learned Advocate for the plaintiff.
23. In H. Venkatachala Iyengar, the Hon'ble Supreme Court made the following observations: (AIR @ p. 451) "18. What is the true legal position in the matter of proof of wills ? 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 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 the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for CS No. 143/10 Page 13 of 25 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 shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature 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 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 CS No. 143/10 Page 14 of 25 like any other document except as to the special requirements of attestation prescribe by S. 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. However, 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. 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 CS No. 143/10 Page 15 of 25 execution of the will may be surrounded by suspicions 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 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.
21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders CS No. 143/10 Page 16 of 25 themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory CS No. 143/10 Page 17 of 25 evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (A I R 1946 P C
156) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth," It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
(emphasis added)
24. In Jaswant Kaur v. Amrit Kaur AIR 1977 SC 74, the Hon'ble Apex Court observed as under (AIR @ p.77):
"10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this court in R. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426 = (AIR 1959 SC 443). The Court, speaking through Gajendragadkar J. laid down in that case 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, CS No. 143/10 Page 18 of 25 so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act required a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity, in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited CS No. 143/10 Page 19 of 25 because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test 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 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."
25. In Mahesh Kumar's case, the Hon'ble Supreme Court, after referring to the decisions in H. Venkatachala Iyengar and Jaswant Kaur, further went on to observe that active participation of the propounder/beneficiary in the execution of the will or exclusion of the natural heirs can not lead to an inference that the will was not genuine. CS No. 143/10 Page 20 of 25 The Hon'ble Supreme Court in Mahesh Kumar's case relied upon the decision in Uma Devi Nambiar Vs. T C Sidhan (2004) 2 SCC 321 in support of this proposition.
26. Coming back to the present case, the plaintiff has produced himself as PW1 as the executor of the will dated 11.07.1989. In his affidavit in evidence Ex. PW 1/A, PW1 has categorically submitted that the deceased Late Sh. Surinder Kumar Khurana had divorced his wife Valerie and his wife had taken his son Kevin, who was mentally retarded by birth, during the life time of Late Sh. Surinder Kumar Khurana and he had severed all relations and connections with them.
27. Further, for proving the will dated 11.07.1989 Ex. PW1/1 he has also produced Sh. Amit Gupta as PW5 who was the attesting witness to the will dated 11.07.1989 Ex. PW1/1. PW5 specifically deposed that the will dated 11.07.1989 Ex. PW1/1 was executed in his presence and also in presence of other attesting witness Late Sh. Sat Prakash Garg. He further deposed in his crossexamination that the will dated 11.07.1989 Ex. PW1/1 was personally dictated by Sh. Surinder Kumar Khurana. Thus the requirement for calling atleast one attesting witness for the the purpose of proving the execution of the will Ex. PW1/1 has been satisfied.
28. The plaintiff has also produced Sh. Prem Nath Seth as PW6 who had notarised the will dated 11.07.1989 Ex. PW1/1. He brought the relevant page of his register Ex. PW6/A wherein the entry regarding notarisation CS No. 143/10 Page 21 of 25 of the will Ex. PW1/1 was made at Serial No. 544 dated 11/07/1989. PW6 further identified the signatures of the deceased Sh. Surinder Kumar Khurana at point X on the original will. He further identified his own signature, seal and stamp on the will Ex. PW1/1.
29. In view of the deposition of PW1, PW5 and PW6, this court is of considered view that the will dated 11.07.1989 Ex. PW1/1 is a valid will.
30. Further, the plaintiff has taken sufficient steps by effecting the publication in the newspaper (Statesman) having vide circulation in Bhatinda, Punjab on 29.12.2010 whereby he invited any person desirous of participating in the present suit to appear before this court. The defendants no. 2 and 3 (the wife and the son of Late Sh. Surinder Kumar Khurana) were also impleaded as parties and have been proceeded exparte and no objection has been received on their behalf. Therefore, the plaintiff has removed all legitimate suspicions by clear and satisfactory evidence..
31. Hence, this court is satisfied that the plaintiff has proved the execution of the will dated 11.07.1989 Ex. PW1/1. This court is also satisfied that from the material placed on record, no other will was made by the deceased Sh. Surinder Kumar Khurana after will dated 11.07.1989 Ex. PW1/1.
32. Therefore, this court is satisfied that Late Sh. Surinder Kumar Khurana had executed a valid will dated 11.07.1989 Ex. PW1/1. Issue no. 2 is decided in favour of plaintiff and against the defendant. CS No. 143/10 Page 22 of 25 Issue no. 3 Whether the plaintiff is entitled to the mandatory injunctions, as prayed for? OPP.
33. In view of this court's finding in issue no. 2 that Late Sh. Surinder Kumar Khurana had executed a valid will dated 11.07.1989 Ex. PW1/1, this court is of the considered view that the plaintiff is the legal heir and is entitled to all the movable and immovable properties of the deceased Sh. Surinder Kumar Khurana to the exclusion of all the heirs of the deceased.
34. As PW1, the plaintiff has deposed in his affidavit in evidence Ex.PW1/A that he submitted the application as well as indemnity bonds with two sureties with the defendant no. 1 Bank in the month of June, 2007. The plaintiff further produced Sh. Mohan Inder Singh Arora, Nephew of the plaintiff (Sister's Son of the Plaintiff) as PW2 who is one of the surety to the defendant Bank and witness to one of the indemnity bonds. Plaintiff further produced PW3 Sh. Bineet Kumar Khurana and PW4 Sh. Anup Kumar Sharma. PW3 is one of the surety to the defendant Bank and witness to one of the indemnity bonds. PW4 is the witness to both the indemnity bonds submitted to the defendant no. 1 Bank. The defendant no. 1 Bank has not brought any evidence on record to prove that the plaintiff has not submitted the application as well as indemnity bonds with two sureties with the defendant no. 1 Bank.
35. The plaintiff is, therefore, entitled to the mandatory injunctions as prayed for. Issue no. 3 is, therefore, decided in favour of plaintiff and CS No. 143/10 Page 23 of 25 against the defendant.
Issue no. 4 Relief.
36. In view of the findings of this court in the issues nos. 2 and 3, it is declared that the plaintiff is entitled to operate locker no. 1264, Type F and also entitled to withdraw the amount lying in Savings Bank account no. 0131000500000079 and FD account no. 013100TA00000516 of Late Sh. Surinder Kumar Khurana maintained with the defendant no. 1 bank alongwith up to date interest.
37. The plaintiff is further entitled to the relief of the mandatory injunction and the defendant no. 1 bank is directed to allow the plaintiff to operate locker no. 1264, Type F maintained with the defendant no. 1 bank after getting the duplicate key or breaking open the locker under the bank rules after receiving necessary charges from the plaintiff.
38. The plaintiff is further entitled to the mandatory injunction against the defendant no. 1 and the defendant no. 1 bank is directed to allow the plaintiff to operate locker no. 1264 Type F and to withdraw the amount lying in Savings Bank account no. 0131000500000079 and FD account no. 013100TA00000516 of Late Sh. Surinder Kumar Khurana maintained with the defendant no. 1 bank.
39. The above two reliefs of mandatory injunctions are subject to compliance of formalities including submission to the defendant no. 1 bank of indemnity bonds and surety bonds and other documents to the satisfaction of the defendant no. 1 bank. The suit is decreed in the CS No. 143/10 Page 24 of 25 above terms. Decree sheet be prepared. File be consigned to record room.
Announced in the Open Court (Apoorv Sarvaria) on 17.05.2012. Civil JudgeI, New Delhi District New Delhi CS No. 143/10 Page 25 of 25