Delhi District Court
Ms. Anju Kapoor vs ) State on 9 April, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
(One of the Oldest Probate Petition)
PC-57/13/97
In the Matter of:
Ms. Anju Kapoor
d/o late Sh . Atam Swarup Khanna,
r/o C-4/140, Safdarjung Development Area,
New Delhi.
.................. Petitioner
VERSUS
1) State
2) Sh. Anil Khanna
s/o late Sh. Atam Swarup Khanna,
r/o D-837(IInd floor),
New Friends Colony,
New Delhi.
3) (a) Mrs. Gita Khanna,
w/o late Sh. Ajay Khanna
(b) Ms. Jyotsana
d/o late Sh. Ajay Khanna
(c) Master Arav Khanna
s/o late Sh. Ajay Khanna
All residents of
r/o D-837(first floor),
New Friends Colony,
New Delhi.
4) Master Rajat Khanna
through father & natural guardian
Sh. Anil Khanna,
PC-57/13/97 Page:-1/36
r/o D-837(IInd Floor),
New Friends Colony,
New Delhi.
5) Ms. Nikki Kapoor
d/o Ms. Anju Kapoor
r/o D-837(Ground Floor),
New Friends Colony,
New Delhi.
Presently at 5062 Alder Irvine, California 92612
U.S.A.
......Respondents
Date of Institution: 10.10.97
Date of Assignment to this court: 22.7.13
Date of Arguments: 19.3.14
Date of Decision: 9.4.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 278 of Indian Succession Act for letter of administration in respect of the estate of deceased Sh. Atam Swarup Khanna in view of Will dated 7.11.96. The brief facts of the case as narrated in the petition are that Sh. Atam Swarup Khanna was residing at D-837 New Friends Colony, New Delhi and he died on 8.6.1997 at New Delhi leaving behind petitioner and respondents no. 2 and 3 as his heirs. It was stated that Sh. Atam Swarup Khanna had made his last Will dated 7.11.96 which was duly executed and duly witnesses by the witnesses which Will was executed by the testator out of his own will and without any influence,undue pressure from any PC-57/13/97 Page:-2/36 quarter. It was stated that petitioner being daughter of the deceased Sh. Atam Swarup Khanna is one of the beneficiaries under the Will. As stated Sh. Atam Swarup Khanna has bequeathed house no. C-4/140, Safdarjung Development Area, New Delhi, Ground Floor of D-837, New Friends Colony, New Delhi and one third share of shop no. 6114, Sadar Bazar, Delhi besides shares in movable properties which are clearly described in the Will apart from 1/3rd share which she has in other assets which have not been included. As stated petitioner has been one of the legal heirs and being the eldest of the family has become the executor of the Will in which she is also a beneficiary. It was accordingly prayed that letter of administration be granted to the petitioner in respect of last Will of the deceased dated 7.11.96.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed on record. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " National Herald" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper " National PC-57/13/97 Page:-3/36 Herald".
4. Respondents were served in the matter. Respondent no. 5 Nikki During the proceedings respondent no. 3 Sh. Ajay Khanna expired and his LRs were brought on record vide order dated 3.9.05 and vide said order Sh. Anil Khanna, respondent no. 2 was appointed as guardian Ad Litem/next friend of minors Jyotsana, respondent no. 3(b) and 3(c) and Master Arav Khanna.
5. Objections were filed on behalf of objectors Anil Khanna and Mrs. Gita Khanna w/o late Sh. Ajay Khanna jointly whereby it was stated that alleged Will was not executed by the deceased Sh. A.S. Khanna and the same is forged and manipulated. It was stated that deceased Sh. A.S. Khanna was not having sound state of mind on the date of alleged Will because he was suffering from paralytic stroke and was under the influence of medication. It was stated that even after reading so called alleged averments in the so called alleged Will it is clearly indicated that there was no such intention of the deceased Sh. A.S. Khanna to execute any such Will as alleged. It was stated that on reading of entire Will it is evidence from start till end that it is nowhere stated that who had executed it. It was stated that on one point it was mentioned C-4/140 but the area is not mentioned and complete PC-57/13/97 Page:-4/36 address was not mentioned which clearly indicates itself that he might be making some notes. It was further pointed out that in the alleged Will it was mentioned that the ground floor will to Ms Ajau Kapoor whereas there is no such person or LR by that name. It was also stated that share holding of M/s Anil Rubber Mills on the date of alleged Will was not as alleged as per company record. It was also pointed out that in the Will a plot of 500 sq. yards was written but it is nowhere mentioned where the said plot was situated. It was also stated that on the date of so called alleged Will it was mentioned that Rs. 10 lakhs will go to Anil Kanna from his holdings, however there was no cash holding of Rs.10 lakh in the account of deceased on the date of alleged Will. It was stated that regarding shop of Sadar Bazar no number, gali or any identification of said shop was mentioned. It was further pointed out that in the Will it was mentioned that deceased's bank balance will be equally divided between Anju Kapoor, Mr. Anil Kapoor and Mr. Ajay Kapoor. As stated there is no legal heir of deceased by the name of Anil Kapoor and Ajay Kapoor and not only this there is no family member by the name of Anil Kapoor or Anjay Kapoor. It was averred that above discrepancies clearly indicate how the alleged Will was manufactured/fabricated. It was also stated that as per the alleged PC-57/13/97 Page:-5/36 Will Ms. Neena Kapoor had admitted that she was not present on 7.11.96 and alleged signatures had not been put in her presence whereas as per law the attesting witness should sign at one place in the presence of each other. It was stated that Mr. S.Kumar alleged witness is a dharam brother of the petitioner and signatures are not of Radha Tayde which were also fabricated. It was also stated that it is interesting to note that according to the alleged Will the petitioner is the only beneficiary and how can a father throw both the sons out an deprive them of the assets completely and give most of his assets to a daughter who is of fighting nature and whose conduct is not good and even she was not having good relations with her in laws and that was the reason that she was given divorce on account of her nature. Even she was not having good relation with her father and insisting and fighting with the deceased. As stated she was trying to create difference between the objector and his father by telling lies and poisoning the mind of the deceased. Even the petitioner on the basis of forged and fabricated and false evidence gone to the extent of garbing the property where a guest house was being run during the lifetime of deceased and after the demise of deceased the petitioner started harassing objector which led to litigation. It was stated that daughter of petitioner Ms Nicky PC-57/13/97 Page:-6/36 Kapoor herself filed affidavit before Hon'ble High Court where she has stated that her mother had forged the Will under objection. As stated even Ms Neena Kapoor admitted in tape conversation which will be produced before the court that why she was asked to sign the Will after the death of Sh. A.S. Khanna which clearly indicate that how in the manner the petitioner has manufactured the document with the intention to grab the most of the assets of deceased. It was stated that on account of act and conduct of the petitioner unfortunately Mr. Ajay Khanna died in young age as he was hardly 44 years old and he died on account of torture given by the petitioner and the family of late Mr. Ajay Khanna has been ruined. As stated the objector has already filed a complaint against the petitioner herein as well as so called witnesses on the basis of recorded telephonic conversation between the objector and Ms Neena Kapoor and the Ld. Court has already taken cognizance but the petitioner failed to appear and non bailable warrant was issued against the petitioner and the petitioner was admitted on bail. It was stated that it is the habit of the petitioner to manipulate/manufacture document not only against the applicant/objector but even she also started parallel telephone exchange whereby defrauded BSNL to the tune of Rs. 3 crores. Petitioner as stated also committed many PC-57/13/97 Page:-7/36 frauds in USA as most of time she was residing in USA. It was submitted that under the coercion/pressure of petitioner the deceased had to send money to USA number of times and arranged to pacify the petitioner so that she should not disturb the life of family of deceased. As stated petitioner has not disclosed before the court that on account of custom the deceased Sh. A.S. Khanna refused the proposal of petitioner as the petitioner wanted to marry a muslim but against the wish of deceased she married one Mr. Iqbal Sami with whom also she is not having good relations and her name was Mrs Anju Sami and if there would have been any wish of deceased the deceased would have not mentioned Anju Kapoor and he would have mentioned her by her actual muslim name/post 2nd marriage name. As stated when the petitioner came to know that she would not be able to succeed in her illegal design then she manufactured one letter and also filed the same in another petition filed by late husband of Mrs. Geeta Khanna namely Mr. Ajay Khanna during his lifetime which was registered as 157/99. As stated said letter was forged and fabricated as on the date of said letter the deceased Sh. A.S. Khanna was suffering from illness and was admitted in hospital and was unconscious and under the influence of medicines and no such letter could have been got typed which shows that PC-57/13/97 Page:-8/36 the same has been manufacture for the benefit of the petitioner. It was stated that deceased father of the objector during his lifetime voluntarily having sound state of mind executed his last and final Will dated 6.3.97 whereby he bequeathed his entire movable and immovable properties to his two sons namely Anil Khana objector and Mr. Ajay Khanna in equal share and as such the present petition is not maintainable. It was accordingly prayed that the present petition be dismissed.
6. Reply to objection of objectors were filed on behalf of the petitioner in which contents of the petition were reiterated and those of the objections were denied.
7. Vide order dated 18.5.06 from the pleadings of parties, the following issues were framed:-
1) Whether the Will dated 7.11.96, propounded by the petitioner is duly executed last and final Will of the testator in sound disposing mind? OPP
2) Whether the petition is liable to be dismissed in view of the objections taken by the objectors? Onus placed on objectors.
3) Relief.
8. It is pertinent to mention here that these are three connected cases i.e. probate case titled as Anju Kapoor Vs. State bearing no. 57/13/97, probate case titled as Anju Kapoor Vs State bearing no. 22/13/98 and probate case PC-57/13/97 Page:-9/36 titled as Geeta Khanna Vs. State bearing no. PC-98/13/99 and vide order dated 13.5.08 all the three cases were clubbed with each other and evidence was led collectively in all the three cases.
9. To prove her case Ms. Anju Kapoor produced herself as PW-2, PW-1 Mr. Suresh Kumar and PW-3 Sh. N.M. Popli. PW-1 Mr.S. Kumar deposed that he knew deceased Sh. Atam Swarup Khanna since 1977 as he was his family friend. He stated that late Sh. A.S. Khanna had executed the Will dated 7.11.1996 in his presence. He telephonically called him to his house at D-837, New Friends Colony, New Delhi where he was staying. He reached his house around 8'O Clock in the evening on 7.11.96 and on his reaching, he got served him with some snacks and cold drink and thereafter he told him that he is going to write his Will in his presence.
Thereafter he wrote the Will in his own handwriting in his presence and after writing the Will he called his maid servant Radha Tatke. He stated that the Will was read over and explained in Hindi by Sh. A.S. Khanna to him and the mail Smt. Radha Tatke. He stated that first of all the Will was signed by Mr. A.S. Khanna then by him and thereafter by Radha Tatke and all three of them signed the Will Ex. PW-1/1 in the presence of each other. PW-2 Mrs. Anju Kapoor reiterated her case and relied upon death PC-57/13/97 Page:-10/36 certificate of Sh. A.S. Khanna Ex. PW-2/1, original Will Ex. PW-2/2, letters dated 13.3.86, 21st March, 1.11.1988, 12.8.1988, 20.8.1988, 11.9.1987, 3.9.92, 11.9.1987, fax dated 27.12.1995, 23.6.96 and all other letters/faxes written by the deceased were collectively Ex. PW-2/3, greetings card dated 11.9.91, 11.9.1984, 20.4.1988, 11.9.1985, 3.9.92 and all other greetings were collectively Ex. PW-2/4, letter dated 6.9.1985 Ex. PW-2/5, letters dated 6.5.85 or 9.9.1985, 16.3.90, 15.4.1988 and 22.4.1988 were collectively Ex. PW-2/6, hand notes of the deceased father on this subject/issue or otherwise written by him were collectively Ex. PW-2/7, letter dated 18.5.97 Ex. PW-2/8, photographs were collectively Ex. PW-2/9, letters dated 30.8.1985, 7.12.1991, 21.7.91 alongwith their envelopes were Ex. PW-2/10, letter from Iqbal Sami was Ex. PW-2/11, letters written by the doctors were collectively Ex. PW-2/12, original video cassette which was transferred on DVD was Ex. PW-2/13.
10. PW-3 Sh. Nitin Mohan Popli stated that he knew petitioner Anju Kapoor who was introduced to him by Sh. I.V. S Rao, Advocate who used to come to Hon'ble Supreme Court of India and he used to meet him and later on became his family friend. He stated that about 10 to 15 years ago Sh. I.V. S Rao, Advocate handed over an unsealed envelope containing original Will PC-57/13/97 Page:-11/36 and he told him that when time will come he will instruct him to whom said Will was to be handed over. He further stated that after some months in the same year during summer vacations of Supreme Court of India petitioner and her two brothers came to him and asked him to hand over copy of the will. He handed over typed copy except the last bottom portion of the Will to the brothers of the petitioner and then brothers of petitioner asked him to had over the original Will but he did not hand over the original Will and handed over photocopy of the Will except the last bottom portion bearing signatures of the testator and witnesses. He stated that after some days petitioner alone came to him and demanded the original Will and he handed over the original Will to the petitioner. He identified the Will Ex. PW-1/1 as the same which was handed over to him by Sh. I.V.S Rao.
11.In defence, objectors examined Sh. Anil Khanna as RW-1 and Dr. Bharat Inder Singh was also examined as RW-1, however now Dr. Bhart Inder Singh has been renumbered as RW-2. Sh. Anil Khanna reiterated the case of the objectors and relied upon Will dated 6.3.97 Ex. RW-1/1, affidavit of Nikki Kapoor Ex. RW-1/2, transcript of Ms Neena Kapoor with him Ex. RW-1/2A, copy of FIR Ex. RW-1/3, tape recording and transcript of Sh. N.M. Popli was Ex. RW-1/4. Dr. Sh. Bharat Inder Singh stated himself to PC-57/13/97 Page:-12/36 be the witness to the Will dated 6.3.1997. He stated that he had known late Mr. A.S. Khanna since 1980 and have been his family physician since 1980. He deposed that on 5.3.1997 late Sh. A.S. Khanna called him at his clinic and asked him to come to his residence at D-837, New Friends Colony on the next morning i.e. March, 1997. He further stated that he reached the house no. D-837, New Friends Colony at about 7.45 am on 6.3.1997. Mr. A.S. Khanna was in basement office of the house sitting on a chair with the table up front and he was typing by himself who after greeting him asked him to wait and by then he had finished typing. He then informed Dr. Bhagat Inder Singh hat he had typed out his Will and in the meantime another gentleman namely Mr. Kohli also joined them. Dr. Bhagat further deposed that Sh. A.S. Khanna put his signature at point A on the Will in his presence and identified the same and after Sh. A.S. Khanna signed the Will, he also put his signatures on the said Will at point B and after his signatures Mr. Kohli also put his signatures on the Will at point C. He stated that all of them had signed the said Will in the presence of each other. He also deposed that Sh. A.S Khanna was in full mental and physical control of himself and as his doctor he was qualified to say that also. He further stated that a few day later Sh. A.S. Khanna came to his clinic and PC-57/13/97 Page:-13/36 handed over the Will and said to keep it in safe custody and to hand it over to Ajay when the time comes.
12.Thereafter Ms. Anju Kapoor sought permission by moving an affidavit to lead rebuttal evidence qua issue arisen out of Will dated 6.3.97 which question was decided by this court vide order dated 31.1.14 and permission was granted to Ms. Anju Khanna to lead rebuttal evidence only in respect of paras no. 1 and 2 of her affidavit. Her affidavit was accordingly tendered as Ex. P-2 and she was also cross examined.
13.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
14. Issue no. 1 :- Before proceeding to decide this issue, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not PC-57/13/97 Page:-14/36 create any title but is only declaratory existing in the LRs of the deceased.
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.
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.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
16.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by PC-57/13/97 Page:-15/36 some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
17.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
18. So, a document has to be proved as per the Evidence Act, particularly in PC-57/13/97 Page:-16/36 terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
19. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the PC-57/13/97 Page:-17/36 conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
20. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
21.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the PC-57/13/97 Page:-18/36 entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
22.In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to PC-57/13/97 Page:-19/36 be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as PC-57/13/97 Page:-20/36 prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
23.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the PC-57/13/97 Page:-21/36 property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
24. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications PC-57/13/97 Page:-22/36 are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
25. Now I have to see whether in the present case the above principles have been duly made out or not and whether the petitioner Anju Kapoor has been able to prove the Will dated 7.11.96 as propounded by her. The deceased Sh. A.S. Khanna was survived by two sons Sh. Anil Khanna and Sh. Ajay Khanna and one daughter Smt. Anju Kapoor. His wife predeceased him. There are two sets of parties in all these three cases one group is represented by the both sons of the deceased Sh. A.S. Khanna which included Sh. Anil Khanna, son and LRs of Sh. Ajay Khanna i.e. his wife Geeta Khanna, his daughter Jyotsana and his son Master Aarav and other group is represented by the daughter of Sh. A.S. Khanna namely Smt. Anju Kapoor.
26. As far as the ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will is concerned it is the case of the petitioner that the testator was in sound disposing state of mind and was capable of understanding on the date of execution of alleged Will dated 7.11.96 only mentioned about the two strokes which incapacitated PC-57/13/97 Page:-23/36 the left hand of the deceased but the objectors herein i.e. the group represented by Sh. Anil Khanna and Geeta Khanna have raised the objection that the deceased Sh. A.S. Khanna was not having sound state of mind on the date of Will propounded by Anju Khanna i.e. on 7.11.96 because he was suffering from paralytic stroke. However the objectors herein in the probate case filed by them bearing no. PC-98/13 wherein they propounded the Will dated 6.3.97 have stated that on the date of the said Will dated 6.3.97 the deceased testator was in sound mental health. Even RW, Dr. Bhagat Inder Singh who has stated himself to be attesting witness of Will dated 6.3.97 in his affidavit of evidence has categorically stated that the deceased Sh. A.S. Khanna was in full mental and physical control of himself on the date of execution of the said Will dated 6.3.97. It is not understandable as to how a person who was not having sound mental condition on 7.11.96 was having fit mental condition on 6.3.97 i.e. just gap of four months and if it was so, then the same analogy would apply to the case of Mrs. Geeta Khanna & Others. Though it is stated in the objections raised by Mrs. Geeta Khanna & Anil Khanna that Sh. A.S. Khanna was under medication due to strokes but nothing has been placed on record by them to show as to how mental condition of Sh. A.S. Khanna was effected PC-57/13/97 Page:-24/36 during said period and under what medications. Hence the above taken by the Mrs. Geeta Khanna & Anil Khanna clearly raise contradiction in their own case and it is clearly made out that during the relevant period of both alleged Wills dated 7.11.96 and 6.3.97 propounded by both set of parties the deceased testator Sh. A.S. Khanna was having good cognitive faculties and was in sound state of mind. It is also so held in the connected case decided today.
27. Now, I proceed to decide regarding the valid execution of Will dated 7.11.96 and whether the said Will is surrounded with any suspicious circumstances or not. The Will dated 7.11.96 is handwritten Will and objectors have admitted the handwriting of the testator on the said Will and only disputed the signatures of testator as well as raised the question that the alleged Will simply bears the signature and below the signatures name of the person is not mentioned. It was stated that there is no mention of the name of Mr. A.S. Khanna in the entire document. It is correct that the Will Ex. PW-1/1 dated 7.11.96 is handwritten and bears only the signatures and no name is written below the signatures but the attesting witness to the said Will PW-1 Sh. S. Kumar has categorically stated that the testator wrote the Will in his own handwriting in his presence. He identified the PC-57/13/97 Page:-25/36 handwriting of Sh. A.S. Khanna on Ex. PW-1/1. He stated that the Will was signed by Sh. A.S. Khanna, then by him and thereafter by Radha Tatke and all three of them signed the Will Ex. PW-1/1 in the presence of each other. The Will bears the disputed signatures at point X and similar signatures are at 2-3 places on the said Will. It is a point of consideration that signatures of a person can be forged at one place but it is difficult to put similar forged signatures on 2-3 places. If the signatures were forged on the alleged Will then there was no need for the person forging the same to put them on 2-3 places when there is no mandatory provision for signing the Will on 2-3 places. The signatures of the testator on the Will dated 7.11.96 have been duly identified by the attesting witness PW-1 Sh. S. Kumar and if the objectors have disputed the signatures then the onus now shifts on them to prove that the signatures on the alleged Will dated 7.11.96 were forged but except for the bald assertion nothing has been done. No handwriting expert was examined by the objector to prove that the signatures on the alleged Will Ex. PW-1/1 were not of the testator. Even otherwise holographic Will is always on the better footing and for this reliance is placed upon AIR 1964 SC 529 Sh. Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee and (1996) 9 SC 324 Joyce PC-57/13/97 Page:-26/36 Primrose Prestor(Mrs) (NEE VAS) Vs. Vera Marie Vas(Ms) and Others wherein interalia it was held that " A 'holograph Will' is one which is wholly in the handwriting of the testator. While there is a presumption of regularity and due execution of a Will in the case of 'holograph Wills' the presumption is all the more- a greater presumption. The case of a holograph Will is a special case which will required a different approach in considering the evidence in the case to find whether the Will has been duly executed and attested. The approach to be made in such cases has been stated by the Constitution Bench in Shashi Kumar Banerjee case. In applying the principles laid down therein to particular cases, the nature of the Will, the pleadings of the parteis in the case, facts admitting or proved and the presumption available in law, will have to be carefully given effect to. It is in this background, the evidence in the case including that of the attesting witnesses should have been examined and what was required was only to formally prove the Will and very little evidence to prove due execution and attestation of the Will was alone called for". Accordingly the said plea of the objectors is hereby rejected and it is held that the Will dated 7.11.96 was in handwriting of the testator and was duly signed by him.
PC-57/13/97 Page:-27/36
28.Objection was taken by the objectors Geeta Khanna and others that alleged Will contain too many mistakes and wrong names of children were mentioned. It is also submitted by the objectors that there is mention of one name of Mr. Ajau Kapoor and even the witness of petitioner PW-1 Sh. Kumar has stated that Ajau Kapoor and Ajay Khanna are two different person. On the other hand petitioner Anju Kapoor has submitted that doctrine of feeding the missing is applicable to the present case and the said name mentioned in the Will refer to Mrs. Anju Kapoor and it is merely a spelling mistake. I have perused the alleged 'Will' and in the entire Will before the name 'Ajau Kapoor' word 'Mrs.' had been used meaning thereby that testator wanted to address a female by the said name/words. Further the name of daughter of testator is Anju Kapoor and in the words 'Ajau Kapoor' the surname has been correctly mentioned. When deceased testator had only three children at the time of the execution of the alleged Will out of whom two are sons and one is daughter and his wife also predeceased him then it is obvious that by mentioning the word 'Mrs. Ajau Kapoor' the testator wanted to describe his daughter Mrs. Anju Kapoor. Even otherwise the said words find mention in para no. 2,3 and 5. Para no. 2 dealt with the property no. D-837 New Friends Colony and in the said PC-57/13/97 Page:-28/36 para it is clearly mentioned by the testator that the floors occupied by Anil Khanna and Ajay Khanna will belong to them and the ground floor where currently he was residing will go to Mrs. Ajau Kapoor. In para no.5 it is mentioned that there is a shop in in Sadar Bazar which shall be sold and the sale proceed will be equally divided between Mrs. Ajau Kapoor, Anil Khanna and Ajay Khanna. Similar is the case of para no. 3 wheres shares in the holdings have been divided among Anil Khanna, Ajay Khanna and Ajau Kapoor. All the abovesaid clearly shows that testator wanted to divide is said properties among his three children namely Sh. Anil Khanna, Ajay Khanna and Mrs. Anju Kapoor and even if word 'Ajau' is omitted then from the meaning of the context it can be clearly gathered that the testator had intention of referring to Mrs. Anju Kapoor. Reliance is placed upon Section 76 and 77 of Indian Succession Act, 1925 which reads as follows:-
" Section 76- Where the words used in a Will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect. A mistake in the name of a legatee may be corrected by a description of him and a mistake in the description of a legatee may be corrected by the name.
PC-57/13/97 Page:-29/36 Section-77- Where any word material to the full expression of the meaning has been omitted it may be supplied by the context. "
Though by referring to the testimony of PW-1 Sh. S. Kumar objectors tried to show that Ajau Kapoor is a different person and it is also correct that the said witness deposed during cross examination that Sh. Ajau Kapoor is not the son of Atam Swroop Khanna but he was known to him, however this witness at the same point of time has stated that he do not remember he ever met Ajau Kapoor and even stated that he could not produce any document in the name of Sh. Ajau Kapoor. It is clear that when this witness himself denied that he could not produce any document in the name of Sh. Ajau Kapoor and even did not remember whether he ever met him or not then relying upon said testimony it cannot be presumed that there is some other person with the name of Ajau Kapoor. Even objectors have not placed anything on record to show that that any person with name of Ajau Kapoor is in existence and was related to the deceased testator. Just because an attesting witness to a Will has stated a single sentence during cross examination does not mean that the Will should be discarded on this ground alone whereas as already observed the intention of the testator to bequeath the properties as mentioned in the Will to his daughter Mrs. Anju PC-57/13/97 Page:-30/36 Kapoor is clearly made out and a spelling mistake i.e mentioning of word 'Ajau' does not make any difference. Even otherwise why a person would bequeath his properties to any other third person when he is having his own children. As stated there is also mistake in the name of Ajay Khanna in last para of the Will and his name was mentioned as ' Ajay Kapoor'. It is a point of consideration that if the Will was forged by the petitioner then such mistakes should not have been there as a forger would always be conscious of avoiding such mistakes. Even otherwise, if the objectors have raised the plea of forgery and fraud then the burden shifts on them to prove the same. Reliance is placed upon AIR 1960 Calcutta 551(V 47 C 150) (1) Ajit Chandra Majumdar Vs. Akhil Chandra Majumdar wherein it was held that " The burden of proof of Will lies on the propounder to prove that instrument is last Will of free and capable testator and the burden shifts to opposite party to prove fraud, undue influence etc. and actual exercise of power to unduly overbear must be proved". Hence the above plea raised by the objectors is hereby rejected.
29. Further, it is submitted on behalf of the objectors Geeta Khanna & Ors. that even the complete details of the properties are not mentioned and in para no. 4 that Rs. 10 lakh cash holding will go to Sh. Anil Khanna but on PC-57/13/97 Page:-31/36 the date of the Will dated 7.11.96 no cash balance of Rs. 10 lakhs in the account of deceased. When as is already observed that it is proved on record that that Will in question bears the handwriting of testator and the same was signed by him and if the complete details of the properties are not mentioned by him does not mean that the whole Will should be discarded. If there is no such plot of land of 500 sq. yards and Rs.10 lakhs cash holding in existence as on date then it is obvious that it won't be distributed or bequeathed and if the same is in existence then it is the objector Anil Khanna and Ajay Khanna who would be the beneficiaries. It is not for the petitioner to prove as to whether the said properties are in existence since the Will was not written by the petitioner and the same was written by the testator himself and if in the knowledge of the testator there were any such properties in existence that is why he would have mentioned them. For this purpose also reliance is placed upon Section 76 and 77 of Indian Succession Act mentioned supra. Accordingly the said plea of the objectors is hereby rejected.
30.Objectors have also raised objections regarding non mentioning of manner of discovering of the Will, however the same is inconsequential as there is no such required of law u/s 278 of Indian Succession Act and secondly the PC-57/13/97 Page:-32/36 ingredients as mentioned supra have to be seen while deciding a probate petition and only passing reference can be made to discovery of Will to remove any suspicious circumstances. It is also submitted on behalf of the objectors that Sh. I.V.S. Rao in whose custody the Will was initially placed has not been produced by the petitioner. On the other hand it is submitted by Cl. for petitioner that non production of said witness was not intentional and he was not produced since he expired on 22.6.09. Even otherwise the said person is not an attesting witness of the Will in question and was just handed over the Will to keep in his custody and therefore his deposition is not of much relevance to the case. In the present case as is already observed the Will in question dated 7.11.96 seems not be surrounded with any suspicious circumstances, hence manner and mode of discovering the Will is not required to be looked into. Rather in the present case Will is dated 7.11.96, death of the testator occurred on 8.6.97 and after the death of the testator the Will came into the knowledge of propounder Anju Kapoor on 29.6.97 and present probate petition was filed on 10.10.97 meaning thereby the events are in sequence and there is no undue delay or discrepancies attached to them.
31.It is further contented by Mrs. Geeta Khanna & Ors., objectors herein that PC-57/13/97 Page:-33/36 Ms. Anju Kapoor had strained relationship with the deceased and therefore it is not possible that testator had bequeathed any property to her. The said contention has been denied by Ms. Anju Kapoor who has placed on record various letters Ex. PW-2/6, PW-2/18, PW-2/27, PW-2/29, PW-2/33, PW-2/35, PW-2/40 and PW-2/50 to PW-2/55. Out of the said letters only suggestion was given regarding the letter Ex. PW-2/51 that the same does not bears the handwriting of deceased and rest of the above letters where neither objected to nor handwriting on the same were disputed during cross examination of Mrs. Anju Kapoor. Perusal of the said letters shows that deceased had love and affection towards Mrs. Anju Kapoor and no where it is made out that he had strained relations with her. Even otherwise plea of strained relations with Anju Kapoor was taken by Geeta Khanna and Ors and it was upon him to produce on record something which could have reflected the same but except for the bald assertion nothing has been placed on record by them, hence the said plea of Geeta Kapoor & Ors is hereby rejected. Rather Ms. Anju Kapoor had pleaded that both Sh. Anil Khanna and Sh. Ajay Khanna and their families had strained relations with the deceased and in support of the same relied upon Ex. RW-2/P-2, PW-2/7, Ex. PW-2/51, PW-2/6, PW-2/8. Even if other letters are not looked PC-57/13/97 Page:-34/36 into and only Ex. RW-2/P-2 is considered which is the letter admittedly written by Sh. Anil Khanna to his father, the same shows that there were matter of disputes between him and his father and they did not share good relationship since in the said letter Sh. Anil Khanna himself chose to write that he was addressed by his father as Mr. Anil Khanna. He even wrote that his father always had a grudge against him more like a knife to him. He wrote that all he did was never good enough for him. Perusal of the entire letter even if not considering the pencil portions shows that Sh. Anil Khanna was not sharing good and healthy relationship with his father. Accordingly it is apparent on record that it was not Ms. Anju Kapoor who was not having good relation with her father and rather it is Sh. Anil Khanna and Ajay Khanna who had strained relations with their father. It is also so held in the connected case decided today. Rather in the present Will dated 7.11.96 none of the legal heir of the testator was debarred and all his LRs were included while distributing his assets which seems fair and give support to the genuineness of the Will in question. Accordingly considering the facts and circumstances of the case and deposition of witnesses who appeared before the court, the authenticity and genuineness of the Will dated 7.11.96 Ex. PW-1/1 stands proved. The Will dated 7.11.96 has been proved to be executed by deceased in sound disposing mind of PC-57/13/97 Page:-35/36 his own free will and in view of testimony of PWs the same is held to be the last testamentary disposition of deceased Sh. A.S. Khanna. However, perusal of Will shows that no one was appointed as executor by testator therefore probate in these circumstances, cannot be granted and as per section 276 of the Indian Succession Act, letter of administration can be granted to petitioner. Hence, case in favour of petitioner is made out for grant of letter of administration. Accordingly these issues are decided in favour of the petitioner and against the respondents/objectors Mrs. Geeta Khanna& Ors.
32.Relief:- In view of the above finding, the petition is allowed. Letter of administration be issued in favour of petitioner in respect of estate of deceased Sh. A.S. Khanna as detailed in Will dated 7.11.96 to enable the petitioner to administer the aforesaid property of deceased. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in open court (Ajay Goel) on 9.4.14 ADJ-12(Central)/Delhi PC-57/13/97 Page:-36/36