Delhi District Court
Rajesh Chander Katyal & Anr. vs . State & Anr. on 19 January, 2023
Rajesh Chander Katyal & Anr. Vs. State & Anr.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE
02, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar
PC No. 5939/2016
Filing No. 21185/2014
CNR No. DLST010009572014
In the matter of
1. Rajesh Chander Katyal
S/o Lt. Charanjit Lal Katyal
R/o C57, Green Valley
Sector 41/42, Faridabad - 121010 (Haryana)
2. Lalita Wadhawan W/o Sushil Wadhawan
R/o Second Floor (Front Side)
AC7, Ganga Ram Vatika, Tilak Nagar,
New Delhi - 110018 ...............Petitioners
Versus
1. The State (NCT of Delhi)
2. Rakesh Chander Katyal
S/o Lt. Charanjit Lal Katyal
R/o House No. 371, GH14,
Paschim Vihar, New Delhi - 110063
.............Respondents
PC No. 5939/2016
CNR No. DLST010009572014
Page 1 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023
Rajesh Chander Katyal & Anr. Vs. State & Anr.
Date of Institution : 27.08.2014
Date of reserving the judgment : 17.12.2022
Date of pronouncement : 19.01.2023
Decision : Petition Allowed.
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT FOR OBTAINING A PROBATE &
LETTER OF ADMINISTRATION IN RESPECT OF THE
WILL EXECUTED BY DECEASED NAMELY LATE
PUSHPA WATI KATYAL
JUDGMENT
1. The present petition has been filed by the petitioners under Section 276 of the Indian Succession Act, in respect of the Estate left behind by Late Pushpa Wati Katyal. The case of the petitioners, as per the petition, is as under:
1.1. Late Smt. Pushpawati Katyal W/o Sh. Charanjit Lal Katyal was the mother of the petitioners no. 1 & 2 and respondent no. 2. She had expired on 26.01.2014.
Deceased Pushpawati Katyal was the sole and absolute owner of the property i.e. "freehold built up property bearing no. 676, DDA Janta Flats, Madangir, New Delhi measuring 42 sq. yds."
1.2. The deceased testatrix during her lifetime, had PC No. 5939/2016 CNR No. DLST010009572014 Page 2 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
executed a Will dated 10.05.2013 in the presence of two witnesses, which was registered vide doc. No. 360 in Book No. 3, Vol. No. 15 on pages 153 to 154 on 10.05.2013 bequeathing in favour of the petitioners. The said Will, in original is being filed along with the petition.
1.3. The said Will of the deceased testatrix was executed in favour of the petitioners herein and according to the Will of the deceased testatrix, after her death, the petitioners were to become beneficiaries of the said Will and the sole owners of all the properties and assets left behind by Late Pushpawati Katyal. The deceased testatrix has left behind the petitioners and her elder son i.e. the respondent no. 2 as her only legal heirs.
1.4. The Will dated 10.05.2013 is the last and final Will of the deceased testatrix Late Pushpawati Katyal. The deceased testatrix was permanent resident of Delhi and the said Will was also executed at Delhi. The deceased testatrix also died at Delhi and the properties in respect of which the Will was executed are situated in Delhi. Hence, this Court has the jurisdiction to entertain the petition and grant the Probate / letters of administration in respect of the said property. Hence, the present petition has been filed PC No. 5939/2016 CNR No. DLST010009572014 Page 3 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
with the following prayer: "It is therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to grant the appropriate Probate/Letter of Administration in respect of the Will dated 10.05.2013 in favour of the petitioners being the sole beneficiaries and entitled to receive the said properties exclusively. Pass any such order (s)/ directions (s) which this Court may deem fit and proper in favour of the petitioners and against the respondent in the interest of justice."
2. The citation was directed to be issued as per law. The citation was published in the newspaper "The Statesman" dated 03.09.2014. The citation was also served upon the private respondents. Respondent No. 2 contested the petition and filed Reply/Objection/Written Statement. He has opposed the present petition on the following grounds: 2.1. The petition of the petitioners is not maintainable. The name of respondent no. 2 is not at all mentioned, even though respondent no. 2 is one of the legal heir of Smt. Pushpawati Katyal, in the Will dated 10.05.2013. No reason whatsoever is given in the Will as to why respondent no. 2 is being denied his legitimate share in the property.
2.2. Deceased Pushpawati Katyal was very old, PC No. 5939/2016 CNR No. DLST010009572014 Page 4 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
suffering from various diseases, complete bed ridden having no physical moment, unsound mental state, could not recognize people around her and was also not in sound disposing mind at the time of execution of the alleged Will dated 10.05.2013. She had ultimately expired on 26.01.2014, just few months after the execution of the Will dated 10.05.2013. She was also hospitalized during this period several times.
2.3. The petitioners are guilty of concealment of material facts and falsehood. Smt. Pusphawati Katyal was severely ill during the period when the Will was allegedly executed by her. She could not understand and hear things properly and was using hearing aid and could only hear if it was spoken at a very high pitch. Smt. Puspawati Katyal was not residing in the House No. 23/676, DDA Flats, Madangir, New Delhi as is being portrait in the petition and in the alleged Will dated 10.05.2013. At the time of the will dated 10.05.2013 allegedly executed, she was not residing in the property. Rather she had been shifted from her own residential house to a rented house which cause mental pain and agony at such an old age. She was already ill and shifting her from her own residential house further PC No. 5939/2016 CNR No. DLST010009572014 Page 5 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
deteriorated her health and she felt as if she had lost everything. The petitioners have miserably failed to mention the details of the rented accommodation of the deceased during her twilight years.
2.4. The petitioners are not entitled to maintain the present petition as the alleged Will dated 10.05.2013 has not been executed as per law. The petitioners have failed to mention the complete list of properties both movable and immovable left by deceased Pushpawati Katyal and standing in her name as on the date of her death and whereas the Will dated 10.05.2013 categorically mentions both movable and immovable properties of the deceased. They further failed to mention about jewellery and cash which the deceased had left behind after her death.
2.5. The respondent no. 2 prayed that this Court may be pleased to dismiss the present petition of the petitioners with heavy cost.
3. The petitioners filed rejoinder to the objections/written statement of respondents No. 2. In the rejoinder the petitioners denied the contentions raised by respondent no. 2 and reiterated the averments made in the petition. It is further stated in the PC No. 5939/2016 CNR No. DLST010009572014 Page 6 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
rejoinder that the respondent no. 2 had moved out and away from his parents about 20 years ago and started living separately with his family at House No. 371, GH14, Paschim Vihar, New Delhi. He never visited his mother. Nor he bothered to take care of her own mother. The deceased was not bed ridden at the time of execution of the Will. She was not of unsound mind and state. She was hale and hearty at the time of execution of the Will.
4. On the basis of the record, following issues were framed vide order dated 21.02.2015:
i) Whether Smt. Pushpa Wati Katyal W/o Late Charanjeet Lal Katyal had executed her last testament and valid registered Will dated 10.05.2013 during her sound state of health? OPP.
ii) Whether the Will dated 10.05.2013 is a forged and fabricated Will vis a vis a created document, if so, how and its consequences?OPR2
iii) Whether the said Smt. Pushpa Wati Katyal was suffering from various diseases, she was bed ridden and also of unsound mental state of health and she was not able to write the Will, if so how? OPR2 PC No. 5939/2016 CNR No. DLST010009572014 Page 7 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
iv) Whether the Will dated 10.05.2013 cannot be acted upon and petition is liable to be dismissed? OPR2
v) Whether the petitioners are entitled for letter for administration / Probate with Will annexed dated 10.05.2013 in their favour?OPP
vi) Relief.
5. The petitioners were asked to lead evidence. The petitioners examined the petitioner no. 1 i.e. Sh. Rajesh Chander Katyal as PW1. He has tendered his evidence by way of affidavit which is Ex.PW1/X. He has reiterated the facts stated in the petition. He has also stated that respondent no. 2 had developed estranged relations with his parents and other members of the family and he of his own volition, left the aforesaid house about 29 years ago and started living separately. He would further state that respondent no. 2 never visited his parents or any of the members of the family. He never bothered to take care of or inquire about his old parents. Nor did he ever try to be besides them in their old age. He never attended any of the family gatherings or functions. The witness has relied upon the following documents:
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a) Conveyance Deed : Ex.PW1A.
b) Death Certificate of Pushpawati Katyal: Ex.PW1 B.
c) Handwritten Will written by Pushpawati Katyal :
Ex.PW1E.
d) Registered Will dated 10.05.2013 : Ex.PW1 F.
6. During his cross examination, PW1 had relied upon the document Ex. PW1/RX i.e. a letter written by Sh. Charanjit Katyal and Smt. Pushpawati. He would state in his cross examination, interalia, that he had moved an application to place on record document purportedly written by Sh. Charanjit Katyal and Smt. Pushpawati. He stated that his mother was suffering from arthritics and earlier she was suffering from thyroid and cured. His mother was never admitted in the hospital but due to those health problems she was admitted for around 5 days in Metro Hospital, Faridabad. He also volunteered that his brother never visited the hospital and did not support him financially. He stated that his parents had never expressed any displeasure with Rakesh or his family in letter Ex. PW1/RX and he volunteered that his father was a saint and did not use bad words for anyone. He further stated that Rakesh was born 14 years after the marriage of his parents but he never PC No. 5939/2016 CNR No. DLST010009572014 Page 9 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
took care of them. He admitted that property bearing no. 23/676, DDA Flat, Madangir, Delhi was demolished and reconstructed before his mother's death. He further volunteered that his father died of lung cancer and the old house was very damped due to high plinth construction on three sides of the house and they wanted to avoid any such health hazard for his mother and Rakesh did not participate in the demolition and reconstruction of the house. The property was got constructed from the builder and there was no collaboration agreement executed. He stated that an agreement was arrived at with the builder and he signed that document on behalf of the deceased. He also stated that he had the power of attorney which was notarized and he used to sign all the correspondence with the department on the basis of attorney. He stated that there were agreement with the tenants resided in the property before demolition and his mother was signatory to the agreement. He used to deal with the tenants on behalf of his mother. On the instance of him, his mother used to issue receipts. He further stated that third floor of the property was sold to meet the expenditure of reconstruction and one power of attorney and affidavit was executed in respect of the sale of third floor. The negotiations of the sale was done by him and his sister and his PC No. 5939/2016 CNR No. DLST010009572014 Page 10 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
mother was fully consulted in this regard. He stated that his sister signed the documents as the construction was going on and no desirable price for sale was coming so he took his sister financial help which was an intermediate sale to her. Power of attorney, affidavit and other documents were executed in favour of her sister by him for a consideration of approximately Rs. 16 lakhs, the payment of which was partly in cash and in cheque. He admitted that his mother name was not mentioned anywhere in the transaction in respect to the sale. He admitted that he or his sister did not transfer any amount into their mother account and the mother never objected to the same. He denied a suggestion that his mother was not aware of the transaction and said that she was fully aware of the consideration. He stated that there were tenants in the property and one of them was inducted during her mother's lifetime and an agreement was executed with the tenant, which he executed on the basis of power of attorney after which he had been taking rent from the tenant. The tenant paid rent via online bank transfer in his account and no amount was ever credited / transferred to his mother account. He stated that he pay house tax of the suit property in question but the house tax record are in the name of the original owner and he did not remember the name of the owner. He answered PC No. 5939/2016 CNR No. DLST010009572014 Page 11 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
to a question of the Ld. Defence Counsel that his mother was fully aware of every transaction and had full confidence due to which she allowed him. He denied the suggestion that his mother was fully dependent upon him that due to which she signed each and every document which he asked her to sign. He would also state that his mother never told him about the Will. He denied the suggestion that the Will in question was manipulated by him in collusion with Lalita, Sumitra and Sashi Wason. He also denied the suggestion that deceased was neither aware of the contents of the Will nor she was made aware of the contents thereof. He also denied the suggestion that the Will was not executed by the deceased out of her free will and in sound disposing mind. He also denied the suggestion that the document Ex. PW1/E has been forged and fabricated in collusion with petitioner no. 2, Sumitra Devi and Sashi Wason.
7. The petitioners examined two more witnesses as attesting witnesses i.e. PW2 - Smt. Sumitra Rani and PW3 - Smt. Shashi Wason.
8. PW2 Sumitra Rani has tendered her evidence by way of affidavit Ex. A2. She has relied upon the documents i.e. the manuscript of the Will Ex. PW2/1. She has identified her signatures and the signatures of the testatrix on the Will. She PC No. 5939/2016 CNR No. DLST010009572014 Page 12 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
has proved the Will Ex. PW2/2.
9. PW3 Smt. Shashi Wason tendered her evidence by way of affidavit Ex. A3. She is also one of the attesting witness of the Will. She has identified her signatures and signature of testatrix on the Will and on the manuscript of the Will.
10. All the witnesses were cross examined by Ld. Counsel for the Respondent No. 2. Vide order dated 27.11.2017, PE was closed at the submission of Ld. Counsel for the petitioners.
11. The respondent No. 2 did not lead any evidence. The matter was taken up for final arguments. During that period, respondent no. 2 moved an application under Order XVIII Rule 17 CPC to recall PW1 for further cross examination. The said application was allowed vide order dated 10.05.2019. The witness was recalled. He was further crossexamined and discharged. PE was closed on 27.02.2020 and the matter was again fixed for final arguments.
12. Ld. Counsel for the petitioners would argue that the petitioners have proved that the Will in question is genuine Will of the testatrix Smt. Pushpawati Katyal. The Will has been proved as per law. The respondent no. 2 has made a false claim. Respondent no. 2 had developed estranged relations with his parents and other members of the family and he of his own PC No. 5939/2016 CNR No. DLST010009572014 Page 13 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
volition left the house around 29 years ago and started living separately. After leaving the house, the respondent no. 2 never visited his parents or any of the members of the family. The petitioners always acted as loving and caring children and gave them their due respect and regard personally and socially. Therefore, the testatrix has bequeathed her property in favour of the petitioners and exclude the respondent no. 2. All the requirements of the law have been proved. Hence, it is prayed that the petition may be allowed and letter of administration may be issued in favour of the petitioners.
13. Ld. Counsel for the respondent no. 2, on the other hand, would argue that the petition is not maintainable. The Will has not been proved as per law. The Will is a forged and fabricated document. The testatrix was 90 years old at the time of making of the Will in question. She was not in a fit state of mind as she was suffering with brain disease and memory loss. The testimonies of the witnesses of the petitioner are not reliable as they have made inconsistent statements which are contradictory to each other. The attesting witnesses have stated that they had gone to the office of SubRegistrar along with the testatrix and that they did not take any help from anyone. It does not appear to be possible that they could manage all the affairs of the PC No. 5939/2016 CNR No. DLST010009572014 Page 14 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
registration of the Will alone. It proves that the petitioners had also accompanied the testatrix and that testatrix had signed the Will on the instructions of petitioners without applying her mind as she was under the influence of the petitioner no. 1.
14. It is further argued on behalf of the respondent no. 2 that the petitioner no. 1 has stated in his cross examination that he had come to know about the Will only after the death of his mother. However, there is a power of attorney of the same date when the Will was executed i.e. 10.05.2013 shown to be executed by Smt. Pushpawati Katyal in favour of petitioner no. 1 which shows that the date was fixed for execution of the Will and the power of attorney and that the petitioner was present with the testatrix at the time of registration of the Will. It is settled position of law that when there is active role of the beneficiary in preparation of the Will, a serious doubt is raised on the execution of the Will.
15. It is further argued on behalf of respondent no. 2 that PW2 Smt. Sumitra Rani has stated in her cross examination that only she was present with the testatrix when the manuscript Ex. PW2/1 was prepared and signed by the testatrix. However, PW3 in her cross examination has stated that she was also present when the manuscript was prepared and signed by the testatrix.
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PW2 has also stated that the Will in question was signed by the testatrix at her home before leaving for the office of Sub Registrar. However, PW3 has stated that Will was drafted at the office of SubRegistrar and it was signed by the testatrix at that spot. These contradictions have not been explained which create doubts on their testimonies. Further, PW3 has stated that she had dictated the Will to the typist from the manuscript. However, she does not know the meanings of words testatrix, probate. She does not have legal knowledge of formal words. The Will is shown to be typed in English. There is no similarity between the draft and the Will. There is nothing on record to show that the said Will was read over by anyone to the testatrix. Therefore, it cannot be said that the testatrix had understand the Will and signed it after understanding the same. Further, there is no reason mentioned in the Will for exclusion of the respondent no. 2. Hence, all these circumstance create doubt on execution of the Will by the testatrix from her own will and free mind.
16. It is further argued on behalf of respondent no. 2 that on the Power of Attorney, first Lata Wadhawan, petitioner no. 2, has signed as witness no. 1 which shows that she was present and therefore, she signed as witness no. 1. Due to her illness and old age, the testatrix was not aware as to what documents PC No. 5939/2016 CNR No. DLST010009572014 Page 16 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
she was signing. It creates doubt on the execution of the Will voluntarily. Hence, it is prayed that the petition may be dismissed. Ld. Counsel for respondent no. 2 has relied upon the judgment titled Kavita Kanwar Vs. Pamela Mehta & Ors. decided by Hon'ble Supreme Court of India in Civil Appeal No. 3688/2017 on 19.05.2020.
17. Ld. Counsel for the petitioners, in the rebuttal, would argue that as per law there is no requirement to take any legal help at the time of registration of Will. 3 women are capable to get a Will registered at the office of Registrar without any external help. Signatures on the Will are admitted. There might be some small contradictions in the testimonies of the witnesses, however, they are not relevant to create doubts on the testimonies of the witnesses. The Will is a registered Will. There is presumption in law that the document is properly executed. There is handwritten Will also which supports the main Will. Power of Attorney is a separate document and it cannot be used to argue that the Will is forged and fabricated. There are no suspicious circumstances proved by the respondent no. 2. Hence, it is prayed that the petition may be allowed and the letter of administration may be issued.
18. I have heard the rival submissions and perused the record.
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My issuewise findings are as under.
19. Issues No. 1 to 4 These issues are taken jointly as they require common discussion. The issues read as under:
i) Whether Smt. Pushpa Wati Katyal W/o Late Charanjeet Lal Katyal had executed her last testament and valid registered Will dated 10.05.2013 during her sound state of health? OPP.
ii) Whether the Will dated 10.05.2013 is a forged and fabricated Will vis a vis a created document, if so, how and its consequences?OPR2
iii) Whether the said Smt. Pushpa Wati Katyal was suffering from various diseases, she was bed ridden and also of unsound mental state of health and she was not able to write the Will, if so how? OPR2
iv) Whether the Will dated 10.05.2013 cannot be acted upon and petition is liable to be dismissed?OPR2
20. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. 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 as under:
"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 PC No. 5939/2016 CNR No. DLST010009572014 Page 18 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
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."
21. 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 clear 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 as intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal prerequisite, thus, is that at the time of expressing his desire visavis the disposition of the estate after his demise he must know and understand its purport or import.
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22. 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 as under:
"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 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 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."
23. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed PC No. 5939/2016 CNR No. DLST010009572014 Page 20 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator.
24. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the PC No. 5939/2016 CNR No. DLST010009572014 Page 21 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
25. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"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. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions : "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 ease 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 63 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 PC No. 5939/2016 CNR No. DLST010009572014 Page 22 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
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 surround ed 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 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 circumstance 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 PC No. 5939/2016 CNR No. DLST010009572014 Page 23 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
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."
26. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under: "5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). 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 signature of 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 indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that PC No. 5939/2016 CNR No. DLST010009572014 Page 24 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
all legitimate suspicion 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 substantial 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. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
27. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines: "From the earlier decisions of this Court the following principles, inter alia, are well established: "(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v.
Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by PC No. 5939/2016 CNR No. DLST010009572014 Page 25 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
"(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar Das(3)]. "(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
28. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"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 PC No. 5939/2016 CNR No. DLST010009572014 Page 26 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
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 provisions 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.
29. In the present case, both the witnesses have been examined by the petitioners. They have also proved the signatures of the testatrix on the Will Ex. PW2/2. Even the respondent no. 2 has not disputed the signatures of the testatrix or the witnesses on the Will.
30. The entire thrust of the arguments of Ld. Counsel for the respondent no. 2 is that there are suspicious circumstances which create doubts on creation of the Will by the testatrix with free sound mind.
31. As the record would show, the respondent no. 2, did not enter into witness box. He did not lead any evidence.
32. It has been argued on behalf of the respondent no. 2 that the testatrix was not of good health at the time of execution of the Will in question. She was not of sound mind and that she was under undue influence of the petitioner no. 1.
33. I have considered the submission. There is nothing on record to show that the testatrix was suffering with any ailment which could have affected her mental capacity to execute the PC No. 5939/2016 CNR No. DLST010009572014 Page 27 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
present Will at the relevant time. No doubt, the testatrix was an old aged person of about 86 years as mentioned in the Will at the relevant time. However, this fact itself is not sufficient to show that the testatrix was not in a fit state of mind at that time to execute the present Will. There is no evidence on record to show that she was bed ridden at the relevant time as claimed by the respondent no. 2. Also, there is no evidence / medical record to show that the testatrix was of unsound mental state of health as claimed by the respondent no. 2. Burden was on the respondent no. 2 to prove the said fact. However, no evidence has been led by the respondent no. 2.
34. It is also argued on behalf of respondent no. 2 that the respondent no. 2 is shown to be excluded by the testatrix without giving any reason in the Will which creates doubt on the Will. Ld. Counsel for the respondent no. 2 has further argued that the power of attorney and the Will had been executed on the same day and therefore, it must be presumed that the petitioners were aware of the execution of the Will and that they had participated actively in the execution of the Will. It is argued that once it is shown that the petitioners had actively participated in execution of the Will, a doubt is created on the Will regarding the free sound mind of the testatrix and PC No. 5939/2016 CNR No. DLST010009572014 Page 28 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
therefore, the Will is to be declared a forged Will.
35. I have considered the submissions. There is no evidence on record to show that any of the petitioner had actively participated in execution of the Will Ex. PW2/2. Merely because the power of attorney and the Will are executed on the same day, the Court cannot presume that the petitioners or any of them had played any active role in execution of the Will. It was on the respondent no. 2 to prove the said fact by leading some evidence or by showing the same from the records. However, the respondent no. 2 did not lead any evidence. The material on record is also not able to show that any of the petitioner had played an active role in execution of the Will Ex. PW2/2. Mere bald averments by the respondent no. 2 is not sufficient to prove the said fact. A Will is not required to be executed in secrecy. It is natural that sometimes the persons who is living with the testator and taking care of the testator might be aware and present at the time of execution of a Will by such person. This fact in itself cannot be a ground to hold that the Will was executed under undue influence of such a beneficiary. Further, merely, because one of the legal heir has been excluded from inheriting the property of the testatrix cannot be a ground to disbelieve the execution of the Will.
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Purpose of a Will in most of the cases is to exclude certain persons from inheriting the property of the testator after the death of the testator.
36. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others AIR 1959 SC 443 has highlighted the dissimilarities between the Will which is a testamentary instrument visàvis other documents of conveyancing, by emphasising that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on 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 mind of the testator and his signature as required by law, courts would be justified in PC No. 5939/2016 CNR No. DLST010009572014 Page 30 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts.
37. The decisions of the Hon'ble 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. Hon'ble Supreme Court of India has made 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 :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 PC No. 5939/2016 CNR No. DLST010009572014 Page 31 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
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)
38. Following the above mentioned rulings, Hon'ble 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 any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property. It has held as under:
"30. The fact that the appellant was present at the time of execution of Will dated 10.2.1992 and that the testator did not PC No. 5939/2016 CNR No. DLST010009572014 Page 32 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
give anything to respondent Nos. 1 and 2 from his share in the joint family property are not decisive of the issue relating to genuineness or validity of the Will. The evidence produced by the parties unmistakably show that respondent No. 2 had separated from the family in 1965 after taking his share and respondent No. 1 also got his share in the 2nd partition which took place in 1985. Neither of them bothered to look after the parents in their old age. The attitude of respondent Nos. 1 and 2 left Shri Harishankar and his wife with no choice but to live with the appellant, who along with his wife and children took care of the old parents and looked after them during their illness. Therefore, there was nothing unnatural or unusual in the decision of Shri Harishankar to give his share in the joint family property to the appellant. Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his / her share in the property."
39. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of Hon'ble High Court of Delhi, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), has observed as under: " 31. Courts are not expected to be satisfied that a bequeathal is rational or not; what has to be considered is whether the bequest was so unnatural that the Testator could not have made it. It is the admitted position that the nephews were working together with their uncles and that they had been looked after by the uncles only. Indian society has traditionally been a patriarchal, where the succession to property by males had been in vogue to the detriment of females. It is only recently that legislative reforms, together with a social paradigm, shift in favour of the right of women has gained recognition. However, we have to be mindful of the fact that the Courts have to uphold the wishes expressed and not the wisdom behind the same. The Court cannot infuse its own value system on the testator. The Privy Council in Motibai PC No. 5939/2016 CNR No. DLST010009572014 Page 33 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
Harmusjee Kanga vs Jamsetjee Harmoonji Kanga, AIR 1924 PC 28 observed that "a man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing, the Court will not interfere with the exercise of his volition"..." (emphasis supplied)
40. The petitioners have claimed that the respondent no. 2 did not have any relations with the petitioners and his parents since long. PW1 in his affidavit has also stated that respondent no. 2 had developed estranged relationship with his parents and other members of the family and he of his own volition left the aforesaid house about 29 years ago and started living separately. He has also stated that respondent no. 2 never visited his parents or any of the members of the family, he never bothered to take care of his old aged parents. During cross examination of PW1 these statements of the witness have remained unrebutted. No suggestions have been given to the witness that the respondent no. 2 was having good relations with the parents. Respondent no. 2 himself did not appear in witness box to state that he had good relations with his parents. Thus, it is proved on the record, on the preponderance of probabilities that respondent no. 2 did not have any relation with his parents for the last more than 2 decades. Therefore, it was natural for the testatrix to exclude him from inheriting her property after her death. There is nothing unnatural in such behaviour of the testatrix. The PC No. 5939/2016 CNR No. DLST010009572014 Page 34 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
judgment relied upon by Ld. Counsel for the respondent no. 2 is distinguishable on facts. Hon'ble Supreme Court of India in Kavita Kanwar Vs. Pamella Mehta & Ors. (Supra), Hon'ble Supreme Court has noted that the fact that the respondent no. 1 who was living in the same premises where the testatrix was residing, was not included in preparation of the Will even though, some arrangements were purportedly made in the Will towards her welfare also. Hon'ble Supreme Court has observed that if the Will in question was being made without causing any prejudice to the respondent no. 1, there was no reason to keep her away from the process of creation of the Will. There was another circumstances noted by the Hon'ble Supreme Court that the appellant / executor had stated that she was not aware as to who had drafted the Will, where it was typed and that the testatrix had not discussed the Will with her. She had also stated that she had not called the witnesses and that the testatrix herself might have called them. However, the witness of the Will contradicted the appellant by deposing that it was the appellant who invited her to her mother's place. Therefore, the Hon'ble Supreme Court had observed that there were suspicion circumstances arising because of above mentioned facts. In the present case, however, there is nothing on record to show that PC No. 5939/2016 CNR No. DLST010009572014 Page 35 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
the petitioner had actively participated in preparation of the Will and that they have concealed the said fact. Therefore, I am of the considered opinion that the judgment passed by Hon'ble Supreme Court in in Kavita Kanwar Vs. Pamella Mehta & Ors. (Supra), is distinguishable on facts and not applicable to the facts and circumstances of the present case.
41. It is also argued by Ld. Counsel for respondent no. 2 that allegedly the testatrix and the two witnesses had gone for registration of the Will and they did not take any legal or clerical help. It is argued that it is not possible for three women to get the Will registered without taking any legal or clerical help of other person.
42. I have considered this submission. I do not find any merits in the same. Law does not provide that clerical help of some third party must be taken before getting a Will registered and therefore, no such presumption can be raised under the law. It is not such a circumstance which creates doubt on the execution of the Will.
43. It is also argued that PW2 has stated in her cross examination that at the time of preparation of manuscript Ex. PW2/1, no other one except her and the testatrix were present PC No. 5939/2016 CNR No. DLST010009572014 Page 36 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
there. However, PW3 has stated in her cross examination that she was present when Ex. PW2/1 was signed. It is further argued on behalf of the respondent no. 2 that PW2 has stated in her cross examination that Smt. Pushpa had signed her Will at the residence before taking it to Mehrauli Office. However, PW3 in her evidence has stated that Smt. Pushpawati had signed the Will in the Office of SubRegistrar, Mehrauli. It is argued that these are material contradictions which create suspicion on the Will in question.
44. I have considered the submissions. No doubt, PW2 has stated in her cross examination that Ex. PW2/1 was written by her sister i.e. the testatrix in her presence and at that time, no other one was present there. PW3 on the other hand, in her cross examination has stated that she was present along with Smt. Sumitra i.e. PW2 when the note Ex. PW2/1 was signed. However, this statement is not related to the Will in question i.e. Ex. PW2/2 and therefore, not a contradiction which can create doubt on the Will in question. The respondent no. 2 has not denied the signatures of the witnesses and of the testatrix on the Will Ex. PW2/2. Therefore, even if there is such a minor contradiction in the testimonies of the two witnesses, no suspicion is created on the execution of the Will.
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45. Further, it is on record that at one place the PW2 has stated that Smt. Pushpa had signed her Will at the residence before taking it to Mehrauli Office while PW3 has stated that the Will was prepared at the Office of SubRegistrar through a typist. However, the evidence of the witnesses are to be read in whole. Perusal of the testimony of PW2 would show that during her cross examination she has also stated that the Will was typed in the Office of SubRegistrar. The Will is a registered document. The respondent no. 2 has not taken any objection regarding the signatures of the testatrix on the Will. As already observed, the arguments of respondent no. 2 are in relation to the sound mind of the testatrix at the time of execution of the Will. However, no evidence has been brought on record to show that the testatrix was not of sound mind at the time of execution of the Will. Therefore, this minor contradiction in the statement of PW2 is not a ground to doubt the execution of the Will as per law.
46. It is also argued on behalf of respondent no. 2 that as per the testimony of PW3, the Will in question was dictated by her to the typist. She has stated that she had dictated the Will to the typist. She has voluntarily stated that there was a handwritten note Ex. PW2/1 on the basis of which the Will was dictated by PC No. 5939/2016 CNR No. DLST010009572014 Page 38 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
her. She has admitted that she had not drafted any other Will earlier to the said dictation. Admittedly, no services of any lawyer were taken with regard to preparation of Will. Perusal of Ex. PW2/1 and Ex. PW2/2 would show that the contents of both the documents are different. The Ex. PW2/1 is in Hindi. In the said document, it is mentioned that elder son of Smt. Pushpa was not looking after her. There is also recital of the fact that Rajesh Katiyal and Lalita Wadhawan were taking care of her. However, no such facts are shown to be mentioned in the Will Ex. PW2/2. Thus, the PW2/2 does not appear to be a document prepared on the basis of Ex. PW2/1. Therefore, the statement of PW3 that document Ex. PW2/2 was prepared from Ex. PW2/1 does not appear to be true. There is no explanation as to why the facts mentioned in Ex. PW2/1 were not mentioned in Ex. PW2/2. PW3 has admitted that she is not aware of the meaning of the words "probate and executor". Thus, the witness does not appear to have any legal knowledge. She has stated that the typist had drafted the Will as per the draft and that all the contents of the draft were incorporated in the Will. However, comparison of both the documents would show that Ex. PW2/2 is different in contents from the contents of Ex. PW2/1. Hence, it is prayed that the petition is liable to be dismissed.
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47. I have considered the submissions. No doubt, the Will is stated to be dictated to the typist by PW3. However, the signatures of the testatrix and of the witnesses have been proved on the Will. There is nothing on record to show that the witness was not able to understand the contents of the document Ex. PW2/2 at the time of signing of the same. Further, the manuscript Ex. PW2/1 has been proved to be in the handwriting of the testatrix. In the said document, also it is mentioned that the testatrix wanted to bequeathed her properties to the petitioners. The PW2 has stated in her cross examination that she had handed over the manuscript to the typist who had typed the Will Ex. PW2/2. The substance of Ex. PW2/1 and Ex. PW2/2 is same as in both these documents Smt. Pushawati Katyal (since deceased) had shown her willingness to bequeath her properties to the petitioners. As already discussed, there is no requirement in the law to mention in the Will as to why the testator / testatrix is excluding one of the legal heir from getting any share in the property of the testator / testatrix. As per law, signatures of the testatrix have been proved on the Will. The attesting witnesses have also proved their signatures as per law. All the requirements of Section 63 of the Indian Succession Act have been duly satisfied in execution of the Will in question and PC No. 5939/2016 CNR No. DLST010009572014 Page 40 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
same are proved on record by evidence as per requirement of Section 68 of Indian Succession Act. Hence, issue no. 1, 2, 3 and 4 are decided in favour of the petitioners and against the respondents.
48. Issue No. 5 - This issue reads as under :
"Whether the petitioners are entitled for letter for administration / Probate with Will annexed dated 10.05.2013 in their favour?OPP"
49. In the light of the discussion hereinabove, I hold that the petitioners have proved the Will Ex. PW2/2 as per law. Therefore, there is no legal impediment in granting the letters of administration to the petitioners as prayed in the petition. The issue is accordingly decided in favour of the petitioners.
50. Issue No. 6 : Relief In view of the discussion hereinabove, the petition is allowed. The Letters of Administration in respect of the properties of deceased Smt. Pushpawati Katyal as mentioned in Schedule A of properties is granted in favour of the petitioners to administer the same. The letters of administration be issued in the prescribed form VII upon furnishing of the proper Court Fee, administration bond and surety bond by the petitioners. The formalities of issuance of Probate shall be completed by the petitioners/beneficiaries PC No. 5939/2016 CNR No. DLST010009572014 Page 41 of 42 Dinesh Kumar/ADJ02/South/Saket/ND/19.01.2023 Rajesh Chander Katyal & Anr. Vs. State & Anr.
within six months from the date of the judgment as per Section 290 & 291 of Indian Succession Act.
51. The petitioners, as per Section 317 of the Indian Succession Act, shall furnish full and true inventory of the above said property and credits and exhibit the same in the Court within 6 months from the date of grant of letters of administration in prescribed Form No. 178. The petitioners shall also file true account of the said property and credits within 1 year in prescribed Form No. 179.
52. It is made clear that the granting of letters of administration would not tantamount to any declaration of the title of the deceased to the estate in question.
Pronounced in the open Court Digitally signed
by DINESH
th
on this 19 Day of January 2023. DINESH KUMAR
KUMAR Date:
2023.01.19
16:24:29 +0530
(DINESH KUMAR)
ADDL. DISTRICT JUDGE02
SOUTH, SAKET COURTS, NEW DELHI.
PC No. 5939/2016
CNR No. DLST010009572014
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