SH SHRI BHAGWAN vs THE STATE AND OTHERS
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on:20th December, 2023
Pronounced on: 30th April, 2024
+ TEST CASE No.100/2011, I.A.4289/2015, I.A.13701/2016
& I.A.3862/2022
SH. SHRI BHAGWAN
S/o Shri Ram Narain
R/o Village & P.O Tajpur Khurd,
P.O Chhawla,
New Delhi-110071.
….. Petitioner
Through: Mr. N.S. Dalal, Mr. Alik Kumar and Ms. Rachana Dalal, Advocates.
versus
1. THE STATE
2. SHRI JAI BHAGWAN
S/o Late Sh. Ram Narain
R/o Village & Post Office
Rajpur Khurd, P.O. Chawla,
New Delhi-110071.
3. SMT. SAVITRI DEVI
W/o Shri Jai Prakash,
R/o Village & P.O Auchandi,
Delhi.
4. SMT. SHAKUNTALA
W/o Shri Raghubir
R/o Village & P.O Harevli,
Delhi.
5. SMT. BIMLA
W/o Sh. Ram Kumar
R/o Village & P.O Prahladpur,
Delhi.
6. SMT. SUMITRA
W/o Shri Mahabir
R/o Village & P.O Sameypur Badli,
Delhi.
7. SMT. SANTOSH
W/o Shri Om Dutt,
R/o Village & P.O. Kultana,
District Rohtak, Haryana.
8. SMT. KANTA
W/o Sh. Ashok
R/o Village & P.O. Sawda Nizampur,
Delhi.
….. Respondents
Through: Mr. Ajay Pandey, Mr. Aakash and Ms. Mamta, Advocates for R-2. Mr. Avadh Kaushik, Advocate for R-3, 4 & 8.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The Petitioner, Sh. Shri Bhagwan, has filed the present petition under Section 276 of the Indian Succession Act, 1925 has been filed for grant of Probate in respect of Will dated 14.02.2002, executed by his father late Shri Ram Narain.
2. It is submitted in the Probate Petition that late Shri Ram Narain, father of the petitioner as well as respondent No. 2 to 8, had expired on 25.03.2004. During his life time, he had executed a Registered Will dated 14.02.2002, whereby he bequeathed his 1/4th undivided share in agricultural land bearing Khasra Nos. 3/17 (4-3), 18 (4-16), 19 (3-19), 26 (0-4), 24/11/1 (4-5), 11/2 (0-11), 12/1 (0-14), 25/15 (4-12), 189 (0-1) situated in the revenue estate of village Tajpur Khurd, Delhi ( hereinafter referred to as Suit Property), to the petitioner herein, who has become the owner of 1/4th share in the Suit Property by virtue of the Will.
3. The petitioner has asserted that the Will dated 14.02.2002 is the last and final testament of the deceased, which was duly registered on 15.02.2002, with the office of the concerned Sub-registrar, Sub-District-III, Delhi vide document No. 822 in Addl. Book No. III, Volume No. III on Page No. 113.
4. Further, the Will was duly executed by the deceased and was attested by two witnesses namely Shri Anil Kumar s/o Shri Prem Singh and Shri Ashok Kumar Tyagi. It is further asserted that the deceased at the time of making of the Will, was of sound disposing mind and had signed the Will without any coercion and 1/4th share has been given to the petitioner. All the other Class-I legal heirs of the deceased, have been arrayed as respondent No. 2 to 8.
5. The Petitioner, being a beneficiary under the Will dated 14.02.2002, has therefore, sought for grant of Probate/ Letter of Administration in respect of the Will dated 14.02.2002 executed by Late Shri Ram Narain.
6. Citations were published in daily newspaper, The Statesman (Delhi Edition), on 12.01.2012.
7. The Objections have been filed jointly by Respondents who have taken a preliminary objection that the alleged Will dated 14.02.2002 is a sham document which has been obtained fraudulently by the petitioner. The Testator only knew Urdu language whereas the Will dated 14.02.2002 is in English and the attesting witnesses, in their verification filed along with the petition, have no where stated that the contents of the Will were explained to the Testator while he signed the alleged Will.
8. Further, though Shri Ram Narain had died on 25.03.2004, the Probate petition had been filed only in November, 2011 and the same did not see the light of the day till about eight years. This unexplained delay in presenting the Will arouses suspicion about the genuineness of this alleged Will.
9. It is further claimed that the suit property is an ancestral property and not the self acquired property of Late Shri Ram Narain and thus, he had no right or authority to bequeath the same by virtue of a Will. Furthermore, Respondents, who are the Class-1 heirs of Late Shri Ram Narain, are in possession as co-sharers in the suit property.
10. Furthermore, the alleged Will did not state even a single word to explain the exclusion of the other sons and daughter and his wife (who died after the demise of Shri Ram Narain), and why the property was bequeathed only to the petitioner. This is more so, as the sons and daughters were having cordial relationship with the deceased and there is no apparent reason for their exclusion. Rather, Shri Ram Narain had lodged a complaint dated 18.03.1989 at P.S. Najafgarh against the petitioner Shri Bhagwan and the relationship between the petitioner and his father were not cordial.
11. The respondents have also submitted that the petitioner was adamant to grab the property and did not hesitate in giving beatings to Smt. Omwati, ,wife of respondent No.2/Shri Jai Bhagwan, while forcing her to leave the house. The incident culminated into registration of a complaint dated 02.07.1985 against Shri Bhagwan, by Smt. Omwati, in the Police Station.
12. The Will has also been challenged on the ground that Late Shri Ram Narain had entered into an Agreement to Sell on 10.02.2003, with one Sh. Joginder Singh and Sarbjit Singh Lamba, in respect of the suit property. If the said Will is genuine, then the deceased would not have entered into the Agreement to Sell; the very fact that he entered into an Agreement to Sell dated on 10.02.2003 shows that no Will was ever executed by him. Furthermore, the petition is bad for mis-joinder and non-joinder of Sh. Joginder Singh and Sarbjit Singh Lamba who have pending litigation in the District Courts in respect of the suit property.
13. The objectors have further disclosed that petitioner and respondent No. 2 along with other plaintiffs, have filed a Suit No.123/05 titled Jay Bhagwan and Others vs. Prem & Ors., for Permanent Injunction against Shri Prem Singh and others for the land comprised in Khata Khatoni No.131/109 bearing Khasra No.174/1 min measuring 13 Biswa situated in the Revenue Estate of village Tajpur Khurd, Delhi, before the Senior Civil Judge, Tis Hazari Court, Delhi which was referred to mediation and the parties arrived at a amicable settlement. The land comprised in Khasra No.174/1 min measuring 13 Biswa was declared to be divided in five equal shares. It was further agreed that plaintiff No. 6 therein would give 1/5the share of the sale consideration to Jai Bhagwan and Shri Bhagwan, both sons of Late Shri Ram Narain. Since, respondent No. 2 has already got his share in this land, he should also get the share in other ancestral land as mentioned in the Will. The petitioner being not aware about the existence of the share of Late Shri Ram Narain in land comprised in Khasra No.174/1 min measuring 13 Biswa, had not included this property in the alleged Will, which raises doubts on the genuineness of the Will.
14. The petitioner by way of clever manipulation has tried to grab the properties by not only forging this alleging Will but has also sold Plot No.8, measuring 70 sq. yds. out of Khasra No.189 & 191 to his wife Laxmi Kanta for a sum of Rs.1,05,000/- vide GPA dated 04.02.2004, which has been further transferred in the name of Smt. Dharamwati w/o Narender Kumar vide GPA dated 01.05.2008 for a sum of Rs.4,40,000/-. This property, however, finds no mention in the alleged Will.
15. It is thus, submitted that the petition for grant of Probate of alleged Will dated 14.02.2002, is liable to be dismissed.
16. The Respondent No. 5/Smt. Bimla, Respondent No.7/Smt. Santosh and Respondent No.6/Smt. Sumitra have given their No Objection to the grant of Probate/Letter of Administration in favour of the Petitioner vide Application dated 29.03.2012, 29.03.2012 and 08.05.2014 respectively.
17. The petitioner in its Rejoinder/Reply to the Objections has explained has explained that Late Sh. Ram Narain, the Testator had been living with the petitioner since 1985 and he had been all throughout taking care of the father including his medical expenses, while the Respondent No. 2/ Jai Bhagwan had strained relations with the father and he never looked after him or even attended his last rites/rituals. Further, the suit for Specific Performance of the Agreement to Sell dated 10.02.2003, filed by Sh. Joginder Singh and Sarbjit Singh Lamba in collusion with Respondent No. 2/ Jai Bhagwan, had already been dismissed vide Order dated 26.03.2012 and no Appeal has been filed. It is further submitted that the Suit Property already stands mutated in his name on 02.03.2016, which has also not been challenged. The Will dated 14.02.2002 had been annexed along with the Mutation Application way back in 2004, which was duly contested by Respondent No. 2/Jai Bhagwan. Thus, all respondents were aware about the Will dated 14.02.2002 executed by Late Shri Ram Narain.
18. The Learned Counsel for the Petitioner has reiterated the averments, in the Written Submissions and has placed reliance upon Hatti v. Sunder Singh 1970 (2) SCC 841, Ram Mehar v. Mst. Dakhan, ILR (1972) II Delhi, Nathu v. Hukam Singh and Ors. 21 (1982) DLT 219, Har Naraini Devi and Anr. v. Union of India and Ors. 2022 SCC OnLine SC 1265, Kanta Yadav v. Om Prakash Yadav and Ors. (2020) 14 SCC 102, Mahesh Kumar (Dead) by LRs v. Vindo Kumar and Ors. (2012) 4 SCC 387 and Pentakota Satyanarayana v. Pentakota Seetharatnam and Ors. AIR (2005) SCC 4362, to buttress the arguments advanced.
19. Issues were framed vide Order dated 17.04.2014 as under:
(i) Whether the document dated 14.02.2002 is validly executed last Will of deceased Shri Ram Narain? OPP
(ii) Whether the deceased Shri Ram Narain was able to read and write English and/or Hindi language, and if not to what effect? OPP
(iii) What is the effect if any of the delay in applying for probate? OPO
(iv) Whether there was no reason for the deceased Shri Ram Narain to exclude the objectors from his estate? OPO
(v) Relief.
20. Submissions heard and evidence as well as written submissions perused.
21. Admittedly, Late Shri Ram Narain s/o Shri Ram Nathan died on 25.03.2004 and was survived by two sons i.e. the Petitioner and Respondent No. 2 and six daughters i.e. Respondent No. 3 to Respondent No. 8. Only Respondent No. 2, 3, 4 and 8 are the contesting Respondents whereas Respondent No. 5, 6 and 7 have furnished their No Objection to the grant of Probate/ Letter of Administration with respect to Will dated 14.02.2002 in favour of the Petitioner.
22. The case of the petitioner is that during his life time their father had executed a Will dated 14.02.2002 which was duly registered on 15.02.2002. The respondents have contested the Will and challenged its authenticity on the following grounds:
(i) The Will dated 14.02.2002 is a forged and fraudulent document since the father knew only Urdu language, but the contents of the Will are in English, which were never explained to him;
(ii) The present Petition seeking Probate of the Will dated 14.02.2002 has been filed after eight years of the demise of the father which creates a suspicious circumstance raising doubts about the genuineness of the Will;
(iii) There is no explanation in the Will for bequeathing the entire suit property in favour of only one son and excluding all other siblings;
(iv) The Will is in respect of ancestral property for which the deceased had no right to execute the Will; and
(v) The deceased father had already executed an Agreement to Sell dated 10.02.2003 in respect of suit property in favour of third parties and thus ceased to be the owner of the suit properties during his life time.
23. These objections will now be considered.
24. The burden of proving the Will is on the propounder of the Will to establish absence of suspicious circumstances surrounding the execution of Will, proof of testamentary capacity and signatures of the testator, as well as, the witnesses as required by law to discharge the onus to prove to the satisfaction of the Court that the Will is genuine. Even if there is no such plea on any of these aforementioned circumstances to give rise to doubts, the onus is still on the propounder to satisfy the conscience of the court. It was reiterated in the case of Shashi Kumar Banerjee & Ors. vs. Sumodh Kumar Banerjee, AIR 1964 SC 529, that if the propounder is successful in explaining the suspicious circumstances, the Court would grant probate, even if the Will may be unnatural and may cut off wholly or in part, any of the near relatives.
25. These principles have been reiterated in the case of Smt. Jaswant Kaur vs. Smt. Amrit Kumar, (1977) 1 SCC 369, wherein also it was observed that Will being an ambulatory document, it may be possible that there may be no occasion for anyone to know about its existence until the death of the testator but it has to be explained as to why a document disposing of a property worth lakhs of rupees, should remain a closely guarded secret from the whole world of intimate friends and relatives by the sole legatee for a period of time after the testators death.
26. In the light of aforesaid principles, the facts of the present case may be considered to determine if the petitioner has successfully discharged the burden of proving the Will as genuine expression of the intension of the Testator.
Issue No.1: Whether the document dated 14.02.2002 is validly executed last Will of deceased Shri Ram Narain? OPP
27. At the outset, it is concomitant to examine the scope of determination in a Probate case. In the case of Mt. Laso Devi Vs. Mt. Jagtambha Devi, AIR 1936 Lah 378, the Lahore High Court held that a Probate Court is only concerned with the proof of valid execution of a Will.
28. The Will dated 14.02.2002 Ex. PW1/1 executed by Late Shri Ram Narain reads as under :
THIS DEED OF WILL IS MADE AT DELHI ON THIS 14th day of February 2002, by SHRI RAM NARAIN, S/O SHRI NATHAN R/O VPO: TAJPUR KHURD, NEW DELHI, hereinafter called the Testator.
Life is uncertain and God knows when it may come to an end.
Hence, I with my free wish and without any pressure make this Will with my sound and disposing mind.
Whereas the said Testator/Testatrix is the absolute sole owner and in possession of 1/4TH UNDIVIDED SHARE IN AGRICULTURAL LAND BEARING KHASRA NOS. 3/17 (4-3), 18 (4-16), 19 (3-19), 26 (0-4), 24/11/1 (4-5), 11/2 (0-11), 12/1 (0-14), 25/15 (4-12), 189 (0-1) SITUATED IN THE REVENUE ESTATE OF VILLAGE TAJPUR KHURD, DELHI.
I hereby bequeath that after my death, my aforesaid property with the freehold rights of the land under the said property shall go and devolve in favour of SHRI SHRI BHAGWAN S/O SHRI RAM NARAIN RESIDENT OF VPO: TAJPUR KHURD, P.O. CHAWLA, NEW DELHI- 110071.
In case anyone raises any objection and challenges this will such all objection and challenges shall be treated as Null and Void.
Mode of Execution of Will dated 14.02.2002:
29. The first aspect in the Probate Petition is to establish due execution of the Will. Section 63 of Indian Succession Act, 1925 provides for the substantive law on Execution of Unprivileged Wills. Section 63 (a) & (b) of the Indian Succession Act, 1925 provides the requisites of a valid Will. It states that the testator must affix his signature on the Will and it shall appear that it was intended thereby to give effect to the writing as a will. Further, Section 63(c) of the Indian Succession Act, 1925 provides that a Will must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.
30. Thus, to prove the valid execution of unprivileged wills, it is apposite to establish that – firstly, the Will was duly singed by the testator or bears the affixation of his Mark; secondly, the Mark so affixed or the signatures of the testator was so placed that it appears that it was indented to be executed by the Testator in the manner as specified and with a dispensing mind free from all extraneous influences; thirdly, it must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.
31. The petitioner has examined PW1/Shri Ashok Kumar Tyagi, Advocate, who not only prepared the Will on the instructions of the deceased Shri Ram Narain, but was also the attesting witness. PW1/ Shri Ashok Kumar Tyagi has deposed that he knew the deceased since he was his colleague in the college and also the petitioner/Sh. Bhagwan used to supply milk to his family.
32. The witness has further deposed that Late Shri Ram Narain, who was also doing the business of milk, was an ex-military personnel and an agriculturist too. In the first week of February, 2002 Late Shri Ram Narain requested him to prepare a Will in respect of his immovable properties and also one General Power of Attorney in favour of his son Shri Bhagwan, the petitioner. On the instructions of Shri Ram Narain, he prepared the Will dated 14.02.2002 Ex. PW1/1 and the GPA Ex. PW1/2.
33. He has explained in his cross-examination that he did not mention the age of Shri Ram Narain on the Will due to oversight. He has further explained in his cross-examination that deceased Shri Ram Narain had retired from military and had given him instructions in Hindi but he knew English as well as Urdu language. He further deposed that the deceased had read the Will and GPA himself and he also explained him the contents in vernacular.
34. His testimony proves that the Will was prepared by PW1/Shri Ashok Tyagi on the instructions of the deceased and that the contents of the Will were an expression of his own intention. The testator had understood the contents as he knew the language Urdu as well as English language and had also been explained the contents by PW-1, before he signed the Will.
35. The petitioner has also examined, PW-2/Shri Rajbir, UDC from the office of Sub Registrar, New Delhi. He produced the record from the office of Sub Registrar, Kapashera, Delhi and deposed that as per the record, the Will Ex.PW1/1 had been registered vide Registration No.822 in Additional Book No.3 Vol. No.III at page 113 and the GPA Ex.PW1/2 was registered vide Registration No.1045 in Additional Book No.4 Vol.No.720 at pages 178 to 179 and that both the documents were registered on 15.02.2002.
36. Registration of document carries the presumption of valid execution under Section 114(e) of the Indian Evidence Act, 1872 that in accordance with the law and the said presumption can be rebutted only by leading credible and tangible Evidence. The factum of registration of the Will in the present case creates a presumption that a registered document is validly executed as held in the case of Prem Singh & Ors. vs. Birbal & Ors., 2006 (5) SCC 353.
37. Thus, in terms of Section 63 of the Indian Succession Act, 1925 which provides for the manner of execution of the Will, the testimony of PW-1/Shri Ashok Kumar Tyagi proves that the Will Ex. PW1/1 as the last expression of the intent of the Testator and the final Will executed by him in sound and disposing mind.
Proof of execution of the Will dated 14.02.2002:
38. Section 68 of the Indian Evidence Act, 1872 provides for the of proof of execution of document required by law to be attested, which provides that where a document is required by the law to be attested, it shall not be used as evidence until at least one attesting witness has been called for proving its execution (if the attesting witness is available).
39. PW1/Shri Ashok Kumar Tyagi, Advocate, was not only the person who prepared the Will but was also the attesting witness. He had explained in his testimony that he did not write his fathers name or address while signing as the witness, but has mentioned his Enrolment Number, which is sufficient identification for the Advocates. PW1 has explained that he had prepared the Will on the instructions of the deceased Shri Ram Narain on 14.02.2002, but the same was registered on the next day. He has also identified the signatures of the testator on the Will, which he deposed to had been signed on 14.02.2002, while the Will was signed by the testator on the back of the Will at the time of registration on 15.02.2002.
40. PW1 Shri Ashok Kumar Tyagi has further deposed that the deceased Shri Ram Narain had brought the other attesting witness Shri Anil Kumar along with him on 15.02.2002 at the time of registration of the Will and Shri Anil Kumar had signed in his presence. The deceased Shri Ram Narain also signed on the Will as well as the GPA in his presence. The Sub-Registrar also asked Shri Ram Narain to confirm whether he had signed both the documents i.e. Will and GPA who had reaffirmed that the contents of the documents were in his knowledge. Late Shri Ram Narain confirmed the correctness of the Will as well as the GPA. Shri Anil Kumar the attesting witness had put his signatures on the Will and he also had put his signature as the second attesting witness. PW-1 has identified his signatures at Point-A, Point-B and Point- C whereas the signatures of Sh. Anil Kumar are identified at Point-D Point-E and Point-F and the signatures of Late Shri Ram Narain as appearing at Point-A and Point-B.
41. The testimony of PW1/Sh. Ashok Kumar Tyagi which is supported by PW2/Sh. Rajbir thus, proves the valid execution and registration of the Will in accordance with Section 63 on the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872. There is nothing to discredit the evidence of the witnesses so produced for proving the same and the respondent failed to lead any cogent evidence to create any doubt about the execution of the Will.
42. The Issue No.1 is decided in favour of the petitioner.
Issue No.2: Whether the deceased Shri Ram Narain was able to read and write English and/or Hindi language, and if not to what effect? OPP
43. RW2/Shri Jai Bhagwan had deposed in his testimony that the Will dated 14.02.2002 was forged and fabricated and has been manipulated by the petitioner with the ulterior motive of grabbing the legitimate share of Respondent No. 2. He had claimed that the Will in question is written in English while Late Shri Ram Narain knew only Urdu language. Further, none of the attesting witness have stated in their verification filed along with the Probate Petition, that the contents of the Will were explained to the Testator while he signed the alleged Will.
44. PW1/Shri Ashok Kumar Tyagi has deposed that Late Shri Ram Narain was an ex-military personnel and an agriculturist. He has further explained in his cross-examination that deceased Shri Ram Narain had retired from military and he knew Urdu, Hindi and English as well. He further deposed that the deceased had read over the contents of the Will and GPA himself and he also explained him the contents in vernacular. He was duly cross-examined but no material contradiction could be brought forth.
45. Furthermore, RW2/Jai Bhagwan, respondent no.2 in his cross-examination has admitted that he has not filed any documents containing the signatures of his father. Therefore, though he had taken a plea that the signatures on the Will were forged, he has failed to produce any cogent evidence to corroborate his assertions.
46. It is, therefore, concluded that the Will Ex.PW1/1 bears the signatures of the deceased Shri Ram Narain and that the contents of the Will were read over and explained to him before he put his signatures in Urdu language.
47. Issue No.2 is decided in favour of the petitioner and against the respondents.
Issue No.3: What is the effect if any of the delay in applying for Probate? OPO
48. The respondent No. 2 and other contesting respondents have claimed that one suspicious circumstance surrounding the alleged Will is that it was produced for the first time, only in 2011 when the present petition was filed, after eight years of the demise of Late Shri Ram Narain.
49. This plea however, is not tenable for the simple reason that the Respondent No.2/Jai Bhagwan had filed two applications before the SDM, Najfgarh to not issue NOC and not mutate the suit property in the name of Shri Bhagwan, on 22.03.2004, while Shri Ram Narain was alive. After demise of Shri Ram Narain, the petitioner moved an application dated 05.04.2004, before the Tehsildar, Najafgarh for mutation of the property in his name on the basis of the Registered Will dated 14.02.2002 and had annexed the copy of the Registered Will along with his application, in respect of which the Probate is sought by way of present Petition.
50. The application of Petitioner seeking mutation, was countered by another application for mutation of the suit property by Respondent No. 2/ Jai Bhagwan to Tehsildar, Kapeshera , in June 2004. The mutation was allowed vide Order dated 24.07.2004 in favour of Respondent No.2/Jai Bhagwan against which an Appeal No.81/2004 was preferred by the petitioner before the Learned DC, Kapashera and the same was duly contested by the Respondent No.2/ Jai Bhagwan.
51. Learned Deputy Commissioner, Kapashera vide Order dated 31.03.2015 set aside the Mutation Order dated 24.07.2004 and remanded it back to SDM (RA) Kapashera, with a direction to give an opportunity to both the parties on the limited question of authenticity of the Will dated 14.02.2002. The learned SDM recorded the evidence of the attesting witness and the Record Keeper from the office of Sub Registrar, Kapashera and vide Order dated 02.03.2016 gave a finding in favour of the petitioner/ Shri Bhagwan holding that the Will has been dully verified and attested by the witness and ordered mutation of the suit property in favour of Shri Bhagwan the petitioner on the basis of the Registered Will dated 14.02.2002. This order of mutation has never been challenged.
52. Therefore, the Will of the father was annexed along with the application for mutation by the petitioner, way back in 2004 and on the basis of the Will in fact the mutation has also been carried out in 2016 in favour of the petitioner. The mutation proceedings were duly contested by the Respondent No. 2 and thus, the claim that the Will never surfaced in the past last eight years, is completely fallacious. The Will had been produced by the petitioner in 2004 when he had sought mutation of the property in his name on the basis of the Will and it was well within the knowledge of the respondent no.2 since 2004. Pertinently, the finding of the SDM that the Will was genuine and permitting the mutation in favour of petitioner, has never been challenged by the respondent no.2.
53. It is, therefore, held that there is no delay in the production of the Will and there is no suspicious circumstance surrounding the Will, on this account.
54. Issue No.3 is decided in favour of the petitioner.
Issue No.4: Whether there was no reason for the deceased Shri Ram Narain to exclude the objectors from his estate? OPO
55. The Will Ex.PW1/1 bequeathed the entire suit property in favour of the petitioner to the exclusion of the respondents No.2 to 8 who are the brother and sisters of the petitioner. Initially, all the sisters i.e. respondent No. 3 to 8 had filed their objections to the Will, but subsequently respondent No.5, 6 and 7 gave their No Objection to the grant of Probate in favour of the petitioner.
56. In the case of Iswardeo Narain Singh vs Jasjit Singh, AIR 1954 SC 280 it was held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court.
57. In Uma Devi Nambiar vs T.C. Sidhan, (2004) 2 SCC 321, Hon?ble Supreme Court has held that:
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 circumstance 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 : AIR 1972 SC 2492, it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, 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, (1973) 3 SCC 291.) In Rabindra Nath Mukherjee 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.
58. The petitioner had stated in his Reply to the Objections/Rejoinder that their father Late Shri Ram Narain and their mother were living in the property since the time he got married in the year 1985, while Respondent No.2/Jai Bhagwan had separated from the joint family and started living separately, who has continued till date to reside in his own house. He had further deposed that he has been with his parents since his birth till their death and had taken care of the welfare as well as their necessities of food, shelter, medicines and had taken them to all the near relatives and had provided them with all love and affection.
59. The petitioner has deposed that the sisters were all married by Late Shri Ram Narain during his life time and he had spent handsome amount on their marriage. They are all financially well settled in their respective matrimonial home and thus, recognising the services rendered by the petitioner, the deceased father excluded the sisters from the bequest.
60. He had further deposed that Respondent No.2/Jai Bhagwan and his family members never took care of their father and the mother so much so that he had performed the last rites and all the ceremonies in respect of the death of his father including phool chugna tehrvi satarvi and kaaz. Also, all the expenses on these ceremonies were borne by him only.
61. These facts have been admitted by Respondent No.2/Jai bhagwan in his cross-examination. The reason given by respondent No.2 for not participating in any of the last rites is that he was not on talking terms with his brother (i.e. the petitioner). He has also admitted that he had separated from his father in the year 1985 and that his father never resided with him. He is not aware of the date of retirement of his father. He also admitted that when he separated from the family, his father gave half of the utensils of family to him.
62. PW1/Shri Ashok Kumar Tyagi has also deposed in his testimony on similar lines to which he has not been subjected to any cross-examination.
63. Further, PW3/Shri Samay Singh, maternal cousin of the petitioner has also corroborated in his testimony about the good relations of the petitioner with his father and that he had observed that respondent No.2 had strained relations with his father.
64. This is also corroborated by PW4/Smt. Santosh Devi, respondent No.7 who has appeared as the witness of the petitioner to support the case of the petitioner and has deposed that the Will was duly executed by their father and she was informed by her father about the execution of the Will.
65. It is also pertinent to mention that respondent No.5, 6 and 7 who have subsequently given their No Objection, have also stated that their father had great affection for the petitioner, while the respondent No.2 never took any care of their father.
66. The respondents have claimed that the petitioner had fought with the father and an FIR was also got registered by the father against the petitioner. However, he has not been able to give any details about the alleged fight or the FIR that was registered against the petitioner according to him.
67. In Hari Singh and Anr vs State and Anr, 2010 SCC Online Del 4269 it was held that the mere disinheritance of natural heirs cannot be a suspicious circumstance in itself. Moreover, 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. They have to be mindful of the fact that the Courts have to uphold the wishes expressed and not the wisdom behind the same.
68. Similar to the present case, in Neelam Singh and ors vs Dr. Sudha Sinha and ors, 2022 SCC OnLine Jhar 1231, the father had executed a Will in favour of one daughter by excluding the other. It is but natural that those who may stand to lose on account of it will object and contest the probate application. An onerous responsibility on the probate court lies to be on guard against any manufactured will and at the same time to remain the conscience keeper of the testator who does not remain in his mortal form before the court. However, the degree of proof and appreciation of evidence is based on preponderance of probability depending on the evidence on record taken as a whole. When there is overwhelming evidence and circumstances which are in proof of the due execution of the will, there mere suspicion on the exclusion of a natural heir cannot invalidate its execution.
69. In the case of Mahesh Kumar (Dead) by LRs v. Vindo Kumar and Ors. (2012) 4 SCC 387, the Apex Court held that making of a Will in favour of one son/propounder, to the exclusion of other sons, is not a suspicious circumstance when propounder had looked after old aged parents while the other son had never bothered about them. Since the children had neglected the father during his last days, exclusion of other siblings and bequeathing entire estate to only one child will not draw an inference of suspicion or invalidate the will.
70. The facts of the present case are para materia as here also the other son/ Respondent No.2 was living separately since 1985 and admittedly never looked after parents. He has admittedly also not attended the last rites and it is established that it was only the Petitioner who took care of the old aged parents during their last years and even the expenses of the last rites of the late father were borne by him alone.
71. The overwhelming evidence, therefore, establishes the love and affection of the deceased father for the petitioner and the bond they shared owing to the proximity with the Petitioner and also explains why respondent No. 2 and the other contesting sisters had been excluded from the Will.
72. The Issue No.4 is decided in favour of the petitioner.
Other Circumstances
73. The respondent No.2 has further alleged that Late Shri Ram Narain had executed an Agreement to Sell dated 10.02.2003 in favour of Sh. Joginder Singh and Sarbjit Singh Lamba and having entered into an Agreement to Sell he was left with no right, title or interest in the suit property to execute the Will. However, it is on record that Civil Suit No.169/2010 that was filed by Joginder Singh and Sarbjit Singh Lamba for Specific Performance of the Agreement to Sell, has been dismissed vide judgment dated 26.03.2012 by the learned ADJ and the dismissal Order has not been challenged till date. The contention of respondent No.2 in regard to Late Shri Ram Narain not being an owner of the property is, therefore, without any merit.
74. The respondent No.2 has also asserted that Late Shri Ram Narain in his Will itself has mentioned that he has 1/4th share in the ancestral property which he has bequeathed to the petitioner. Since, it is an ancestral property, deceased Ram Narain had no right, title to execute the Will in its regard.
75. This argument again is not relevant or tenable for the purpose of grant of Probate. The Apex Court in the case of Chiranjilal Shrilal Goanka v. Jasjit Singh (1993) 2 SCC 507 held that the question of right, title, share and ownership is not to be decided in the probate proceedings. Further, in Sameer Kapoor vs State, (2020) 12 SCC 480, it was observed that a Probate Court can only determine the legal character of a Will. Thus, Any alleged lack of title in the suit property, cannot be considered in a Probate proceeding and is a subject matter of civil jurisdiction.
76. The other circumstances as pleaded by respondent No.2 are also not tenable for denying the grant of Probate in respect of the Will dated 14.02.2002 Ex.PW1/1.
Whether the Petitioner can be granted Probate/ Letter of Administration, as prayed:
77. Section 222 of the Indian Succession Act, 1925 clearly specifies that the probate can be granted only to an Executor appointed under the Will.
78. In the present case, the Will does not have a named Executor. The scheme as decipherable from the provisions of the Indian Succession Act, 1925 does not thus, postulate a vacuum in the administration of the estate of the deceased testator. The Act under Section 232 contemplates that the universal or a residuary legatee may be admitted to prove the Will with a consequential issuance of Letter of Administration with the Will annexed.
79. Further, Section 234 of the Indian Succession Act, 1925 deals with the grant of administration in cases where no executor, nor residuary legatee, nor representative of such legatee exist or declines, is incapable of acting or cannot be found, then the beneficiary would have been entitled to file an application for the Letter of Administration.
80. In judgement of the Apex Court in Vatsala Srinivasan vs Shyamala Raghunathan, (2016) 13 SCC 253, while addressing the question of whether the proceedings stood abated on the demise of the executor, it was held that the essence of both the proceedings is the same as they are primarily concerned with determination of the genuineness and authenticity of the Will. A proceeding for grant of probate or letters of administration is initiated for protecting the interest of legatees under a Will and to ensure that the benefit arising out of a will are granted to them. The Executor does not derive any interest in the probate which forms the subject matter of the bequest unless he is also the beneficiary under the Will and the main purpose of probate proceedings, which is to establish the Will and administer the estate as per its terms, can very well be achieved by issuance of Letters of Administration with the Will annexed as per section 232 of the Indian Succession Act, 1925 It was thus, concluded that the law does not prohibit conversion of the proceedings from grant of Probate to one for issuance of Letter of Administration.
81. The Madras High Court applied the findings in Vatsala Srinivasan (supra), in Madhy vs Vairamanai, CRP No 3381/2021 decided on 27.10.2022 while deciding the maintainability of a Probate petition under Order VII Rule 11 of the Code of Civil Procedure, 1906 on the objection that the same can only be filed by the executor named in the Will and not by a beneficiary. It was observed that even though the legatee had prayed for Probate, considering that the proceedings for Probate and a Letter of Administration serve the same purpose of benefiting the legatee, the court can very well grant a Letter of Administration to the sole legatee instead of a Probate, if he succeeds in proving the validity and the genuineness of the Will.
82. Similar observations have been made in the decisions of the Supreme Court in FGP Ltd. vs. Saleh Hooseini Doctor,(2009) 10 SCC 223 and various High Courts in Shirin Baman Farazarzi of Bombay Zoroastrian Iranian inhabitant v. Zubin BomanFaramarzi, 2014 (4) MHLj 217, Inder Chand Nayyar v. Sarvadeshik Arya PratinidhiSabha, AIR 1997 Del 34, Sanjay Suri v. State & Ors, AIR 2004 Del 9 and Lallubhai Chhotabhaiu by LRs v. Vithalbhai Parshottambhai, AIR 1982 Guj 222, that Petition seeking grant of Probate of a Will can be allowed to be converted into a petition for Letters of Administration with Will annexed.
83. It is therefore observed that the present petition seeking for a Probate is hereby treated as a petition for Letter of Administration with the Will annexed.
Relief
84. A Letter of Administration with the Will annexed in respect of the Will dated 14.02.2002 Ex PW1/1, is hereby granted in favour of the petitioner, subject to payment of requisite court fees.
85. Petitioner shall furnish Administrative Bond with one Surety to the satisfaction of the learned Joint Registrar General of this court.
86. The valuation of the property filed by the Department concerned, is on record.
87. On payment of the requisite court fee and other formalities noted above, the Letter of Administration in respect of the Will dated 14.02.2002 shall be issued by the Registry.
88. The petition stands allowed and accordingly disposed of in the above terms.
89. List before the Joint Registrar on 10.05.2024 for depositing of the bond.
(NEENA BANSAL KRISHNA)
JUDGE
APRIL 30, 2024
va
TEST CASE No.100/2011 Page 1 of 27