Pushpa vs Murari Lal Gupta And Ors.
2001 Latest Caselaw 1147 Del

JUDGMENT

V.S. Aggarwal, J.

1. Plaintiff Mrs. Pushpa is none other than the sister of defendant no. 1, Murari Lal Gupta. She has field the present suit for partition and rendition of accounts against defendants no. 1 impleading her other sisters defendants 2 to 6. The facts alleged are that the mother of the parties died on 3rd April, 1982. Thereafter the father of the parties died on 5th June, 1990. The plaintiff asserts that she died intestate. The parents of the parties left their estate consisting of immovable and moveable properties which have been detailed in Annexure I to the petition. As per Hindu Law of Succession all the children who are the parties to the present suit were entitled to 1/7th share in the immoveable and moveable properties.

2. It is asserted that the rent of the properties is being collected by defendant no. 1 and he is enjoying properties left behind by the parents of the deceased since the time of their death. Defendants 2 to 6 have informed the plaintiff that they have also not been paid their share despite repeated requests. Plaintiff claiming herself to be the legal heir of the mother and her father seeks partition of the property as well as the rendition of accounts from defendants no. 1.

3. Defendants 2 to 6 in their separate written statement have not disputed the claim of the plaintiff.

4. The contest has been offered by defendant no. 1. In the written statement filed by defendant no. 1 plea has been raised that the plaintiff has no right to file the present suit for partition and further the suit has not been properly valued for purposes of court fees and jurisdiction. It is stated to be barred by time. With respect to the merit of the claim it has been pointed that property no. GI/33 Lawrence Road, Industrial Area was in the name of the late father of the parties. Property no. 111 Jor Bagh, New Delhi was in the name of the mother of the parties. She had made a Will dated 10th January, 1981 and bequeathed the property in three equal shares of Mohan Lal, her husband Murari lal, and Alok Gupta, her grand son. The father of the parties died on 5.6.1990. He had also executed a Will dated 13th March, 1989. The property GI-33 Lawrance Road was bequeathed to the grand son Alok Gupta and similar 1/3 share belonging to Mohan Lal of the property at Jor Bagh was given by him to his grand son vide a Will of 11th May, 1989. In this process, it is stated that the plaintiff or defendants 2 to 6 have no right, title or interest in the property.

5. From these pleadings of the parties following issues were framed on 25th August, 2000.

1. Whether Smt. Kaushalya Devi and Mohan Lal Gupta left behind movable properties as detailed in annexure "A" field along with the plaint?

2. Whether the suit has not been properly valued for the purposes of jurisdiction and payment of court fees?

3. Whether the suit is barred by time?

4. Whether the plaint does not disclose any cause of action as alleged?

5. Whether Smt. Kaushalya Devi executed Will dated 10th January, 1981 bequeathing property no. 111, Jor Bagh, New Delhi in favor of Mohan Lal, Murari Lal and Ashok Gupta in equal shares, as alleged?

6. Whether Mohan Lal Gupta left behind Will dated 30th March, 1989 bequeathing property no. GI-33, Lawrence Road, Industrial Area, New Delhi in favor of Alok Gupta, as alleged?

7. Whether Mohan Lal Gupta also bequeathed his 1/3rd share in property no. 111 Jor Bagh, New Delhi under the till dated 11th May, 1989 in favor of Alok Gupta, as alleged.

8. Relief.

6. Issue Nos. 1, 3 and 4: They were to pressed during the course of arguments on behalf of defendant no. 1. They are accordingly decided in favor of the plaintiff.

7. Issue Nos. 5 to 7: The findings on these issues ultimately decides the fate of the present suit. Necessarily it is for the defendant no. 1 to establish that there were validly executed Wills firstly, by the mother of the parties followed by the two Wills purported to have been executed by the father of the parties.

8. As regards the proof of the Will the law is well settled and reference can well be made to some of the precedents on the subject. The supreme Court in the case of H. Venkatachala Iyenger v. B N Thimmajama and Ors referred to Section 63 of the Indian Succession Act and held that if there are suspicious circumstances then the court would be reluctant to treat the document as the last Will of the testator. The precise findings of the Supreme Court which are instructive can be reproduced below for the sake of facility:-

The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

9. Similarly in the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee in a petition filed for probate the Supreme Court once again looked into as to what would be the effect of suspicious circumstances and that the doubts necessarily must be removed before the Will can be taken to be valid. The court held:-

The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable of unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not fee. In such a case the court would naturally expect that 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 circumstances 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.

10. A year later in the case of Ramchandra Rambux v. Champabai and Ors. the Supreme Court concluded that even where there are no such pleas but circumstances give rise to doubts it is for the propounder to satisfy the conscious of the court. It went on to hold that suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable of unfair in the light of relevant circumstances. It was further held if the propounder himself takes part in the execution of the will that can also infer certain circumstances would be a suspicious circumstances.

11. At this stage, it would be further necessary to take note of the decision of the Supreme Court in the case of Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr. . The Supreme Court held that any and every circumstance is not suspicious circumstance. The following findings in paragraph 8 requires a special attention wherein the Supreme Court concluded that a circumstance would be suspicious when it is not normal and is not normally expected. The said findings are as under :-

Needless to say that any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.

12. A few decisions on the subject from this court can also be taken not of. In the case of Ram Lal v. Hari Kishan , this court held that in order to prove the will it is not necessary for attesting witness to depose that he signed as witness in presence of testator. In another decision in the case of Khushbir Singh v. State 1989 DLT 37 it was held that if the testator father who is having a son and the daughter makes ample provision for marriage of daughter bequeaths all his properties to the son, then no fault can be found with the will in the absence of any suspicious circumstance.

13. Having pondered with some of the precedents on the subject it would be in the fitness of things to draw the necessary conclusions. Normally a will has to be proved like any other document with two attesting witnesses. The difference being that generally the will comes up to be proved when the testator himself is not there. If there are suspicious circumstances in that event the court can insist for removal of suspicious before holding that the will is valid. Every fact which is not normal can be taken to be a suspicious circumstance but if it is a normal will then by itself if a particular person is excluded from inheriting will not make it a suspicious circumstance.

14. So far as the proof of the will in question in concerned defendant no. 1 examined L S Rawat from the office of the Sub-Registrar. As per the record he stated that two will were registered. One executed by Mohan Lal which was registered on 30th March, 1989 and the other also be the same person subsequently copies of which were DW 1/1 and DW 1/2. Raj kumar, Almad in the court of Shri Sunil Kumar Agarwal, ARC brought file pertaining to the eviction petition titled 'Murari Lal Gupta v. Swaraj Kaur and Ors.' and stated that original will is marked "A". In addition to that Dr. S.K. Gupta was also examined as DW3. He stated Kaushalya Devi is the mother in law of his sister. He went on to state that on 10.1.1981 at 10.00 AM S K Bansal brought a will which was written on the instructions of Kaushalya Devi. It was read over in his presence. At that time Shyam Lal, younger brother of Mohan Lal was present. The three daughters of Mohan Lal, namely Madhu, Shanti and Asha were also there. The will was read over to the testator and she had thumbed marked it. Thereafter it was signed by Shyam Lal and other witness as attesting witnesses. During cross-examination he admitted that testator was an illiterate lady and basically a household lady. Suresh Kumar Gupta, DW-4 proved the two wills executed by Mohan lal. He testified that Mohan Lal expressed his desire to execute the will. He had executed the Will DW 1/1 and he along with Om Prakash were the two attesting witnesses who signed in his presence. He had even appeared before the Sub-Registrar at the time of its registration. In similar manner he proved the Will DW 1/2 executed by the father of the parties.

15. Learned counsel for the plaintiff assailed the correctness and veracity of the will on the ground that it is unnatural in terms that the daughters have been excluded from inheriting the property and secondly if the mother of the parties had executed the will and this was to the knowledge of the father of the parties normally he would have bequeathed the property particularly at Jor Bagh in the very first will. This according to him were suspicious circumstances which have not been explained.

16. On careful consideration the arguments so much thought of by the learned counsel for the plaintiff must be held to be cutting little ice. This is for the reason that if the property had been bequeathed to the son and not the daughters by itself will not prove a suspicious circumstance particularly when some provision has been made for them. As noted above, every fact is not a suspicious circumstance. In human conduct certain things that happen in life. Some times it does not happen as expected. That will not be a suspicious circumstance. As regards not executing the will pertaining to the other property for which the second will was executed, once again it appears to be an omission rather than a suspicious circumstance. The will not only has been proved in accordance with law, but if Mohan Lal is of disposing state of mind as is established, there was no occasion for disbelieving the same. If a particular fact was been omitted in the earlier will which had been registered, there is no improbability or suspicion if a second will to make records straight had been executed. Therefore the said plea necessarily must fail. It must be held that above said wills have been shown and proved to have been validly executed.

17. In this regard testimony of Shanti Gupta one of the sister of defendant no. 1 cannot be ignored. She has been arrayed as defendant no. 5. The witness stated that her brother defendant no. 1 was not having cordial relations with his parents or with her. She went on to add that her mother was not feeling well. She was removed to All India Institute of Medical Science when her father and uncle made her mother sit and her thumb expression had been taken on blank papers. In her own words the statement reads:

She remained in coma for about 10 days before her death. When my mother was in come she used to look at us but she was not in a position to express anything she did not sign or put thumb impression on any document during that period. My father and my uncle Sh. Shyam Lal made my mother sit on the bed after her death by holding her from both sides and then her thumb impression were taken on a blank paper. That piece of paper were handed over by me which I torn from register. The thumb impression of my mother was taken on number of papers.

18. Bare reading of this testimony of the witness reveals that she has altogether set up a new case which was not a part of the plaint or even her written statement. She blames here father to have taken the thumb impression of her mother on blank papers. If it was so she would have necessarily made a plea in the pleadings but it is not so. It is thus an after thought. Necessarily her testimony in this regard must be rejected.

19. The plaintiff herself has not stepped into the witness box. She is feeling shy for certain reasons best known to her appear and challenge what has been alleged by respondent no. 1. The only witness examined by the plaintiff as referred to above cannot be believed for the reasons already recorded. The conclusion therefore shall be obvious that it must follow in terms of that defendant no. 1 was proved the wills by virtue of which the plaintiff and defendant no. 2 to 6 lost their right to the properties of the parents of the parties. Issues are decided in favor of the defendant no. 1.

20. Issue No. 2.: Keeping in view the findings on issue nos. 5,6 and 7 when the suit itself is without merit it becomes unnecessary to record any findings.

21. Relief: For the reasons recorded in issues 5 to 7 the civil suit must fail and accordingly is dismissed. Keeping in view the close relationship of the parties they are left to bear their own costs.