Shri L.C. Lai And Ors. vs State
2002 Latest Caselaw 1452 Del

JUDGMENT

R.C. Chopra, J.

1. This petition under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act" only) for Probate has been filed by the petitioner, as the Executors, in respect of the Will dated 30.9.1992 of Late Shri K.R. Kalia. The objector Shri Deepak Kalia is the only son of the deceased. The wife and unmarried daughter of the deceased testator had pre-deceased him.

2. In the petition for grant of Probate, the petitioners submitted that the deceased had left behind two immovable properties, C-667, New Friends Colony, New Delhi-110065 and B-6, Sector-5, Chandigarh, particulars of which were given in Schedule-A. The liabilities of the deceased were mentioned in Schedule-B and the movable properties in Schedule-C. The deceased testator, an Advocate, was a resident of Delhi and had died at Delhi on 14.11.1992.

3. The objector, who is the only son of the deceased, filed objections to the grant of Probate pleading that the Will propounded by the petitions was a fabricated document as his father Late Shri K.R.Kalia was suffering from "Senile Dementia" and was not in a sound disposing mind at the time of making of the alleged Will. He pleaded that this petition had been filed in collusion with one Shri S.K. Gupta, who was trying to validate his false claim in regard to the property bearing No. C-667, New Friends Colony, New Delhi and had filed Suit No. 4604/92 also, which was pending before this Court. It was pleaded that the petitioner Sh. S.K. Gupta and Late Gulshan Rai had conspired to induce his father to disinherit the objector. It was also added that Late Mrs. Vimla Kalia, wife of Late Shri K.R. Kalia was the owner of property bearing No. B-6, Sector-5, Chandigarh and property bearing No. C-667, New Friends Colony, New Delhi owned by Late Jyoti Kalia, daughter of the deceased on whose death, her mother had succeeded to the said property. It was stated that Late Shri K.R. Kalia could not have bequeathed the said properties through any Will. Petitioner No.2 Dr. Devender Sabharwal, who was a beneficiary under the alleged Will dated 30.9.1992, was stated to have induced Late Shri K.R. Kalia to execute this Will when he was not in a sound disposing mind and was admitted in the hospital of Dr. Devender Sabharwal.

4. The petitions filed a reply to the objection petition controverting the pleas raised by the objector. On the pleadings of the parties, following issues were framed on 7.2.1996 and 9.9.1997:-

1. Whether the Will dated 30.9.1992 has been validly executed and is otherwise legal and valid? OPP

2. Whether the Testator was in a sound disposing state of mind at the time of making the Will? OPD

3. Relief.

5. In support of their petition, the petitioners examined petitions No.1 as P.W.1, Shri C.M. Gupta from the office of Sub-Registrar as P.W.2, petitioner No.2 Devender Sabharwal as P.W. 3 and Sh. Sunil Mehta, Advocate, an attesting witness to the Will, as P.W.4. The respondent objector examined R.W.1 Inder Deve Bhalla, a relative of the objector.

6. I have heard learned counsel for the petitioner and learned counsel for the objector. I have gone through the records. My findings on the issues are as under:-

ISSUE NO.

7. In this petition the Will dated 30.9.1992 alleged to have been executed by late Sh. K.R. Kalia is being propounded. The Will has been proved on record as Ex. PW1/2. The signatures of the testator on this Will have been proved not only by the attesting witnesses PW3 Dr. Devender Sabharwal and PW4 Sh. Sunil Mehta, Advocate but by PW1 the petition also who is one of the Executors of the Will. PW1 a friend of the deceased made a statement on oath that he know the deceased since 1929 as they were together in the College. He also stated that he had been seeing the deceased writing and signing and as such was in a position to identify his signatures. He stated that Ex. Pw1/2, the Will was bearing the signatures of the deceased at points A on all the pages. In his cross examination he reasserted that since he had seen the deceased writing and signing many time he was in a position to identify his signatures. Pas. 3 and 4, who are attesting witnesses to the Will, have also identified the signatures of the deceased testator on the Will Ex. Pw1/1. PW3 is a Doctor under whose treatment the deceased had remained prior to his death and PW4 is an Advocate with whom the deceased was having professional relations. The respondent-objector has not seriously disputed the signatures of the deceased testator on the Will Ex. PW1/2. His main plea is that the deceased was not in a sound disposing might at the time of the execution of this will and a fraud was played upon him by the Executors and beneficiaries with a view to deprive the respondent-objector of the property of his deceased father. Even PW1 Shri Inder Dev Bhalla, examined by the bearing the signatures of the deceased testator and rather admitted in his cross examination that after about 4/5 days of the death of the deceased testator, PW1 and the other Executor Sh. Gulshan Rai had informed him that deceased had left behind a Will. Had the deceased not made the Will Ex. PW1/2 the Executors could not have informed RW1 about the existence of the Will soon after the death of the testator. It is also worth mentioning that in his cross examination RW1 was confronted with Will, Ex. PW1/2, in which certain derogatory remarks were made by the testator regarding him but still he did not say that the Will Ex. PW1/2 was not bearing the signatures of the deceased testator. The respondent/objector who is the son of deceased has not entered the witness box to say that Exhibit PW1/2 was not bearing signatures of his father. Therefore, in view of the statements of Pas 1, 3 and 4, this Court has not hesitation in concluding that Ex. PW1/2 bears the signatures of the deceased testator Late Sh. K.R. Kalia.

8. Coming to the question of the validity of the Will, it is found that the testimonies of Pas. 3 and 4 establish that the Will Ex. PW1/2 was executed by the deceased on 30.9.1992 in their presence and the presence of others. First, at about 11.30 AM at Tis Hazari Courts, the testator called PW4 Sh. Sunil Mehta and Sh. M.L. Jain, Advocates and in their presence signed every page of this Will and thereafter both the witnesses appended their signatures in the presence of the testator. The statement of Pw4 is cogent, convincing and trustworthy in this regard. Nothing could be brought out in the cross examination of PW4 to show that he was deposing falsely. PW4 is not shown to be having any motive to depose falsely in favor of executors and against the respondent objector, who is the only son of the deceased. However, some confusion is sought to be raised on account of the fact that this will is signed by two more witnesses namely PW3 Dr. Davender Sabharwal and Dr. Kewal Krishan of Faridabad. The testimony of PW3 Dr. Davender Sabharwal proves that on 30.9.1992 in the afternoon or towards the evening he was called by the deceased testator, at his house in Friends Colony, New Delhi, where Dr. Davender Sabharwal as well as Dr. Kewal Krishan also signed this Will as witnesses. In a way the testator, who was an Advocate himself, got the Will attested by two witnesses in the morning and two other witnesses in the evening on the same day. As such the Will and the Codicil bear the signatures of four witnesses. According to Section 63 of the Indian Succession Act, 1925 an unprivileged Will has to be signed by the testator and attested by two or more witnesses each of whom has seen the testator sign the Will or has seen some other persons sign the Will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature and each of the witnesses signs the Will in the presence of the testator but it is not necessary that more than one witness should be present at the same time. The basic requirement, therefore, is that the Will should be signed by the testator and attested by two or more witnesses but it is not at all necessary that all the witnesses to the Will should be present and sign simultaneously at the same time. Thus the presence of the signatures of four attesting witnesses on Ex.PW1/2 does not create any doubt in regard to the execution or validity of the Will by the deceased testator and rather strengthens its authenticity for the reason that out of four witnesses two were Lawyers and colleagues of the deceased and two were Doctors. It is shown on record that PW 4 Sh. Sunil Mehta and the other witness Sh. M.L. Jain had signed this Will in the morning at Tis Hazari when in their presence the deceased had signed this Will. For all intents and purposes, the Will Exhibit PW 1/2 stood validly executed on the morning of 30.9.1992 itself at Tis Hazari. Thereafter in the afternoon PW 3 Dr. Davender Sabharwal and Dr. Kewal Krishan also signed this Will and in their presence the testator signed the Will or acknowledged his signatures.

9. The mere fact that PW3 Dr. Davender Sabharwal was a small beneficiary and an Executor under the Will Exhibit PW1/2 does not render his testimony doubtful as he is a man of status and little benefit that is flowing from the Will, in the form of some donations to his hospital, cannot be taken as a circumstances good enough to hold that he is a false witness or that he was party to manipulation of this Will. The Will was executed in the presence of two witnesses in the morning of 30.9.2002 and two witnesses in the evening of the same day and was got registered also subsequently by the deceased before the Sub Registrar and as such this Court has no hesitation in holding that valid execution of the Will Exhibit PW1/2 stands established on record. The controversy in regard to the ownership of properties cannot be adjudicated upon in these proceedings as probate proceedings cannot be converted into a title suit. The issue, therefore, is disposed of by holding that the Will dated 30.9.1992 Exhibit PW1/2 was validly executed by the deceased and is otherwise also legal and valid.

ISSUE NO.

10. The law is well settled that the burden of establishing that at the time of the execution of the Will the deceased was in a sound disposing mind is on the petitioner who propounds the Will but this burden is very light for the reason that there is a presumption of soundness of mind in favor of every testator. Unless there is some cogent material on record to doubt his capacity to dispose, the Court must go by this presumption. The propounder of the Will stands discharged of the onus of establishing sound disposing state of mind if he asserts that the testator was in sound disposing mind and there is nothing on record to show that the testator was not in a sound disposing mind. It is also equally settled that mere depreviation of the natural heirs in a Will by a testator should not be taken as a suspicious circumstance because the whole idea behind execution of the Will is to interfere with the normal course of succession. Ordinarily in every Will natural heirs are either debarred or their shares are interfered with by a testator and, therefore, this in itself cannot be taken as a suspicious circumstance. A Will contains the last desire of a testator and as such, the Courts should normally act in accordance with the wishes of a testator. However, if a Will is clouded by some suspicious circumstance and the propounder fails to remove the suspicion, the Will should not be propounded. The judgment of the Apex Court in Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee and Ors. , lays down guidelines for the approach to be adopted by the Courts in Probate petitions. In Pushpawati and Ors. v. Chandraja Kanamba and Ors. , and Surendra Pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr. , , the Supreme Court of India held that the burden of proving a Will is on the propounder and where there are suspicious circumstances, the propounder of the Will has to explain them away to the satisfaction of the Court. It is, therefore, clear that only those suspicious circumstances have to be explained which are brought to the notice of Court. A Propounder is not expected to presume them and then explain each and every imaginary suspicious circumstance. A suspicious circumstance may be as to the genuineness of the signatures of the testator, condition of the testator's mind, the unnaturalness of the disposition made in the Will or any other indication to show that the testator's mind was not free. Once the propounder is in a position to show that at the relevant time the testator was in a sound disposing state of mind and understood the nature and effect of the disposition and signed the Will of his own free volition in the presence of the two witnesses in terms of Section 63 of the Indian Succession Act, the onus on the propounder stands discharged and the burden gets shifted to the objector who alleges something to the contrary. It has to be reiterated that the mere fact that the testator has chosen to divest a legal heir in itself is not a suspicious circumstance. Keeping in view the aforesaid guiding principles, this Court has to find out as to whether at the time of execution of the Will, Exhibit PW 1/2, the deceased testator was in a sound disposing state of mind or not.

11. The evidence on record proves that on 30.9.1992, the date on which the Will, Exhibit PW 1/2 was executed by the testator, he contacted two sets of witnesses, one in he forenoon and the other in the afternoon and made them sign the Will and the Codicil executed by him. PW 4 Shri Sunil Mehta, Advocate who is one of the attesting witnesses to the Will, PW 1/2 has deposed on oath that at about 11.30 a.m. the deceased testator had called him and the other attesting witness Sh. M.L. Jain, Advocate to his chamber where the testator had signed the Will in their presence and they attested the Will in his presence. He found the testator perfectly normal. He also added that in his chamber the deceased had showed him the already prepared Will and Codicil and after he went through the Will and the Codicil, the deceased himself had explained to him the contents of the Will and the Codicil. If the deceased was in a position to explain the contents of the Will and the Codicil to PW4 who got satisfied that the testator had also understood the contents of the Will and the Codicil, it cannot be said that the deceased was not in a sound disposing mind. This witness had not found the testator under any pressure, inducement, coercion etc. at the time of execution of the Will and the Codicil, which according to him, the testator had executed of his own free Will. Nothing could be brought out in the cross-examination of PW4 to show that he was deposing falsely. It rather came out in his cross-examination that at the time the Will was signed by the testator, he was talking normally and there was no sign of abnormality in him. He denied the suggestion that the deceased was not in sound disposing mind.

12. Similarly on that very day in the afternoon, PW3, Dr. Davender Sabharwal was called by the deceased testator at his house when one other witness Kewal Krishan was also present there. Both these witnesses signed the Will after it was signed by the testator in their presence. This witness, who is a Doctor by profession, denied that the deceased was suffering from "Senile Dementia". It is noteworthy that the deceased was under his treatment for quite sometime, but neither records were summoned by the objector from the nursing home of this witness nor he was confronted with any document to show that the deceased was suffering from any disease which incapacitated him in the matter of executing a Will. This witness also stated that the testator was in a sound disposing state of mind at the time of execution of the Will and he did not act in any manner which could make this witness doubt that the testator was suffering from any mental disease. PW1 also corroborated PWs. 3 and 4 in this regard. Nothing could be brought out in their cross-examinations to show that they were making false statements in regard to the sound disposing state of mind of the deceased testator. The mere fact that PW1 and PW3 are executors appointed by the testator or that PW3 was getting some small benefit out of the Will is not enough to reject their testimonies and hold that they are deposing falsely. Even RW1, the witness examined on behalf of the objector could not say that the deceased testator was suffering from any mental disease which rendered him unfit to execute the Will in question. The objector has not entered the witness box nor he has produced any witness to say that the deceased was not in a sound disposing mind.

13. Learned counsel for the respondent/objector has vehemently argued that the fact that the deceased testator described Chandigarh property and New Friends Colony property as his own properties, is in itself sufficient to show that he was not in a proper state of mind for the reason that these properties were in the name of his deceased wife and deceased daughter. This Court is unable to appreciate this contention for the reason that in the Will itself the deceased had explained that these properties were purchased in the name of his wife and daughter by him. Therefore, the deceased could call himself owner thereof. Moreover, after the death of his wife and daughter and there being no other legal representative except the objector, the deceased could have very well considered himself to be the owner of these properties. Therefore, this circumstance alone is not sufficient to conclude that the deceased testator was no in a sound disposing mind. The Will and the Codicil, Exhibit PW1/2 were quite detailed and lengthy and in the Will itself, it was mentioned that this Will was drafted and typed out by the deceased himself. If the deceased was capable of drafting and typing such a lengthy and detailed Will using proper English language and quoting from the literature even, it would be unfair and unjust to hold that the testator was not in a sound disposing mind at the time of signing this Will. Vivid details given by the testator in regard to death of his daughter, death of his wife and misbehavior of his only son (objector) show that the deceased was having a healthy mind till the time of execution of this Will. It is true that the deceased testator was quite old, but that in itself cannot be made a ground for holding that he was suffering from any mental sickness or disorder.

14. This Court, therefore, has no hesitation in concluding that the evidence on record shows that at the time of execution of the Will, Exhibit PW1/2, the deceased testator K.R. Kalia was in a sound disposing state of mind. The issue stands disposed of accordingly.

ISSUE NO. 3 (RELIEF)

15. In view of the decision of the issues Nos. 1 and 2, the petition is allowed. Probate is granted in respect of Will, Exhibit PW1/2 in favor of the executors.

The petition stands disposed of accordingly.