Rama Kant Sharma S/O Late Shri Gopi ... vs State, Smt. Om Wati @ Uma W/O Shri ...
2004 Latest Caselaw 429 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant is aggrieved by a judgment and order dated 18th December, 2003 passed by the learned Additional District Judge in PC No.349/2001 (Old PC No.322/89).

2. At the outset, learned counsel for the Appellant submitted that Respondent No.4 was not a party to the proceedings before the learned Additional District Judge and so he may be deleted from the memo of parties. However, since the appeal is being dismissed in liming, it hardly matters whether Respondent No. 4 remains a party to the proceedings or not.

3. The dispute is about a Will executed on 23rd July, 1979 by Pt. Gopi Chandra Shastri, father of the Appellant and Respondents No.3 to 5. Respondent No. 2 is the daughter-in-law of the testator and the wife of Respondent No. 4.

4. In the Will, the testator mentioned that he was the owner of property No. C-3/6, Krishna Nagar, Delhi and 17/11, Bagla Bhawan, Near Pili Kothi, Queens Road, Delhi. The Will stated that two sons of the testator, that is, the Appellant and Respondent No.

3 were not living with him, that they had not served the testator and his wife during their lifetime and, therefore, the testator did not confer any bequest on these two sons. On the other hand, the testator stated that since Respondent No. 2, his daughter-in-law, had looked after him and his wife, he was bequeathing the Krishna Nagar property to her while Bagla Bhawan was bequeathed to his daughter, Respondent No.5. The testator died on 2nd January, 1981 and his wife pre-deceased him on 20th September, 1980.

5. Initially, Respondents No.2 and 5 filed a petition for grant of probate but later on Respondent No.5 was transposed and so she filed objections to the probate petition. Respondent No.2 amended the probate petition and also asked for letters of administration with Will attached since she was one of the beneficiaries under the Will.

6. The Will was scribed by a deed writer Sumer Chand Jain in the presence of the testator and two attesting witnesses Manohar Lal Jain and Ram Dev Suri.

7. Objections to the grant of probate were filed by the Appellant and Respondents No.3 and 5. It was submitted by the objectors that the Will was either forged or was obtained after exercising undue influence on the testator. On the question of forgery, it was alleged that P.N. Bhardwaj, Advocate was the brother of Respondent No. 2 and he was handling all the litigation on behalf of the testator. He had obtained some blank papers with the signatures of the testator and the Will was subsequently written on one such blank paper. It was also submitted that there were a number of suspicious circumstances, which pointed to the fact that the Will was not a genuine document.

8. On the pleadings before him, the learned Additional District Judge framed the following issues:-

1. Whether deceased Pt. Gopi Chandra Shastri had validly executed Will dated 23.7.1979 and he was of sound disposing mind at that time?

2. Whether the present petition has not been properly verified and attested in accordance with law.

3. Relief.

9. The scribe of the Will, Sumer Chand Jain entered the witness box and testified as PW-1 and stated, inter alia, that he had written the Will at the instance of the testator in the presence of the two attesting witnesses. He confirmed that the testator had signed the Will in his presence and the two attesting witnesses had also signed the Will in his presence. He proved a register maintained by him, which also contained a gist of the entry of the Will. The two attesting witnesses Ram Dev Suri, PW-4 and Manohar Lal Jain, PW-5 also confirmed the execution of the Will in their presence by the testator. Since the will was registered, an officer from the office of the Sub Registrar-II, Kashmiri Gate, Delhi, K.L. Pal entered the witness box as PW-2 and confirmed the registration of the Will.

10. Looking to the evidence on record, the learned Additional District Judge had no doubt in his mind, and similarly there is no doubt in my mind as well, that the Will was duly executed by the testator.

11. The submission of the objectors before the learned Additional District Judge was that there were certain suspicious circumstances, which pointed to the fact that the Will was not genuine. Out of the suspicious circumstances considered by the learned Additional District Judge, the only contention urged before me was that P.N. Bhardwaj, Advocate who was handling some litigation on behalf of the testator, had forged the Will. Before dealing with this, I think it is necessary to give a brief indication of some of the other suspicious circumstances alleged by the objectors.

12. The learned Additional District Judge has noted that there was no specific pleading about how any fraud was perpetrated in the execution and registration of the Will or how any undue influence was exercised over the testator. It was pointed out by the learned Additional District Judge that the Supreme Court had held in Bishundeo Narain vs. Seogeni Rai, and Ladli Parshad Jaiswal vs. The Karnal Distillery Co. Ltd., that when an allegation of fraud, undue influence or cercion is made, the pleadings must set forth full particulars of the fraud, undue influence or coercion.

13. In Bishundeo Narain a Constitution Bench of the Supreme Court said in paragraph 25 of the Report:

''Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion.''

.

14. Similarly, in Ladli Parshad Jaiswal, another Constitution Bench of the Supreme Court said, in paragraph 20 of the Report:

''A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of under influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.''

15. It was held in Surendra Pal vs. Dr. (Mrs.) Saraswati Arora, that the onus is on the person alleging fraud or undue influence. It was said in paragraph 7 of the Report:

''It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the Will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case.''

In the present case, the learned Additional District Judge held that the pleadings were not specific nor did the objectors produce any evidence in support of their allegation of fraud, or undue influence.

16.The learned Additional District Judge also noted that no suggestion was put either to the scribe or to any of the attesting witnesses that the Will was written on signed blank papers. There was also nothing to show that an impostor had been produced at the time of registration of the Will or that the testator was under heavy medication such that he did not know what he was doing.

17. On the basis of the above, I think the learned Additional District Judge was justified in rejecting the contentions of the objectors with regard to the validity of the Will.

18. The main contention urged by the objectors before the learned Additional District Judge and which was also reiterated before me was that the testator had wrongly stated that two of his sons were living separately from him. Reliance in this regard was placed upon an eviction case filed by the testator against his tenant Indu Mahendra. When the testator entered the witness box in the eviction proceedings in respect of the Krishna Nagar property, he stated that as the head of the family he was require to look after his children and that the premises were bona fide required by him for the residence of his sons and his family who were residing at Bagla Bhawan. The statement of the testator was recorded in the eviction proceedings on 12th January, 1979 while the Will was executed on 23rd July, 1979. The statement of the testator before the learned Rent Controller clearly showed, it was contended, that the relations between the testator and his two disinherited sons were quite normal, if not cordial.

19. In Rabindra Nath Mukherjee vs. Panchanan Banerjee (dead) by LRs, , it has been held that the whole purpose of executing a Will is to interfere with normal line of succession. If the Will is proved as being a genuine document, the Court can grant a probate even if the Will confers some unnatural bequests and cuts off some near relations of the testator wholly or in part. (See also Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, ). In such a case, the onus is on the person who propounds the Will to show its genuineness.

20. The genuineness of the Will has already been discussed hereinabove and there can be no doubt of its genuineness. With regard to the contradiction between the statement made by the testator in the eviction proceedings and in the recitals of his Will (a suspicious circumstance), the learned Additional District Judge was of the view that the statement in the eviction proceedings was made by the testator to get the Krishna Nagar property vacated from the tenant. It is not something unusual for a landlord to state that relations between him and those dependent upon him are cordial for the purposes of getting back his tenanted property. If the testator said something in his Will contrary to what he stated in the eviction proceedings, one can only say that the statement made in the eviction proceedings may not have been entirely correct and was perhaps made with a view to ensuring that the eviction proceedings succeed. The contrary looks much more doubtful, namely, that the testator had made an incorrect statement in his Will to the effect that two of his sons are staying separately from him and have not looked after him or his wife. It is quite unnatural for anyone to make a false statement in his last Will and testament. Even otherwise, there have to be some extremely strong and cogent reasons for coming to the conclusion that the testator had intentionally made a false statement in his last Will and testament. Such reasons are not forthcoming.

21. Under the circumstances, I would uphold the finding of the learned Additional District Judge that the Will dated 23rd July, 1979 has been validly executed by Pt. Gopi Chandra Shastri and that the objections thereto are required to be dismissed. The cnonclusions of the learned Additional District Judge, who has written a clear and lucid judgment, are affirmed.

22. In so far as the second issue is concerned, no argument was addressed either before the learned Additional District Judge or before me that the petition for grant of probate or for Letters of Administration with Will annexed has not been property verified and attested in accordance with law.

23. A third argument was raised before the learned Additional District Judge to the effect that the probate petition was barred by time inasmuch as it was filed in August, 1989, more than three years after the death of the testator. No argument was raise and by learned counsel for the Appellant to challenge the conclusion of the learned Additional District Judge that the probate petition was not barred by limitation.

24. I see no merit in this appeal. The same is, accordingly, dismissed.