Sh. Surinder Kumar Arora And Ors. vs State And Anr.
2006 Latest Caselaw 60 Del

JUDGMENT

Anil Kumar, J.

1. This order shall dispose of this petition under Section 276 of the Indian Succession Act, 1925 for grant of probate of the Will of deceased Smt. Vidya Rani who had died on 19.5.1997.

2. The petition is filed by the two sons of the deceased Smt. Vidya Rani, who are beneficiaries under the will, contending that Smt. Vidya Rani died on 19.5.1997 within the territorial jurisdiction of Delhi. The deceased had left behind a Will dated 9.10.1996 which was also registered on 9.10.1996 as document No.40879 at Serial No. III volume No.209 at page 2.

3. Along with the petition, the details of the assets of the deceased were given in annexure A and the details of legal representatives, the husband, sons and daughter were given in annexure B. An affidavit of Sh. Prem Sagar Arora, attesting witness of the Will dated 9.10.1996 was also filed who deposed on affidavit that the Will was executed by Late Smt. Vidya Rani at Delhi in his presence and in presence of other witness and the deceased had signed the Will and thereafter the witness had signed the Will. It was also deposed by the attesting witness that Smt. Vidya Rani was in good health and sound disposing mind at the time of execution of the will and she had signed the Will after understanding the same.

4. The grant of probate of the Will of Late Smt. Vidya Rani was opposed by one of her son namely, Shri Hari Krishan Arora, respondent No.5. He filed a reply dated 11.9.2001 alleging that the deceased was aged about 55 years at the time of her death and before her death she was seriously ill for past many years. According to objector she was suffering from jaundice and other serious and harmful diseases and was under the treatment of various doctors. On account of her serious illness she had lost her memory and she could not hear and speak properly. The deceased was unable to distinguish between good and bad and right and wrong and she did not know how to read and write English.

5. The objector contended that the petitioners, Surinder Kumar Arora another son of the deceased never looked after her and the Will dated 9.10.1996 has been manipulated and procured from her. The signatures of deceased Smt.Vidya Rani on the Will were also denied. The correctness of the Will was also denied on the ground that the address of the deceased in the Will was given as 2534/2, Shadipur, Mandir Wali Gali, New Delhi whereas the attesting witness, her husband's address was given as H-49, Bali Nagar, New Delhi.

6. The allegations made in the reply by the objector were disputed by the petitioners who filed a rejoinder contending that Smt. Vidya Rani at the time of her death was not suffering from incurable diseases. As per the report of the doctors of Kalra Hospital, she suffered from high blood pressure, however, it is incorrect that the deceased had lost her memory or that she could not hear and speak properly. It was asserted that from the time of his marriage objector/respondent No.5 was living separately whereas the deceased was living with the petitioners who had been taking care of her. The deceased, according to the petitioners, somehow felt that since the objector/respondent No.5 was living separately he had not respected her. The allegation of signatures of deceased being not on the Will was denied and it was also denied that the signatures had been procured from the deceased. Regarding the addresses of the deceased and her husband, an attesting witnesses of the Will being different, it was contended that the deceased was earlier staying at the Shadipur address before shifting to Bali Nagar and consequently the different addresses were shown. This, however, does not reflect that there has been any manipulation and the Will has been procured.

7. The replies on affidavits were also filed by Sh. Prem Sagar Arora, Sh. Satnam Arora and Ms. Mamta Arora contending that they do not have any objection to the grant of probate in respect of the Will of the deceased Smt. Vidya Rani.

8. From the pleadings of the parties, following issue was framed on 16.9.2002:-

1) Whether the Will dated 9.10.1996 was duly executed by deceased Smt.Vidya Rani

9. In order to prove the Will of Smt.Vidya Rani, the petitioner filed his evidence on affidavit and also the evidence of the attesting witness Sh.Prem Sagar Arora. The petitioner deposed that the deceased was his mother who expired on 19.5.1997 who had executed a Will dated 9.10.1996 during her lifetime which document was also registered. The petitioner deposed that Annexure A to the petition detailed the self acquired properties of her mother and at the time of execution of the Will she was in good health and of a sound disposing mind. At the time of her death she had a minor heart problem which resulted into Acute Mycardial Infarction. He also deposed that deceased was living with him till the time of her death and her Will is genuine and was executed by her on her own and he identified the signatures of the deceased Smt.Vidya Rani on the Will.

10. The attesting witness of the Will Sh.Prem Sagar Arora also deposed on affidavit that the Will was executed by Smt.Vidya Rani in his presence and in the presence of other witness. He also identified the signature of the deceased on the Will and his own signature and the signature of other attesting witness. He also deposed that Smt.Vidya Rani was of a sound disposing mind and in good health at the time of execution of the Will. It was also stated that at the time of her death she was staying with her two sons, petitioners and her husband. The attesting witness deposed that the deceased had accompanied him to Sh.R.R.Bhardwaj, Advocate who is also one of the attesting witness and the deceased had also gone to Sub Registrar's office with him and Sh.R.R.Bhardwaj for the registration of the will. The signatures of Sh.R.R.Bhardwaj on the Will were identified and the Will was proved though the exhibit mark was not put on the will.

11. Respondent No.5/objector also filed his evidence on affidavit to depose that the Will dated 9.10.1996 is not the physical and mental act of the deceased Smt.Vidya Rani, her mother and prior to her death she was seriously ill and was under the treatment of various doctors and her diseases were incurable and she had lost her memory and she could not even hear and speak properly. The objector stated that Smt.Vidya Rani did not know how to read and write and the Will is in English and even the attesting witness did not know how to read and write. It was also stated that the deceased was not cared and looked after by the petitioners, her two sons and in the circumstances the Will could not have been executed voluntarily by the deceased. Regarding signatures of deceased Smt.Vidya Rani he deposed that the signatures were obtained forcibly, fraudulently and under undue influence. He categorically stated that the address of the deceased on the Will and her husband, an attesting witness are different. It was also deposed that the petitioners, two sons of Smt.Vidya Rani along with the attesting witness had forged the objector's signatures and had transferred two FDRs amounting to Rs.98,000/- and 26,961/- in the State Bank of Patiala, Bali Nagar, Delhi in the name of Ms.Mamta Arora, his sister.

12. In the cross examination of PW1 Sh.Prem Sagar Arora, attesting witness deposed that Smt.Vidya Rani was a housewife and she was maintaining normal health. She only had the problem of blood pressure. He categorically denied that the objector had been taking care of her mother. He stated that objector was rather harassing him and Smt.Vidya Rani. He was emphatic that he was present when the Will was executed and it was signed by his wife and him and other attesting witness. He stated that the Will also signed by Mr.R.R.Bhardwaj, Advocate and it was signed before the Magistrate also. He deposed that the Will was kept by him in his custody and he did not tell anyone about the execution of the Will even to the petitioners and the fact about the Will was disclosed only at the time of litigation. He denied that the relations between his deceased wife and his daughter were strained. He specifically denied the suggestion that the Will is false and has been forged and fabricated and also denied the suggestion that the signature of his wife were taken on a blank paper for the purpose of execution of the Will.

13. Regarding transfer of money in the name of his daughter, the attesting witness deposed specifically that the objector had signed the papers in favor of his sister Ms.Mamta Rani and denied the suggestion that the papers were not signed by Hari Kishan, objector in favor of her sister. The attesting witness categorically denied that the signature of the deceased was taken by holding her hand. He stated that his wife signed the Will on her own. It was stated that the objector was living separately for last 20 years and was not thrown out of the house.

14. One of the petitioners, Sh.Surinder Kumar also appeared as a witness and was cross examined as PW.2 who also denied that he made her mother sign the Will forcibly. He also denied the suggestion that the Will has been forged two years after the death of his mother Smt.Vidya Rani in collusion with his brother and father. PW.2, one of the petitioners was very emphatic that his mother was maintaining normal health except having problem of blood pressure.

15. Besides the petitioner No.1 and his father, the petitioner also examined a witness from the Office of the Registrar of documents who appeared as PW.3. UDC Sh.Ram Kumar who appeared as a witness of the petitioner from the office of Sub Registrar IV, Pitampura, Delhi, however, stated that the number of registration given on the original Will pertained to another document executed by one Sh.Garib Ram and the document pertaining to the deceased is not traceable. He refused to admit the various endorsements made on the Will by the office of the Sub Registrar, on the ground that at the relevant time he was not deputed there.

16. The objector Hari Kishan was cross examined as RW.1 who stated that he has not filed any document to show as to how Smt.Vidya Rani, his mother used to sign. He stated that he has not filed any complaint against his father for allegedly forging his signatures for transfer of money in the name of his sister. He denied any knowledge about the execution of the Will by his mother in respect of the property.

17. The death certificate of Smt.Vidya Rani has been proved and exhibited as exhibit P-1. The petitioners have also proved OPD/discharge slip of Kalra Hospital as exhibit P-2 stipulating that Smt.Vidya Rani aged about 50 years old was referred to the hospital from Handa Nursing Home and that when she was received she was gasping and her pulse and her blood pressure were not recordable and soon thereafter she died at 11.15 am on 19.5.1997.

18. In the affidavit filed by the attesting witness Sh.Prem Sagar he categorically deposed that he recognizes the signature of his wife Smt.Vidya Rani and the Will was signed by Smt.Vidya Rani besides himself and Sh.R.R.Bhardwaj, Advocate. He identified the signature of the attesting witness Sh.R.R.Bhardwaj. The Will dated 9.10.1996 has been filed by the petitioners which bears the signature in Punjabi and also bears the endorsements of the Sub Registrar's office. Though the exhibit number has not been put on the Will, however, considering the statements of PW1 and PW2 there is no doubt that the petitioners have been able to prove that the Will dated 9.10.1996 was executed by their mother Smt.Vidya Rani.

19. Though the official who appeared on behalf of Sub Registrar IV stated that the registered number given on the Will correspond to some other document but at the same time he was unable to state that the endorsements made and the stamps put on the Will are not of the Sub Registrar's office. He rather stated that he was not in the Sub Registrar's office when the endorsements were made on the document, Will and it was registered.

20. The respondent/objector has taken a very contradictory stand and has not produced anything to substantiate his pleas. The objector's case as put to the petitioner was that he obtained the signature in blank from his mother and another suggestion which has been given to the witness is that after the death of Smt.Vidya Rani, the Will has been forged and fabricated. The respondent No.5/objector is also unable to produce any other document bearing the signatures of Late Smt.Vidya Rani, comparison with which could have thrown light whether the signatures on the Will are of Smt.Vidya Rani or not. Rather an attempt was made by the respondent No.5/objector that the signature was obtained by misrepresentation or undue influence. The respondent No.5 is living separately for past 20 years. The respondent No.5/objector is unable to prove that he had been living with his mother till few years before her death and the possession of the premises in his occupation was taken forcibly from him. The feeble attempt made by the respondent No.5/objector that the amount has been transferred from the account of the deceased in favor of his sister by forging his signatures has also not been proved by him. The respondent No.5/objector has not taken any action against the petitioners or his father on account of alleged transfer of money under his alleged forged signatures in the name of his sister. If the allegation of the respondent No.5/objector was correct then he would have taken action against such forgery. The fact that no action was taken by him rather reflects that the amount was transferred in the name of his sister with his consent and it is only afterwards that he started raising objections against the transfer of money in the name of his sister. In case he was entitled for any money or any share which is allegedly transferred under his forged signatures he would have filed appropriate legal proceedings against such alleged forgery and transfer.

21. The respondent No.5 rather filed an application being IA No.3881/2005 contending inter-alia that he is no more interested in any sort of litigation with the petitioners for the peace, tranquility and good relations and wants to withdraw the objections filed in the present case. He categorically stated in his application which was duly supported by his affidavit dated 11.5.2005 that he admits the execution of the Will dated 9.10.1996 executed by his mother Smt.Vidya Rani in respect of the property No.H-49, Bali Nagar, New Delhi. He also categorically pleaded that in future he and all his legal heirs or legal representatives shall be bound by his stand that the Will dated 9.10.1996 was executed by his late mother and they shall not have any right of whatsoever nature in property No.H-49, Bali Nagar, New Delhi and he has no objection to the probate being granted in favor of the petitioners and consequently he sought withdrawal of his objections filed on 10.9.2001.

22. On the preponderance of probabilities and considering the statements made by the petitioner No.1 and the attesting witness and the subsequent statement made by respondent No.5/objector admitting the Will, the inevitable inference is that Smt.Vidya Rani deceased had executed the Will dated 9.10.1996.

23. Consequently, I grant probate in respect of Will dated 9.10.1996 of Late Smt.Vidya Rani pertaining to the properties of deceased as detailed in Annexure A with the petition. The petitioners shall administer the estate of the deceased in terms of the will of the deceased and keep due account thereof. The petitioners are granted the probate subject to the petitioners submitting the requisite stamp duty in accordance with law in terms of the valuation report dated 27th June,2002 of Tehsildar Patel Nagar sub division, Delhi submitted before this Court. Test case no. 53 of 2000 is disposed of.