Sh. Suresh, Sh. Nav Raj, Sh. Raja ... vs Sh. Ramesh And Ors.
2007 Latest Caselaw 294 Del

JUDGMENT

J.M. Malik, J.

1. The controversy in this case revolves around a Will executed by Smt. Mukhtiari Devi, Ex.PW-1/1, dated 4.1.1996 in favor of Ramesh, respondent No. 1, in respect of her service benefits with MCD and to the exclusion of the appellants and respondent No. 2 to 12, who are her children or their legal representatives. The learned ADJ vide his order dated 11.01.2007 found the Will to be valid and dismissed the objections raised by the appellants. The appellants in this appeal have questioned the order passed by the trial court.

2. The learned Counsel for the appellant strenuously argued that the execution of Will wallows in suspicious circumstances and uncertainties. He enumerated the following points in support of his case. Firstly, Pratap Singh, Superintendent, CSE, Civil Lines Zone, Rajpur Road, stated that at the time of appointment of Smt. Mukhtiari Devi, who, was working as Sweeper in MCD department of Civil Lines had nominated first Bhartoo, her husband and after his death, she nominated Suresh Kumar, appellant, for her service benefits. She also nominated Mr. Nav Raj, appellant for group insurance scheme only. Learned Counsel for the appellant vehemently argued that the fact that Smt. Mukhtiari Devi, mentioned the names of appellants, in her nomination form casts a film of doubt over the Will. The most telling argument, urged by learned Counsel for the appellants, was that if Smt. Mukhtiari Devi, testatrix had sound disposing mind and had executed the above said Will, it is unfathomable as to why did not she change the nomination from her official record.

3. This fact must be read in conjunction with the other facts which are to be mentioned as hereunder. It must be borne in mind that events happening in the year 1982 or prior to that have got no connection with the execution of her Will which took place after the elapse of 14 years. Within the span of this much time, this is not necessary that the same position must prevail. Secondly, with the passage of time the human memory vicissitudes. There lies no rub in executing a Will in favor of respondent No. 1 against the nomination made by her 14 years' ago. Nomination has got exiguous value as against a valid Will. In the absence of Will, all the legal heirs of the testatrix could have legally made claims to her service benefits. The nomination form on its own does not demolish the claims of the remaining LRs. Nomination is usually made in respect of one or two persons so that there may not be any difficulty in getting the amount withdrawn. It must be borne in mind that when a person who executes his/her Will does not want to tom about the same. She wants to keep it a secret and it is generally done under the hat. The idea behind it is that her legal representatives should not know about it and be at loggerheads during her lifetime. Change of nomination would have entailed enough time and chances of their coming to know by her others heirs about the same could not have been ruled out. They could have picked up cudgels with her on this knotty issue. To my mind, no tangible ground for suspicion exists.

4. Learned Counsel for the appellants also stressed that evidence on record clearly reveals that the testatrix was permanent resident of H. No. 27, 36 quarter, Mubarak Bag, Model Town-1, Delhi, as per ration card, kerosene oil record, election identity card and that the above said quarter is also allotted in her name. He further submitted that Smt. Mukhtiari Devi visited the house of respondent No. 1 for few days during which the above said Will was got allegedly executed. He drew my attention towards the following evidence. Pratap Singh, OW-2, made the following testimony. At the time of her appointment, Smt. Mukhtiari Devi gave her address as 27, Mubarak Bag, Department, MCD Colony, Model Town and her address remained the same on 17.7.1982. Firstly, the said house was in the name of Bhartoo and after his death, it was transferred in the name of Smt. Mukhtiari Devi on 23.4.1974, vide allotment letter, the photo copy of which was proved as Ex.OW-2/3. The witness also proved photocopy of nomination form in the name of Suresh Kumar, Ex.OW2/1 and photo copy of the group insurance scheme nomination in the name of Nav Raj, Ex.OW2/2 dated 09.01.1982. Jai Kishan, UDC, Election Office proved photocopy of the above said electoral roll for the year 1998, Ex.OW1/1 which gives her address as House No. 27, New Police Line, Model Town. Ashok Sharma, LDC, Cremation ground, OW-3, stated that death certificate in respect of the testatrix Ex.PW2/1 was issued and her permanent address is mentioned as B-27, Mubarak Bag Nagar Nigam Colony, 36 quarters, Delhi.

5. His arguments carry no conviction. The remaining evidence evinces the hollowness of his argument. Mr. S.K. Mukhi, Special Assistant, Punjab National Bank, OW-4, stated that the account opening form contains the address of Smt. Mukhtiari Devi as B-281, J.J. Colony, Wazirpur Delhi, i.e. the residence of respondent No. 1 and proved its copy as Ex.OW4/XI dated 25.9.1996. It hits the nail on the head of this problem. It clears all the doubts and reveals that at least prior to 1996 she was residing with respondent No. 1. Karan Singh, OW-5, stated that Satarvi ceremony of the deceased was ceremonised at the house of Ramesh. He clearly, specifically and unequivocally stated that he was not aware whether Suresh and Raja Ram used to beat Smt. Mukhtiari Devi while Smt. Mukhtyari Devi was residing with them up to the year 1982-1983. This statement clearly goes to depict that Smt. Mukhtiari Devi stayed with the appellants till 1982-1983 only. He admitted that Smt. Mukhtiari Devi used to reside at J.J. Colony, Wazirpur in the house of respondent No. 1. He testified that Smt. Mukhtiari Devi was slightly ill. He deposed that information was given to Raja Ram, Suresh and Nav Raj about the death of their mother but they went at the house of Ramesh where their mother had died after six-seven hours. He admitted that a big box belonging to Smt. Mukhtiari Devi was lying at H. No. 27, Mubarak Bagh and it was opened in the presence of Ramesh, Raja Ram, Suresh and Nav Raj. He explained that Rs. 73,150/- were recovered from that box. The testimony of this witness assumes importance because he stated that he was also in service and resides in house No. 14, Mubarak Bagh, Model Town, MCD Colony. Smt. Dhanno, OW-6, another neighbour deposed that Smt. Mukhtiari Devi had died somewhere outside and she had not died at the house of Ramesh. Raja Ram, appellant, admitted that Smt. Mukhtiari Devi had died on 29.6.1998 at Wazirpur in the house of Ramesh. He stated that he was not informed that his mother had died early in the morning at 3.30 a.m. He deposed his mother was ill before her death. He admitted that all the ceremonies in respect of the death of their mother from the date of her death till satarvi were ceremonised at the house of Ramesh. He denied that box left by her was opened by Smt. Murti in his presence. Nav Raj, appellant, OW-10 stated that his mother had died on 29.6.1998 in the house of Ramesh. Raja Ram, Suresh and he himself had given shoulders to the dead body of their mother. He deposed that his mother left their house in good health but became ill in the house of Ramesh. He admitted that one big box and one small box belonging to his mother were lying at Mubarak Bagh, MCD Colony. He stated that box was opened at Mubarak Bag, MCD Colony. Suresh, another appellant, OW-9 stated that when they arrived at the house of Ramesh, respondent No. 1, had already laid the dead body on the pyre. He clearly, specifically and unequivocally admitted that Raja Ram and Nav Raj did not give shoulders to dead body of their mother. He could not say who had performed the ceremony in respect of his mother. He admitted that his mother had two iron boxes which were locked and his mother used to be in possession of their keys.

6. Smt. Murti, OW-10, the daughter of testatrix, is helming this entire case. She is a witness of sterling worth. During her cross-examination, she admitted that Mukhtiari Devi was residing with Ramesh since 16 years before her death. She deposed that Raja Ram, Nav Raj and Suresh did not come at the house of Ramesh despite coming to know about the death of Smt. Mukhtiari Devi. She stated that appellants did not attend the death ceremony and did not give shoulders to the dead body of the deceased. She explained that Raja Ram even did not attend the funeral rituals. She went on to say that the jewellery and other movable property of the deceased were distributed amongst Raja Ram, Suresh and Nav Raj. She deposed that deceased had left a sum of Rs. 73,000/-out of which Rs. 40,000/- were given to Nav Raj being the youngest son and Rs. 1640/- each were distributed among four brothers and four sisters. Rs. 20,000/- was kept for satarvi ceremony. She deposed that Will in question was recovered from the box of the deceased. She alleged that Suresh used to beat his mother under the influence of liquor. Rajinder, OW-11 stated that he is the real grand son of Smt. Mukhtiari Devi and she was residing with respondent No. 1 for the last 15-16 years. He alleged that Suresh and Nav Raj used to beat her and as such she started living with Ramesh. He also stated that the above said amount of Rs. 73,000/- was distributed as per statement given by OW-10. He deposed that all the death ceremonies were performed by Ramesh and he bore all the expenses.

7. The depositions made by Murti and Rajinder destroy the case of the appellants root and branch. The evidence led by the appellants is an outlandish mish mash of half truths, half falsehoods and incongruities. It is clear that the testatrix was living with Ramesh, for the last 15-16 years. The mere fact that she was having permanent house in Model Town does not go to belittle the solid and unflappable evidence discussed above. OW-10 and OW-11 are very important witnesses and I see no reason to disbelieve them. They appear to be guileless witnesses. This circumstance, too, does not ensure in favor of the appellants.

8. The next submission made by learned Counsel for the appellants was about the attesting witnesses namely Sunehri Ram, PW-1 and Jayanti Prasad, PW-3. He argued that both of them are interested witnesses. Sunehri Ram during his cross-examination deposed that Ramesh is his friend and both of them are working in MCD. Similarly, PW-3, stated that he is having good relations with Ramesh and he is also his neighbour. Secondly, Smt. Mukhtiari Devi was illiterate and used to put her thumb impression. At the time of execution of Will, appellants as well as respondent No. 1 were not present, consequently the possibility to obtain her thumb impression on blank papers in order to grab her service benefits and the possibility of managing fraudulent Will with the help of his friends or neighbours cannot be ruled out. Thirdly, Will in question is not a registered Will and it was certified by a notary, who, too was not produced.

9. All these arguments are bereft of force. I do not have even the vaguest feeling of suspicion about the above said witnesses. They are the government employee and neighbour of Ramesh and Mukhtiari, respectively. Neighbours and government servants are the best witnesses. Who else can be there to attest the Will. The learned Counsel for the appellants in vain tried to deal their depositions down with relentless cross-examination.

10. It may be also mentioned that, although, Smt. Mukhtiari Devi was illiterate person, yet, it cannot be said that she was dumb driven cattle or a rustic and ignorant witness because she was in service for a pretty long time. She must be aware what was being happened, why she was taken to the notary public and why she was to mark thumb impression in presence of two witnesses. The Will clearly mentions:

In witness whereof, I the above named Mukhtiari Devi has made and executed this will as my last will with my free consent without any pressure or compulsion after understanding this will in the presence of witnesses.

It may be recalled that documents never tell lies.

11. The requirement of law is that the Will must be attested and proved by two witnesses. The production of notary public is not a sine qua non for proof of the Will. If the appellants have some doubt about it, they could have summoned the notary public as a witness in their defense. Consequently, all these objections must be eschewed out of consideration.

12. The last submission made by learned Counsel for the appellants was that the relations between the testatrix and Ramesh were strained, as is evident from the record. He pointed out that Smt. Mukhtiari Devi had lodged a report with the police against Ramesh on 3.12.1975.

13. Firstly, this complaint was not proved in accordance with law. This is a mere photo copy which was placed on the record. The counsel for the appellants himself admitted that he had tried to summon the record pertaining to the year 1975 but the police could not produce the original as it was reported to have been destroyed due to lapse of time. Even if it is assumed to be true, that incident happened in the year 1975. Much water must have flown under the Ganges since then. There can be no guarantee that the relations must remain strained for more than two decades.

14. No other argument was raised. There is no hinge nor loop to hang a doubt on. The Will in question is valid and properly executed. The order passed by the trial court is flawless. The appeal is dismissed in liming. Lower Court Record and copy of this judgment be sent to the trial court forthwith.