Rakesh Kumar Gaur & Ors vs Vipin Gaur
2009 Latest Caselaw 789 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI



                                                 Reserved on : 26.02.2009
%                                              Date of decision : 12.03.2009



+                           FAO (OS) No.188-190/2005


RAKESH KUMAR GAUR & ORS                                        ...APPELLANTS

                              Through:    Mr.Pradeep Kumat Bakshi with
                                          Mr. Rajat Navet, Advocates.


                                      Versus


VIPIN GAUR                                                     ...RESPONDENT

                              Through:    Mr.J.K.Seth, Sr.Adv. with
                                          Ms. Shalini Kapoor and
                                          Mr. Promil Seth, Advocates.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                  Yes

2.        To be referred to Reporter or not?                   Yes

3.        Whether the judgment should be
          reported in the Digest?                              Yes

SANJAY KISHAN KAUL, J.

1. This appeal has been filed against the judgment dated

06.01.2005 of the learned Single Judge entitling the

petitioner, Mr. Vipin Gaur to grant of Letters of

Administration in PR No. 59/1983.

2. Smt. Bhagwati Devi Gaur died on 17.1.1981. She was

survived by two sons, namely, Satpal and Davinder Pal

and two daughters, namely, Radha Rani and Satyawati.

Her husband, Jagan Nath Gaur and the third son, Rajwant

Pal, who was unmarried, had predeceased her. The

disputes relating to the estate left by the deceased, Smt.

Bhagwati Devi Gaur, were between the son, Davinder Pal,

her grandson Harmesh Pal, s/o Satpal and daughter Radha

Rani. During the pendency of the proceedings, Satpal

expired on 2.3.1982, Davinder Pal expired on 6.11.1999

and Radha Rani expired on 1.1.1992.

3. On the death of Smt. Bhagwati Devi, a probate petition

was filed in the court of the District Judge Delhi, which was

registered as Probate Case No. 115/81. The said petition

was filed by Shri Sri Ram Sharma, who was the real

brother of the deceased and was named as the executor

of the Will dated 19.5.1978. The Will was registered with

the Sub-Registrar, Kahsmere Gate, Delhi as Document

No.1535 in Addl. Book No. III, Vol. 95 at pages 142 to 143.

The said Will was witnessed by two witnesses viz. Shri

Krishan Gopal, nephew of the deceased and Shri C.B.

Anand (Advocate).

4. Satpal was served with the notice issued in the said

probate petition on 17.7.1981, but he did not file any

objection to the grant of probate. Objections dated

13.10.1981 were filed only by Radha Rani. However, after

the demise of Satpal, objections dated 13.2.1984 were

filed by his son, Harmesh Pal.

5. The Will dated 19.5.1978 excluded both the daughters

from inheritance. The estate of the deceased was

bequeathed between the two sons, namely, Davinder Pal

and Satpal.

6. In the meantime, Harmesh Pal filed on 14.03.1983 a

petition under Section 276 of the Indian Succession Act,

1925 ('the said Act' for short) (verified on 05.10.1982) for

grant of probate of the Will dated 14.5.1979 alleged to

have been executed by the deceased, Smt. Bhagwati Devi

Gaur. This case was numbered as Probate Petition No.

19/1983. On an application being filed and allowed in this

petition, the earlier case pending before the District Judge

being Probate Case No. 115/81 was transferred to the

High Court and re-numbered as PR No. 59/1983. Davinder

Pal filed objections in PR No. 19/1983. Subsequently,

Harmesh Pal filed an application being I.A. No. 7899/2004

for withdrawal of this petition seeking probate of the Will

dated 14.5.1979. Harmesh Pal admitted that the Will

dated 19.5.1978 was the last and valid Will executed by

late Smt. Bhagwati Devi Gaur. He appeared in the Court

on 25.11.2004 and his statement was also recorded to

that effect. On the basis of his statement, PR No. 19/1983

was dismissed as withdrawn.

7. Shri Sri Ram Sharma died during the pendency of the

proceedings and accordingly, an application being I.A. No.

1282/2001 was filed by Shri Vipin Gaur s/o Davinder Pal

for substitution in place of Shri Sri Ram Sharma, which

application was allowed vide Order dated 7.11.2002. On

the death of Smt. Radha Rani, her sons Ramesh Kumar

and Rakesh Kumar and daughter Neelam Kansal were

brought on record in her place in the probate petition.

This appeal has been filed by the two sons and husband of

late Smt. Radha Rani.

8. In her Objections dated 13.10.1981, Radha Rani had

averred that the deceased did not execute any valid Will

during her lifetime; that the deceased was uneducated

and would not understand what the document was; that

the Will was a forged and fabricated document; and that

the deceased could not bequeath the agency of Indane

Gas as it was allotted to her on the demise of her son

Capt. Rajwant Pal during the Indo-Pak war of 1965.

9. On 21.10.1981, the following issues were framed :-

"1. Whether Smt. Bhagwati Devi, deceased made her last Will and testament dated 19.5.1978 in favour of the petitioner while possessed of sound disposing mind?

2. Whether the property (Distributorship Agency of Gas), subject matter of Will in question is heritable?

3. Whether the matter posed in issue No. 2 can be determined by this court in probate proceedings?

4. Relief."

10. Issue No. 3, being a purely legal one was treated as a

preliminary issue, was decided vide order dated

23.1.1982, when it was held that the probate proceedings

being concerned only with the issue of genuineness or

otherwise of the Will, question regarding heritability of a

Gas Agency could not be gone into in those proceedings.

Issue No. 3 was accordingly held against the objectors.

Accordingly, the only issues which survived for

consideration were Issue Nos. 1 & 4.

11. The petitioner in support of his case examined himself as

PW-1 and nephew of the deceased Mr. Krishan Gopal

Sharma as PW-2. Shri Balbir Singh, 'Sarpanch' of village

Chahla was examined as PRW-1; Shri Bachan Singh,

'Namberdar' of village Chahla as PRW-2; Mr. Ramesh Pal

s/o Satpal as PRW-3; Mr. K.K. Gaur h/o Radha Rani as PRW-

4. Mr. Davinder Pal was examined as DPW-1; Mr. Har

Nand Singh, Railway Clerk in Orient Express Co. Pvt. Ltd.

as DPW-2; and Mr. L.N. Kapoor, Accounts Officer in Rural

Electrification Corporation as DPW-3. Two court witnesses

were also examined being Mr. C.B. Anand (Advocate) and

Mr. P.S. Nair Senior Scientific Officer, Central Forensic

Science Laboratory.

12. The learned Single Judge after considering the evidence

on record has allowed the probate petition and declared

the petitioner therein entitled to grant of Letters of

Administration.

13. The learned Single Judge has noted that two witnesses

have been examined by the petitioner therein to prove the

Will dated 19.5.1978. Shri Krishan Gopal (PW-2), nephew

of the deceased deposed that he was an attesting witness

to the said Will. Sh. C.B. Anand (Advocate) was examined

as a court witness. He stated that he had prepared the

Will in question as per the instructions of the deceased

and he was an attesting witness to the said Will. The

petitioner, Shri Sri Ram Sharma was examined as PW-1

and stated that the deceased remained in sound disposing

mind till her death. Davinder Pal was examined as DPW-1,

who deposed that his mother (late Smt. Bhagwati Devi

Gaur) had executed the Will in his presence.

14. The learned Single Judge has observed that the evidence

led pertaining to the alleged Will dated 14.5.1979 does not

have to be taken note of as the said Will was set up by

Harmesh Pal who subsequently withdrew the claim under

the said Will and accepted the Will dated 19.5.1978 as the

last valid testament of the deceased, Smt. Bhagwati Devi

Gaur. It was further observed that the other Objector,

Smt. Radha Rani did not rely upon any Will as her case

was that her mother did not execute any Will.

15. The learned Single Judge has also noted that vide order

dated 25.11.1985, the two Wills dated 19.5.1978 and

14.5.1979 as also another Will dated 9.10.1976 were sent

for forensic investigation to Central Forensic Science

Laboratory (for short, 'CFSL'). The report was submitted

by Sh. P.S. Nair, Senior Scientific Officer who was

examined as a court witness. It was noticed that his

evidence as also the report is to the effect that the Will in

question bears the thumb impression of the deceased at

the point of execution and that no categorical opinion is

forthcoming qua the thumb impression of the deceased at

the time of registration.

16. The learned Single Judge further noted though Harmesh

Pal had withdrawn the claim under the Will dated

14.5.1979 executed in Punjab, the testimony of DPW-2

and DPW-3 showed that the deceased was in Cochin from

7.5.1979 to June 1979.

17. It has also been observed by the learned Single Judge that

the Will in question is a registered Will and no defect in

registration has been brought out. Endorsement by the

Sub-Registrar concerned would prima facie show sound

disposing of mind of the testator. It was also noted that

both the attesting witnesses had been cross-examined

and they corroborated each other and there was no

reason to disbelieve the said two witnesses.

18. It was further observed in regard to the Will dated

14.5.1979 that the onus to prove the same was on

Harmesh Pal and the said Will had been abandoned.

19. After considering the facts and circumstances of the case

and going through the material on record as also the

evidence led by the parties, the learned Single Judge came

to the conclusion that it was established that the

deceased executed the Will dated 19.5.1978 in a sound

state of mind and was conscious of her acts and that there

was no undue influence.

20. The learned counsel for the appellants has sought to assail

the findings of the learned Single Judge on the following

grounds.

21. The first plea raised by learned counsel for the appellants

is that while granting Letters of Administration, the

learned Single Judge did not consider the subsequent Will

dated 14.5.1979 even though evidence had been recorded

regarding the said Will. It is also pleaded that the learned

Single Judge has treated the matter as a private dispute

between the parties and ignored the fact that a probate

petition is a 'judgment in rem and not in personam'. In

this behalf, reliance is placed upon the judgment of the

Apex Court in Anil Kak vs. Kumari Sharada Raje and Ors.,

(2008) 7 SCC 695. It was further pleaded that the learned

Single Judge had completely ignored the Will dated

14.5.1979 on the basis of a concession / settlement

between some of the parties even though the CFSL had

concluded that the thumb impressions on both the Wills

were of the same person. Reliance was placed upon the

judgment of the Apex Court in Civil Appeal No. 6575/2008

titled as Chandrabhai K. Bhoir and Ors. vs. Krishna Arjun

Bhoir and Ors. decided on 07.11.2008, to submit that it is

impermissible in law to ignore the last Will and Testament

on the basis of agreement between the parties.

22. The second plea raised by the learned counsel for the

appellants was that the Will dated 19.5.1978 was

surrounded by various suspicious circumstances and the

evidence in this regard has been overlooked and/or

brushed aside in the impugned judgment as minor

discrepancies. In this regard, a reference has been made

to the contradictory stand of the petitioner / executor in

the petition and his cross-examination with regard to

knowledge of the Will. It was further pleaded that the

correspondence exchanged between the Executor and the

major beneficiary showed collusion regarding the Will

dated 19.5.1978. A reference was also made to two

letters dated 11.12.1976 (Ex. R/3) and 29.6.1977 (Ex.

R/2/2).

23. The third plea raised by the learned counsel for the

appellants is that there are various infirmities in the

impugned order which are as under :-

a. At page 4, on the basis of statement of counsel for

respondent, learned Single Judge held that the legal

heir, Radha Rani is not interested.

b. At page 5, the learned Single Judge erred in holding

that it need not look into the objections of Shri Harmesh

Pal.

c. At page 6, the learned Single Judge erred in holding

that the exclusion of daughters is bona fide.

d. At page 9, the learned Single Judge held that he need

not refer to evidence with regard to the subsequent

Will.

24. Lastly, the learned counsel for the appellants referred to

the judgment of the Apex Court in Rani Purnima Debi and

Anr. v. Kumar Khagendra Narayan Deb and Anr., AIR 1962

SC 567 wherein the principles governing grant of Letters

of Administration has been laid down.

25. On the other hand, the learned senior counsel for the

respondents sought to bring our attention to the fact that

no heir of the deceased, other than Smt. Radha Rani, had

raised objections to the Will dated 19.5.1978. A reference

in this regard was also made to the fact that late Shri

Satpal did not file any objections during his lifetime. A

reference was also made to the objections filed by Smt.

Radha Rani to make submissions in respect of the grounds

having taken in the objections itself as noticed aforesaid.

26. The first plea raised by the learned senior counsel for the

respondents was that since Shri Harmesh Pal withdrew his

petition and objection to the Will dated 19.5.1978, nobody

else was challenging the Will dated 19.5.1978. A

reference has also been made to the fact that the

appellants were not prosecuting the appeal nor did appear

on a number of dates. It was further submitted that under

the circumstances, the learned Single Judge did not have

to decide the validity of the Will dated 14.5.1979 as no

one was propounding the said Will. A reference was also

made to the observation of the learned Single Judge that

at the time of alleged execution of the Will dated

14.5.1979, Smt. Bhagwanti Devi Gaur was living in Cochin

while the Will was executed at Chilla. A reference was

also made to the fact that no arguments were advanced

on behalf of the appellants before the learned Single Judge

in support of the Will dated 14.5.1979.

27. The second plea raised by the learned senior counsel was

that there were no suspicious circumstances surrounding

the Will. It was submitted that the Will has been proved

by two attesting witnesses and that it has been proved

that Smt. Bhagwati Devi Gaur was possessing sound

disposing mind. A reliance is also placed upon the

judgment of the Supreme Court in Malkani v. Jamadar, AIR

1987 SC 767 to contend that merely because beneficiaries

under a Will take active part in execution, the

testamentary capacity of the executrix or the genuineness

of the Will cannot be doubted only on that account. A

reliance is also placed upon the judgment of the Apex

Court in Palanivelayutham Pillai & Ors.

v. Ramachandran & Ors., JT 2000(7) SC 47 to contend that

mere presence of the beneficiary at the time of execution

cannot be a suspicious circumstance.

28. The learned senior counsel also sought to rely upon the

judgment of the Supreme Court in P.P.K. Gopalan Nambiar

v. P.P.K. Balakrishnan Nambiar, AIR 1995 SC 1852 to

support the proposition that in a registered Will, the

endorsement by the Registrar / Sub-Registrar would show

that the testator was of sound disposing mind and that it

was executed out of her free will and volition and that

there must be real, germane and valid suspicious features

and not fantasy of the doubting mind. Reliance was also

placed upon the judgment of the Apex Court in Naresh

Charan Das Gupta v. Paresh Charan Das Gupta, AIR 1955

SC 363 to contend that once it has been proved that a Will

has been executed with due solemnities by a person of

competent understanding and apparently a free agent,

the burden of proving that it was executed under undue

influence is on the party who alleges it.

29. Lastly, it was pleaded by the learned senior counsel that

merely because the bequest was not made equally to all

the legal heirs, it cannot be said that the Will is bad and

that it was within the capacity of the testator to give the

entire estate to any of the legal heirs and could even

bequeath the property to a stranger towards whom she

had liking and that the purpose of executing a Will is to

deviate from the line of inheritance.

30. We heard learned counsel for the parties and have

perused the record.

31. It is trite to say that where there are two wills propounded,

even if the earlier will is proved in accordance with law,

there would be no entitlement for grant of the probate of

that will if the subsequent will is also proved. The reason

is that in terms of Section 276 of the said Act, the probate

is granted for 'last will and testament'. In the present

case, one of the legal heirs of the testator was Mr.Satpal.

Mr. Satpal never propounded any will, but his son Sh.

Harmesh Pal filed a separate petition for grant of probate

of a subsequent will dated 14.05.1979. Sh.Harmesh Pal,

however, did not prosecute the petition to its logical

conclusion and withdrew the petition.

32. The grievance of the appellants is that despite the said

withdrawal of the petition, it was the bounden duty of the

learned Single Judge to have considered the aspect of the

subsequent will dated 14.05.1979.

33. The aforesaid submission, in our considered view,

completely ignores the fact that before the Will dated

14.05.1979 could be relied upon, it had to be proved in

accordance with law. That would require not only

evidence to be led but arguments to be made as to how

the will stood proved in accordance with law. No such

submission was made. If the appellants were interested

in supporting the Will dated 14.05.1979, nothing

prevented them from getting themselves transposed as

petitioners in those probate proceeding or to take

necessary steps for proving the Will. This is coupled with

the fact that the case of the appellants was, in fact, that

no will had been executed at all. If the appellants wanted

to change their stand and support the Will dated

14.05.1979, they were required to take certain logical

steps which they failed to do. It is undoubtedly true that

the grant of a probate is a judgment in rem and not in

personam. This does cast a higher duty on the court

while scrutinizing a Will, but it does not imply that merely

because another alleged subsequent Will has been filed,

the Court without any assistance must proceed suo motu

to make an enquiry and give a finding on the same when

no one is propounding or supporting that the Will in the

Court. The withdrawal of the petition for grant of probate

of the Will dated 14.05.1979 coupled with the absence of

any pleadings or action on the part of the appellants in

that behalf leads only to one conclusion that the learned

Single Judge had no option but to ignore the alleged Will

dated 14.05.1979.

34. The Will dated 19.05.1978 is a registered one. In Rani

Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb

and Anr 's case (supra), the Supreme Court had noted that

a Will being registered is a circumstance to prove its

genuineness. This is an important factor, but that by

itself, will not imply that nothing more needs to be

proved. If there are suspicious circumstances regarding

its execution, they can certainly be looked into. This

would, however, require the appellants to prove such

suspicious circumstances to negate the grant of probate of

the said Will. The Will does not bequeath estate to

outsiders but bestows the estate on persons in the direct

line of inheritance though it does exclude the daughters.

However, this is not an unusual aspect in view of the

social scenario in India, more so, for the period when the

Will was executed in the year 1978.

35. Learned counsel for the appellants sought to emphasize

that the executor in a letter dated 11.12.1976, addressed

to one of the legal heirs, had referred to the fact that

some eminent lawyer should be consulted about the Will

of the testator which was executed and to verify whether

the Will was flawless and uncontestable. In another letter

dated 29.06.1977, written by one of the heirs to the

executor, a reference has been made to the fact that after

the demise of the testator, the Will would have to be got

'proved' through a civil court and processed thereafter,

but that the testator may not be consulted as it would

upset her. The purpose of this reference is that the

executor had knowledge of a Will and despite this in his

cross examination has stated that he was unaware of the

fact that if the testator had, in fact, executed any Will

before her death and that he came to know only after her

death that she had executed a Will. The appellant when

confronted with the letter stated that he did not remember

how he had written the letter. In respect of the aforesaid,

it may be noticed that there are not actually two Wills but

three Wills. There was an earlier Will dated 09.10.1976

which was undisputed. The date of the letters show that

they are prior to the Will dated 19.05.1978 and thus could

only refer to the earlier Will dated 09.10.1976. The

executor could hardly have made a reference to the Will

dated 19.05.1978 even prior to that date. The letters

would have to be read in that context and a hyper

technical view cannot be taken on this aspect when the

overall testimony of the executor is not blameworthy.

36. In our considered view, the testimony of the executor

cannot be ignored. Learned counsel for the appellant has

really not been able to point out to us any other suspicious

circumstances other than making general allegations

which would disentitle the grant of probate of the Will

dated 19.05.1978.

37. Learned counsel for the appellants has assailed the

impugned judgment for various infirmities as set out in

para 23 aforesaid. We, however, find no such infirmities.

When the learned Single Judge was referring to the fact

that legal heirs of Smt. Radha Rani, appellants herein,

were not interested it was obviously in the context of the

fact that the appellants had not even cared to appear

before the learned Single Judge to argue their case. The

matter has gone on in their absence. Similarly, Sh.

Harmesh Pal was not pressing his objections to the Will

and had even withdrawn the second probate petition. The

learned Single Judge could not be expected to go into the

objections as a theoretical exercise. Insofar as the

ignoring the exclusion of the daughters is concerned, it

has already been mentioned aforesaid that this is not an

uncommon practice and can hardly be a reason to doubt a

registered Will. The absence of reference to the

subsequent Will has already been dealt with hereinbefore.

It may be noticed that a judgment will apply to its own

facts and only a principle of law enunciated apposite to

the facts of another case can be of assistance. The

present case is not one where a subsequent Will had been

ignored on concession/settlement, but that petition itself

was never pressed nor was that Will proved in accordance

with law. Thus, the judgment in Anil Kak vs. Kumari

Sharada Raje and Ors's case (supra) would have no

application. The legal principle that it is impermissible to

exclude the last Will on the basis of an agreement

between the parties as enunciated in Chandrabhai K. Bhoir

and Ors. vs. Krishna Arjun Bhoir and Ors.'s case (supra) is

again unexceptionable but, as noticed above, the present

case is not one of ignoring a Will by agreement between

the parties but of a subsequent Will not being proved in

accordance with law as the petition itself was withdrawn

and no one argued in support of the Will.

38. The conclusion we have arrived at finds support from the

judgment in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan

Nambiar's case (supra) which dealt with the consequences

of a registered Will where an endorsement is made by the

Registrar/Sub Registrar. In such a case, it shows that the

testator was of sound disposing mind and the Will was

executed out of her own free will and volition unless there

are real, germane and valid suspicious features and not

fantasy of the doubting mind. Learned counsel for the

appellants has not been able to show any such suspicious

features. It may also be noticed that where the

beneficiaries are the direct legal descendants, naturally

the legal descendants would have played their roles in

respect of the execution of the Will of an old lady as stated

in Malkani v. Jamadar's case (supra).

39. We thus find no infirmity in the impugned order.

40. The appeal is accordingly dismissed with costs of

Rs.10,000/-.

SANJAY KISHAN KAUL, J.

MARCH 12, 2009                                SUDERSHAN KUMAR MISRA, J.
mk/dm