Des Raj Gupta vs State
2009 Latest Caselaw 1958 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                      Date of Reserve: March 4, 2009
                                       Date of Order: May 11, 2009
+ Probate No.62/1985

%                                                    11.05.2009
         DES RAJ GUPTA                               ...Petitioner
         Through : Mr.Sudhir Chandra Aggarwal, Sr. Adv. with
                        Mr. Chetan Sharma, Sr. Adv. with
                        Mr. Vashisht, Mr. sameer Vashisht &
                        Mr. Girish K Mishra, Advs.

         Versus


         STATE                                    ...Respondent
         Through:    Mr. Shaju Francis, Adv.



         JUSTICE SHIV NARAYAN DHINGRA

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

2.       To be referred to the reporter or not?                     Yes.

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


         JUDGMENT

1. Lala Hansraj Gupta, ex Mayor of Delhi died on 3rd July,

1985. The present Petition was filed in October, 1985 by his son

Sh.Des Raj Gupta alleging therein that Lala Hansraj Gupta had left

behind a „Will‟ executed by him on or around 28th May, 1985 in sound

mind, out of his own free will and desire. The „Will‟ was registered by

sub-Registrar on 29th May, 1985. The sub-Registrar registered the

document at the residence of Lala Hansraj Gupta. It is averred that the

Probate No.62/1985 Page 1 Of 27 „Will‟ was drafted by Sh. S.K. Tiwari, Advocate who is also one of the

attesting witnesses to the „Will‟ and the Probate Petition. Late Lala

Hansraj Gupta named 3 executors in the „Will‟. One of the executors

named is the petitioner and the other 2 executors named in the „Will‟

are Sh.Shiv Raj Gupta and Sh.Rajender Kumar Gupta, the two other

sons of the deceased. Petitioner, who is elder son of the deceased,

submitted that other 2 executors failed/neglected to act or to take any

step towards discharge of their responsibilities in accordance with the

„Will‟. Rather they renounced their position in the „Will‟ in proceedings

before the Court of Sh. Rajesh Kumar, sub-Judge by alleging in the WS

filed by them that the aforesaid „Will‟ was not a genuine „Will‟, as Lala

Hansraj Gupta was seriously ill during that period and was not in a

sound disposing mind and was physically and mentally incompetent to

take decisions. The petitioner claimed, in view of the denial of the

„Will‟ by other 2 executors, he was the only executor left who could file

the Petition. He therefore filed this Petition for grant of probate of the

„Will‟ dated 28th May, 1985 executed by late Lala Hansraj Gupta. This

Petition is verified by the petitioner, Sh. Des Raj Gupta on 8th October,

1985. The petition at its bottom bears endorsements of 3 witnesses

namely Smt. Angira Gupta, Sh. M.P.Tiwari and Sh.S.K.Tiwari, Advocate.

Smt. Angira Gupta, wife of the deceased, appended an endorsement

that she was present at the time of execution of the „Will‟ dated 28 th

May, 1985 by late Lala Hansraj Gupta and saw him reading and affixing

signatures to the „Will‟ and she signed the „Will‟ as an attesting witness

in presence of the testator and in presence of the other 2 witnesses.

Probate No.62/1985 Page 2 Of 27 The endorsement by other 2 witnesses was also to the same effect.

However, the endorsement is signed by Smt. Angira Gupta on 8 th

October, 1985 while by Sh.M.P.Tiwari and Sh.S.K.Tiwari signed it on 30th

September, 1985.

2. Notice of the Petition was served upon the legal heirs as

mentioned in para 3 of the Petition. Objections were filed by Smt.

Shashi Jai Kishan (Respondent no. 6), Smt. Pratibha Khandelwal

(Respondent no. 7), Sh. Shiv Raj Gupta (Respondent no. 3), Sh.

Rajender Kumar Gupta (Respondent no. 4) and all these objectors

pleaded that Lala Hansraj Gupta was seriously ill on the alleged date of

execution of „Will‟. He was not in a sound disposing mind and the „Will‟

was invalid. However, respondent no. 1, Smt. Angira Gupta and

respondent no. 5, Sh. Mahinder Kumar Gupta supported the Petition

and in their reply took the stand that the „Will‟ was a genuine „Will‟. In

view of the objections raised by the above respondents, following

issues were framed:

"1) Whether the Will dated 28th May, 1985 was duly executed and attested and is the last Will and testament of the deceased? OPP.

2) Whether the two executors of late Shri H.R. Gupta have renounced their position as such? If so, to what effect? OPP.

3) Relief."

Issue No.1

3. The objectors have contended that Lala Hansraj Gupta was

admitted to All India Institute of Medical Sciences on 13 th April for

prostate operation and he was got discharged from the said hospital by

the petitioner and his sons Sh.Ravi Raj Gupta and Uday Raj Gupta on

Probate No.62/1985 Page 3 Of 27 24th May, 1985 at 4.00 pm against medical advice (purportedly at his

own request) with an undertaking that they would bring the patient

back for further treatment within 3-4 days. Even the hospital room was

retained for 2 more days after the discharge of Lala Hansraj Gupta on

24th May, 1985. After his discharge Lala Hansraj Gupta was brought to

3, Amrita Shergil Marg, New Delhi and on the same day, one Dr. Madan

Lal was called at about 8.00 pm to examine him. The general condition

of Lala Hansraj Gupta was extremely poor when he was examined by

Dr. Madan Lal. He was drowsy and not in a position to understand and

answer the questions. His blood was tested on 25th May, 1985.

Hemoglobin was found less than 7 gm. He was not put on regular

treatment by the petitioner and his condition worsened during the next

3 days. He was in a precarious condition on 28 th May, 1985, i.e. the

date of alleged execution of the „Will‟. It is also submitted that the

petitioner and his sons were residing with late Lala Hansraj Gupta and

he was under their influence and control. The „Will‟ was not a product

of free mind of late Lala Hansraj Gupta but was illegally procured.

4. In order to prove the due execution of the „Will‟ and in

order to prove the mental condition of the deceased, the petitioner

examined Sh. S.K. Tiwari, Advocate (PW-1) who was the attesting

witness of the „Will‟ and also the Advocate who drafted the „Will‟. This

witness testified that sometime in second week of May, 1985, probably

on 13th or 14th May, 1985 he received a telephone call from Smt. Angira

Gupta, wife of late Lala Hansraj Gupta informing him that Lala Hansraj

Probate No.62/1985 Page 4 Of 27 Gupta was admitted in AIIMS for a prostate operation and he wanted to

see him as he wanted to get his „Will‟ drafted. So on next date, he

(PW-1) went to Lala Hansraj Gupta during visiting hours at AIIMS. Lala

Hansraj Gupta made enquiries from him about his family and welfare

and instructed him to draft out a „Will‟. He drafted a „Will‟ and took

the draft „Will‟ after 2-3 days to Lala Hansraj Gupta. However, after

hearing the same, he did not approve the draft „Will‟ and suggested

certain alterations and modifications which were noted by this witness

and after making these alterations and modifications he again took the

draft „Will‟ after 2-3 days to Lala Hansraj Gupta. Lala Hansraj Gupta

asked him to leave the „Will‟ in the custody of his wife and told him that

he would inform him (PW-1) after he was in a position to get the same

registered. After few days Lala Hansraj Gupta was shifted from

hospital to his residence and he again received a call from the wife of

Lala Hansraj Gupta telling him that he was required to see Lala Hansraj

Gupta. He again went to see Lala Hansraj Gupta at 3, Amrita Shergil

Marg. He was told by Lala Hansraj Gupta that he should go to

adjoining T.V. room where the „Will‟ was lying in a drawer. He went to

the T.V. room, brought the „Will‟ and found that it was another „Will‟

which was already drafted by Lala Hansraj Gupta himself lying in the

drawer along with a typed copy.

5. This part of the testimony puts a question mark on his

deposition that Hans Raj Gupta called him and asked him to draft a

Will. If lala Hansraj Gupta already had a draft „WILL‟ lying at home, he

Probate No.62/1985 Page 5 Of 27 would have told his wife/son to get the „WILL‟ from home and given it

to witness for getting it fairly typed and registered.

6. However, witness further testified that Lalaji wanted his

opinion on that „Will‟ with some changes pointed out by him. At

request of Lalaji, he read out the „Will‟ after incorporating the

alterations which Lalaji wanted and some he also suggested regarding

estate duty. He was asked to draft another „Will‟. So he (PW-1) drafted

another „Will‟ and took this draft to Lalaji. Some more alterations were

suggested by Lalaji and „Will‟ was got re-typed and again the witness

went there next day in the morning with the draft „Will‟ and Lalaji after

reading it approved it and signed the same. The witness‟s father had

also accompanied the witness on that day to the house of Lalaji. So, at

request of Lalaji witness‟s father also signed the „Will‟ as attesting

witness and Lala Hansraj Gupta‟s wife also signed the „Will‟ as an

attesting witness. Apart from the „Will‟ one application to be moved

before the sub-Registrar was also signed by Lala Hansraj Gupta to get

the „Will‟ registered at the residence of Lalaji. However, when the

witness came out of the room of Lalaji he found Dr. Madan Lal standing

outside the house of Lalaji so he obtained a medical certificate from Dr.

Madan Lal that Lalaji was unable to move the application. This

certificate along with the application for registration of the „Will‟ at

home was taken by the witness to sub-Registrars Office and thereafter

the „Will‟ was presented before the sub-Registrar. In the afternoon, the

assistant of sub-Registrar accompanied witness to 3, Amrita Shergil

Probate No.62/1985 Page 6 Of 27 Marg and after reading the salient features of the „Will‟ he got

signatures of the Lalaji on back side of the „Will‟ in affirmation of

admission to the execution of the „Will‟ and the „Will‟ was registered.

The witness deposed that Lalaji, he, his father and Smt. Angira Devi,

(wife of Lalaji) all signed the „Will‟ at one and the same time in

presence of each other. As per witness final draft of the „Will‟ was

approved by Lalaji on any one of these 3 days viz. 24 th, 25th or 26th May

and „Will‟ was to be registered on 28th May, 1985.

7. Counsel for the petitioner again asked the witness about

the date on which „Will‟ was signed. The witness deposed that though

the date mentioned in the „Will‟ of its execution was 28 th May, 1985 but

the „Will‟ was not signed by Lalaji on that date. He had kept the „Will‟

with himself and signed the „Will‟ on 29th may, 1985 in the morning

whereafter it was taken for registration. When the witness was asked

about the sound deposing mind of Lalaji, the witness answered that

Lalaji was not only in a sound deposing mind but also in a cheerful

mood and when the witness had gone to see him he was playing with

his great grandson. The witness identified the signatures of Lalaji and

other witnesses on the „Will‟ at different points. He identified his own

signatures also on the „Will‟ at different points and the „Will‟ was

exhibited as PW-1/1. The witness testified that at the time the „Will‟

was drafted or registered, Sh.Rajender Kumar Gupta, Sh.Ravi Kumar

Gupta and Sh.Mahender Kumar Gupta, i.e., other sons of Lala Hansraj

Gupta were not present and only attesting witnesses were present

Probate No.62/1985 Page 7 Of 27 even when the „Will‟ was finally signed. The witness claimed that he

himself obtained delivery of the registered „Will‟ from sub-Registrar

office and handed it over to the wife of Late Lala Hansraj Gupta as per

his instructions. The witness claimed that he was in possession of the

drafts prepared by him as well as by Lalaji.

8. Counsel for the petitioner in this case was Mr. L.R. Gupta

and the witness S.K. Tiwari admitted during cross-examination that he

at one point of time had worked as junior of L.R. Gupta form 1965 to

1970-71. He also admitted that he worked as an apprentice with

Rampur Engineering Company Ltd. of which Lala Hansraj Gupta was

the Chairman and Sh. Des Raj Gupta was the Technical

Director/Managing Director. The cross-examination of witness showed

that he had been associated with Des Raj Gupta for long. The

petitioner in the capacity of an Advocate/Legal Advisor had been on

good terms with Lala Hansraj Gupta also. Not only he, but his father

was working with Lala Hansraj Gupta since 1940 or 1942 and the

witness knew almost all the family members of Lala Hansraj Gupta and

also knew that Sh.Rajender Kumar Gupta and Sh. Ravi Gupta were not

on talking terms.

9. There is no dispute about the fact that Lala Hansraj Gupta

was admitted in AIIMS hospital where he was treated for enlarged

prostate and was operated. The discharge summary of AIIMS hospital

from the date of admission, i.e., 13th April, 1985 till date of discharge,

i.e., 24th May, 1985 is on record. This discharge summary and the

Probate No.62/1985 Page 8 Of 27 treatment papers would show that Lala Hansraj Gupta was diagnosed

as a case of Benign Hyperplasia Prostate with NIDDM with Emphysema

Chest. It is also not disputed that the patient was discharged from the

hospital on a request and he was not discharged from the hospital

because of his stability in the condition or on medical advice. The

discharge sheet shows that Lala Hansraj Gupta was suffering from un-

controlled diabetes and recurrent troublesome hyponatremia. These

problems were being managed with antibiotics. His urinary tract

infection was under control and for hyponatremia, blood plasma and

human albumin transfusion was being done. On his last date in the

hospital, i.e., 24th May, 1985 he had bleeding from the rectum and two

units of blood was transfused into his body. There is no denial of the

fact that as per record Des Raj Gupta, the petitioner on 24 th May, 1985

had got it recorded on the medical file of hospital that he was taking

„patient‟ home for 3 days by Doctor‟s permission from 4.00 pm on 24 th

May, 1985 to 27th May, 1985. The medical file shows that Sh. Ravi Raj

Gupta, son of Sh.Des Raj Gupta had told the hospital (AIIMS) that they

would bring the patient back on Sunday night. Even the payment of

the hospital bills was not made on 24th May, 1985 and the treating

Doctor namely Dr. S.M. Singh recorded on the hospital medical sheet

"payment will be made by them tomorrow. The responsibility is mine".

10. It is obvious from the record of the hospital and from the

testimony of PW-1 that Lala Hansraj Gupta, health-wise, was in a bad

condition. PW-1 has admitted that Lala Hansraj Gupta could not walk

Probate No.62/1985 Page 9 Of 27 himself. He while lying in the bed, could not sit in the bed of his own.

He needed help to make him sit in the bed. This being his physical

condition as admitted by PW-1 in his cross-examination, the testimony

of PW-1 that when he went to Lala Hansraj Gupta in his house around

28th May, he was playing with his grand child is unbelievable. In his

cross-examination, he was confronted with two of his statements and

he tried to explain that when he went to the house of Lala Hansraj

Gupta the grand child was in the lap of Lala Hansraj Gupta. Even this

testimony is highly doubtful because the testimony of Doctor and

medical record show that Lala Hansraj Gupta was in an extremely

painful state of health in the sense that he was bleeding from piles, his

hemoglobin was very less, he was having sugar, his prostate operation

had recently been done, he was having urinary tract infection and

blood and saline solution were being infused in his body. Though,

condition was stated to be under control but he was not in a position to

sit or stand of his own. His sodium level had gone down. One servant

and one nurse used to be by his bed side. He was being given blood

even when he was at home and when a patient is being given blood,

his sodium level is low, he is bleeding from the piles, it seems most

improbable that the patient could play with even a 2 or 3 years old

child or would keep the child in his lap, though unable to sit of his own.

11. Dr. S.M.Singh was examined by the petitioner as PW-3. In

his testimony he stated that Lala Hansraj Gupta was brought to the

hospital for enlargement of prostate gland and treatment of urinary

Probate No.62/1985 Page 10 Of 27 infection and he had diabetes and was admitted to the hospital on 13 th

April, 1985. He performed the operation on Lala Hansraj Gupta and in

the discharge slip it was mentioned that Lala Hansraj Gupta had

developed chest infection, urinary infection and uncontrolled diabetes

and all these weakened him. The discharge slip was signed by senior

resident Dr. Rajesh Ahlawat. Dr. S.M. Singh in his examination-in-chief

stated that the reason of discharging Lala Hansraj Gupta against

medical advice was that he was adamant and insisted on being

discharged and he will not eat till discharged. Mr. Singh agreed that

these facts do not find mention in the discharge slip either signed by

senior resident Dr. Rajesh Ahlawat or signed by him. It was nowhere

written in medical sheets that Lala Hansraj Gupta was adamant or

insisted on being discharged or he stopped eating. The witness was

asked on what basis he had deposed in the affidavit that Lala Hansraj

Gupta was adamant and did not take food and wanted to be

discharged. Mr. Singh stated that he made this statement possibly

based on his memory of 20 years back. When the attention of Mr.

Singh was drawn to the medical record where it was recorded that he

was discharged against medical advice at the instance of his son Sh.

Des Raj Gupta for a period of 3 days, Doctor had no explanation of the

reason of discharge given by him in the affidavit. It is obvious that the

affidavit given by the Doctor was at the instance of the petitioner and

not based on his own knowledge or memory. This witness had testified

that he had certified the photo copies of the medical record as true

copies without looking into the originals of the medical record and he

Probate No.62/1985 Page 11 Of 27 admitted that these photo copies were supplied to him by Sh. Des Raj

Gupta, the petitioner. Dr. S.M. Singh in para 5 of the affidavit has

stated that Lala Hansraj Gupta was absolutely healthy with full mental

faculty when he was brought to the hospital. During cross-

examination, he admitted that when Lala Hansraj Gupta was brought to

the hospital, there was accumulation of urine, his prostate gland was

enlarged and he had diabetes. The examination-of-chief of this witness

vide his affidavit dated 4th February, 2005 seen in light of record and

his cross-examination shows that the witness was not a truthful

witness. In para 10 and 11 of the affidavit, he deposed that though the

condition of Lala Hansraj Gupta was not such that he could be

discharged but he (deceased) had become tired of staying in the

hospital and he wanted discharge irrespective of his condition even

against the wishes of his family members and decided not to eat till he

was discharged. The hospital record was contrary to what is stated by

this witness. The hospital record shows that there was no mention of

the witness being adamant or tired of staying in the hospital or wanting

discharge from his hospital irrespective of his condition rather it were

the family members namely petitioner and his son who got him

discharged from the hospital contrary to medical advice with an

assurance that he will be brought back within 3 days. This witness was

in custody of medical records at the time when he filed affidavit of his

examination-in-chief and despite having this entire medical record his

affidavit is contrary to the medical record not only on this count but

even on other counts.

Probate No.62/1985 Page 12 Of 27

12. It is admitted by this witness in his affidavit that the room

in which Lala Hansraj Gupta was admitted in the hospital was kept

reserved for a couple of days so that when he is brought back he is

kept in the same room. During cross-examination, he admitted that

the room is kept reserved in case of those patients who are border-line

cases and whose condition can deteriorate suddenly. The reservation

of room is done as a safety measure at the instance of Head of

Department. This itself shows that when Lala Hansraj Gupta was

discharged from the hospital there was every chance that his condition

may become precarious and for this reason room was kept reserved. I

consider that the testimony of this witness regarding mental state of

Lala Hansraj Gupta that "his will power was strong and he was mentally

alert" is also based on tutoring from the petitioner. This witness

admitted that the patient was discharged against the medical advice

and at the time of discharge pros and cons of the discharge were

explained to the family of the patient and the family was given

permission to take the patient home subject to calculated risk and

Sh.Ravi Raj Gupta had represented that the patient would be brought

back in 3 days. Although, this witness remembered about the patient

having stopped taking food 20 years back, when he was asked whether

payment had been made at the time of discharge, the witness failed to

remember this. His attention was drawn to the medical record where

he had written that the payment would be made by the family on next

date and the responsibility was of him (the witness). The witness was

Probate No.62/1985 Page 13 Of 27 asked if he had personal relationship with Lala Hansraj Gupta, the

witness denied this and stated that he knew him only as a patient. He

was asked why he gave this undertaking that he would be responsible

for making payment. The witness stated that a relationship got

created because the patient remained admitted for 41 days in the

hospital under his supervision.

13. As per medical record, the sodium level of Lala Hansraj

Gupta on 17th April, 1985 was 118 while the normal sodium level

should have been between 130 and 149. In the discharge slip, it was

mentioned that Lala Hansraj Gupta was suffering from hyponatremia

which means that the sodium level was less than the normal range.

When the Doctor was asked if he could answer what were the

consequences of lower sodium level, he stated that he was not able to

tell the consequences of lower sodium level as his area of practice was

urology and he cannot answer the question without consulting books.

His attention was then drawn to standard books of medical sciences

and he agreed with the observations given in Harrison‟s Principal of

Internal Medicines and Merck Mannual of Medical information which

described hyponatremia in the following terms:

"Hyponatremia: In hyponatremia, the level of sodium in the blood is too low. Hyponatremia occurs when sodium has been overdiluted in the body. Sodium can be overdiluted when people drink enormous amounts of water - as people with certain psychiatric disorders occasionally do - or when people who are hospitalized receive large amounts of water intravenously. In either case, the amount of fluid taken in exceeds the kidney's capacity to eliminate the excess. Intake of smaller

Probate No.62/1985 Page 14 Of 27 amounts of water - sometimes as little as I quart a day-can lead to hyponatremia in people whose kidneys are not functioning normally, such as people with kidney failure. Hyponatremia also often occurs in people with heart failure or cirrhosis. Excessive chronic loss of fluids, as occurs with chronic diarrhea, can also result in hyponatremia".

Clinical manifestations Neurologic dysfunction is the principal clinical manifestation of hyponatremia. It is due to intracellular movement of water, leading to swelling of brain cells. The severity of symptoms is related both the degree of hyponatremia and to the rapidity with which it develops. In chronic hyponatremia, the degree of brain swelling caused by any given reduction in body fluid osmolality is reduced because solute, largely potassium chloride, is lost from the cells. Patients may be lethargic, confused, stuporous, or comatose. If hyponatremia develops rapidly, signs of hyperexcitability such as muscular twitches, irritability, and convulsions may occur. Hyponatremia rarely causes clinical symptoms when plasma sodium is above 125 meq per liter, although symptoms may occur at higher levels if the decrease in concentration has been rapid".

14. The witness agreed that at the time of discharge the

patient was suffering from hyponatremia. He stated that the family of

patient was advised as per discharge slip to take steps to control

hyponatremia. He could not remember the nature of advice given.

15. Lala Hansraj Gupta was under constant medical care while

he was at AIIMS hospital. Post operation he was got discharged from

the hospital against the medical advice which only shows that his

condition had not improved to the extent that he could be discharged

and he needed more medical treatment. As far as his physical

condition is concerned there is no doubt that he was physically

incapable of moving out of the bed. He even could not sit in the bed of

Probate No.62/1985 Page 15 Of 27 his own and needed help. The contention of the objector is that the

mental condition of Lala Hansraj Gupta was also not such that he could

think of his own or take decisions of his own. Dr. Rakesh Gupta was

examined by the objector to throw light on the condition of Hansraj

Gupta on the basis of his medical record and because of his suffering

from hyponatremia. In his affidavit he stated he had examined the

medical record of Lala Hansraj Gupta as made available to him and

after perusing the entire medical record he based his opinion on the

basis of medical record. He stated that hyponatremia was a disease

that occurs when level of sodium in the blood becomes too low in the

body on account of over dilution and loss of fluids. The symptoms of

low sodium level tend to develop rapidly and brain of the person is

particularly sensitive to changes in the sodium level which results into

symptom like Lethargy, Confusion, Muscular Twitches, Seizures,

Stupor, Coma and death may follow. He gave his opinion that late Lala

Hansraj Gupta would be in irritable and confused state of mind at the

time when he was discharged from the hospital. Record shows that he

was suffering from hyponatremia and anemia and these two factors

were significant enough to cause confusion and irritability specially in

old individuals and lead to situations where one was incapable of

taking any conscious decision. The witness was cross-examined at

length. In his cross-examination, he testified that his assessment of

the patient was based only on record. He had not seen or met the

patient. The record shows that he was having post operative

complications namely urinary tract infections, failing of control of

Probate No.62/1985 Page 16 Of 27 diabetes, bleeding piles and hyponatremia. Regarding un-controllable

diabetes he stated that a patient is called so if despite his receiving

treatment, diabetes does not improve. In such cases the patient is

advised diet control and is given a diet chart. The witness further

stated that he had not assessed the mental state of patient merely on

the basis of uncontrollable diabetes but on the basis of overall

discharge summary. The discharge summary recorded that the patient

was irritable and that alone was sufficient to infer that the patient was

having some mental problem which, by bio-medical test of the patient,

could be further confirmed. He further testified that hyponatremia

coupled with uncontrollable diabetes with other complications can be

correlated and the bio medical report of the patient few days before

discharge showed that sodium level was 118. Normally, after the

surgery, the sodium level will always fall but in this case the sodium

level remained low not only after surgery but right upto the time of

discharge. In case of this patient, it was also recorded that it was a

case of mal-nutrition, so hyponatremia could not have been cured.

Post-discharge slip also showed that patient continued hyponatremia.

When he was asked that if the patient had been suffering from some

mental problem, doctors of AIIMS would have so mentioned in their

report while discharging, the witness answered that mental

derangement occurs in various degrees. It can be very subtle: changes

like irritability, confusion, madness. Even in low levels of mental state

thoughts of the patient may not be coherent and he may not be able to

take sound decisions, although, he may not be mad. The very fact that

Probate No.62/1985 Page 17 Of 27 the irritability was recorded in the medical record shows that this

irritability must have been severe enough to find a mention in the

medical record. Otherwise most patients, after the surgery have

symptoms of irritability and it often goes unmentioned in daily reports.

16. The witness deposed that if the sodium level was low

temporarily, it would not affect the mental status. The witness agreed

that he had given his opinion in his affidavit after referring to medical

books and Merk Manual. He stated that the entire knowledge of the

Doctors was from all these books. The witness further stated that a

young patient can tolerate hyponatremia very easily but where the

patient is of advanced age, he becomes very sensitive to the falling

level of the sodium. At the age of 80, this particular level of sodium is

very significant. He stated that the Doctors of AIIMS, from bio medical

report, found it necessary to mention that the patient was suffering

from hyponatremia. It was not necessary to mention symptoms

resulting from hyponatremia because these symptoms are missed in

surgical words.

17. After discharge on 24th May, 1985 Lala Hansraj Gupta was

taken to his home. At home he was looked by another Doctor. That

Doctor was not produced by the petitioner in the Court to state about

physical and mental condition of testator from 24th May onwards. The

petitioner in this case, who was son of the deceased and who had

taken deceased home by signing an assurance in the hospital that he

would be brought back after 3 days, had chosen not to examine

Probate No.62/1985 Page 18 Of 27 himself. Mr. S.K.Tiwari is not a witness of mental state of testator in

fact S.K. Tiwari is totally unreliable witness, as already discussed.

Smt. Angira Devi, wife of the deceased though had appended her

verification at the foot of the petition regarding the „Will‟ and also filed

WS supporting the „Will‟ but was not examined as a witness. She could

not be examined as a witness when Local Commissioner went to

examine her on commission, on the ground of health. Her affidavit of

examination-in-chief and her WS and verification are therefore of no

evidentiary value. Thus, the Court has to look into the medical record

and evidence of Doctors to assess whether the deceased was in a

sound mental health.

18. The deceased in this case was a known personality. He had

been Mayor of Delhi. He was a well-known businessman having

properties at prime places in Delhi and he was well-educated person.

His family was a large family and if I go by the testimony of the PW-1,

Mr Tiwari and his father, who were knowing this family for many

decades, except that two brothers viz. Sh.Shiv Raj Gupta and Sh. Des

Raj Gupta were not on talking terms, all other family members were

having good relations with each other. Looking into this scenario when

a father is having good relations with all his sons and daughters and he

is lying in the hospital it is apparent that everybody from the family

would be visiting him in the hospital. Evidence of PW-1 shows that

deceased was also holding a high position in the RSS and many

persons from the RSS used to visit him. Since deceased was a person

Probate No.62/1985 Page 19 Of 27 of such a high stature, and was lying in the hospital in ailing condition

and struggling for life and having sons, daughters and grand-children,

he would be flooded by visitors during visiting hours in hospital. Mr.

Tiwari was allegedly called by him to draft the „Will‟ during visiting

hours of Hispital. It is not believable that Mr. Tiwari could have been

secretly told to prepare the „Will‟. There seemed to be no reason with

deceased to be secretive. If the „Will‟ had been drafted during testators

stay in hospital, it would not have remained a secret. In order to have

his „Will‟ prepared it was not necessary for him to go out of the hospital

at home. PW-1 had been visiting him in the hospital and if he wanted

help of PW-1 in execution of a „Will‟ nobody would have stopped him

from executing the „Will‟. As per PW1, one Will was finalized by Lala

Hansraj Gupta in the Hospital itself. The very fact that the deceased

was got discharged from the hospital for a period of 3 days by his son

who gave assurance in the hospital that he would be re-admitted in the

hospital after 3 days and a room was also kept booked in the hospital

throws doubt about the intentions of the son/petitioner who became a

major gainer of the „Will‟ and create suspicion of about the Will, a

second one, which emerged at home. It is not the case of the

petitioner or anyone else that Lala Hansraj Gupta had bad relations

with other sons and daughters or other sons and daughters would have

revolted or felt bad if „Will‟ have not executed in their presence. Since

Lala Hansraj Gupta had felt that his end was near he would have liked

to make it known to everybody how he wanted his property to go after

his death. However, the fact that the „Will‟ was kept a well-guarded

Probate No.62/1985 Page 20 Of 27 secret by the petitioner creates a doubt about the genuineness of the

„Will‟.

19. A „Will‟ is one of the most solemn documents known to law.

It is essential for the propounder of the „Will‟ that trustworthy evidence

should be produced before the Court to establish genuineness and

authenticity of the „Will‟. The Court has not only to consider the

testimony of the witness and the manner in which witnesses changed

stances but it is open to the Court to consider the circumstances

brought out from the evidence. In the present case, the testator was

under treatment in the hospital. He was a well-known personality and

was being taken care of by the Doctors in a very well manner in a

private room of a hospital of repute. The Doctor who did not even

know him personally, allowed the discharge of the patient without

payment of the bill merely because he was sure that the payment from

family of such a well-known personality will not be withheld. There was

no necessity for the patient to move to his home for executing the

„Will‟. The activity of the execution of the „Will‟ gained momentum

soon after discharge of the patient from the hospital. The evidence of

PW-1 shows that the „Will‟ in question was finalized within 3 days of the

discharge of the patient. The patient came home sometime on 24 th

May and the „Will‟ got finalized on 28th May. PW-1 who is the only

attesting witness examined to prove the „Will‟, in his attestation of the

Probate Petition at the foot had verified that he was present at the time

of the execution of the „Will‟ dated 28th May, 1985. He was one of the

Probate No.62/1985 Page 21 Of 27 witnesses of the „Will‟ dated 28th May, 1985. However, when he

appeared in the court he stated that the „Will‟ was not executed on 28 th

May, 1985 but was actually executed on 29th May, 1985. He made

attestation to the Probate Petition even before the petitioner himself

had signed the Petition. The petitioner signed and verified the Petition

on 8th October, 1985, whereas PW-1 and his father Sh.M.P.Tiwari

attested the Petition on 30th September, 1985. Not much could have

been inferred from this, but the very fact that Sh.S.K.Tiwari, PW-1

attested the Petition as an attesting witness of the „Will‟ even before

signatures of the petitioner on the petition were there, shows that

Sh.S.K.Tiwari was out to oblige the petitioner and had signed the

petition even before signing of it by the petitioner, who signed it after 8

days of the signing by Sh.S.K.Tiwari. This tendency of obliging is

reflected in his evidence when in his examination-in-chief he testified

about physical and mental health of the deceased. His testimony

seems to be of a person who was out to repay the debts of obligations

than the testimony of a truthful witness.

20. PW-1 Mr. S. K. Tiwari, Advocate had prepared the „Will‟ allegedly

at the instance of the deceased. He was known to entire family. It is

not his case that instructions were given to him not to disclose about

the „Will‟. But when he obtained certificate from Dr. Madan Lal, who

was treating the deceased at homes, he did not disclose that he was

obtaining a certificate so that the „Will‟ may be registered. Although,

he obtained the certificate from Dr. Madan Lal about inability of Lala

Probate No.62/1985 Page 22 Of 27 Hansraj Gupta to move out of his house, but he did not ask the doctor

to be a witness to the „Will‟ and to append there that Lala Hansraj

Gupta was mentally sound. If the services of doctor had not been

readily available, the case would have been different. When the

services of doctor were readily available and the doctor was all along

present at the home of Lala Hansraj Gupta and doctors were present at

AIIMS hospital, asking a doctor to put it on record that Lala Hansraj

Gupta was in sound mental health would have been a most appropriate

thing known to an Advocate.

21. Lala Hansraj Gupta was at that time 81 years of age. He

was got discharged from the hospital only for 3 days before, at the

instance of the petitioner himself and within these 3 days, the second

„Will‟ was prepared and it was registered on 29th May. First Will was

finalized in the hospital. It is not known how properties were

bequeathed in the first Will. It is also not known what prompted the

preparing of a second Will, when first Will was finalized only a week

back. This creates grave doubt about the mental soundness of the

testator and about genuineness of the Will.

22. These circumstances which have come on record are

suspicious circumstances. The Hon‟ble Supreme court in Kalyan

Singh vs. Chhoti AIR 1990 SC 396 had observed that it was open to

the Court to look into the surrounding circumstances as well as

inherent improbabilities of the case to reach a proper conclusion on the

nature of evidences adduced by the party. I consider that the

Probate No.62/1985 Page 23 Of 27 circumstances as disclosed in preceding paragraphs throw a grave

doubt on mental soundness of the deceased as well as on the

genuineness of the „Will‟.

23. The other circumstances which create grave doubt on the

mental soundness of Lala Hansraj Gupta are the different ailments

from which Lala Hansraj Gupta was suffering. The condition of Lala

Hansraj Gupta upto 24th May was such that he required regular

hospitalization and supervision of doctors. He was got discharged from

the hospital contrary to medical advice. Soon after being taken to

home, he was under the medical care of another doctor namely Dr.

Madan Lal. The medical record of Lala Hansraj Gupta after he was

discharged from the hospital has not been proved. Lala Hansraj Gupta

died on 3rd July, 1985, i.e., after about 34-35 days of the execution of

the „Will‟. It only shows that his condition was deteriorating day-by-

day. No evidence has been produced about his mental and physical

condition by the petitioner after 24th May, 1985 till his death. Mr.

Tiwari is not a witness of mental condition. He is a witness of drafting

of the „Will‟. His testimony even otherwise is totally unreliable as

already discussed. No other witness, not even the petitioner, has

come to witness box and testified that Lala Hansraj Gupta was in a

sound mental condition on the date when the „Will‟ was executed on

28th May, 1985, as per the petitioner and 29th May, 1985 as per the PW-

1. In absence of any testimony that the mental condition of Lala

Hansraj Gupta was sound on the day he executed the „Will‟ and in view

Probate No.62/1985 Page 24 Of 27 of the fact that Lala Hansraj Gupta died after about 35 days of

executing the „Will‟ and the fact that he was got discharged by this

very son, i.e., petitioner, from the hospital only for 3 days and was not

re-admitted in the hospital, shows that the creation of the „Will‟ was a

motive behind getting Lala Hansraj Gupta discharged from hospital and

once the „Will‟ was executed, it was found that his condition was

further deteriorating and it was not a case where he should again be

admitted to the hospital and he was allowed to die peaceful death in

home only. Some efforts seems to have been made to get him treated

abroad but that also did not succeed in view of his condition since he

was not in a position to travel abroad.

24. Apart from above circumstances, another circumstances

which throws doubt on the genuineness of the „Will‟ is that the

petitioner himself took eminent part in the execution of the „Will‟ which

conferred a substantial benefit on him. In the present case, it was the

petitioner and his son who brought Lala Hansraj Gupta to their home.

PW-1 was an Advocate working for Lalaji and the petitioner and had

also been looking after some of the legal work of the petitioner. The

petitioner is a major beneficiary under the „Will‟. The petitioner, who

had assured in the hospital that Lalaji would be re-admitted in the

hospital after 3 days, did not get Lala Hansraj Gupta re-admitted. The

petitioner did not appear in the witness box. All these factors create

doubts about genuineness of the „Will‟. I therefore come to conclusion

that the „Will‟ dated 28.5.1985 allegedly executed on 29th May, 1985

Probate No.62/1985 Page 25 Of 27 was not a genuine and valid „Will‟ of Late lala Hansraj Gupta. The issue

is decided accordingly.

25. An executor named in the „Will‟ is a legal representative of

the deceased and for all purposes the property of deceased would vest

in him as such an executor. Where more than one executors are

named in the „Will‟, all the executors jointly or severely may act as the

legal representative of the deceased representing him from the date of

his death. As executors they would be responsible for payment of the

funeral expenses of the testator and for satisfaction of the debts etc.

The executors can certainly insist that till the administration of the

estate is complete, the residuary legit should not call upon them to pay

the legacies. Thus, the executor is sought to represent the person of

the testator after his death and he can be charged and shall be

chargeable for so much as is committed to him as a testator himself.

The office of an executor under a „Will‟ is a private office of those

named by the testator and not by law. Any of the named executors

may refuse the office or renounce it and is also free to take stand that

the „Will‟ in which he was named as an executor was not a genuine

„Will‟. However, the refusal or renouncement by the executor must be

before the executor takes any step to act as an executor or as a

trustee. It cannot be that an executor may partly act upon the „Will‟

and take benefit and then partly refuse the office and renounce it. In

the present case, two of the executors had taken a stand that the „Will‟

was not genuine and they refused to act as an executor. In fact both

Probate No.62/1985 Page 26 Of 27 these executors were not even aware about the execution of the „Will‟.

It is the case of the petitioner, who is one of the executors named in

the „Will‟ that the other two executors were not even aware of the

execution of the „Will‟ and only he was aware of the execution of the

„Will‟. The other two executors did not accept the „Will‟ as correct.

Since the other two executors had doubts about the „Will‟ and the

intentions of the petitioner, they were within their right to take the

stand that 'Will‟ was not a genuine „Will‟ and to refuse act as an

executor. The issue is decided accordingly.

Relief:

26. In view of my above discussion, Probate Petition filed by

the petitioner is liable to be dismissed and is hereby dismissed. The

„Will‟ in my opinion is not a genuine „Will‟. The petitioner is therefore

not entitled to probate of the „Will‟.

May 11, 2009                             SHIV NARAYAN DHINGRA J.
ak




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