Sayar Kumari vs State & Ors.
2009 Latest Caselaw 4075 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on: August 21, 2009
                                            Decision on : October 9, 2009

                                TEST CAS No. 29 of 1985


       SAYAR KUMARI                                         ..... Petitioner
                                Through: Mr. Arun Mohan, Senior Advocate with
                                Mr. Arvind Bhatt and
                                Mr. Ashwal Vadera, Advocates.

                       versus

       STATE & ORS.                                           ..... Respondents
                                Already proceeded ex parte.


        CORAM:
        HON'BLE DR. JUSTICE S.MURALIDHAR

       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 the judgment should be reported              Yes
               in Digest?


                                JUDGEMENT

S. Muralidhar, J.

1. This is a petition under Section 222 of the Indian Succession Act seeking

grant of probate of a Will dated 5th January 1985 (hereafter "the last Will")

executed by Smt. Bhanwari Devi (the testatrix), who died in Delhi on 10th

March 1985.

2. Smt. Bhanwari Devi was the wife of late Shri Johri Mal Bengani. Shri

Sagar Mal was their only son and Smt. Bhanwari Kanwari was his wife.

Amrao Singh was Sagar Mal's only adopted son i.e. the testatrix's grandson;

TEST. CAS. No. 29 of 1985 page 1 of 11 the petitioner Sayar Kumari was Amrao Singh's wife; Meeta was the

daughter of Amrao Singh and Sayar Kumari i.e. the testatrix's great grand-

daughter. In the said last Will mention was made of the fact that Sagar Mal

lived with Sushila Devi and Sanjay Bengani also lived with them; that Sagar

Mal had been living separately for many years and only Bhanwari Kanwari,

Sayar Kumari and Amrao Singh looked after the testatrix. In the last Will

the testatrix stated that she "had given plenty to Sagar Mal of my free will

and he also took forcibly from me...I do not wish to give him anything.

Therefore, after me Sagar Mal will have no right over my property." In

terms of the said last Will Rs.1,25,000/- in cash was to be given to Jain

Vishwa Bharti, the jewellery divided equally between Sayar Kumari and

Meeta. The Kashmere Gate property and "any other money or property

whatever there be" were to be given to Amrao Singh. The petitioner Sayar

Kumari was named as the Executor.

3. By an order dated 16th May 1985 the petition was directed to be

registered, notice was directed to be issued to the State and to the legal heirs

of late Bhanwari Devi as mentioned in para 4 of the petition. It was directed

that the citation should appear in the newspaper "The Statesman." This

Court was shown the citation published in the Statesman dated 22nd June

1985 indicating the date before the Court as 17th August 1985. On 19th

September 1985 learned counsel for Sagar Mal Bengani, the son of late Smt.

Bhanwari Devi, informed the Court that he would be filing objections. On

5th December 1985, this Court directed the Objector Shri Sagar Mal Bengani

to appear in person on 29th January 1986 for recording his statement.

TEST. CAS. No. 29 of 1985 page 2 of 11

4. At this juncture, it must be mentioned that Smt. Bhanwari Devi had earlier

executed a Will dated 2nd August 1983 (hereafter "the prior Will") which

was registered on 6th August 1983. The said prior Will has been marked as

Ex.P-2 and was kept in a sealed cover as part of the records of the case. The

contents of the prior Will are more or less similar to that of the last Will in

that in both Sagar Mal Bengani has not been given any share of the estate of

late Smt.Bhanwari Devi and the Kashmere Gate property has been given to

Amrao Singh. The differences in the two Wills are not very significant. In

the prior Will the sum to be given to the Jain Vishwa Bharti was

Rs.1,14,620. Further, the jewellery was to be given entirely to Meeta and a

sum of Rs.29,264 to be used for the testatrix's funeral expenses.

5. On 29th January 1986, learned counsel for the Petitioner informed the

Court that the two original Wills i.e. the prior Will dated 2nd August 1983

and the said last Will dated 5th January 1985 had been brought to the Court.

Learned counsel for Shri Sagar Mal Bengani sought time to inspect the two

Wills and make submissions. On 11th April 1986, learned Senior counsel

appearing for the Petitioner informed the Court that a video cassette

recording of the execution of the said last Will dated 5th January 1985 by

Smt. Bhanwari Devi duly attested by the witnesses was available and should

be played in the Court. This Court permitted the video film to be played and

directed that thereafter the statement of Respondent No.2 would be recorded.

The video film was then played in the Court and seen by the Objector Shri

Sagar Mal Bengani, the son of Bhanwari Devi. The following statement was

made by Shri Sagar Mal Bengani on solemn affirmation on 11th April 1986:

"I have seen the cassette now Ex.P.-1 played on the T.V.

TEST. CAS. No. 29 of 1985 page 3 of 11 viewer. I do not know the person who read out the alleged Will to the lady. However, the lady to whom the Will was read out was my mother. My mother Smt. Bhanwari Devi used to sign in Hindi. The signatures now encircled red and marked as W-1, W-2, W-3 and W-4 on the Will dated 28th September, 1983 are not the signatures of my late mother Smt. Bhanwari Devi. I do not accept that my mother Smt. Bhawari Devi had executed the Will dated 5th January, 1985. I do not admit that my mother put her thumb marks on this Will. I am making this statement after seeing the cassette played on the T.V. viewer before me. The Will dated 5th January, 1985 is now marked as X-1."

6. The reference in the above statement to the Will dated 28th September

1983 is in fact to the prior Will dated 2nd August 1983. Sagar Mal Bengani

did not dispute the identity of his mother Smt. Bhanwari Devi as appearing

in the video film. He however denied her signatures or thumb marks on both

the prior dated 2nd August 1983 and the said last Will dated 5th January 1985.

The two Wills and the video cassette were placed in a sealed cover.

7. On 9th December 1986 the following issues were framed by this Court:

"1. Whether the alleged Will dated August 2, 1983 was duly executed by Smt. Bhanwari Devi deceased?

2. Whether the deceased Smt. Bhanwari Devi was not of fit state of health and mind at the time of the execution of the Will dated January 5, 1985?

(Note: This issue has been framed in view of the video film Ex.P1 and the statement of Shri Sagar Bengani, respondent No.2 as recorded on April 11, 1986. From the film Ex.P1 read with the statement of Shri Sagar Mal Bengani it prima facie appears that the deceased Smt. TEST. CAS. No. 29 of 1985 page 4 of 11 Bhanwari Devi had executed the Will marked X1 dated January 5, 1985. In the film Ex.P1 she also appears to be of a fit state of mind so as to understand the content of the Will dated January 5, 1985 and to execute the same at the relevant time.)

3. What is the effect of the execution of the Will dated January 5, 1985 on the Will dated August 2, 1983?

4. Relief."

8. In an appeal FAO (OS) No. 8 of 1987 by the Objector the following

additional issue was framed by the Court:

"Whether the Will marked X-1 dated January 5, 1985 was duly executed by Smt. Bhanwari Devi, deceased?"

9. Thereafter Shri Bhupinder Singh (PW 1) was examined in chief on 11 th

August 1994 and his cross-examination took place on 19th October 2001.

The affidavit dated 23rd January 2007 of Dr. Pravin M. Dalal, a Medical

Practitioner (PW 2) who was present at the time of execution of the Will

dated 5th January 1985 by Smt. Bhanwari Devi was exhibited as Ex. PW2/A.

The affidavit dated 23rd January 2007 of Sayar Kumari, the Petitioner (PW

3) was marked as Ex.PW3/A. On 10th May 2007 Shri Bhupinder Singh and

Smt. Sayar Kumari were present but were not cross-examined since counsel

for the LRs of Shri Sagar Mal Bengani requested for an adjournment on the

ground that he was unable to contact his clients. Again on 2nd August 2007

Shri Bhupinder Singh and Smt. Sayar Kumari were present but not cross-

examined as the learned counsel for the LRs of Respondent No.2 sought one

TEST. CAS. No. 29 of 1985 page 5 of 11 more adjournment. This was repeated on 22nd November 2007 and as a last

opportunity the case was fixed for 3rd April 2008. The case was further

adjourned to 12th August 2008and 28th November 2008 on both of which

dates none was present for the Respondents. On 30th January 2009 the

Respondents were proceeded ex parte. On 22nd April 2009 the statement of

Dr. Pravin M. Dalal (PW-2), Smt. Sayar Kumari (PW-3) were recorded and

the evidence was closed.

10. Mr. Arun Mohan, learned Senior counsel for the Petitioner has been

heard. He has also submitted a written note of submissions.

11. Issue No.1: "1. Whether the alleged Will dated August 2, 1983 was duly

executed by Smt. Bhanwari Devi deceased?"

The Will dated 2nd August 1983 is the prior Will. This has been proved by

one of the attesting witnesses, Shri Bhupinder Singh (PW-1) who confirmed

that Smt. Bhanwari Devi signed the prior Will in his presence. The other

attesting witness was Shri H.S.Mehta. The cross-examination of Shri

Bhupinder Singh did not elicit anything significant for the Objector. Shri

Bhupinder Singh denied the suggestion that Smt. Bhanwari Devi was in bad

health or was otherwise incapable of making the prior Will. He testified that

the Sub-Registrar was present and had read over the Will to the testatrix. In

light of the above evidence it is held that the prior Will dated 2nd August

1983 was duly executed by the deceased Smt. Bhanwari Devi. Issue No.1 is

answered accordingly.

TEST. CAS. No. 29 of 1985 page 6 of 11

12. Issues 2 and 5 relate to the validity of the last Will and are accordingly

taken up together. They read as follows:

Issue No.2: "Whether the deceased Smt. Bhanwari Devi was not of fit state of health and mind at the time of the execution of the Will dated January 5, 1985?"

Issue No.5:"Whether the Will marked X-1 dated January 5, 1985 was duly executed by Smt. Bhanwari Devi, deceased?"

This Court has been shown the video film Ex.P-1 which is a recording of

Smt. Bhanwari Devi executing the Will dated 5th January 1985. From the

statement of Sagar Mal Bengani recorded on 11th April 1986 it is plain that

the lady to whom the last Will was read out as seen in the video film was his

mother Smt. Bhanwari Devi. His not accepting that she had executed the

Will dated 5th January 1985 is to no avail particularly when Dr. Pravin M.

Dalal (PW 2) who is one of the attesting witnesses has filed an affidavit

about being present when the testatrix executed the Will. Dr. Dalal, being a

Physician by profession was competent to certify and in fact did certify that

Smt. Bhanwari Devi was of a sound health and mind at the time of execution

of the Will. He has identified her signatures and thumb marks on the last

Will. Dr. Pravin Dalal has confirmed that the "whole process of execution

and attestation of Will was recorded on video." The video film has already

been exhibited (Ex X1) and has been viewed by the Objector and the Court

and by the witnesses PW 1 and PW 3. The cross examination of PW 1has

not yielded anything useful for the Objector on the material aspect of the

execution of the last will by the testatrix. The evidence of PWs 2 and 3 has

remained unrebutted. Despite several opportunities they have not been cross-

examined.

TEST. CAS. No. 29 of 1985 page 7 of 11

13. The burden was on the Objector to show that the last Will was not

genuine. Thus the Objector has not been able to discharge. On the other hand

PW 3 has shown how the previous litigation initiated by Sanjay Bengani by

way of Suit No. 484 of 1980 already stood settled. The petitioner has also

led evidence to show that the testatrix was unhappy over the behaviour of

her son and decided to disinherit him. As held in Gurudev Kaur v. Kaki AIR

2006 SC 1975 this Court is only expected to examine if the testatrix has

executed the last Will and in a sound and disposing state of mind. It does not

and cannot sit in appeal over the rightness of the decision of the testatrix. It

was observed by the Supreme Court in the said decision that: "The contents

of the Will have to be appreciated in the context of the circumstances, and

not vis-à-vis the rules for intestate succession."

14. There are no suspicious circumstances surrounding the last Will. In view

of the above overwhelming evidence, which has not been rebutted, it is held

that the petitioner has been able to prove that the testatrix Smt. Bhanwari

Devi was in a sound disposing state of mind at the time of execution of the

last Will dated 5th January 1985 (Ex X 1) and duly executed it. Issues 2 and

5 are accordingly answered in favour of the Petitioner.

15. Issue No.3: "What is the effect of the execution of the Will dated January 5, 1985 on the Will dated August 2, 1983?"

It has already been held that the execution of the last Will dated 5th January

1985 has been duly proved by the Petitioner. Both in the last Will as well as

TEST. CAS. No. 29 of 1985 page 8 of 11 in the prior Will the testatrix's son Sagar Mal Bengani has not been given

any share of her estate. The prior Will was preceded by a public notice

issued by the deceased Smt. Bhanwari Devi announcing that she is

displeased with the behaviour of her son Sagar Mal Bengani. The said public

notice dated 24th March 1981 published in the Times of India and Hindustan

Times reads as under:

"My clientess Smt. Bhanwari Devi, widow of Late Seth Johri Mal, resident of 7-B, Sri Ram Road, Civil Lines, Delhi, aged 82 years, hereby notifies to the Public at large through this notice that she is thoroughly displeased with the behaviour of her son Shri Sagar Mal. My said clientess disinherits him or anyone claiming under him from succeeding to any part of her estate. Public by large is hereby notified that she has executed a Will in favour of Smt. Sayar Kumari, wife of Shri Amrao Singh Bengani, born on January, 1950, and partly in favour of Smt. Bhanwari Kanwari, wife of Shri Sagar Mal Bengani."

16. While the similarity in the prior Will dated 2nd August 1983 and the last

Will dated 15th January 1985 is that in both the testatrix's son Sagar Mal has

not been given any share in her estate, the differences, as already noted in

para 4 above, are insignificant. No one except Sagar Mal, and after his death

Smt.Susheela Devi and Sanjay Bengani, has raised any objection to the grant

of probate in respect of the last Will. The Objectors have however chosen to

remain ex parte after initially participating in the proceedings. In any event

the Objector was not given any share even under the prior Will. Since the

last Will is more or less consistent with the prior Will, and the last Will has

been proved beyond reasonable doubt, there is no difficulty in holding that it TEST. CAS. No. 29 of 1985 page 9 of 11 is the last Will that should prevail and in granting probate in respect of the

last Will. Issue No.3 is answered accordingly.

17. Before concluding this Court would like to observe that the making of

the video of the execution of the last Will in the present case has made the

task of the Court easier in arriving at its conclusion as to its genuineness.

Although the Information Technology Act, 2000 (IT Act) was not in

operation when the video recording was made of the execution and

attestation of the last Will, the evidence by way of video recording is

admissible for proving the Will in question. The Supreme Court has in State

of Maharashtra v. Prafull B. Desai AIR 2003 SC 2053 recognized in

principle, although in the context of a trial, that evidence by way of video

recording is admissible. This has been followed also in Sube Singh v. State

of Haryana AIR 2006 SC 1117 and Rajendra Singh Rana v. Swami Prasad

Maurya AIR 2007 SC 1305.

18. Under the provisions of the IT Act there should be no difficulty in Courts

acting upon and accepting as evidence video or digital recordings of the

execution of Wills subject to compliance with the requirement of Section

65B of the Evidence Act, 1872. This Court would like to impress upon the

Sub-Registrars that with the availability of inexpensive gadgets like

webcams, portable and desk top computers, and connectivity through

internet, it should be possible to make a video recording of the entire process

of execution of a Will at the time of registration (by focussing on the

executor of the Will, and the attesting witnesses, and also the administering

of certain standard questions by the registering authority to the Executor). It TEST. CAS. No. 29 of 1985 page 10 of 11 should be possible to have a certified copy of such video/digital recording

clip (with the date and time embedded thereon) issued to the parties

concerned. There should also be no difficulty in storing in hard disks (with

back ups at different secure locations) the recordings of such digital video

clips (with date and time embedded) for easy retrieval. This will eliminate to

a large extent questions of genuineness or the capacity of the testator to

make the Will. If not already done, a protocol should be developed in this

regard (along with a manual of instructions to the Registering authorities) by

the Government of the National Capital Territory of Delhi (GNCTD) in

consultation with the National Informatics Centre.

19. For all of the aforementioned reasons, the petition is allowed. It is

directed that a probate be issued in favour of the Executor the Petitioner

Smt. Sayar Kumari in respect of the last Will dated 5th January 1985 of late

Smt.Bhanwari Devi. This is subject to her depositing the requisite court fee

and on her furnishing the administration bond for due administration of the

estate of the testatrix in accordance with her wishes.

20. A certified copy of this judgment be delivered forthwith to the Law

Secretary GNCTD, for necessary action in terms of para 18.

S. MURALIDHAR, J.

OCTOBER 9, 2009
dn




TEST. CAS. No. 29 of 1985                                         page 11 of 11