Bitu Bhalla vs Rajesh Mohan Bhalla & Anr.
2011 Latest Caselaw 4958 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   FAO No.14/2004 & FAO No.17/2004

                               Reserved on:  28th September, 2011
%                                 Pronounced on: 5th October, 2011
1.       FAO No.14/2004

BITU BHALLA                                               ...... Appellant
                          Through:    Mr. S.S. Tripathi, Advocate.


                          VERSUS

RAJESH MOHAN BHALLA & ANR.                              ...... Respondents
                   Through:           Mr. K.N. Rai, Advocate with
                                      Mr. S.N. Rai, Advocate.

2.       FAO No.17/2004

BITU BHALLA                                               ...... Appellant
                          Through:    Mr. S.S. Tripathi, Advocate.


                          VERSUS

STATE & ANR.                                       ...... Respondents
                          Through:    Mr. K.N. Rai, Advocate with
                                      Mr. S.N. Rai, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

    2.   To be referred to the Reporter or not?

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




FAO No.14/2004 & FAO No.17/2004                            Page 1 of 19
 VALMIKI J. MEHTA, J.

1. These are two appeals filed against the impugned

judgment of the Probate Court dated 13.10.2003. By the impugned

judgment two petitions were disposed of. The Probate Court allowed

the probate petition filed by Sh. Rajesh Mohan Bhalla, who is the

respondent no.1 in FAO No.14/2004 and the respondent no.2 in FAO

No.17/2004. Besides allowing the probate petition filed by Sh.Rajesh

Mohan Bhalla, the impugned judgment dismissed the probate petition

which was filed by the appellant in these appeals. Whereas the

respondent/Sh. Rajesh Mohan Bhalla had claimed probate with respect

to the Will dated 25.2.1986 of his father Sh. Munshi Ram Bhalla, the

appellant claimed probate with respect to the Will dated 21.4.1980 of

the said Sh. Munshi Ram Bhalla and who was the grandfather of the

appellant. The two FAOs contain identical prayers, however basically

one appeal is with respect to dismissal of the probate petition as filed

by the appellant and the other appeal is with respect to grant of the

probate to Sh. Rajesh Mohan Bhalla.

2. The facts of the case are that Sh.Munshi Ram Bhalla was

ordinarily a resident of Delhi and he died on 1.5.1986. Sh. Munshi Ram

Bhalla was survived by his three sons and three daughters as his legal

heirs. Sh. Munshi Ram Bhalla owned the property bearing no. 8 -

Jaipur Estate, Nizamuddin East, New Delhi. Sh. Rajesh Mohan Bhalla,

respondent no.1 in FAO No. 14/2004 and respondent no.2 in FAO

No.17/2004, (herein after referred to as a respondent) filed the

probate petition no.192/1986 (old) and 159/2001 (new) claiming

probate with respect to the Will dated 25.2.1986 of his father late Sh.

Munshi Ram Bhalla pleading that the said Will was the last Will of Sh.

Munshi Ram Bhalla, and as per which Will the property at Nizamuddin

East was bequeathed exclusively in favour of the respondent. As per

this Will dated 25.2.1986 the respondent was to pay a sum of

Rs.3,00,000/- each to his brothers i.e. to the other two sons of Sh.

Munshi Ram Bhalla and also certain insignificant amounts to an

adopted sister and a servant. This Will is said to have been attested

by Sh.Hans Raj Sood, a Chartered Accountant and Dr. Amar Jiwan who

was a personal friend of the deceased testator and, who also on

occasions attended to the medical requirements of the deceased

testator.

3. The appellant objected to the probate petition of the

respondent and alleged that the Will dated 25.2.1986 was a forged

and fabricated document and that the same was brought into

existence in collusion with the attesting witnesses. It was pleaded that

the testator died leaving behind his last Will dated 21.4.1980 which

was deposited with the Registrar, Delhi and which Will when was

opened in the presence of the heirs of Sh. Munshi Ram Bhalla, and in

the presence of Mr. Anil Chopra, Advocate for the petitioner, there was

no mention made of the subsequent Will dated 25.2.1986 as was later

propounded by the respondent. The appellant alleged that the

signatures of the deceased testator were obtained on the Will dated

25.2.1986 by mis-representation and fraud. It was also pleaded by the

appellant that the deceased testator was not in a sound state of mind

on 25.2.1986 and had almost lost his eye-sight. It was pleaded that

the testator was in fact admitted in a nursing home with a fracture of

the hip bone on 23.2.1986 and therefore it was doubtful that the Will

dated 25.2.1986 would be a valid Will of the deceased testator.

Objections were also filed to the Will dated 25.2.1986 by the father of

the appellant, one Sh. Anand Mohan Bhalla on the same lines as the

appellant. The appellant also filed a cross petition for granting of the

probate of the Will dated 21.4.1980 stating that this Will dated

21.4.1980 was the last and genuine Will of the deceased testator. This

petition was contested by the respondent not only by challenging the

legality and the validity of the Will, but by setting up the subsequent

the aforesaid Will dated 25.2.1986, which was said to be the last and

valid Will of the deceased Sh. Munshi Ram Bhalla.

4. The Probate Court has held that the Will dated 21.4.1980,

Ex. RW1/1, propounded by the appellant is not a valid Will of the

deceased testator inasmuch as no attesting witness of the Will was

examined and no attempt was made by the appellant to find out the

current addresses of either of the two attesting witnesses. It was also

held that the scribe of the Will dated 21.4.1980 namely Sh. K. R.

Chawla, Advocate was only a scribe and he had no animus attestandi,

i.e. an intention to attest the Will. Accordingly, the probate petition

filed by the appellant was dismissed. With respect to the Will dated

25.2.1986, Ex.P2, propounded by the respondent, the Probate Court

held the same to be validly executed and the last genuine Will of the

deceased testator. It was held that both the other sons of the testator

had a residential property in Delhi whereas the respondent had no

residential property in Delhi thereby giving the reason for the testator

to bequeath the property at Nizamuddin in favour of the respondent.

It was also held that besides the fact that no details of the fraud and

mis-representation were pleaded in the objections, in fact no evidence

at all was led with respect to the Will dated 25.2.1986, Ex.P2, as

having been executed because of fraud or that the same was a

fabrication. It was held that genuineness can be said to be attached to

the Will dated 25.2.1986. Ex.P2, inasmuch as the beneficiary, i.e. the

respondent was in fact abroad on the date of the execution and

attestation of the Will. Credibility was held to exist in the deposition of

the attesting witness Dr. Amar Jiwan, who was the friend of the

testator for six years.

5. The relevant observations of the Probate Court to hold that

the Will dated 21.4.1980, Ex.RW1/1, as propounded by the appellant

was not a valid Will of the deceased testator read as under:

"21. I am however, unable to agree to the interpretation as is sought to be given by the learned Counsel for the Objectors. In Beni Chand (AIR 1977 SC 63) it was simply held that no particular form of attestation is required and that an attesting witness need not necessarily be lebelled as an attesting witness. There is no dispute about the proposition of law that a scribe can also be an attesting witness. What has been further clarified in N.Kamalam (AIR 2001 SC 2802) is that it has to be seen from the document as to what was the intention of the testator and under what circumstances and for what purpose a particular witness had put his mark to the Will. In that case, three persons viz. Veraj Gowder, B. Govind Raju and Arunachalam had signed at the foot of the Will as witnesses. It had not been mentioned as to who were the attesting witnesses and who was the scribe or otherwise to the said Will. A part of the statement of Arunachalam was extracted in Beni Chand (AIR 1977 SC 63) and though it had been found that the Will was executed in presence of the three persons stated above, but it was held that Arunachalam had put his signatures at the time of execution of the Will with the intention of only a scribe to the Will with the intention of only a scribe to the Will. In the instant case, examination of Shri K.R.Chawla Advocate, coupled with the Will Ex.R-2/1, would reveal that he had signed the Will as a scribe only. In fact, if in N. Kamalam (AIR 2001 SC 2002), Shri Arunachalam cannot be treated as an attesting witness, Shri K.R.Chawla Advocate cannot be treated as an attesting witness by any stretch of

imagination because in N.Kamalam (AIR 2001 SC 2802) it had not even been mentioned beside the name of Arunachalam that he was the scribe of the Will. However, in the instant case, it has been specifically mentioned: "drafted by Sd/-

(K.R.CHAWLA) Advocate Delhi"

Applying the ratio of N.Kamalam (AIR 2001 SC 2802), it cannot be said that Shri K.R.Chawla had animus to attest the Will and thus, in my view, he was not an attesting witness.

22. The other two attesting witnesses have not been produced. It has been urged by the learned Counsel for the Objectors that from a perusal of the address, as given in the Will Ex.RW2/1, it can be inferred that they were tenants in the property subject matter of the Will and they having left the given address, their present whereabouts were not known to the Objectors, who were resident of U.K. and thus, they being not available, evidence of Shri K.R.Chawla Advocate can be looked into to prove the Will as embargo placed by Section 63 of the Evidence Act is lifted if the attesting witnesses are not available.

23. Summons were got issued to the two attesting witnesses for their evidence in the court on 4f.2.1997 which were returned back with the report that they were not available at the given address. No attempt was made by the Objectors to find out the current address of either of the two attesting witnesses. Neither of the two objectors have come forward to say on oath as to when these two attesting witnesses had left the premises No.8, Jaipur Estate. Nizamuddin East, New Delhi and what efforts were made by them to find out their current address. There is not even a whisper as to the efforts made by the objectors to find out the current address of the two attesting witnesses. Thus, in my view, the Will could not be proved by any person other than an attesting witness in view of the embargo placed by Section 68 of the Evidence Act. In this view of the matter, I have to come to the conclusion that the Will dated

21.4.1980 has not been proved in accordance with law." (underlining added)

6. The reasons given by the Probate Court for accepting the

Will dated 25.2.1986, Ex.P2, as validly proved and to be the last Will of

the deceased testator are as under:-

"17. Now I turn to the Will dated 25.2.1986 propounded by the petitioner. The testator was an aged person. He died just within three months of the alleged execution of the Will dated 25.2.1986. Thus, the initial onus was heavy on the petitioner to prove the genuineness and validity of the Will propounded by him. It is not in dispute that all the three sons of the testator were settled abroad. The recital in the Will dated 25.2.1986 that Shri Rajesh Mohan Bhalla was not owning any residential property in Delhi; whereas other two sons were owning residential properties, has not been disputed by the Objectors by denying the same. The Will dated 25.2.1986 has been attacked on the ground that signatures on the Will were obtained by mis-representation, fraud and that the testator was not knowing the details of the document, which he was signing. The particulars of fraud and mis-representation have not been disclosed in the objections filed by the Objectors as required under Order 6 Rule 4 CPC. PW-2 Dr. Amar Jiwan deposed about the execution of the Will. No suggestion was given to him as to how the signatures of the testator were obtained by fraud or mis-representation. In the Objections, it was pleaded that the attesting witnesses were closely connected to the petitioner. However, during cross-examination of the petitioner of even the attesting witnesses, no such suggestion was given. Of course, signatures of testator appears at three places on page 3 and two places on page 1 and there is some difference in the signatures inter-se but it is not very material in view of the fact that the petitioner Rajesh Mohan Bhalla who is the major beneficiary under the Will, was abroad on the alleged date of execution of the Will. Dr. Amar Jiwan, was a government Doctor and a friend of testator for the last six years before the execution of the Will, and the testator at times, used to receive treatment

from him. Why Dr. Amar Jiwan or for that matter Shri H.R.Soor, would become a party to the forgery of a Will or take signatures of the testator by fraud or mis- representation, has not been explained by the objectors. It was held by the Hon'ble Supreme Court in Surender Pal & Ors vs. Dr. Saraswati Arora & Anr. AIR 1974 SC 1999 that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same and if the caveator does not discharge the burden which rests upon him, in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, probate was liable to be granted.

18. In this particular case, the Objectors preferred not to enter the witness box at all to rebut the evidence of the petitioner (PW-1) and Dr. Amar Jiwan (PW-2), an attesting to the Will dated 25.2.1986. Objectors also failed to discharge the onus of proving the fraud and mis-representation. In the circumstances of the case, I am of the considered opinion that the Will dated 25.2.1986 (Ex.P2) has been duly proved on the test of proponderance of probabilities." (underlining added)

7. Learned counsel for the appellant argued that the Trial

Court was not justified in holding that the Will dated 21.4.1980 was not

a valid Will because besides an attesting witness, any other person

who is conversant with the signatures of the deceased testator can

prove the Will when the attesting witness is not available and which

was so in this case. It was argued that once the tenants who had

attested the Will had left the property, and their addresses were not

available, it was not incumbent to examine the attesting witnesses to

prove the Will which can be said to be proved by the deposition of the

scribe of the Will who appeared as a witness and deposed that he was

an attesting witness. It was also argued, and rightly, that the Will was

deposited in the office of the sub-Registrar by the deceased testator

removing any doubt as to its validity.

I agree with the counsel for the appellant that the Trial

Court has fallen into an error in discarding the testimony of Sh. K. R.

Chawla, Advocate. Sh. K. R. Chawla may not have been specifically

stated to be an attesting witness to the Will but admittedly he is the

scribe of Will. Mr. K. R. Chawla in detail has deposed of the deceased

testator calling him a week before execution of the Will and also with

respect to his making of a rough draft as per the instructions of the

deceased testator. Sh. K. R. Chawla, Advocate has also deposed with

respect to finalization of the Will on 20.4.1980 and informing to him by

Sh. Munshi Ram Bhalla to come on 21.4.1980 along with witnesses and

the fact that he in fact did come on 21.4.1980 to the office of Sh. K. R.

Chawla, Advocate where the Will was executed and attested on

21.4.1980. This witness has referred to the deceased testator having

first put his signatures on the Will, Ex.RW1/1, and thereafter his

putting the signatures on the last page of the Will and the putting of

the signatures by the attesting witnesses in the presence of Mr. K. R.

Chawla, Advocate as also in the presence of the deceased testator.

Sh. K. R. Chawla, Advocate has also deposed with respect to the

deceased testator being in a sound state of mind at the time of

execution of the Will and that said Sh. K. R. Chawla, Advocate was in

fact a neighbour of the deceased testator in Nizamuddin East, New

Delhi. To the aforesaid categorical examination-in-chief of Sh. K. R.

Chawla, Advocate, there is hardly any cross-examination of any

substance. The cross-examination is barely of but a few lines and Sh.

K. R. Chawla has confirmed that the deceased was in a sound state of

mind and there are no questions which have been asked to Sh. K. R.

Chawla, Advocate that the signatures on the Will are not that of the

testator and also not of the attesting witnesses. I therefore hold that

since Sh. K. R. Chawla, Advocate has proved the execution and

attestation of the Will especially because nothing of any substance

was elucidated in cross-examination of Sh. K.R. Chawla as regards any

alleged infirmities of the Will dated 21.4.1980, Ex.RW1/1. Thus the

Will dated 21.4.1980 is held to have been proved to be validly

executed and attested. I have also seen affirmative evidence led on

behalf of the respondent and I find that there is no statement in the

examination-in-chief of any of the two witnesses on behalf of the

respondent that the Will dated 21.4.1980 has not been validly

executed and attested. The aforesaid aspects taken with the fact that

the Will was deposited with the sub-Registrar are sufficient reasons to

hold that the Probate Court fell into an error in holding that there was

no valid Will dated 21.4.1980 executed by the deceased testator.

Accordingly, the impugned judgment is set aside to the extent of that

it holds that the Will dated 21.4.1980 has not been validly executed

and attested.

8. However, that is not the end of the matter because

probate cannot be granted of the Will dated 21.4.1980, Ex.RW1/1, if

the deceased testator had left behind a valid Will, Ex.P2 dated

25.2.1986.

In my opinion, the Trial Court has rightly held the Will

dated 25.2.1986 to be validly proved and exhibited. As already stated

above, no affirmative evidence was led on behalf of the appellant

herein of their being any fraud in the execution and attestation of the

Will dated 25.2.1986 and which is an aspect in addition to the fact that

the points of fraud and mis-representation were not even pleaded in

the Objection Petition as per the requirement of Order 6 Rule 4 CPC.

The Trial Court has rightly relied upon the evidence of the attesting

witness Dr. Amar Jiwan. Dr. Amar Jiwan has specifically deposed that

he went to the nursing home where the deceased testator, Munshi

Ram Bhalla was admitted and the Will was executed and attested just

before his operation. Dr. Amar Jiwan as PW2 deposed that the

deceased testator was his friend and he had also attended the funeral

ceremony of the deceased testator. Besides proving the due

execution and attestation of the Will, the witness deposed about the

sound state of mind of deceased testator at the time of the execution

of the Will, Ex.P2. Surely, the witness, being a Doctor, was more

competent than a layman to depose about the sound state of mind of

the deceased testator. In his cross-examination this witness has

clarified that though he is in Government service, and not allowed to

practice medicine, yet he did give prescriptions to the deceased. I do

not find anything unusual in this, because, surely a doctor friend can

prescribe medicines to his friend. This attesting witness has

specifically mentioned that though the deceased testator had weak

eye-sight because of old age however, the deceased testator was in

the position to see and read with specs. The attesting witness has also

mentioned with respect to different number of signatures on the

different pages of the Will dated 25.2.1986, Ex.P2, having been put in

his presence. The most important aspect was that the beneficiary of

the Will dated 25.2.1986 was abroad when the Will dated 25.2.1986

was executed and which therefore removes the alleged suspicious

circumstances in the due execution and attestation of the Will.

9. Learned counsel for the appellant argued that the

deceased testator was not in a sound state of mind and nor the Will

dated 25.2.1986 was validly executed. This was argued on the basis

that the deceased was admitted to a nursing home having a hip bone

fracture and there are different numbers of signatures on each page of

the Will, i.e. whereas there are two signatures on the first page, one

signature on the second page, there are three signatures on the

third/last page. It was also argued that the attesting witness, Dr. Amar

Jiwan admitted that he could only identify the signatures of the

deceased testator on the Will and in no other documents including on

a Vakalatnama bearing signatures of the deceased testator. Emphasis

has also been laid on the fact that actually the deceased testator was

operated in Sen Nursing Home and not in Mahindra Nursing Home as

was deposed by the attesting witness. It was argued that whereas

PW1/respondent stated that the name of the nursing home was Sen

nursing home, the attesting witness Dr. Amar Jiwan PW2 said that the

name of the nursing home was Mahindra nursing home. Challenge is

also laid to the testimony of the attesting witness on the ground that

whereas the attesting witness said that he normally puts a date below

his signatures, however, in the Will, the signatures do not appear with

a date. Great stress is laid on two aspects, i.e. Will dated 25.2.1986,

Ex.P2 not containing any date of the earlier Will and also of no mention

being made of this Will dated 25.2.1986 at the time of opening of the

Will dated 21.4.1980, Ex.RW1/1 in the office of the Registrar on behalf

of the respondent.

10. In my opinion, the arguments as advanced on behalf of the

counsel for the appellant do not have such substance to dislodge the

other evidence led with regard to execution and attestation of the Will

dated 25.2.1986. Merely because a person is admitted in a nursing

home on account of fracture of the hip bone for which he has to be

operated, cannot mean that the said person is not in a sound state of

mind for executing the Will, when the sound state of mind of the

deceased testator has duly been deposed by none other than a Doctor

and who was a friend of the deceased testator for six years and who

also had no interest in the subject matter of the Will nor had any

acrimonious relations with the appellant to depose against him. The

mere fact that the exact date of the earlier Will is not mentioned in the

subsequent Will cannot be said to be such a strong ground to urge that

the subsequent Will, which is otherwise validly executed, was not a

valid Will inasmuch as one cannot deny the fact that the deceased was

admitted in a nursing home for an operation, and therefore there

would not have been readily available with him the date of the earlier

Will. Further, it is not incumbent to necessarily make a mention of an

earlier Will in a subsequent Will so as to give validity to the

subsequent Will and this is only one out of the many factors which are

examined by the Court to determine the suspicious circumstances with

respect to a Will. The facts of the present case as stated above when

taken in totality negate the possibility of suspicious circumstances in

execution and attestation of the Will dated 25.2.1986. The great

stress which was laid by learned counsel for the appellant on the fact

that there were two signatures appearing on the first page, one

signature on the second page and three signatures on the third page

to argue about the invalidity of the Will dated 25.2.1986 is really not of

much strength. At first blush, this aspect appeared to be unusual,

however, the same can well be explained by the fact that the

deceased testator being of an advanced age, and having been

admitted to a nursing home on account of the fracture of the hip bone,

he would have been interested to ensure that there is no doubt about

his signatures and which apprehension he sought to overcome by

signing more than once on a particular page when he thought so.

Such action of the deceased testator in being over-cautious cannot be

said to be such so as to cause any doubt in the execution and

attestation of the Will, especially considering the fact that no

affirmative evidence whatsoever was led on behalf of the appellant

with respect to the alleged fraud or fabrication in making of the Will.

There is absolutely no deposition of any witness on behalf of the

appellant of any fraud etc. in any manner qua the Will, Ex.P2 and

therefore the arguments of the counsel for the respondent carries

weight that the necessary evidence which is required so as to dis-

lodge the affirmative evidence was not led and hence it should be held

that there is no fraud or existence of suspicious circumstances with

respect to the execution and attestation of the Will dated 25.2.1986. A

civil case is decided on balance of probabilities and there is no case in

which there would not be pros and cons in favour of each of the parties

with respect to pleadings and evidences, and therefore, minor

circumstances and discrepancies including in the name of the nursing

home or that the attesting witness, Dr. Amar Jiwan had not put a date

below his signatures cannot be said to be strong circumstances to hold

the Will, Ex.P2 not to be a valid document. One cannot ignore the fact

that the other two brothers of the respondent each had an immovable

property in Delhi whereas the respondent had no immovable property

in Delhi which was the reason for the respondent to be the beneficiary

under the Will dated 25.2.1986 and as already stated above the main

beneficiary was out of the country when the Will, Ex.P2 was executed

and registered. Further there is nothing so unnatural in the deposition

of attesting witness only to admit to the signatures of the deceased

testator in the Will and nowhere else because why should a witness

depose about signatures which were not signed before him. The

requirement of Sections 47 and 68 of the Evidence Act, 1872 are qua

the disputed signatures which are required to be put in the presence of

the attesting witness and which has been deposed to by the attesting

witness Dr. Amar Jiwan. Taking a cautious approach by Dr. Amar Jiwan

by admitting only the signatures on the disputed Will does not mean

that his otherwise valid testimony has to be discarded.

11. I therefore, hold that the Trial Court was justified in holding

that the deceased Sh. Munshi Ram Bhalla had validly executed the Will

dated 25.2.1986, Ex.P2 and which was duly attested

12. Learned counsel for the appellant sought to place reliance

upon decision of a learned single Judge of the Punjab and Haryana

High Court in the case of Bant Ram vs. Inder Devi 1989 (2) HLR

202, however, I fail to understand how the said decision has any

application to the facts of the present case inasmuch as, as per the

facts in the said decision it was held that the revocation deed on the

basis of which the Will was sought to be proven to have been revoked,

was not legally proved and hence the Will of the deceased testator in

that case could not be said to be revoked. I do not find any ratio in

this judgment which was sought to be culled out by the counsel for the

appellant that an earlier Will which is deposited before the Registrar

cannot be revoked by an un-registered Will, and which in any case is

not the legal position.

13. In view of the above, while upholding the validity of the

Will dated 21.4.1980, I hold that the appeals are liable to be dismissed

because the deceased testator had left behind a subsequently validly

executed and attested Will dated 25.2.1986 and of which probate has

been rightly granted by the Court below. Appeals are dismissed,

leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J OCTOBER 05, 2011 ak