Delhi High Court

Ragni Chopra vs Rajesh & Ors. on 17 December, 2012

Author: V. K. Jain

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Judgment reserved on:  12.12.2012
                                             Judgment pronounced on: 17.12.2012
+
+      CS(OS) 1371/2002

       RAGNI CHOPRA                                                   ..... Plaintiff
                                  Through:   Mr Sudhir Nandrajog, Sr Adv with
                                             Mr Jasmeet Singh, Adv.


                         versus

       RAJESH & ORS.                                          ..... Defendants
                                  Through:   Ms Roma Bhagat, Adv for Ds 1,3 and
                                             5.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN


V.K. JAIN, J.

1. The plaintiff before this Court is the sister of defendant No. 1 Rajesh

Malhotra and defendant No. 2 Rakesh Malhotra. Defendant No. 3 is the wife and

defendants 4 and 5 are the children of defendant No. 1.

Property No. E-59, Vasant Marg, Vasant Vihar, New Delhi, was owned by

late Shri R.M. Malhotra and late Smt. Veera Malhotra, parents of plaintiff and

defendants 1 and 2. Both of them held half undivided share each in the said

property. Vide Will dated 29.06.1988, Smt. Veera Malhotra bequeathed her half

share in the suit property to her husband Late Shri R.M. Malhotra. Vide Will dated

03.10.1993, she bequeathed her share in the said property to defendant No.1 and 3

to 5 in the ratio of 40:30:20:10 respectively. Vide Will dated 13.08.1995, she

maintained the above-referred bequest as far as the suit property is concerned. The

case of the plaintiff is that vide Will dated 14.05.2001, Smt Veera Malhotra,

bequeathed her half share in the suit property to her. Since late Shri R.M.

Malhotra, had bequeathed his share in the suit property to defendants 1 and 3 to 5

in the ratio of 40:30:20:10 respectively, the plaintiff claims half share in the said

property by virtue of the Will purporting to be executed in her favour on

14.05.2001. In CS(OS) No. 1371/2002 filed by the plaintiff, defendant No. 1

propounded a Will dated 07.06.2002, alleged to have been executed by late Smt.

Veera Malhotra to defendants 1 and 3 to 5 in the ratio of 40:30:20:10 respectively.

The case of the plaintiff is that the Will propounded by defendant No. 1 is a forged

and fabricated document executed under threat, pressure and coercion. The

plaintiff also alleges that defendant No. 1, on the pretext of handling income-tax

and other matters of his mother, had obtained her signature on blank papers which

were used to type the Will dated 07.06.2002 after her death. Smt. Veera Malhotra

expired on 16.08.2002. The Will dated 07.06.2002 was got registered by defendant

No. 1 on 09.07.2003. The plaintiff is now seeking partition of the suit property

along with the possession of the partitioned share.

2. In his written statement, defendant No. 1 has denied the execution, validity

and genuineness of the Will dated 14.05.2001 set up by the plaintiff and has

claimed the same to be unnatural and improbable. It is also alleged that the Will

dated 14.05.2001 was got executed by the plaintiff by use of undue influence and

coercion. It is also alleged in the written statement that on or around 14.05.2001,

Smt. Veera Malhotra was suffering from cancer of lymph nodes and undergoing

intensive infusional chemotherapy and, therefore, not in a position to execute the

Will dated 14.05.2001. It is also alleged that Smt. Veera Malhotra had also

executed a Relinquishment Deed dated 03.04.2001, whereby she relinquished her

share in the suit property in favour of defendants 1 and 3 to 5 in the ratio of

40:30:20:10 respectively. It is also stated in the written statement that there was no

logical or valid reason for Smt. Veera Malhotra to bequeath her entire estate to the

plaintiff, thereby disinheriting defendant No. 1, who was the only child looking her

after.

3. In his written statement, defendant No. 2 Rakesh Malhotra, has disputed the

Wills set up by the plaintiff and defendant No. 1 and has alleged that these Wills

were got executed by the plaintiff and defendant No. 1 by exercising undue

influence and coercion. According to him, the suit property is equally owned by

him, the plaintiff and defendant No. 1. It is also alleged that Smt. Veera Malhotra

was an illiterate person and did not have any education though she had learnt to

read and write Hindi. According to defendant No. 2, the ability of Smt. Veera

Malhotra to read and write in English is extremely limited and she knew only to

sign. Thus, according to this defendant, Smt. Veera Malhotra had died intestate.

4. The following issues were framed on the pleading of the parties:-

       i.      Whether the suit has not been properly valued for
               purposes of Court fees and jurisdiction? OPD-1

       ii.     Whether Late Smt. Veera Malhotra executed valid,
               legal and enforceable Will dated 29.06.1988,
               3.10.1993, 13.08.1995 and 07.06.2002, if so, to
               what effect? OPD-1

       iii.    Whether Late Smt. Veera Malhotra executed legal,
               valid and enforceable Will dated 14.05.2001, if so,
               its effect? OPD-1

       iv.     Whether the plaintiff is entitled to partition and
               possession in the property No. E-59, Vasant Marg,
               Vasant Vihar, New Delhi? OPP

       v.      Relief

The plaintiff has valued the suit at Rs 1 crore and paid ad valorem Court fee

on that valuation. During the course of arguments, the learned counsel for the

defendant No. 1 pointed out that in the Valuation Report filed by the plaintiff, her

own valuer M/s Knight Frank had valued the land underneath the suit property at

Rs 85,000/- per square yards on 01.04.2004. It was also opined in the said

Valuation Report that there has been appreciation of about 10% in last about 6-9

months. This suit has been instituted on 12.12.2002, i.e., in the Financial Year

2002-03. If 20% of the valuation given by the valuer of the plaintiff as on

01.04.2004 is deducted from the said valuation, the market value of the land itself

alone in the year 2002-03 comes to about Rs 68,000/- per square yards. Since the

plaintiff is claiming half share in the said property, the value of her share in the

land calculated at the rate of Rs 68,000/- per square yards comes to Rs

4,08,00,000/-. The report of the valuer of the plaintiff Knight Frank shows that this

property has built up area measuring 4044 square feet in the main building and 980

square feet in the servant quarters. The total built up area, therefore, comes to Rs

5,024/- square feet. No separate value of the superstructure has been given by the

valuer of the plaintiff. While giving value of some other properties in the locality,

the valuer of the plaintiff valued them only on the basis of land price, on the ground

that they were old properties. Therefore, I am not adding the value of the

superstructure to the land value given by the expert. The plaintiff, therefore, is

required to pay Court fee on the valuation of Rs 4,08,00,000/-. The plaintiff is

granted four weeks to file the deficient Court fee in terms of this judgment within

four weeks.

The issue is decided accordingly.

The burden of proving that the Will was validly executed and is a genuine

document is on the propounder of the Will. He is required to prove that the Testator

had signed the Will and had put his signature out of his own free Will. He is also

required to prove that the Testator, at the time of execution of the Will, had a sound

disposition of mind and was in a position to understand the nature and effect of

what he was doing. If sufficient evidence in this behalf is produced by the

propounder of the Will, the onus cast on him stands duly discharged.

Another requirement of law is that if there are suspicious circumstances

surrounding the execution of a Will, the onus is on the propounder to explain those

circumstances to the satisfaction of the Court, before the Will is accepted as a

genuine document. The suspicious circumstances may be many such as (i) the

signature of the Testator may be shaky and doubtful or different from his usual

signatures; (ii) the mental condition of the Testator may be feeble and debilitated at

the time of the execution of the Will; (iii) the disposition may be such as is found

to be unnatural, improbable or unfair in the light of relevant circumstances, such as

exclusion of natural heirs without any reason (iv) the propounder may take a

prominent part in the execution of the Will; (v) the Will may not see the light of

the day for long time; (vi) the Will may contain incorrect recital of essential facts.

Of course, the suspicious circumstances, alleged by a person who disputes the

genuineness of the Will, ought to be real and germane and not the imagination of a

doubting mind amounting to conjecture or mistrust.

It is also a settled proposition of law, fraud, coercion or undue influence is

alleged in execution of a Will, the burden of proving the same would be on the

person by whom such a plea is set up. (Madhukar D. Shende v. Tarabai Aba

Shedage (2002) 2 SCC 85, Sridevi and Ors. v. Jayaraja Shetty and Ors., (2005)

2 SCC 784.)

It was observed by Supreme Court in Bharpur Singh and Ors. v.

Shamsher Singh, (2009) 3 SCC 687, that though deprivation of due share to the

natural heirs by itself may not be a suspicious circumstance, it is one of the factors

which is taken into consideration by the Courts before granting probate of a Will.

It was held by Supreme Court in Rani Purnima Debi vs. Khagendra

Narayan Deb & Anr. AIR 1962 SC 567 and Gurdial Kaur & Ors. vs. Kartar

Kaur & Ors. 119 PLR 524 (SC) registration of a Will would be prima facie

evidence of its genuineness though that by itself is not sufficient to dispel all

suspicious circumstances surrounding execution of the Will,.

In Rani Purnimadebi & Another vs. Khagendra Narayan Deb (supra).

the Supreme Court was of the view that if the evidence as to registration shows that

it had been done in a perfunctory manner, the Officer who had registered the Will

did not read it over to the Testator or did not bring home to him that he was

admitting the execution of the Will or did not satisfy himself in some other way

that the Testator knew that it was a Will, execution of which he was admitting, the

registration by itself would not be of much value.

7. The Wills executed on 29.06,1988, 03.10.1993 and 13.08.1995 have been

admitted by the plaintiff as well as defendants No.1 and 3 to 5 who are the only

contesting parties. Defendant No.2, who disputed all these Wills was proceeded

ex-parte and did not lead any evidence. The dispute between the parties is now

confined to execution of the Will dated 14.05.2001 set up by the plaintiff and the

Will dated 07.06.2002 set up by defendant No.1.

It is an admitted position, as far as the contesting parties are concerned that

the Will dated 29.06.1988, 03.10.1993 and 13.08.1995 were got duly registered by

their parents. Under the Will dated 03.10.1993, Smt. Veera Malhotra bequeathed

her half share in the suit property to defendants 1 and 3 to 5 in the ratio of

40:30:20:10 respectively. The same was the disposition made by late Shri R.M.

Malhotra as far as the suit property is concerned. Vide Will dated 13.08.1995, the

same disposition was maintained by Smt. Veera Malhotra and Shri R.M. Malhotra

as far as the suit property is concerned. It is also an admitted fact that for quite

some time before her death late Smt. Veera Malhotra was suffering from cancer. It

is also an admitted position that after death of her husband late Smt. Veera

Malhotra had shifted to the flat where defendant No. 1 was residing with his family

and she continued to live there, till her death. As far as the contesting siblings are

concerned, both of them admit that the relations of late Smt. Veera Malhotra and

her husband with their second son, defendant No. 2 were far from cordial. The

Will dated 14.05.2001, therefore, needs to be viewed in the background of the

disposition made in the admitted Wills dated 03.10.1993 and 13.08.1995.

8. The Will dated 14.05.2001 purports to have been executed in the presence of

two witnesses, namely, Dr. A.J.S. Juneja and Shri Rakesh Mathur. Shri Rakesh

Mathur has come in the witness box as PW-3, whereas Dr.A.J.S. Juneja has been

examined as PW-2. In his affidavit by way of evidence, the attesting witness of the

Will dated 14.05.2001, Shri Rakesh Mathur has stated that he knew late Smt. Veera

Malhotra and her husband since his marriage to Reynoo Mathur, daughter of Shri

Ram Prakash Saroj and late Smt. Kaushal Saroj in 1976. According to him,

Malhotras were very close to his parents-in-law and they used to go together for

vacation. According to the witness Mrs. Veera Malhotra had on one of her visits to

their house, told him that she wanted him to help her in making a Will and

introduced her to a Medical Practitioner who could also, in view of her advanced

age, certify her capability to make and also be a witness to her Will. He has further

stated that he had given his consent for the same to Mrs.Veera Malhotra and had

also passed on the contact number of his family doctor Dr. A.J.S. Juneja to her. He

has stated that Mrs.Veera Malhotra had thereafter rung up him and asked him if it

was convenient for him to accompany her to the Registrar for the purpose of

execution and registration of her Will. He accordingly reached the office of the

Sub-Registrar at INA in the morning of 14.05.2001. Mrs. Veera Malhotra was

already there when he reached the office of Sub-Registrar. Thereafter they were

joined by Dr. A.J.S. Juneja. Mrs. Veera Malhotra read the Will and signed first,

thereafter Dr. A.J.S. Juneja signed the Will. According to the witness, he was the

last person to sign the Will.

9. In his deposition, Dr. A.J.S. Juneja has stated that sometime in the year

2001, Mr. Rakesh Mathur had called him up and said that he was sending a close

family friend to him. Subsequently, Mrs. Veera Malhotra spoke to him and

informed that she intended to make a Will and wanted him to attest the same. She

requested him whether it would be convenient for him to be present before the Sub-

Registrar on 14.05.2001 to certify her physical and mental condition, Mrs. Veera

Malhotra came to his clinic at Sarvapriya Vihar at about 9 am, where he examined

her and found her physically and mentally fit. He then reached the office of Sub-

Registrar at about 10 AM, where Mrs. Veera Malhotra read the Will and thereafter

signed each and every page. He then signed it as a witness and Mr. Rakesh Mathur

signed thereafter.

10. It is not in dispute that the Will dated 14.05.2001 bears signatures as well as

the photograph of late Smt. Veera Malhotra. This Will is a registered document

and therefore, some authenticity is certainly attached to the document on account of

its being registered though the registration itself is not conclusive evidence of due

execution of a Will. Due execution of the Will, implies not only that the testatrix

was in a sound and disposing state of health and mind but also that either the

contents of the documents were read and understood by her or the same were read

over and explained to her by someone else, before she appended her signature to it.

11. The following facts and circumstances, in my view, clearly indicate that the

Will dated 14.05.2001 though it bears signature of late Mrs. Veera Malhotra could

not have been executed by her as her Will

(i) According to the attesting witnesses namely Shri Rakesh Mathur and

Dr. A.J.S. Juneja, Mrs. Veera Malhotra herself had read the Will

before she signed the same in their presence. On the other hand, as

per the endorsement made on the Will, the document was read over

and explained to the testatrix and she admitted that the contents were

the same as she had willed. This is a material contradiction which

creates serious doubt on the authenticity of the Will set up by the

plaintiff. The testatrix herself reading the Will typed in English is

altogether different from someone reading it out and explaining its

contents to her. The endorsement to the effect that the Will was read

out and explained to Mrs. Veera Malhotra implies that she did not

have sufficient knowledge of English language and that is why

someone else had to explain its contents to her, in the language she

understood. Neither Dr. A.J.S. Juneja nor Mr. Rakesh Mathur claims

to have read over the contents of the Will dated 14.10.2005 to Mrs.

Veera Malhotra. The case of defendant No.1 is that though Mrs.

Veera Malhotra could sign in English, she was not capable of reading

and understanding the contents of a document written in English. It

would be pertinent, at this stage, to take note of the fact that the Will

dated 03.10.1993 and 13.08.1995 have an endorsement identical to the

endorsement made on the Will dated 14.05.2001. The endorsement

that the Will had been read over and explained to the testator finds

incorporation only in the Wills executed by late Smt. Veera Malhotra

and not in the Wills executed by her husband late Shri R.M.Malhotra

on the same date on which these Wills were executed by Mrs. Veera

Malhotra. This clearly shows that the contents of the Will dated

13.08.1995 were actually read over and explained to Mrs. Veera

Malhotra and the endorsement to this effect in her Will cannot be said

to be merely a standard statement in a Will. Had it been a standard

clause, it would have been made not only in the Wills executed by her

but also in the Wills executed by her husband particularly when the

Wills by the wife and the husband were executed and got registered on

the same date and at the same place.

(ii) Ex.DW-2/2 is the letter written by Mrs. Veera Malhotra to defendant

No.2 - Rakesh Malhotra on 26.11.1994. This letter has been written

purely in Hindi with no word of English having been inserted therein.

Admittedly, defendant No.2 is a well-educated person who is settled

out of India and who knew English very well. Had Mrs. Veera

Malhotra been fully conversant with English language, she would

have at least used some words of English language while writing to

her son who was settled abroad even at the time this letter was written.

Ex.PW-1/D-1 is the letter written by defendant No.2 - Rakesh

Malhotra to late Smr. Veera Malhotra on 24th April, 1997. The letter

has been written primarily in Hindi though a few words in English,

such as Dolly, Delhi, leave sanction, Company, Muscat, stay extend,

A-Block, Friday, Gulf Air and Flight have been used in the document.

The English words used in this letter have been written in capital

letters which indicates that late Smt. Veera Malhotra had very limited

knowledge of English and that is why even the English words used in

the letter were written in capital letters.

Had Mrs. Veera Malhotra been fully conversant with English

language, defendant No.2 was likely to write to her in fluent English

instead of writing in Hindi and inserting only a few easily readable

and understandable words of English, in capital letters. Ex.PW-1/4 is

the letter written by Shri Rakesh Malhotra to the plaintiff on 27th

November, 1996. This letter has been written fully in English. This is

clearly indicative of the fact that Shri Rakesh Malhotra used to write

in English, to the family members who are fully conversant with

English language and in Hindi to the person who was not well

conversant with English. The Wills dated 29.06.1988, 03.10.1993 and

13.08.1995 executed by late Smt. Veera Malhotra and Shri R.M.

Malhotra were witnessed by Shri H.S. Serna, who was a colleague and

had been a neighbour of Malhotras. In his affidavit by way of

evidence, he has stated that to the best of his knowledge and belief, he

had no recollection of Smt. Veera Malhotra speaking English in his

presence and that she used to converse with him in Punjabi. The

deposition of this witness indicates that late Smt. Veera Malhotra was

not well versed with English and that is why the witness despite being

quite close to the family never saw her speaking in English. It,

therefore, appears that though Mrs. Veera Malhotra knew some

English, she was not fully conversant with English language. If Mrs.

Veera Malhotra was not fully conversant with English language and

was not in a position to herself read and understand all the contents of

a document written in English, it would be difficult to accept that she

herself had read the Will dated 14.05.2001 before she appended her

signature to the document. It would be pertinent to note here that the

Will dated 14.05.2001 runs into as many as 11 typed pages and the

contents of the document could have been understood and their true

import realized only by a person who was fully conversant with

English language and not a person who knew only a little bit of

English. Another material circumstances in this regard that there is no

evidence of Mrs. Veera Malhotra having taken any formal education.

No School or College certificate of Mrs. Veera Malhotra has been

produced by the plaintiff, and the case of defendant No.1 is that she

did not have formal education though with the passage of time she had

learnt a few commonly used words of English and had also learned

how to sign in English. Considering the fact that defendant No.1 had

taken a specific plea that late Mrs. Veera Malhotra did not have proper

education, it was imperative for the plaintiff to produce record which

would have evidenced her having studied to the extent that she could

have understood the contents of a typed Will running into as many as

11 pages.

(iii) The most material circumstance which, in my view, creates serious

doubt with respect to genuineness and authenticity of the Will dated

14.05.2001 is the absence of any reason for Mrs. Veera Malhotra to

change the disposition made by her in her last admitted Will dated

13.08.1995. Admittedly, in the said Will, she had bequeathed her

entire share in the suit property to defendant No.1 and his family

members. To my mind, there could be two possible reasons which

could have persuaded Mrs. Veera Malhotra to change the said

disposition. The first reason could have been the behaviour of

defendant No.1 towards her. Had defendant No.1 started maltreating

Mrs. Veera Malhotra or misbehaving with her after she had executed

the Will dated 13.08.1995 that could have made her change the

disposition made earlier by her. However, the facts and circumstances

of the case clearly indicate that Mrs. Veera Malhotra had no complaint

against the behavior of defendant No.1 or any member of his family.

It is an admitted fact that soon after the death of her husband, late Mrs.

Veera Malhotra shifted from the suit property to the Flat in Alaknanda

where defendant No.1 and his family members were residing. It is

also an admitted position that Mrs. Veera Malhotra continued to live

with defendant No.1 till she breathed her last. It is also not in dispute

that Mrs. Veera Malhotra was suffering from cancer and it was

defendant No.1 who had been taking her to Hospital and incurring the

expenditure related to her treatment. This is also evident from the

medical record Ex.DW2/30A to DW2/30H, DW11/1 and DW10/1 to

DW10/18. Had the behaviour of defendant No.1 or any member of his

family towards Mrs. Veera Malhotra been offensive, she, instead of

continuing to live with him would either have shifted to a portion of

the suit property or to the place of the plaintiff, to live with her. Mrs.

Veera Malhotra and her husband came from an affluent section of the

Society as would be evident from the movable and immovable

properties which they owned at the time of their death. An affluent

woman such as Mrs. Veera Malhotra would, instead of suffering

misbehaviour at the hands of defendant No.1 or any member of his

family, would rather have shifted to the place of her daughter since the

relations between the mother and daughter, according to the plaintiff

were very cordial and the mother loved the daughter a lot. Had Mrs.

Veera Malhotra been maltreated by defendant No.1 or members of his

family, nothing prevented her from just calling her daughter and

requesting her to take her along instead of continuing to live in the

house of defendant No.1, and suffer indignities at their hands.

The Will dated 14.05.2001 contains no such recital as would indicate

any maltreatment of Mrs. Veera Malhotra at the hands of defendant

No.1 or any member of his family, though it does record the

misbehaviour of defendant No.2 and his wife towards the testatrix.

The only reason indicated in the Will dated 14.05.2001 for not giving

any share in the suit property to defendant No.1 is that he was well-

settled in life and had already inherited substantial assets of late Shri

R.M.Malhotra including his half share in the suit property. Therefore,

the plea that defendant No.1 was maltreating late Smt. Veera Malhotra

has absolutely no substance in it.

In support of her contention that defendant No. 1 was ill-treating Smt.

Veera Malhotra, the plaintiff has relied upon Ex.PW-1/9 which is a

typed letter alleged to have been written by late Smt. Veera Malhotra

to the plaintiff on 27.07.2002. This letter makes a reference to the

Will dated 14.05.2001 and terms defendant No. 1 as a greedy person

having no love and regard for Smt. Veera Malhotra and other family

members. However, the facts and circumstances of the case indicate

that this letter could not have been written by late Smt. Veera

Malhotra. The letter has been typed on the letterhead of late Shri R.M.

Malhotra who had died about 06 years this letter purports to be

written. During the course of arguments, it was pointed out by the

learned counsel for the defendant No. 1 that this letterhead carries the

same mistake in the spelling of Commissioner as would be seen in the

letterheads which Shri R.M. Malhotra was using in his lifetime. The

spelling of Commissioner in this letter is COMMISSIONAR which is

also the spelling in the other letterhead Ex.PW-1/D-2 which was used

by late Shri R.M. Malhotra on 08.09.1975. This is an indication that

the signature of late Smt. Veera Malhotra available with the plaintiff

on a blank letterhead of her father has been used to prepare this letter.

Considering the fact that the plaintiff had joint financial transactions

such as investment in shares and bank account with late Smt. Veera

Malhotra, coupled with the fact that late Smt. Veera Malhotra did not

have much education, it is quite possible that she had signed on blank

letterheads of her husband and that letterhead was misused to prepare

the letter Ex.PW-1/9, which is relied upon by the plaintiff. Another

important circumstance in this regard is that Ex.PW-1/9 is a typed

letter and not a handwritten letter. In ordinary course of human

conduct, late Smt. Veera Malhotra would have herself written a letter

instead of directing someone else to type out a letter of this nature for

her. Admittely, Smt. Veera Malhotra was living with defendant No. 1

and his family members, on the date the letter Ex.PW-1/9 purports to

have been signed by her. No evidence has been led by the plaintiff to

prove as to who typed the letter Ex.PW-1/9 on the instructions of Smt.

Veera Malhotra. The accuracy of the language used in this letter

indicates that it was authored by a person who was very well-versed

with English language. As noted earlier, there is no evidence of Smt.

Veera Malhotra being a well conversant with English language and the

facts and circumstances of the case indicate that she knew only a little

bit of English. Since late Smt. Veera Malhotra was suffering from

cancer at the time the letter Ex.PW-1/9 purports to have been signed

by her on 27.07.2002, she was unlikely to go out to get such a letter

typed from a typist and no one in the house of defendant No. 1 would

have typed a letter of this nature for her. The case of the plaintiff is

that Ex.PW-1/9 was delivered by late Smt. Veera Malhotra to her

husband at the time he visited her in the house of defendant No. 1. The

husband of the plaintiff has not come in the witness box to corroborate

the version of the plaintiff in this regard. Even otherwise, it would be

quite unnatural for a mother to get a letter of this nature typed and then

hand it over to her son-in-law for being passed on to her daughter.

Instead of expressing her grievance by way of a typed letter, a mother

would rather verbally express her grievance to her son-in-law and

request him to bring it to the knowledge of her daughter. In fact, she

would herself speak to her daughter on telephone and complain

against the son instead of taking the trouble of getting a letter typed

from outside for this purpose. In her deposition, the plaintiff has

stated that late Smt. Veera Malhotra had already spoken to her about

the contents of the letter and her intention to make such a letter. I fail

to appreciate why late Smt. Veera Malhotra would like to prepare a

record evidencing the ill-treatment of her son and still continue to

reside with him. As noted earlier, instead of continuing to suffer

indignities in the house of defendant No. 1, she would have preferred

to shift to the place of the plaintiff. In fact, the letter dated 27.07.2002

does not appear to be in sync with the contents of the Will dated

14.05.2001 which contains absolutely no allegation of misbehavior or

maltreatment of late Smt. Veera Malhotra at the hands of defendant

No. 1 or his family members.

(iv) The second reason which, in my view, could have impelled late Mrs.

Veera Malhotra to change the disposition made vide Will dated

13.08.1995 was the financial condition of her daughter. Had there

been substantial impairment in the financial condition of the plaintiff

between 13.08.1995 to 14.05.2001 that could have been a valid reason

for late Mrs. Veera Malhotra to change the disposition dated

13.08.1995, however, there is no evidence of any such impairment in

the financial condition of the plaintiff. The plaintiff filed an Income

Tax Return of Rs.7,45,000/- in 1997-98. It has also come in evidence

that she owns flat at posh Napean Sea Road in Mumbai and flat in

Worli (Mumbai). Her husband is the only son of his mother, who

owns a house No.E-6/7, Vasant Vihar, her children study abroad, and

she took her parents abroad for holidaying. She was bequeathed half

share in a flat in Alaknanda, besides substantial number of shares

/debentures etc.

(v) It has been recorded in the Will dated 14.05.2001 that defendant No.1

was well-settled in life and had already inherited substantial assets of

late Shri R.M.Malhotra, but, this was also the position when she

executed the admitted Wills dated 03.10.1993 and 13.08.1995. Even

at the time of execution of the Will dated 03.10.1993 and 13.08.1995,

she knew that her husband had bequeathed his estate including his

share in the suit property to defendant No.1 and his family members.

Despite that, she chose to bequeath her share in the suit property to

defendant No.1 and his family members. Therefore, the reason given

in the Will dated 14.05.2001, to alter the disposition made on

03.10.1993 and 13.08.1995 does not appear to be true and correct.

This is also not the case of the plaintiff that between 13.08.1995 to

14.05.2001, defendant No.1 had become so wealthy that he needed no

share in the property of his mother and that is why late Smt. Veera

Malhotra decided to bequeath her entire share in the suit property to

the plaintiff, to the complete exclusion of defendant No.1 and his

family members.

(vi) At the time she executed the Wills dated 03.10.1993 and 13.08.1995,

late Smt. Veera Malhotra was residing in the suit property with her

husband. At that time, the defendant No. 1 and his family members

were not residing with them. Despite that, she chose to bequeath her

entire share in the suit property to defendant No. 1 and his family

members. Therefore, when shifted to the place of defendant No. 1,

after the death of her husband, she would have come rather closer to

defendant No. 1 and was unlikely to change her previous dispositions

so as to wholly exclude defendant No. 1 and his family members from

her share in the suit property.

(vii) In the normal course of human conduct, a person seeking to execute a

Will would like to associate a relative or a close friend in execution of

the said Will by requesting him to be a witness to the execution. PW3

Shri Rakesh Mathur, admittedly, was not related to Late Smt.Veera

Malhotra. He claims that late Smt.Veera Malhotra used to frequently

visit his house and during one of such visits, she had expressed desire

to make a Will and sought his help in this regard. Admittedly, he was

also not a neighbour of Late Smt.Veera Malhotra. As noted earlier,

Late Smt.Veera Malhotra was suffering from cancer at the time the

Will dated 14.5.2001 is alleged to have been executed by her.

Considering her critical illness, it is quite unlikely that Late Smt.Veera

Malhotra would be a frequent visitor to the house of this witness as is

claimed by him. In his cross examination, Shri Rakesh Mathur has

admitted that from 1996 till the death of Smt.Veera Malhotra in the

year 2002, he never visited her nor was he invited to the place where

she was living with defendant No.1 and his family members. Had this

witness been so close to Late Smt.Veera Malhotra that not only she

confided in him about her intention to execute a Will but she also

asked him to arrange a doctor to certify her fitness and witness the

Will she was seeking to execute, it is unlikely that he would not have

bothered to visit her even once in last six years of her death.

According to Mr. Rakesh Mathur, he had advance intimation that he

would be witnessing the execution of the Will by late Smt. Veera

Malhotra. Had that been the position, late Smt. Veera Malhotra would

have got his name typed as a witness in the document itself. This is yet

another indicator that he did not witness the execution of the Will by

late Smt. Veera Malhotra.

(viii) As far as the other attesting witness Dr.A.J.S.Juneja is concerned, his

testimony does not inspire any confidence at all. In the ordinary

course of human conduct, a person seeking certification of her fitness

to execute a Will, if he/she is already under treatment of doctors,

would request one of his/her treating doctors to certify the state of her

health and, if possible, also witness the execution of the Will he/she is

seeking to execute. Another alternative course of conduct could be to

request a nearby doctor to certify the state of health of the testator and

witness the execution of his Will. Dr. A.J.S.Juneja was not the

treating doctor of Late Smt.Veera Malhotra, though she being a patient

of cancer was getting treatment from various other doctors. He was

also not a doctor in the neighbourhood of Late Smt.Veera Malhotra. It

is most unlikely that instead of requesting a treating doctor or a doctor

in the neighborhood to certify her health and witness the execution of

her Will, Late Smt.Veera Malhotra would have requested Shri Rakesh

Mathur to arrange a doctor for this purpose.

In his affidavit by way of evidence, Dr.A.J.S. Juneja has stated that the

elder son of Late Smt.Veera Malhotra (defendant No.1) loved her

money whereas daughter (plaintiff) loved her. Since in the Will

alleged to have been executed by Late Smt.Veera Malhotra on

14.5.2001, there is no such recital as would indicate that defendant

No.1 was after the wealth of Late Smt.Veera Malhotra, there seems to

be no basis of this witness making such a statement in his affidavit.

Therefore, it appears to me that he was trying to help the plaintiff by

making this kind of statement. In para 4 of his affidavit by way of

evidence, this witness stated that on reaching the Office of Sub-

Registrar, he signed as an attesting witness as well as on his certificate

on the Will and, thereafter the Will was signed by Shri Rakesh Mathur

and Late Smt.Veera Malhotra. He further stated that thereafter they

went before some official who took their signature and thumb marks

after putting some questions to them. On the other hand, in his cross-

examination, he stated that he had put the rubber stamp and signature

on the medical certificate as well as the signature as attesting witness

in the physical presence of the Sub-Registrar. This is a material

contradiction in the testimony of the witness and thereby erodes his

credibility. As per this witness, he had examined Late Smt.Veera

Malhotra in his clinic. If that was the position, the certificate would

have been signed and stamped by him in the clinic and not in the

Office of the Sub-Registrar. According to this witness, he had been

informed in advance that Late Smt.Veera Malhotra wanted him to

attest her Will. However, the Will dated 14.5.2001 does not have the

name of the witness typed on it. Had Late Smt.Veera Malhotra chosen

him to attest her Will, she would have got his name typed as an

attesting witness, when the Will was got prepared by her.

(ix) It has come in the deposition of Shri Rakesh Mathur and Dr.A.J.S.

Juneja that Late Smt.Veera Malhotra had read aloud, the Will while

sitting on a parapet outside the Office of the Sub-Registrar. The

conduct attributed to the testatrix, by the witnesses, appears to be

unnatural because if the Will was prepared on the instructions of Late

Smt.Veera Malhotra, there could be no reason for her to read it again

outside the Office of the Sub-Registrar and that too aloud, in the

presence of the witnesses. According to the witnesses, she read aloud

both the copies of the Will. This, again, would not be in conformity

with normal human conduct.

(x) In the endorsement made on the top of the Will dated 14.5.2001, the

date of expiry of the passport of Late Smt.Veera Malhotra has been

recorded as 26.4.2002 though the correct date of expiry of her passport

is 26.4.2004. No doubt, a mistake could have been possible while

writing the date of expiry of the passport but what is material in this

regard is that the very same mistake also appears on the Will dated

13.8.1995 executed by Late Smt.Veera Malhotra. It was submitted by

learned senior counsel for the plaintiff that there was no mistake in

writing the date of expiry of the passport in the Will dated 13.8.1995.

The contention, however, is incorrect. It is quite evident from a

perusal of Ex.DW1/P1 and Ex.DX1 that the date of expiry of the

passport of Late Smt.Veera Malhotra noted at the time of registration

of the Will dated 13.8.1995 was 26.4.2002 and not 26.4.2004. In

these circumstances, the contention of learned counsel for defendant

No.1 that the date of expiry of the passport was lifted by the plaintiff

from the Will dated 13.8.1995 cannot be said to be wholly unfounded.

(xi) In the Will dated 14.5.2001, the HUF of which Late Smt.Veera

Malhotra was a member, has been described as R.M.Malhotra and

Sons(HUF) though Shri R.M.Malhotra had expired in the year 1996.

Para 7 of the Will dated 14.5.2001 contains a recital that the testatrix

had ¼ share in the assets of the HUF R.M.Malhotra and Sons. This

recital is factually incorrect since, defendant No.2 Shri Rakesh

Mathur, had already separated from the HUF on 17.3.2000 as would

be evident from Ex.DW2/8(colly) which, inter alia, comprise the

agreement executed on 17.3.2000 whereby, it was agreed that the

share of Mr.Rakesh Mathur in the ownership and rental of commercial

Flat No.705 in Prakash Deep Building, Tolstoy Marg, New Delhi

which was owned by the HUF, was determined at 25%. In fact, page 1

of this document incorporates a specific recital that by a separate deed

of partition of even date, a partition of all assets of the HUF barring

immovable assets had already been affected, as regards the share of

Mr.Rakesh Mathur and his only remaining interest in the HUF was as

regards the above-referred immovable property of the HUF. As stated

by Mulla in Hindu Law(18th Edition), intention being the real test, an

agreement between the members of a joint family to hold and enjoy

the property in defined shares, as separate owners, operates as

partition, although there may have been no actual position by metes

and bounds. Thus, there was a partition of the HUF as far as

defendant No.2 Shri Rakesh Mathur is concerned and therefore the

recital to the effect that Late Smt.Veera Malhotra had ¼ share in the

HUF on 14.5.2001 was factually incorrect.

(xii) Para 8 of the Will dated 14.5.2001 contains a recital that defendant

No.2 Shri Rakesh Mathur and his wife do not deserve any share in the

immovable assets of the testatrix. However, vide Para 7 of the

document, undivided interest of the testatrix in the assets of the HUF

stands bequeathed to Shri Rakesh Mathur as an absolute individual

owner. Therefore, the recital contained in para 8 of the Will runs

counter to the bequest made in Para 7 thereof.

(xiii) Another unnatural aspect of the Will set up by the plaintiff is that it

purports to bequeath even the household articles such as TV, VCR,

Music System, furniture, carpet, refrigerator and Air Conditioners to

the plaintiff, though admittedly all these articles were being shared by

her with defendant No.1 and the members of his family. It is quite

unnatural for a mother to bequeath such articles solely to the daughter

who is not living with her, when those articles are already being used

by the son with whom she is living at the time of bequest, and against

whom she has no complaint.

(xiv) The Will dated 14.5.2001 is silent as regards the jewellery of late Smt.

Veera Malhotra. The case of the plaintiff in this regard is that since the

jewellery had already been distributed by late Smt. Veera Malhotra,

before the execution of the Will, it was not required to be referred in

the Will. However, in another suit filed by her, the plaintiff

specifically alleged that the defendant no.1 had misappropriated the

jewellery of the mother, after her death. Certified copy of the plaint in

that suit is Ex.PW1/D6. It would, therefore, not be correct to say that

the jewellery had been distributed by late Smt. Veera Malhotra before

14.5.2001. The omission to make any reference to the jewellery,

therefore, becomes significant. It has been stated by the plaintiff that

she had left her jewellery with her mother in safe custody. This,

however, does not appear to be logical since late Smt. Veera Malhotra

being an old lady suffering from cancer and living with her son was

certainly not in a position to keep the jewellery in safe custody. The

plaintiff on the other hand could have no problem in keeping the

jewellery in her own custody instead of leaving the same with her old

and ailing mother.

(xv) Ex.DW2/31 is the Gift/Relinquishment Deed purporting to have been

executed by late Smt. Veera Malhotra on 3.4.2001, thereby conveying

half of her share in the suit property to defendant no.1 and 3 to 5. The

stamp paper of this document purports to have been purchased on

12.3.2011 in the name of late Smt. Veera Malhotra, for the purpose of

execution of the Relinquishment Deed, as would be evident from the

endorsement made on the back of the stamp paper. The execution of

this document has been duly proved by two witnesses namely Shri

T.S. Ramji and Anil Kumar Upadhyay. However, there is no reference

to this document in the Will dated 14.5.2001. Had the Will

propounded by the plaintiff been genuinely executed by late Smt.

Veera Malhotra, this important document would certainly have found

mention in the Will. This is yet another circumstance which indicates

that the Will dated 14.5.2001 was not executed by late Smt. Veera

Malhotra.

(xvi) It would be seen from the Will dated 14.5.2001 that it bears the

address of the Textatrix as B-303, Rishi Apartment, Alaknanda

whereas in documents such as income tax return (Ex.DW2/11),

invoice of purchase of fridge (Ex.PW1/15), club bills (Ex.DW2/55)

and the record of the hospitals, her address has been given as B-304,

Rishi Apartments, Alaknanda. Same is the address given by her in her

bank account with HDFC bank (Ex.DW7/20 and DW7/64). This is yet

another circumstance creating doubts on the authenticity of the Will

propounded by the plaintiff.

12. The plaintiff had placed reliance upon Ex.PW1/D7 which purports to be a

letter written to her by the former Ambassador of Tunisia in India. It would be

pertinent to note here that this person was the Lessee in respect of the suit property.

This letter contains a reference to an understanding that on account of her advance

age and attachment with the suit property, late Smt. Veera Malhotra had pressed for

division of the entire property between the plaintiff and defendant no.1. However,

neither the original letter has been produced by the plaintiff nor has she examined

the author of the letter or any other person conversant with his signatures to prove

the document. Therefore, no reliance can be placed upon this unproved document.

Ex.PW1/D8 is the photocopy of the purported lease/ lease agreement filed by

the plaintiff. No signature appears on the first and second page of this document.

More importantly, neither the original document has been produced nor has the

Lessee been produced to prove the document. Therefore, no reliance can be placed

upon this document as well.

13. During the course of arguments, it was vehemently contended by the learned

counsel for the defendant no.1 that considering the ill state of health of late Smt.

Veera Malhotra at that time, she could not have put as many as 26 signatures on the

Will, sitting on a parapet and holding a briefcase on her lap as is claimed by the

witnesses of the plaintiff. She submitted that the Testatrix was suffering from third

stage cancer which had spread both below and above diaphragm; her hands/

fingers/feet were bent and twisted. She had suffered multiple joint destruction by

arthropathy and was undergoing chemotherapy and, therefore, unfit to adopt such

postures. She also submitted that the plaintiff had admitted in the other suit that the

Textatrix was suffering from arthritis and was using special magnetic key. The

learned counsel for the defendant no.1 referred to a number of documents on record

with respect to the serious illness from which late Smt. Veera Malhotra was

suffering. It was also pointed out by the learned counsel for the defendant no.1 that

according to the expert from FSL, the signatures on the Will dated 14.5.2001 were

freely written showing smooth line quality and matching the general signatures of

the Textatrix on the Will dated 13.8.1995 both, in the general and individual

writing characteristics and has further opined that in case of an old infirm person

writing in uncomfortable position, the smooth line quality and general

characteristics will change. She also pointed out that when it was suggested to him

that it was impossible for the Textatrix to adopt the posture narrated by him, he did

not deny the suggestion and merely stated that he had no comment on this.

However, I need not go into this aspect of the matter since in my view various

other circumstances discussed hereinbefore clearly indicate that the Will dated

14.5.2001 could not have been executed by late Smt. Veera Malhotra.

14. It was contended by the learned senior counsel for the plaintiff that execution

of the Will dated 14.5.2001 has been admitted by the defendant no.1 in para 4 of

his amended written statement dated 5.8.2003. The above referred paragraph, inter

alia, reads as under:

"4. That even otherwise, the alleged Will dated 14.5.2001 has been got executed by the plaintiff by use of undue influence and coercion against the Testator which is evident from the contents of the alleged Will read in relation with the Wills dated 29.6.1988, 3.10.1993 and 13.8.1995, which fact also finds mention in the Testator's last and final Will dated 7.6.2002. In fact, the Testator has even mentioned in her last Will dated 7.6.2002 that her nephew and some other interested persons had unduly influenced her to write a Will "differently", which has been duly regretted by her..."

To read a particular passage in a document is not a correct method of its

interpretation. The document is to be read as a whole to gather its true import. In

my view, if the written statement is read as a whole, the above referred paragraph

cannot be said to be an admission of due execution of the Will dated 14.5.2001.

15. It was next contended by the learned senior counsel for the plaintiff that the

husband of late Smt. Veera Malhotra having already bequeathed his half share in

the suit property to defendants no.1 and 3 to 5, it was quite natural that she (late

Smt. Veera Malhotra) wanted to bring the plaintiff at par with defendant no.1 by

bequeathing her half share in the said property to her. This argument would have

been valid, had late Smt. Veera Malhotra in her previous Wills dated 3.10.1993 and

13.8.1995 not bequeathed whole of her share in the suit property to defendants no.1

and 3 to 5. If she decided, in the year 1993 and 1995 to bequeath whole of her

share in the suit property to defendants no.1 and 3 to 5, despite her husband already

bequeathed his share in the said property to them, it required strong reasons for her

to change the previous bequest and bequeath whole of her share in the suit property

to the plaintiff, to the complete exclusion of defendant no.1, who was the only child

serving her in her old age, after the death of her husband.

16. It was next contended by the learned senior counsel for the plaintiff that the

parents of the plaintiff wanted to give a flat in 2, Tilak Marg, New Delhi to the

plaintiff, but since that project never took off, late Smt. Veera Malhotra decided to

bequeath her share in the suit property to her.

In his cross examination, defendant no.1 has admitted that in goods times

when there was no acrimony amongst the siblings, he and his brother had desired to

relinquish their half share each in the flat at Tilak Marg to the plaintiff and they had

handed over the booking papers with considerable deposit to the plaintiff. In my

view, this could not have been a reason for late Smt. Veera Malhotra to change the

bequest which she had made in favour of defendant no.1 and his family members.

Firstly, there is no such statement in the Will dated 14.5.2001 and secondly, had

the project in Tilak Marg taken of, the plaintiff would have been required to meet

the costs of that flat except for the booking amount which had been paid by her

brothers. Considering the value of half share in the suit property, which is

constructed in the land measuring 1200 sq yards, this could not have been a reason

to bequeath the whole of the share of late Smt. Veera Malhotra in the suit property,

to the plaintiff.

17. It was contended by the learned senior counsel for the plaintiff that various

lease agreements signed by late Smt. Veera Malhotra in English do not contain an

endorsement that the same had been read over and explained to her, which is an

indicator that she was well conversant with English language. I, however, do not

find merits in the contention. Late Smt. Veera Malhotra was not the only signatory

to the lease documents, her husband and/or sons also having executed the same. On

the other hand, she is the sole executor of the Will and more importantly there

would be no necessity of endorsement that the Will was read over and explained to

the Testatrix, if late Smt. Veera Malhotra was well conversant in English and was

in a position to read and fully understanding the contents of the Will dated

14.5.2001.

18. The learned senior counsel for the plaintiff has relied upon Rajendra

Shanker v. Devendra Shanker [2012 V AD(Delhi) 394], L Chamanlal (dead) by

his legal representatives v Smt. Ram Katori and another [AIR 1972 SC 2296),

Gulshan Kumar Anand v State [2011(7) AD (Delhi) 539], Naresh Charan Das

Gupta v. Paresh Charan Das Gupta [AIR 1955 SC 363], Madhwi Sharma

Ahluwalia v. State [175(2010) DLT 52] and decision of this Court dated 8.3.2011

in Smt. Lalita Sharma v. Smt. Sumitra Sharma [RFA No.361/2004]. I have

considered the proposition of law enunciated and followed in these cases.

However, in the facts and circumstances of this case, there is no escape from the

conclusion that due execution of the Will dated 14.5.2001 has not been proved by

the plaintiff. In L.Chamanlal(supra), the Court was of the view that where the

proper execution of a Will was not in dispute and there is evidence to show that the

Testator (an illiterate lady) had intelligently understood the contents of the Will

when it was read over to her and thereafter directed some changes in it, it could not

be said that the Will was not intelligently executed. However, in the present case,

there is no evidence that the Will dated 14.5.2001 having been read over and

explained to the Textatrix and the evidence on record clearly indicates that she was

not well versed in English language in which the said Will has been written.

Besides this, there are various other facts and circumstances as discussed in the

preceding paragraphs which clearly indicate that this Will could not have been

executed by late Smt. Veera Malhotra. In Naresh Charan Das Gupta (supra), the

Court held that the burden of proof of undue influence is on the person who alleges

the same. There is no quarrel with the proposition of law that undue influence is

required to be proved by the person who pleads such an allegation. However, in the

case before this Court, though there is no evidence of any undue influence having

been exercised by the plaintiff or her mother, the due execution of the Will dated

14.5.2001 has not been proved by the plaintiff. The decision in Madhwi Sharma

(supra). Rajendra Shanker (supra) and Gulshan Kumar Anand (supra) are the

judgments written by me. Applying the proposition of law, which I followed in the

above referred cases, I am of the view that the plaintiff has failed to prove due

execution of the will propounded by her. In Lalita Sharma(supra), this Court

referred to the decisions of Apex Court in Pushpavathi v. Chandraraja Kadamba

[(1973) 3 SCC 291] holding therein that where the signatures of the Testator was

challenged as a forged signatures and the Will does not come from the custody of a

public authority or a family solicitor, the fact that the depositions made in the Will

were unnatural, improbable or unfair, would undoubtedly create some doubt about

the Will, especially, when the document is unregistered and comes from the

custody of a person who is major beneficiary under the Will. This judgment is also

relevant with respect to the Will dated 7.6.2002 propounded by the defendant no.1.

I have taken a view that due execution of the Will dated 7.6.2002 could not be

proved by the defendant no.1. It would, however, be pertinent to note here that not

only the Will dated 7.6.2002 relied upon by the defendant no.1 but also the Will

dated 14.5.2001 relied upon by the plaintiff comes from the custody of the major

beneficiary under the Will.

19. Coming to the Will dated 7.6.2002 propounded by the defendant no.1, I find

that the plaintiff has examined DW5 Ms. Deepika Bhardwaj and DW6 Shri Rajesh

Trehan who claims to have witnessed execution of the said Will. The case of the

plaintiff is that the signatures of late Smt. Veera Malhotra on this document have

been forged and in this regard the plaintiff has relied upon the testimony of Shri

Anurag Sharma, a handwriting expert from CFSL, who in his report Ex.PW4/1 has

opined that the person who wrote the admitted signatures mark A1 to A21 did not

write the questioned signatures mark Q1 to Q4 (on the Will dated 7.6.2002). The

report was challenged by the learned counsel for the defendant no.1, on a number

of grounds including that the original photographs taken by the expert were not

sent to him. However, in my view, the opinion of the handwriting expert apart,

there are various other facts and circumstances as stated hereinbelow, which create

serious doubts on the authenticity of the Will dated 7.6.2002 and indicate that this

document was not executed by late Smt. Veera Malhotra:

(i) The previous Will dated 29.6.1988, 3.10.1993 and 13.8.1995 were got

duly registered by late Smt. Veera Malhotra. Same was the position

with respect to the Wills executed by her husband on the same dates.

However, the Will dated 7.6.2002 was not got registered though late

Smt. Veera Malhotra was alive for more than two months after this

document is alleged to have been executed by her.

It was contended by the learned counsel for the defendant no.1 that

being extremely unwell, late Smt. Veera Malhotra was not in a

position to go to the Sub-Registrar's office for registration of this

document. In her written arguments, the plaintiff has stated that late

Smt. Veera Malhotra had several times gone to Batra Hospital by car,

which indicates that she was in a position to attend the office of the

Sub Registrar. That apart, the Sub Registrar could have been requested

by the defendant no.1 to visit their house for the purpose of

registration of the Will dated 7.6.2002, since this is not his case that he

was not aware of execution of the said Will.

(ii) The Will dated 7.6.2002 does not bear any photograph or thumb

impression of late Smt. Veera Malhotra, though the previous Wills

executed by her were not only signed but also thumb marked by her

and bear her photograph.

(iii) The case of the defendant no.1 is that vide Gift/Relinquishment Deed

dated 3.4.2001, late Smt. Veera Malhotra had gifted /relinquished 50%

of her share in the suit property to defendant no.1 and his family

members. However, para 1 of the Will dated 7.6.2002 states that "In

case of any reason my share in the aforesaid flat is restored to

original one half due to my earlier Gift/Relinquishment Deed not

having been accepted by the beneficiaries". Since late Smt. Veera

Malhotra was residing with defendant no.1, she could not have been

unaware as to whether the Gift/Relinquishment Deed dated 3.4.2001

had been accepted by the beneficiaries or not. Moreover, the

Gift/Relinquishment Deed contains an endorsement of acceptance by

the beneficiaries and the endorsement has been duly signed by them.

Therefore, there could be no question of donees denying the

Gift/Relinquishment Deed. The said recital, therefore, creates serious

doubt about the authenticity of the Will set up by defendant no.1.

(iv) The Will dated 7.6.2002 purports to have been attested by the

witnesses Ms. Deepika Bhardwaj and Shri Rajesh Trehan. According

to defendant no.1, though late Smt. Veera Malhotra had executed the

Will dated 3.10.1993 and 13.8.1995 bequeathing whole of her share in

the suit property to defendant no.1 and 3 to 5, she chose to make the

Will dated 7.6.2002 because she wanted to give her half share in Flat

No.B-403, Rishi Apartment, Alaknanda, New Delhi to defendant no.2

Mr. Rakesh Malhotra. This is also an admitted fact that the relations

between late Smt. Veera Malhotra and defendant no.2 Shri Rakesh

Malhotra were far from being cordial. There is no evidence of any

improvement in the relations of late Smt. Veera Malhotra with

defendant no.2 Mr. Rakesh Malhotra by the time the Will dated

7.6.2002 is alleged to have been executed. The Will contained

absolutely no reason for late Smt. Veera Malhotra changing the earlier

bequest made by her, as far as her share in Flat No.403, Rishi

Apartments, Alaknanda, New Delhi was concerned. Under the Will

dated 13.8.1995, she had bequeathed her half share in the said flat to

the plaintiff Smt. Ragni Chopra. Also, the Will contained no reference

to the previous Wills dated 29.6.1988, 3.10.1993 and 13.8.1995.

(v) It has been recorded in this document that persuasive powers were

used by the nephew of the Textratix and other interested persons

including Mrs. Usha Singh to make her write the Will differently and

she regretted their role. However, there is no evidence of nephew Mr.

K.L. Sahni or any other person namely Mrs. Usha Singh being

involved in the Textatrix writing some other Will.

(vi) It has been claimed by the witness of defendant no.1 namely Mrs.

Deepika Bhardwaj that the Will dated 7.6.2002 was read over and

explained by her to late Smt. Veera Malhotra. However, the Will

contains no endorsement to this effect.

(vii) The Will dated 7.6.2002 is a typed document. This is defendant no.1's

own case that late Smt. Veera Malhotra being extremely sick, she was

not in a position to move out of the house. Therefore, it was not

possible for her to visit the Deed Writer to draft the Will for her.

According to Mrs. Deepika Bhardwaj, she had prepared the outlines of

the Will as per the instructions of late Smt. Veera Malhotra, though

she did not prepare the final Will. There is no evidence as to who

prepared the final Will dated 7.6.2002. According to Mrs. Deepika

Bhardwaj, Ex.DW2/1 (the Will dated 7.6.2002) was not the document

which she had given to late Smt. Veera Malhotra since that was a

point-wise document. When her attention was drawn to the portion C

to C of the Will dated 7.6.2002, she stated that the same was not

prepared by her. Same was the position when the attention of the

witness was drawn to portion D to D1, E to E1 and F to F1. This

becomes important since being extremely sick and immobile, late Smt.

Veera Malhotra was not in a position to get the Will prepared of her

own and Mrs. Deepika Bhardwaj does not claim to have got the final

Will prepared and typed for late Smt. Veera Malhotra. According to

the witness, late Smt. Veera Malhotra had told her that she would take

the help of a resident of Rishi Apartment. However, the name of that

person has not been given by the witness.