Prof. B.R. Grover vs The State
2012 Latest Caselaw 4329 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Test Cas.No.41/1995

%                                                         July 23, 2012

PROF. B.R. GROVER                                  ...... Petitioner
           Through:         Mr. N.Safaya, Adv.


                            VERSUS

THE STATE                                          ...... Respondent

Through: Mr. S.K.Chachra with Ms.Gaganpreet Chawla, Advs. for R-10 & 11 CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Testamentary Case was filed seeking probate of the Will

dated 22.7.1994 of late Smt. Lajwanti Grover, wife of late Sh. Haveli Ram

Grover. The petition was originally filed by the named executor-Mr.

B.R.Grover, a son and a beneficiary under the Will. On the death of

Sh.B.R.Grover during the pendency of the case, he was substituted by

Brigadier Surinder Kumar Grover, another son of deceased Smt. Lajwanti

Grover, and also one of the beneficiary under the Will dated 22.7.1994. The

probate petition therefore will become a petition for grant of letters of

administration with the Will annexed inasmuch as the executor of the Will is

no longer alive.

2. Sh.Haveli Ram Grover married twice. The first wife (hereinafter

referred to as the „first wife‟ inasmuch as none of the counsel could disclose

the name of the first wife nor the name appears in the judicial record) died

sometime in 1918. There were three children from the first marriage of Haveli

Ram Grover namely Smt. Leela Devi Dua (daughter), Smt. Vidyawati

(daughter) and Sh.Roshan Lal Grover (son). Smt. Lajwanti Grover was the

second wife of late Sh. Haveli Ram Grover. From this second marriage of

Sh.Haveli Ram Grover with Smt. Lajwanti Grover, seven children were born

i.e. five sons and two daughters. The elder son was Sh.Darbari Lal Grover

who expired before the death of Smt. Lajwanti Grover. Sh.Darbari Lal Grover

died sometime around in August, 1979 leaving behind his widow-Smt.

Santosh Grover and three daughters namely Smt. Anju Choudhary, Smt. Kiran

Chaddha and Smt. Neelam Manchanda. The other four sons of Smt. Lajwanti

Grover who were alive on the date of death of Smt. Lajwanti Grover on

18.6.1995 were Sh. Baldev Raj Grover (erstwhile petitioner), Sh. Om Prakash

Grover (one of the objector), Sh. Sudarshan Kumar Grover (another objector)

and Sh. Surinder Kumar Grover (the present petitioner who was substituted

for Sh. Baldev Raj Grover the original petitioner). The two daughters are

Kumari Amrita Grover and Kumari Shakuntala Grover.

3. I have given extensive details of the family inasmuch as it will

have to be understood as to who are in law entitled to file objections to the

Will. Objections have been filed by three persons/sets of persons. Objections

firstly are filed by Sh. Roshan Lal Grover, who is the son of the first wife of

late Sh. Haveli Ram Grover. The second set of objections have been filed by

the legal heirs of the pre-deceased son Sh. Darbari Lal Grover namely Sh.

Santosh Grover (widow of Darbari Lal Grover) and Smt. Kiran Chhadha and

Smt. Neelam Manchanda, two daughters of Sh.Darbari Lal Grover. One

daughter of Sh.Darbari Lal Grover, Smt. Anju Choudhary has given her no-

objection to the grant of the probate inasmuch as she is a beneficiary under the

Will. Third set of objections are filed by Sh. Om Prakash Grover and

Sh.Sudarshan Kumar Grover. Though objections have been separately filed

by these two sons of late Smt. Lajwanti Grover, however I am taking

objections filed by both these persons, Sh. Om Prakash Grover and

Sh.Sudarshan Kumar Grover together inasmuch as objections filed by them

are near identical. Sh. Sudharshan Kumar Grover expired during the

pendency of the petition and he is represented by his legal heirs including his

widow-Smt. Manju Grover.

4. So far as the objections which have been filed by Sh. Roshan Lal

Grover who is the son of the first wife of late Sh. Haveli Ram Grover, these

objections have to be dismissed in limine/forthwith inasmuch as Sh. Roshal

Lal Grover has no locus standi to file any objections to the Will of Smt.

Lajwanti Grover. This I say so because objections are filed either by the legal

heirs or others who inherit properties of the deceased under the applicable law

of succession or any other person including the legal heirs, who claimed to

inherit the property through a different Will or by any other method legally

provided. Sh.Roshan Lal Grover does not claim any Will to be executed in his

favour, and since as per the Schedule to the Hindu Succession Act, 1956 there

are preferential class heirs being the children of Smt. Lajwanti Grover who are

alive, Sh. Roshan Lal Grover is not a legal heir and thus has no locus standi to

file any objections. Any and every person (except who would be entitled to the

estate of the deceased), cannot file objections to the Will. I therefore reject the

objections filed by Sh.Roshan Lal Grover.

5. So far as the objections which are filed by Smt. Santosh Grover

alongwith Smt.Kiran Chhadha and Smt. Neelam Manchanda, the legal heirs of

Sh. Darbari Lal Grover, these objections in my opinion have also to be

necessarily dismissed inasmuch as none of these persons have stepped into the

witness box to prove their case whereas on behalf of the petitioner sufficient

evidence has been led to prove the due execution of the Will of Smt. Lajwanti

Grover. Of course, I would for the sake of formality, discuss the arguments

which have been advanced by the Advocate-Mr. Chachra who appears for

these legal heirs and for which discussion in this judgment it is assumed that

those objections survive in spite of no evidence having been led by the

objectors who are legal heirs of Sh. Darbari Lal Grover.

6. Coming to the objections of Sh.Om Prakash Grover (who argued

his case in person) and Sh.Sudarshan Kumar Grover (who is now deceased

and was represented through his widow Smt. Manju Grover during the final

arguments) such objections as argued before me, were primarily on the ground

that Smt. Lajwanti Grover was not the owner of the property bearing

No.33/12, East Patel Nagar, New Delhi and therefore she could not bequeath

the same. These arguments raised on behalf of Sh.Om Prakash Grover and the

legal heirs of Sh. Sudarshan Kumar Grover are liable to be dismissed on the

ground that a Probate Court does not go into the title of the properties. A

Probate Court only examines the validity of the Will, i.e. essentially execution

of the Will, attestation of the Will, and the sound disposing mind of the

testator (which will include the aspect of any surrounding circumstances qua

the Will which may show lack of sound disposing mind of the executor).

Therefore, I reject the objections filed on behalf of Sh. Om Prakash Grover

and Sh. Sudarshan Kumar Grover inasmuch as the only point urged before me

is with regard to the title of the East Patel Nagar property, and which aspect

cannot be examined in a probate petition. I am informed that there is already a

partition suit which is pending where not only the legal heirs of Smt. Lajwanti

Grover are parties, but in such suit the legal heirs from the first marriage of

Sh. Haveli Ram Grover are also parties. These issues of title to this property

as to whether Smt. Lajwanti Grover did own or did not own the East Patel

Nagar property or whether the said property belonged to larger HUF would be

heard and disposed of in that suit. I make no pronouncement on such issues

which are subject matter of that partition suit inasmuch as a Court hearing a

testamentary case has only to see the validity of the Will of Smt. Lajwanti

Grover.

7. Therefore, in reality there are no objections at all before this

Court because so far as the objections of Sh. Roshan Lal to the Will of

Lajwanti Grover are concerned they stand dismissed on the ground of lack of

locus standi, so far as the objections of the legal heirs of Sh.Darbari Lal

Grover are concerned they would stand dismissed inasmuch as no evidence

has been led on their behalf, and so far as the objections on behalf of Sh.Om

Prakash Grover and late Sh. Sudarshan Kumar Grover are concerned they

would stand dismissed inasmuch as the only issue urged was with respect to

title of the property at East Patel Nagar and which cannot be an issue in a

probate petition.

8. Independently of the fact that there are no objections, let me now

examine as to whether the Will of late Smt. Lajwanti Grover has been proved

to have been executed by late Smt. Lajwanti Grover, attested as per law and,

whether Smt. Lajwanti Grover was in a sound disposing mind, hastening to

add that this has to be considered in the light of the fact that there is no

evidence to the contrary led on behalf of those objectors who matter or if led

by Om Prakash Grover, no arguments have been addressed except on the

aspect of lack of title of Smt. Lajwanti Grover to the East Patel Nagar

property.

9. The Will in question dated 22.7.1994 was scribed by an

Advocate-Dr. S.P. Sharma. It is not disputed, evidence having been led to this

effect, that Dr. S.P. Sharma had been representing late Smt. Lajwanti Grover

in various litigations. Therefore, Dr. S.P. Sharma is not a stranger and it is

natural for a person to have a Will executed by a lawyer known to that person

i.e. Smt. Lajwanti Grover in this case. Dr. S.P.Sharma has entered the witness

box and affirmed the factum with regard to his scribing the Will as per the

instructions of late Smt. Lajwanti Grover. Dr. S.P. Sharma has also proved

and exhibited the rough notes made by him as Ex.PW4/A, and which rough

notes were taken on the directions of Smt. Lajwanti Grover and pursuant to

which he thereafter got the Will prepared. Dr. S.P. Sharma has also deposed

with regard to the Will having been executed in his presence by Smt. Lajwanti

Grover and attested in his presence by both the witnesses. Dr. S.P. Sharma has

also deposed as to the sound deposing mind of the deceased testator.

10. The petitioner has also led the evidence of the attesting witness,

one Sh. Surinder Kumar Sharma who was the clerk of Dr.S.P. Sharma. This

clerk has deposed with regard to the Will having executed in his presence and

he having attested the Will in the presence of testator. He has also deposed

that both the attesting witnesses signed the Will in the presence of Smt.

Lajwanti Grover and that Smt. Lajwanti Grover executed the Will in the

presence of both the attesting witnesses. He has also deposed with respect to

the sound disposing mind of Smt. Lajwanti Grover.

11. Since no affirmative evidence at all has been led on behalf of

those objectors who are the legal heirs as per Hindu Succession Act, 1956 of

late Smt. Lajwanti Grover as to lack of any sound disposing capacity of Smt.

Lajwanti Grover to execute the Will, I have to believe the affirmative

depositions made by the witnesses on behalf of the petitioners. Merely

because the testator was of an old age of 89 years, in my opinion, the same in

itself cannot mean that she was not of a sound disposing mind because not

only there is no affirmative evidence led on behalf of the relevant objectors to

show lack of sound disposing mind, there is a positive evidence led on behalf

of the petitioner to show that Smt.Lajwanti Grover was in a fit mental state to

execute the Will. I may only add that on behalf of Sh.Om Praksh Grover, the

only plea urged during final arguments was with regard to the lack of alleged

ownership of late Smt. Lajwanti Grover of the property of East Patel Nagar,

New Delhi and no arguments have been addressed with respect to lack of

soundness of mind of Smt. Lajwanti Grover at the time of execution of the

Will.

12. The upshot of the discussion is that the Will of Smt. Lajwanti

Grover, Ex.PW2/A has been duly proved to have been executed by late Smt.

Lajwanti Grover in the presence of attesting witnesses, the attesting witnesses

signed in her presence, and, Smt. Lajwanti Grover was of sound disposing

mind. I may also add that there is sufficient explanation given on behalf of

the petitioner, by leading evidence to the effect of both the attesting witnesses;

as well as scribing of the Will, that since the hands of Smt. Lajwanti Grover

were shaking therefore Smt. Lajwanti Grover put her thumb impression on the

Will instead of signing the same.

13. On the aspect of the validity of the Will I must add that there are

no suspicious circumstances surrounding the Will. This I say so because the

legal heirs of the first wife of Sh. Haveli Ram Grover were disinherited by the

Will inasmuch as Smt. Lajwanti Grover had her own progeny through late Sh.

Haveli Ram Grover. In such circumstances it is surely not unnatural to

discard the children of the first wife. Further Sh. Darbari Lal Grover has been

proved on record, and in fact admitted in more or less terms, to have separated

from the family long back and that he was living separately. There is also

some evidence on record of Sh. Darbari Lal Grover having been given a

particular property in Delhi by the father Sh. Haveli Ram Grover. In my

opinion aforesaid facts are therefore sufficient reasons even to disinherit the

branch of Sh. Darbari Lal Grover generally. I am using the expression

"generally" deliberately inasmuch as in the Will, Smt. Lajwanti Grover has

made a provision for bequeathing that share which came to her through Sh.

Darbari Lal Grover in the two properties at Himachal Pradesh and Delhi, to

the daughter of Sh. Darbari Lal Grover namely Smt. Anju Choudhary. In

reality therefore Smt. Lajwanti Grover has acted fairly because whatever she

derived from the branch of her son Sh. Darbari Lal Grover on account of her

being the legal heir of the son, she has bequeathed that inheritance of her

effectively to that very branch of Sh. Darbari Lal Grover by bequeathing the

same to one of the legal heirs (namely the daughter) of Sh. Darbari Lal

Grover, Smt. Anju Chaudhary. With regard to the immovable properties

existing at East Patel Nagar, Smt. Lajwanti Grover has bequeathed the same to

her three sons namely Sh. Om Prakash Grover, Sh. Sudarshan Kumar Grover

and Sh. Surinder Kumar Grover and two daughters namely Smt. Amrita

Grover and Smt. Shakuntla in equal shares. Sh. Baldev Raj Grover was a

bachelor, and therefore, Smt Lajwanti Grover thought it fit not to bequeath

anything in the East Patel Nagar property to the said Sh. Baldev Raj Grover,

and Sh. Baldev Raj Grover was given share of the property in Himachal

Pradesh. In any case, Sh. Baldev Raj Grover himself had originally filed this

probate petition and therefore, he has no objection to the Will. I must observe

that I am indeed surprised at the so-called objections which have been filed on

behalf of Sh. Om Prakash Grover and late Sh. Sudarshan Kumar Grover

because by objecting to the Will they will get a lesser share in the East Patel

Nagar property, however, for whatever reason they have chosen to file

objections of course which were limited to challenge of the ownership of late

Lajwanti Grover to this East Patel Nagar property. I have already observed

above that a Court hearing probate case does not go into the title of the

property. Therefore, the Will executed by Smt. Lajwanti Grover cannot be

said in any way to be unnatural inasmuch as she has given valid reasons in the

Will to give her different properties/shares therein to her different

persons/legal heirs and details of which have been given above. I therefore

hold that there is nothing unnatural in Smt. Lajwanti Grover having executed

the Will dated 22.7.1994.

14. Now let me for the sake of formality discuss the arguments which

have been raised by Mr. Chachra, Advocate on behalf of the legal heirs of Sh.

Darbari Lal Grover namely respondents no. 10 and 11 and who are the

daughters of late Sh. Darbari Lal Grover. As already stated above these

arguments are purely in deference to the arguments urged by Mr. Chachra

before me because I have already observed above, that in the absence of these

objectors having stepped into the witness box to prove their case I have no

reason to disbelieve affirmative testimonies on behalf of the witnesses of the

petitioner.

15. One objection which was raised by Mr. Chachra, Advocate was

that the affidavit filed in support of the probate on first date was defective

inasmuch as the affidavit contains the date of Will as 27.7.1994 instead of

22.7.1994. Similar arguments were also urged on behalf of Sh. Om Prakash

Grover. In my opinion, this argument is really of no substance inasmuch as

surely this is nothing but a typographical error inasmuch as it is not disputed

that original Will itself was filed at the time of filing of the probate petition.

Once original Will was filed there was no reason why in the affidavit the date

of the Will would have been written as 27.7.1994 and not 22.7.1994, except of

course because of a typographical error. I thus reject this argument urged on

behalf of Mr. Chachra and also raised by Om Prakash Grover.

The second main head of argument was that on account of

alleged lack of due attestation of the Will dated 22.7.1994. This lack of due

attestation as argued exists on an alleged inconsistency that the attesting

witness Sh. Surinder Kumar Sharma at one place said that he signed the Will

first (although he was at serial no.2 in the attesting witnesses portion) and at

another place he had said the he first signed the Will and thereafter the other

attesting witness Smt. V.B.Chanana signed the Will. Surely, minor

inconsistencies always crop up in a civil case, however what has to be seen is

totality of circumstances alongwith the facts of each case. Taken at the best

even assuming Sh. Surinder Kumar Sharma could have lied as to the serial-

wise attestation of the Will, however it is settled law that doctrine of Falsus in

Uno Falsus in Omnibus has no application in India i.e. merely because the

witness lies on one point his total testimony has not to be discarded. Of

course, in my opinion, I do not think that the witness Sh. Surinder Kumar

Sharma can be said to be lying as one has to consider the fact that as many as

8 years had passed from the execution of Will by Smt. Lajwanti Grover and its

attestation by Sh. Surinder Kumar Sharma and the deposition in this Court. I

would accordingly like to attach no weight to this argument and which is

accordingly rejected.

Another argument urged on behalf of Mr. Chachra was that the

rough notes, Ex.PW4/A, do not tally with the Will which is executed

inasmuch as the Rajender Nagar property was already sold at the time of

making of the Will, and the notes refer to the share of Smt. Lajwanti Grover in

this property, showing that there are suspicious circumstances in making of

the Will. Surely, rough notes which are prepared are basically to indicate the

substance of the Will to be made, and rough notes need not exactly have the

language of the Will itself. A reference to the share of Smt. Lajwanti Grover

in the Rajender Nagar property when in the rough notes is stated as the share

in this property, this aspect has been clarified in the Will to be the share of the

property in terms of the monies available on the sale of the property. Once

again therefore this argument of any alleged inconsistency in just one line of

the rough notes which runs into over three pages, is hardly a circumstance to

disbelieve the Will.

The final argument urged on behalf of Mr. Chachra was that

where the thumb impression of Smt. Lajwanti Grover is put, it is not written

whether it is a left thumb impression or right thumb impression. Mr. Chachra

also sought to rely upon judgment in the case of Smt. Kamla Kunwar vs.

Ratan Lal & Ors., AIR 1971 Allhabad 304 to argue that if there is no mention

of which thumb is the thumb impression, Courts must examine the Will more

carefully because then there would be suspicious circumstances. Besides the

fact that in my opinion, it is of only little relevance to write that whether it was

a left thumb impression or right thumb impression, the facts of the Kamla

Kunwar (supra) case are different inasmuch as in the said case there were

various other documents to compare the thumb impressions of the deceased

with the thumb impression on the Will. It was in such circumstances that it

was found that once there are various documents, the aspect of the mentioning

of the RTI (Right Thumb Impression) became relevant in Kamla Kunwar

(supra) case. Therefore, besides the issue of facts of Kamla Kunwar (supra)

being different, I for one do not think that in the facts of the present case non-

mentioning of the factum as to whether the thumb impression was a left hand

thumb impression or right hand thumb impression would make any difference

especially as the clients of Mr. Chachra, Advocate (as respondents no. 10 and

11) have not supported their own case because they have not even bothered to

step into the witness box. A person who has no courage to face the test of

cross-examination, has to, in my opinion, necessarily fail. I therefore even

reject this argument urged on behalf of respondents no.10 & 11.

16. In view of the above, I hold that Will dated 22.7.1994 of late Smt.

Lajwanti Grover stands proved as it has been duly executed and attested, and

Smt. Lajwanti Grover was in sound disposing mind at the time of execution of

the Will. I hold that this Will, Ex.PW2/A stands duly proved. The issues no.

1 and 2 in this case are accordingly decided holding the Will dated 22.7.1994

of Smt. Lajwanti Grover duly proved.

17. Accordingly, let letters of administration issue in favour of the

present petitioner, Sh. Surinder Kumar Grover in accordance with law on

Sh.Surinder Kumar Grover filing the necessary administration/surety bond.

Court fees will be paid as per law before drawing up of the letters of

administration by the Registry. The probate petition is thereof allowed by

issuing of letters of administration in favour of Sh. Surinder Kumar Grover

with respect to the Will, Ex.PW2/A, of Smt. Lajwanti Grover dated 22.7.1994.

VALMIKI J. MEHTA, J JULY 23, 2012 ak