Deepak Kumar Mendiratta vs Surender Kumar
2013 Latest Caselaw 1532 Del

$~R-3
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                         Date of Judgment:04.4.2013

+             FAO(OS) 328/2010

DEEPAK KUMAR MENDIRATTA         ..... Appellant
            Through: Mr.V.P.Dewan and Mr. Sanjay Dewan,
                     Advocates.

                                 versus

SURENDER KUMAR                             ..... Respondent
            Through:            Mr. S.K.Sharma, Mr.Milan Deep Singh
                                and Mr.Rahul Sharma, Advocates.
CORAM:
HON‟BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. The appellant is aggrieved by the impugned order dated

18.01.2010 vide which the probate petition No.44/1990 filed by the

appellant seeking probate of the will dated 30.5.1985 of the testator Tehl

Ram Tuteja (hereinafter referred to as „the testator‟) had been dismissed;

simultaneously probate petition No.5/1989 filed by the respondent

seeking probate of the will dated 29.1.1988 had been granted.

2. Record shows that the testator had three daughters; he had no

male child. The subject matter of the probate petition was half

undivided share in immovable property i.e. Plot No.A-294, Derawal

Nagar, Azad Pur, Delhi admeasuring 268.22 yq. yards which was in the

joint names of the testator and the respondent (Surender Kumar). It was

a joint allotment which was made in their joint names on 11.7.1978 and

a joint construction was accordingly made by them on the aforenoted

plot; till the date of the death of the testator this property had not been

mutated in their individual names. Besides this property, certain

movable assets of the testator were also the subject matter of the dispute.

3. Appellant had set up a will dated 30.5.1985. This document was

proved as Ex. R-1; it was a registered document. Vide this testament

the testator had bequeathed his immovable property upon his youngest

daughter Sudesh Kumari and her two sons Devender Kumar and Deepak

Kumar in equal shares; Sudesh Kumari and Devender Kumar have

since expired; Deepak Kumar is the appellant before this Court. This

will was attested by two witnesses and was signed by the testator both in

the english language and also in urdu.

4. The subsequent will dated 29.01.1988 has been propounded by

the respondent. It was proved as Ex. PW-1/1. In terms of Ex.PW-

1/1 half share of the testator in his immovable property was to devolve

upon the respondent whom the testator treated as his son and who had

looked after him in his old age. Movable assets valued at Rs.30,000/-

besides some gold ornaments were to be distributed amongst all his

three daughters and the respondent/Surender Kumar has been appointed

as the executor to administer these movable assets after deducting the

funeral expenses. This will was attested by two persons namely Jagdish

Chander and Surender Kumar Arora and was signed by the testator both

in English and in Urdu. It was not registered.

5. Both the Test Case hade been consolidated and the evidence led

in Test Case No.5/1989 was to be read as evidence in the second case as

well. A common judgment was pronounced.

6. The appellant in order to prove Ex. R-1 had produced three

witnesses. Correspondingly respondent in order to prove Ex. PW-1/1

had produced eleven witnesses. Their respective testimonies were

appreciated in great depth and detail by the learned single Judge who

returned the aforenoted finding upholding the later will dated

29.01.1988 which was directed to be probated; the earlier will dated

20.5.1985 had been discarded.

7. At the outset, it has been put to the learned counsel for the

appellant as to on what ground he is laying a challenge to the

Ex.PW-1/1 as admittedly once a valid will has been executed later in

time it will supersede the earlier will. Learned counsels for the parties

also concede to this settled legal position.

8. On behalf of the appellant it has been pointed out that the later

will could not have been probated as no executor has been appointed; at

best letters of administration alone could have been granted and not a

probate as has been done so by the impugned order. Attention has been

drawn to Ex. PW-1/1; submission being that there is an overlapping of

the signatures of Tehl Ram and the alphabet „R‟ is written over the

typed material clearly suggesting that the signatures of the testator had

been obtained on a blank paper and the typed material was added to the

blank sheet later on. Further submission being that there was no reason

for the testator to have disinherited the natural legal heirs as the whole

case set up by the respondent is that he is the adopted son of the testator

but in the entire body of Ex.PW-1/1 there is no mention of the status of

the respondent as his adopted son; in fact Para 3 of Ex. PW-1/1 recites

that the respondent was the son of Thakur Dass. Further submission

being that there was no reason for the learned single Judge to have

discarded the earlier will dated 30.5.1985 which was an admitted

document and whose authenticity was further fortified by the fact that it

was a registered document. Ex.PW-1/1 smacked of suspicion and the

impugned order granting a probate of this will has committed an

illegality; impugned order is liable to be set aside.

9. Learned counsel for the respondent has refuted these submissions.

Argument being that there is no dispute about the signatures of the

testator on Ex. PW-1/1; further submission being that in these

circumstances, it was incumbent upon the appellant to have produced

cogent evidence to dislodge his argument that there was an overlapping

of the signatures of the testator on the typed written format; he had not

produced any such evidence; in fact the respondent had produced a

handwriting expert (Kamal Kant Khandelwal-PW11) who had given his

report testifying that the signatures of the testator appeared on

Ex.PW-1/1 after the document had been typed. The attesting witness to

the will (Surender Kumar Arora -PW-10) has also not been dislodged.

On no count does Ex.PW-1/1 suffer from any infirmity.

10. Legal position is settled. The later will if validly executed and

proved in accordance with law would supersede the earlier testament of

the testator. Ex, PW-1/1 has been perused. Para one clearly recites that

this is the last will of the testator; this will cancels the earlier will made

by him in favour of his daughter Sudesh Kumari and her two sons. Para

3 describes relationship of the respondent with the testator and reads as

under:

"3. It is well known to everybody that Shri Surender Kumar son of my daughter Smt Sita Rani wife of Shri Thakur Dass lived with me since his childhood and I brought him up as my son. He served me with devotion and looked after me well in my old age as a son."

11. Para 4 of Ex.PW-1/1 is also relevant. It reads as under:

"Plot No.A-294 in Derawal Nagar, Delhi measuring 268.22 sq. yds was conveyed to me and said Shri Surender Kumar Jointly each having one half undefined share therein by the Dera Ismail Khan Co-operative House Building Society Limited by conveyance deed registered as Sl. No.2520 in Addl. Book No.1, Volume No.3607 pages 108-110 on 11.7.1978 with S.R.Distt .I and on this plot we jointly constructed the building each contributing equally towards the cost of its construction, House at Plot lNo.A-294, Derawal Nagar is jointly owned by me and said Shri Surender Kumar each having one half undefined share therein. I hereby bequeath all my one half undefined share in the said plot No.A-294 Derawal Nagar and building constructed thereat to said Shri Surender Kumar absolutely. After my death my one half share in the said plot and the house constructed thereat shall go and devolve upon said Shri Surender Kumar absolutely to the exclusion of all my heirs."

12. Both these aforenoted positions are factually correct. It is an

admitted fact that Surender Kumar is the maternal grandson of the

testator and lived with him since his childhood; he had lived with him in

his growing years and was in fact the only family member present at the

time when the testator expired. It is also an admitted fact that Plot

No.A-294, Derawal Nagar (half of which is the subject matter of the

present dispute) was in the joint names of the testator and the

respondent; it was a joint allotment of the year 1978 and a joint

construction of a building was made thereupon. The respondent is

present in the court. He has been queried on this aspect. He submits

that at the time of the death of testator there were four rooms on the

ground floor comprising of three bedrooms and one living room besides

a kitchen. The testator as also the respondent were all living on the

ground floor and they had a common kitchen. On the first floor there

were two rooms; a third room has been added subsequently and the

barsati floor had also been constructed after the death of the testator.

Learned counsel for the appellant who represents is the other maternal

grandson of the testator does not dispute this factual position.

13. Ex.PW-1/1 has been attested by Jagdish Chander and Surender

Kumar Arora. Surender Kumar Arora had come into witness box as

PW-10. He had on oath deposed that Ex.PW-1/1 was attested by him;

on that day i.e. on 29.01.1988 he had gone to see Tehl Ram who was

alone at that time; he took out a typed sheet of paper and explained to

PW-10 that this was his last will and it had been drafted by his counsel

under his instructions. The second attesting witness Jagdish Chander

(PW-9) had also reached the spot. PW-10 identified the signatures of

PW-9 on Ex. PW-1/1 as also those of the testator; he further testified

that the testator had signed in his presence and in the presence of PW-9.

Testimony of PW-10 has not in any manner been discredited. In his

cross-examination a specific query put to him as to how his signatures

on Ex.PW-1/1 are in a different ink as that of the testator; he had

explained by stating that different pens had been used by the testator and

by him and that is why there was a difference in the ink. No counter

suggestion has been given to this witness which could dislodge his

version.

14. Submission of the learned counsel for the appellant that the

testimony of PW-10 is contrary to the version of second attesting

witness i.e. PW-9 who had in his cross-examination stated that when he

had reached the spot the testator was not alone which is the version of

PW-10, is an argument bereft of force as admittedly Jagdish Chander

had only filed his evidence in chief and he not having been cross-

examined the testimony of this witness cannot be read in evidence.

15. Credible testimony of one attesting witness is sufficient to satisfy

the test of proof of a will as mandated under Section 68 of the Indian

Evidence Act, 1872. Section 68 of the said Act is couched in a

mandatory language; only one of the two attesting witnesses is

necessary for proving the execution of the document which is required

in law to be attested.

16. The other cumulative circumstances which had persuaded the

learned single Judge to opine in favour of the validity of this later will

are also relevant and need to be adverted to.

17. Apart from the fact that it is an admitted position that the testator

had a half share in the suit property (House No.A-294, Derawal Nagar,

Azadpur) being jointly owned with the respondent; the joint owners had

also constructed a common house on the said plot. It was a single unit;

the plot was also assessed to house tax as a single unit. Husband of the

appellant Gobind Lal (DW-3) had himself admitted that there was one

entrance and a common staircase. Ex.PW-1/2 was a photocopy of the

school certificate issued by the Central Board of Secondary Education; a

copy of the graduation certificate issued by the University of Delhi in

favour of the respondent was proved as Ex. PW-1/3. Both these

documents make a reference to the name of the petitioner as Surender

Kumar Tuteja, the surname "Tuteja" not being the natural surname of

the respondent yet the same was appearing in both these documents

substantiating this submission of the learned counsel for the respondent

that the respondent was for all purposes treated as the son of the testator.

In the marriage ceremony of the respondent „Sehara‟(Ex.PW-6/1) the

name of Gobind Lal (DW-3 and husband of Sudesh Kumari) and Jaman

Lal Khurana (husband of Raj Rani another sister) were depicted as

„Peshkarta' indicating that the respondent was treated as the brother of

Sudesh Kumari and Raj Rani. Sita Rani and Raj Kumari had entered

into witness box as PW-4 and PW-6 respectively; they had not refuted

this impression. They had further testified that the earlier will of

30.5.1985 had been executed by their father at the instance of Sudesh

Kumari and when realization dawned upon him he repented and

cancelled this will and executed his second will Ex. PW-1/1 which was

his last will. The last rites of the testator had also been performed by the

respondent which position stood admitted by DW-3 (Gobind Lal). In

this factual background as emanating from the evidence on record, it

was rightly concluded by the learned single Judge that the submission of

the respondent that he was looking after the deceased during his lifetime

and in fact performing all duties of a dutiful son stood satisfied.

18. The law is well settled; the onus to prove a will is upon the party

who propounds it. Respondent had discharged the onus. It was the

defence of the appellant that Ex.PW-1/1 contained an overlapping and

the signatures of the testator appeared to be over-written. Admittedly no

witness had been brought forth by the appellant on this count. The

respondent had in fact produced PW-11 a handwriting expert, who had

proved his report as Ex. PW-6/A. This report had been prepared on the

basis of the enlarged photographs which were the admitted and disputed

signatures of the testator. After a comparison the handwriting expert

had concluded as follows:

"In this case I examined the above mentioned Will with the help of magnifying lenses and with the help of other measuring devices. After careful and minute examination of the above mentioned Will my opinion is that the Will is typed at first and the Testator Tehl Ram signed after typed matter and after examination I found that the curve of "R" is written after on the typed matter."

19. No suggestion was given to this witness that the signatures of the

testator were forged or in fact were not his signatures. The categorical

deposition of PW-11 on this count remained unassailed. As noted supra

no contrary evidence on this count was brought on record by the

appellant.

20. The defence of the objector that the testator was not of a sound

disposing mind at the time of the execution of Ex. PW-1/1 was based on

no evidence. Dr. V.P. Soota (PW-7) the family doctor of the parties was

a witness of the respondent. His deposition was to the effect that the

testator was suffering from bleeding piles but he was otherwise

physically fit and normal; he was mobile and was attending to his social

commitments even till the last. He denied the suggestion that the

testator was suffering from any paralytic problem. Although in June,

1985 the testator had suffered a mild attack on the right side of his body

but he had improved his health over the passage of time and was mobile

with a stick. The photographs Ex. PW-5/1 and Ex.PW-5/2 which were

of the year 1986 taken on the engagement ceremony of his grandson in

fact depicted the testator in a sound health. Learned single Judge in this

scenario had rightly concluded that the mental faculties of the testator

were intact and in no manner affected.

21. The cumulative evidence both oral and documentary thus

established that the testator was in a sound disposing mind and in the

presence of two attesting witnesses had executed his last testament

Ex.PW-1/1. This was a typed document prepared by an advocate; it

had been read over and explained to the testator as also to the witnesses

and it was signed by the executor in the presence of the attesting

witnesses; the attesting witnesses had also signed in the presence of the

testator; this is clear from the categorical deposition of PW-10. Ex.PW-

1/1 had also revoked the earlier will of 30.5.1985. The factual scenario

as built up on the basis of the evidence collected, in fact, reflects the

unambiguous intent of the testator. The unambiguous intent being to

bequeath his half share in the immovable property of A-294, Derawal

Nagar, Azadpur in favour of the respondent Surender Kumar who lived

with the testator through thick and thin and had spent all his growing

years with him. In fact undisputedly even on the date of the death of the

testator he was the only family member who was present in the house;

they were also sharing a common kitchen. The testimony of the expert

witness (PW-6) also additionally weighed in favour of the validity of

Ex. PW-1/1.

22. The appellant having failed to dislodge Ex. PW-1/1 it was really

not necessary for the learned single Judge to have opined upon the

validity of the earlier will Ex. R-1 as the settled legal position is that if

the will later in time has been validly executed and proved in accordance

with law it would be the last testament of the deceased, automatically

revoking any other earlier testament. The objection of the appellant that

a probate could not be granted and at best only letters of administration

could have been issued is a misplaced objection; Ex.PW1/1 clearly

recites that Surender Kumar is appointed as the executor of the will; he

could distribute the moveable assets of the testator amongst the three

daughters of the testator after deducting the funeral expenses. Even

presuming; for the sake of argument that an executor was not appointed

and a probate has been granted; when only letters of administration

could have been issued; it could only be a procedural defect which can

be cured and would not otherwise affect the validity of the will. [See:

Prem Prakash v. State, 2005(118) DLT 681]

23. On no count does the appellant deserve any relief. Appeal is

without any merit. Dismissed.

INDERMEET KAUR, J.

SANJAY KISHAN KAUL, J.

APRIL 04, 2013 nandan