Ram Kumar Gupta vs State & Others
2013 Latest Caselaw 1398 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Judgment:21.03.2013

+     FAO (OS) Nos.181/2012 & 182/2012

RAM KUMAR GUPTA                                       ...Appellant
                             Through:-     Mr. S.N. Gupta and Mr. S.S.
                                           Shukla, Advs.

                             Versus
STATE & OTHERS                                        ... Respondents
                             Through:-     Mr. Prakash Gautam and Mr.
                                           Amit Panigrahi, Advs. for R-2 &
                                           R-3.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 This is an unfortunate dispute between the male siblings of

deceased Bhikhu Ram Gupta (hereinafter referred to as the 'deceased').

The deceased was the owner of a double storeyed house built on plot

No. 21/32, Shakti Nagar, Delhi (hereinafter referred to as the

'property'). Admittedly this was his self-acquired property and it was

within his domain to bequeath this property in accordance with his wish.

2 Mr. Bhikhu Ram Gupta died on 04.10.1998. He was survived by

his three sons and four daughters. The dispute is inter-se the sons of the

deceased.

3 Test Case No.44/1999 was filed by Krishan Dass Gupta

(hereinafter referred to as respondent No. 3 ) seeking grant of letters of

administration qua a will purported to have been executed by the

deceased on 06.03.1992. In terms of this will, all the three sons were to

get 1/3rd share in the property; daughters had been debarred.

4 In the course of these proceedings, Test Case No. 51/2004 had

been filed by the youngest son of the deceased, Ram Kumar Gupta

(hereinafter referred to as the appellant) staking his claim to the entire

property premised on the later will of the deceased dated 21.09.1998.

5 The dispute before this Court is within a narrow compass.

Learned counsel for the appellant does not dispute the earlier will of the

deceased 06.03.1992. Submission is that by virtue of the later will dated

21.09.1998, the deceased had revoked his first testament and second will

being his last will is liable to be probated.

6 Record shows that both Test cases had been consolidated. Eight

issues were framed; common evidence was led. Issue No. 5 which is

relevant for the controversy before this Court reads as under:-

"Whether the Will dated 06.03.1992 has been revoked/cancelled by the testator Shri Bhikhu Ram Gupta by his subsequent Will dated 21.09.1998?"

7 In order to prove his case, the appellant had produced six

witnesses; respondent, per contra, had produced six witnesses. On the

basis of the oral and documentary evidence led before the learned Single

Judge, the impugned order had noted that there were suspicious

circumstances surrounding the will dispelling its genuineness; in fact 16

of the said suspicious circumstances had been enumerated; the Court

was of the view that the first will dated 06.03.1992 was the only last

testament of the deceased; accordingly letters of administration qua the

aforenoted will had been granted in favour of respondent No. 3.

8 The appellant being aggrieved by this finding has filed the present

appeal.

9 On behalf of the appellant, it has been pointed out that the learned

Single Judge has mis-appreciated the evidence; the will dated

21.09.1998 was a duly registered will; it was thumb marked by the

deceased; in this will a reference has been made to his earlier will,

revoking it. This document has been attested by two attesting witnesses

of whom one attesting witness namely Jagan Nath Aggarwal had come

into the witness box and had on oath testified that the deceased had

thumb marked the will in his presence as also in the presence of the

second attesting witness Vijay Kumar. He had proved his signatures on

the said document (Ex. RW-3/1); submission being that he had also

identified the thumb mark of the testator; all requirements for proving a

valid will stood satisfied; there was no reason for the Court to have

disbelieved this testament. Submission being that it was the appellant

who was all along looking after his father who was staying on the

ground floor with him and his family; it was therefore the desire of the

deceased to bequeath his entire property in favour of the appellant and

he had accordingly revoked his earlier will. The impugned order not

appreciating the factual scenario in the correct perspective has

committed an illegality; impugned order is liable to be set aside.

10 On behalf of the respondents, arguments have been refuted;

submission being that in no manner does the impugned order suffer

from any infirmity; it is pointed out that the suspicious circumstances

enumerated by the learned Single Judge had depicted the factual

position correctly; the duty of the Court to have a stricter scrutiny in

these circumstances has been appreciated in the true light.

11 As noted supra, the will dated 06.03.1992 is not disputed. This

Court only has to return a finding on the validity of the later will.

12 It would thus be useful to examine the aforenoted documents.

13 The will dated 06.03.1992 has been proved as Ex. PW-6/3. It is a

registered document. It is typed and on the third page of the document,

the signatures of the testator Bhikhu Ram Gupta have been appended in

urdu along with his thumb mark. The signature of the deceased has in

fact been appended on all the three pages of this document. This will

had been drafted by Advocate Om Prakash and had been attested by two

attesting witnesses namely Mr. I.L. Bansal and Mr.K.R. Sharma. It was

registered on 17.03.1992 i.e. within less than 10 days from the date of

the execution of the document. In terms of this will, the deceased had

bequeathed 1/3rd share each in favour of all his three sons; Ex.PW-6/3

further recites that the deceased has discharged his moral and legal

obligation towards his four daughters who have since been married; he

is not bequeathing anything in their favour.

14 The second will dated 21.09.1998 has been proved as

Ex.RW-3/1. This document was registered after the death of testator i.e.

on 11.01.1999; there however being no dispute to the proposition that in

terms of Section 40 of the Indian Registration Act, 1908, such a

registration is permissible. The deceased has thumb marked this will.

Thumb mark appears on all the four pages of the document; deceased

had however not signed this document. Submission of the learned

counsel for the appellant on this score being that admittedly six years

had passed since the execution of the earlier will and in this period of

time, the hands and fingers of the deceased were shaky; he not being in

a position to sign the will, had accordingly thumb marked it. The scribe

of this later will was not known. It is a typed written document but even

in the cross-examination of the appellant, he has not been able to

disclose as to who had prepared this will. By virtue of this will, the

entire suit property had been bequeathed in favour of the appellant.

15 A comparative study of the two documents shows that the first

two paragraphs of both Ex.PW-6/3 and Ex.RW-3/1 are verbatim same.

In para 2 of Ex. RW-3/1, the testator states that this is his first and last

will; this is an incorrect statement as the execution of the earlier will is

not in dispute. It goes on to describe the marital status of his four

daughters who are well established in life. This document however does

not whisper a word about his other two sons i.e. Mahavir Prasad, his

elder son or respondent No.3 who is his second son. It merely recites

that since his youngest son and his family members were looking after

his needs, he being happy with him was accordingly bequeathing the

suit property in his favour. Ex.RW-3/1 has also been attested by the two

witnesses first of whom is Jagan Nath Aggarwal and second attesting

witness is Vijay Kumar. Out of the two attesting witnesses only one of

them has come into the witness box. On a specific query put to the

learned counsel for the appellant as to why the second witness did not

appear as a witness, learned counsel for the appellant points out that he

had filed his affidavit by way of evidence but thereafter chose not to

appear for his cross-examination. Be that as it may, the legal position

does not mandate that both the attesting witnesses have to come into the

witness box; credible testimony of one attesting witness is sufficient to

prove a will.

16 Testimony of RW-6 the only attesting witness to this will has to

be examined in this light. He was the son-in-law of the deceased. In his

examination in chief, he had proved the will, stating on oath that the

deceased had thumb marked Ex.RW-3/1 in his presence and in the

presence of the second attesting witness. In his cross-examination, he

has stated that he has signed the last page of Ex.RW-3/1 only once. He

admitted that the certified copy of the will contains his two signatures at

point 'X'. A perusal of Ex.RW-3/1 further shows that it has two thumb

impressions; RW-6 had identified the thumb impression of the testator

at mark 'M' but the witness was unaware of the second thumb

impression appearing at point 'N' on the last page of Ex. RW-3/1; his

submission being to the effect that he does not know whose thumb

impression it is. He denied the suggestion that he was deposing at the

instance of Ram Kumar.

17 The testimony of the appellant Ram Kumar Gupta (examined as

RW-1) is also relevant. He had admitted that the relations of his father

with his other two sons were normal; the father was living on the ground

floor where the appellant was also living; he denied the suggestion that

the father was living on the ground floor of the premises only because of

his medical condition. Even as per his statement, the deceased was very

weak before his death and in fact even two years prior to his death, the

appellant was used to feed him orally; his hands and feet were shaking;

he was not in a position to visit the Registrar's office.

18 Respondent No. 3 (examined as PW-6) has on oath deposed that

his father has lost his memory 3-4 months prior to his death; he was also

wetting the bed.

19 The sister of the parties had also come into the witness box and

was examined as PW-5. She had deposed that their father had lost his

mental senses and was not able to recognize even the family members

and was most often confined to bed; this was six months prior to his

death. Admittedly PW-5 is an independent witness and a family

member.

20 Testimony of the neighbours and friends of the deceased, living in

the same neighbourhood, is also relevant in this context. PW-2 had

deposed that the deceased has lost his memory about 3-4 months prior to

his death and was not able to recognize even the family members. PW-3

also a neighbour and a close friend of the deceased had also deposed on

the same lines; deposition being to the effect that six months prior to his

death, his behavior had become abnormal; he was suffering from a

memory loss. To the same effect is the version of PW-4 also a

neighbour. He also deposed that the deceased has lost his mental senses

5-6 months prior to his death and was not able to recognize any person;

he was physically very weak; he has lost his mental senses.

21 All the aforenoted witnesses are independent witnesses; they had

no special interest in deposing for one party or the other; in fact it is also

not the case of the appellant that the aforenoted witnesses were not

presenting the true picture.

22 The picture as emerging from the testimony of these witnesses

clearly establishes that the mental faculties of the deceased 5-6 months

prior to the date of his death had deteriorated to a point where he was

not able to recognize even his own family members; he was confined to

bed; he was unable to attend even to the call of nature.

23 The deceased died on 04.10.1998 and the will sought to be set up

by the appellant is dated 21.09.1998 i.e. just two weeks before his death.

These dates itself, keeping in view the mental and physical condition of

the deceased, do create a serious doubt on the capacity of the testator to

execute a valid will.

24 The legal proposition is well settled. The onus of proving a will is

on the propounder; in the absence of suspicious circumstances

surrounding the execution of will, proof of testamentary capacity and

the signature of the testator may be sufficient to discharge the onus.

Where, however, there are suspicious circumstances, the onus is on the

propounder to dispel the said suspicious circumstances. The number and

nature of the suspicious circumstances cannot be put in a strait jacket

formula; however the genuineness of the signatures of the testator; the

condition of his mind; depositions made in the will being unnatural,

improbable or unfair in the light of relevant circumstances or other

indications in the will to show that the testator's mind was not free; in

such circumstances; the Court would naturally expect that all legitimate

suspicions should be removed before the document can be accepted as

the last wish of the testator.

25 Premised on this test the oral and documentary evidence of the

parties was appreciated by the learned Single Judge. Ex. RW-3/1 was

admittedly executed 13 days prior to the death of the deceased. The

mental and physical condition of the deceased was far from satisfactory;

he had lost his memory; his mental faculties had become disabled to

such an extent that he could no longer even recognize his family. The

independent witnesses who had come into the witness box had also

admitted that the mental condition of the deceased was abnormal; he had

lost his memory; since the last 5-6 months prior to his death, he stopped

recognizing even the family members; he was confined to bed.

26 Ex.RW-3/1 was a typed document. No one knew who had scribed

it. On a specific query put to RW-3 on this score, he had no answer; who

had got this will prepared, typed and brought before the testator was in

no one's knowledge. It was also not signed by the testator when he

admittedly otherwise use to sign in urdu. Each circumstance by itself

may not be suspicious as a thumb marked will if validly proved may be

probated. However, this was not so in the instant case. It is not the case

of the parties that the testator could not sign; the only argument on the

thumb marking of the document being that since the hands of the

testator used to tremble, he did not sign it. This thumb marking is also

shrouded in suspicion; RW-4 (the only attesting witness) was not able to

answer as to how there were two thumb marks on the last page on

Ex.RW-3/1; he had admitted the thumb mark of the testator at point 'M'

but was totally unaware of the second thumb mark at point 'N'. A

perusal of the thumb mark in fact shows that this thumb impression is in

the reverse direction.

27 Ex.RW-3/1 is also an interference in the natural line of

succession; the other two sons of the testator were sought to be

disinherited; there is no mention of their names in Ex. RW-3/1 although

in terms of the first will, all the three sons were to get an equal share in

the property. The later will disinherited them completely. This is

especially relevant as it is the own case of the appellant that the relations

of the testator were normal with all his children including his sons

whom he now chose to dis-inherit by the proposed second will. An

interference in the ordinary line of succession is not a normal course;

such a circumstance casts a greater duty upon the Court to examine and

scrutinize the will more closely.

28 It is also admitted that the parties had on 02.10.1991 entered into

a family settlement which was signed by all the children of the deceased

i.e. his three sons and four daughters and which was in conformity with

the first will.

29 RW-4 a witness from the office of the Sub-Registrar had

produced the original record (Ex.RW-3/1); page 4 of the office record

contained additional two signatures of each witness with a thumb

impression. The submission of the learned counsel for the appellant on

this score that these additional signatures and thumb impression were

only in the certified copy and were for the reason that at the time of

registration of the will (which was admittedly after the death of the

deceased), the aforenoted additional signatures had been required to be

put on the document is not an argument available to the appellant as this

clarification should have been sought from RW-4 who had come into

the witness box and deposed to the said effect. None of this had been

done.

30 Para 2 of Ex.RW-3/1 also refers to the document as the first will;

this is an incorrect statement as in the body of the same document

(Ex.RW-3/1), the testator had stated that he had cancelled his first will

dated 06.03.1992.

31 The aforenoted circumstances create grave shadows of doubt

upon the execution of Ex.RW-3/1. As a general rule, a single

circumstance by itself may not be sufficient to dispel the validity of a

will, if it has otherwise been proved in accordance with law. However,

in the present case, even presuming that the testimony of the attesting

witness is to be accepted, the surrounding circumstances qua the

execution of the will are far too many and which as noted by the learned

Single Judge have not been dispelled by the appellant; the settled legal

position that the onus of discharge being upon the person who

propounds a document. Thus all these cumulative circumstances taken

together sufficiently establish that the second will dated 21.09.1998

could not withstand the test of a fair scrutiny. It being shrouded with

suspicious circumstances, the learned Single Judge had rightly returned

a finding that it did not establish that the deceased had executed this

document while he was of a sound disposing mind and which is

admittedly an essential requirement.

32 The impugned order in this background does not suffer from any

infirmity. Appeals being without any merit are dismissed.

INDERMEET KAUR, J.

SANJAY KISHAN KAUL, J.

MARCH 21, 2013 A