Amarjeet Singh vs Vimal Taneja And Anr.
2014 Latest Caselaw 3755 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                FAO 370/2006

%                                        Reserved on : 8th July , 2014
                                         Pronounced on : 19th August, 2014

AMARJEET SINGH                                      ......Appellant
                          Through:       Mr. Bahar U. Baraqui, Advocate


                          VERSUS

VIMAL TANEJA AND ANR.                                      ...... Respondents

                 Through:                None.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J

1. This first appeal is filed under Section 299 of the Indian Succession

Act, 1925 against the judgment of the court below dated 22.8.2006 by which

the probate petition filed by the respondents herein namely Ms. Vimal

Taneja and Sh. Ravinder Singh, the unmarried daughter and the son of the

testator Sh. Mangal Singh Taneja, has been allowed. The Will of late Sh.

Mangal Singh Taneja which has been probated was executed by late Sh.

Mangal Singh Taneja on 28.2.1994. The same was duly registered on

11.3.1994 by calling the Sub-Registrar at the residence of the testator.

2. The facts of the case are that the respondents herein applied for the

probate of the Will of their father late Sh. Mangal Singh Taneja. The Will

dated 28.2.1994 was attested by two attesting witnesses, namely,

Sh. Gurmukh Singh Chatwal and Ms. Meena Malik. The Will was proved

through the attesting witness Sh. Gurmukh Singh Chatwal who deposed to

the due attestation and execution of the Will which was exhibited as Ex.

PW-2/A. Besides the attesting witness respondent no. 1 Ms.Vimal Teneja,

the unmarried daughter of late Sh. Mangal Singh Taneja deposed for grant of

the probate.

3. A reading of the impugned judgment shows that because of the

following reasons the probate court below has rightly held that the Will

propounded by the respondents herein was duly proved and should be

probated:

(i) The attesting witness Sh. Gurmukh Singh Chatwal deposed with

respect to the execution and attestation of the Will in accordance with law.

He deposed that it was false that his son namely Sh.Gurbans Singh (of Sh.

Gurmukh Singh Chatwal) was adopted by the respondent no. 1 herein and

that it was for that reason that Sh. Gurmukh Singh Chatwal allegedly was

deposing in favour of the respondents. The fact of the matter is that no such

adoption took place and it was not proved so by the present petitioner.

(ii) Besides the respondents, the testator died leaving behind three

daughters Smt. Sharan Kaur (respondent no. 2 in the trial court), Smt.

Charanjeet Kaur (respondent no. 4 in the trial court) and Smt. Harbans Kaur

(respondent no. 5 in the trial court). None of these daughters filed any

objection to the probate petition in spite of being duly served. These

daughters were accordingly proceeded ex parte as they did not appear after

service. It is relevant to note that after the death of one daughter Smt.

Charanjeet Kaur (respondent no.4 in the trial court) in 2004 an application

was filed by her legal heirs objecting to the Will, but, the trial court rightly

dismissed this application noting that this application/objections were

identically worded as the objections of the petitioner (respondent no.2 in the

trial court) herein, showing collusion of the petitioner with the legal heirs of

the Smt.Charanjeet Kaur and that since Late Smt. Charanjeet Kaur herself

never filed any objections, the objections which were filed on behalf of her

legal heirs could not be considered including for the reason that the legal

heirs were living at the same address at which late Smt. Charanjeet Kaur was

served.

(iii) Smt. Vimal Taneja/respondent no. 1 was unmarried and was taking

care of her aged father, the testator, Sh. Mangal Singh Taneja as also of the

aged and invalid mother, and for which purpose she was living with her

parents.

(iv) The petitioner/objector was well settled in Indonesia. In fact the

business at Indonesia was started by the testator and handed over to the

objector.

(v) The Will Ex. PW-2/A is duly registered and though registration is not

proof of the validity of the Will, in the facts of the case, the registration of

the Will is a factor which has to be considered in favour of the respondents

herein. Both the attesting witnesses were present when the Sub-Registrar

was called at the residence of the testator. Sub-Registrar also affixed a

photograph of the testator on the Will.

(vi) The petitioner/objector admitted in his cross-examination that he met

his father/testator about 5/6 months prior to his death and at that time also

the testator was physically fit although he was of about 93 years.

(vii) The subject Will Ex. PW-2/A gives reasons for deviating from the

earlier Will which was executed on 5.4.1977 and which was also duly

registered. In the subject Will it is noted that respondent no. 1 was taking

care of her aged parents and she was unmarried. It is also stated in this Will

that in the earlier Will it was mentioned that the jewellery of the objector

was lying with the testator's wife, but, thereafter the same was returned to

the objector by the testator's wife. The Will Ex. PW-2/A notes that

respondent no. 1 Vimal Taneja was looking after the testator and his invalid

wife for the last as many as 15 years.

4. In my opinion, the aforesaid reasons are justified reasons for granting

probate of the Will Ex. PW-2/A.

5. I may note that the petitioner/objector had propounded a subsequent

Will dated 23.5.1994, and which was proved as Ex. PW-2/1, but the probate

court below has rightly discarded this Will for the following reasons:

(i) The Will Ex. PW-2/A as also the earlier Will dated 5.4.1977 of the

testator were duly registered but the Will propounded by the

petitioner/objector was not registered.

(ii) The respondent no. 1 deposed that none of the attesting witnesses ever

visited the residence of the testator when the alleged Will Ex. PW-2/1 was

allegedly said to be executed.

(iii) It has not been explained as to how the objector came to know about

the Will Ex.PW2/1, because, it was not the case of the objector that the Will

was handed over to the objector by the attesting witness Sh. Harjeet Singh,

PW-2, after execution of the same by the testator.

(iv) The trial court compared the signatures of the testator on the Will Ex.

PW-2/A with the Will propounded by the petitioner/objector Ex. PW-2/1

and even to the naked eye the signatures appearing on the Will propounded

by the petitioner were completely different than the signatures appearing on

the Will Ex. PW-2/A. It is noted by the trial court that whereas the

signatures of the testator appearing on the Will Ex. PW-2/A is of an old

person, the signatures appearing on the Will propounded by the

petitioner/objector, Ex. PW-2/1, are made in a very firm manner and are

appearing to be of a comparatively younger person.

6. In my opinion, the trial court has for the aforesaid valid reasons

rightly rejected the Will dated 23.5.1994 propounded by the

petitioner/objector.

7. The aforesaid facts show that the probate court below has rightly

granted probate of the Will including for the reasons that the respondent no.

1/unmarried daughter/Smt.Vimal Taneja was taking care of the testator and

his invalid wife for 15 years prior to the execution of the Will, the objector

was settled in Indonesia and had a business which was started by the testator

and thereafter handed over to the objector, none of the other three daughters

filed any objections to the Will, the Will was duly registered and that the

same gives reasons for disinheriting the objector and for bequeathing the

properties to the respondents herein.

8. In view of the above, there is no illegality or perversity in the

impugned judgment of the court below for the same to be interfered with by

this Court. The appeal is therefore dismissed, leaving the parties to bear

their own costs.

AUGUST 19, 2014                                VALMIKI J. MEHTA, J
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