Delhi High Court
Commodore T S Khurana & Anr. vs Vice Admiral I S Khurana (Retd.) & ... on 19 March, 2014
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : January 20, 2014
Judgment Pronounced on : March 19, 2014
+ RFA (OS) 12/2011
COMMODORE T S KHURANA & ANR. .....Appellants
Represented by: Mr.Vijay K.Gupta, Advocate with
Mr.Mehul Gupta, Advocate
versus
VICE ADMIRAL I S KHURANA (RETD.)
& ORS. .....Respondents
Represented by: Mr.Manish Sharma, Advocate with
Ms.Shivanshi Gupta, Advocate for
R-1
Ms.Kanchan Kaur Dhodi,
Advocate for R-2
Mr.K.P.Mavi, Advocate for R-3
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.
1. The dispute in the present appeal is between the children of Late
Dr.Pooran Singh (hereinafter referred to as the 'Deceased'). The
genealogy tree of the family of Late Dr.Pooran Singh is as under:-
Dr.Pooran Singh
I (Jaswant Kaur) wife
I
--------------------------------------------------------------------------------------
I I I I I
T.S. Khurana Jasbir Kaur Inderjit Singh Manjit Singh Manmohan Singh
(Son) (Dauther) (Son) (Son) (Son)
Plaintiff No.1 Plaintiff No.2 Def No.1 Def No.2 Def No.3
2. In the year 1993 Commodore T.S.Khurana (Retd) and Dr.Jasbir
Kaur Khera instituted a suit seeking partition of property bearing
Municipal No.C-511, Defence Colony, New Delhi (hereinafter referred to
as the 'Suit Property') and division of the movable assets of the deceased.
3. Commodore T.S.Khurana and Dr.Jasbir Kaur Khera were the
plaintiffs. Their brothers Inderjit Singh, Manjit Singh and Manmohan
Singh were impleaded as defendants Nos.1, 2 and 3 respectively. In our
decision we shall be referring to the parties by their nomenclature in the
suit.
4. It was pleaded in the plaint that the deceased was residing in an
area which is now in Pakistan and owned ancestral properties there. On
the partition of the country in the year 1947 he migrated to India. In lieu
of the ancestral properties left behind by him in Pakistan the deceased
was allotted a plot of land ad-measuring 350 square yards bearing
Municipal No.C-511, Defence Colony, New Delhi on which he
constructed a building comprising a ground floor, a first floor, a second
floor and a terrace which construction was supervised by plaintiff No.1
and his wife who also contributed towards the construction of the
building. The mother of the parties expired on February 15, 1985. After
the death of his wife the deceased was a shattered man and completely
lost his bearings. The plaintiff No.1 was his favourite son and that he
disliked defendant No.3 because of his rebellious ways and violent
nature. This caused a strain between the plaintiff No.1 and defendant
No.3. On one occasion the defendant No.3 had even slapped the wife of
the plaintiff No.1. In the year 1987 the plaintiff No.1 retired from the
Indian Navy and when he expressed an intention to stay with the
deceased he was welcomed to reside in the suit property. But, the wife of
the defendant No.3 made life miserable for the plaintiff No.1 forcing him
to move out of the suit property. On the other hand the defendants No.1 to
3 forced the deceased to let them reside in the suit property. During the
last days of his life the deceased was suffering from senile dementia and
ultimately expired on June 28, 1992. During the last days of his life the
deceased was a bundle of nerves; totally incoherent and confused and
dependent on others for his daily needs. A letter dated November 12,
1991 written by the defendant No.1 to the plaintiff No.1 was a testament
of the deteriorating health of the deceased. The deceased was admitted in
a hospital on various occasions for the period from July 21, 1991 till his
death on June 28, 1992. The defendants Nos.1 to 3 took advantage of the
ill-health of the deceased and made him write on dotted lines and created
Wills dated February 12, 1991, January 04, 1992 and January 14, 1992 in
their favour. Had the deceased executed a Will out of his own free will
he would have definitely told the plaintiff No.1 of the same since he was
his favourite son. The fact of the matter was that the deceased had died
intestate and had not executed any Will out of his own free will during his
lifetime. Being class-I heirs of the deceased, the plaintiffs and other
children of the deceased i.e. the defendants Nos.1 to 3 became entitled to
1/5th (20%) share each in the suit property and movables owned by the
deceased. So pleading, the plaintiffs prayed that the suit property be
partitioned by metes and bounds as also the movable estate of the
deceased.
5. In their written statements, the defendants Nos.1 to 3 pleaded that
the properties left behind by him in Pakistan were the self-acquired
properties of the deceased and not ancestral. They pleaded that the Will
dated January 14, 1992 was the last legal and valid testament of the
deceased whereunder he had bequeathed the suit property in favour of the
defendants Nos.1 to 3. The Will dated January 14, 1992 was executed by
the deceased out of his own free will and in a state of sound disposing
mind. Additionally, the defendant No.2 pleaded that he had contributed a
sum of `80,000/- towards the construction of the suit property and that
relations between the plaintiff No.1 and deceased were strained during
the last years of life of the deceased.
6. In the replication filed, the plaintiffs pleaded that Will Ex.T-D2/1
dated January 14, 1992, was not executed by the deceased out of his own
free will and accord. They pleaded that the deceased was not enjoying
good health and was not in a state of sound disposing mind on the date of
the execution of the Will or any other Will since he was suffering from
senile dementia. Taking advantage of the ill-health of the deceased and
his weak mental condition the defendants Nos.1 to 3 made the deceased
to sign the Will Ex.T-D2/1, under which they were the major
beneficiaries. In essence, it was alleged by the plaintiffs that Will Ex.T-
D2/1 and/or any other Will alleged to have been executed by the deceased
are contrived documents.
7. Thereafter, the plaintiffs amended the plaint. The amendment made
by the plaintiffs was that Inderjit Singh Khurana, defendant No.1 had
admitted that it is the Will dated January 04, 1992 which is the last legal
valid testament executed by the deceased.
8. In the written statement filed to the amended plaint, the defendant
No.2 pleaded that Will dated January 04, 1992 was not executed by the
deceased out of his own free will and accord. That the plaintiff No.1 and
defendant No.1 had coerced and pressurized the deceased to sign on the
Will dated January 04, 1992.
9. The defendants Nos.1 and 3 chose not to file any written
statement(s) to the amended plaint.
10. On the pleadings of the parties following issues were settled by the
learned Single Judge:-
"i. Whether property No. C-511, Defence Colony, New
Delhi, was the ancestral property, as alleged by the plaintiff?
(OPP)
ii. Whether the Will dated 14.1.92 was validly executed last
Will by late Dr.Pooran Singh as alleged? (OPD- 2 & 3)
iii. Whether the Will dated 4.1.92 was the last Will of late
Sh. Pooran Singh, as alleged by defendant No.1? (OPD-1)
iv. Whether the plaintiffs are entitled to a decree of partition
and rendition of accounts mesne profits, as prayed? (OPP)
v. Relief."
11. On behalf of the plaintiffs, Commodore T.S.Khurana, plaintiff
No.1, Balbir Singh Ahuja PW-2, Dr.B.G.Kachru PW-3, Suresh Ram PW-
4, Jaswant Singh PW-5 and Inderpal Singh PW-6 were examined as
witnesses.
12. In his examination-in-chief Commodore T.S.Khurana PW-1,
plaintiff No.1 reiterated the contents of the plaint filed by him.
13. On being cross-examined, Commodore T.S.Khurana PW-1, stated
as under:-
"I received letter dated 24.2.1992 from my father and the
contents of the same are correct. The letter is marked as
Exhibit P-2.
It is not correct that Dr.Pooran Singh was not suffering from
Senile Dementia on 24.2.1992. He was under treatment for this
disease. It is correct that I have not produced or filed any
document relating to medical treatment of my father for the
disease Senile Dementia. I used to be in Bombay and my
brothers and sisters used to tell me about his disease and
treatment regularly.
....
Total of nine Wills have been filed by the parties in the case. I
have gone through all the Wills. It is correct that in all the Wills
defendant no. 3 has been given ground floor of the property. I
am not aware if my father transferred any telephone in favour
of defendant no.3 during his lifetime. I do not agree that suit
property was the self acquired property of Dr.Pooran Singh. it
is wrong to suggest that Dr.Pooran Singh executed Will dated
14.1.1992 while in sound disposing mind although it is in his
own handwriting."
14. Balbir Singh Ahuja PW-2, deposed that the deceased was the
cousin of his mother. He used to visit the deceased regularly to pay him
his respects and consult him regarding medical problems faced by him
and his wife. During the end of 1991 and beginning of year 1992 the
deceased was seriously ill and admitted in the hospital on numerous
occasions. When he learnt that the deceased was not keeping good health
he had gone to visit the deceased at his residence. The deceased was lying
on a bed and one of his sons was present there. All of a sudden the
deceased got up from the bed and tried to run away from the room. The
son of the deceased caught hold of the deceased and he and the son of the
deceased made the deceased to lie on the bed. The deceased was not in
control of his faculties and mentally unstable at that time. He informed
the plaintiff No.1 about the ill-health of the deceased. After sometime he
learnt about the death of the deceased.
15. On being cross-examined, Balbir Singh Ahuja PW-2, stated as
under:-
"It is incorrect to suggest that Dr.Pooran Singh had any grouse
against me or for that reason he ran out of room when I visited
him. I did not try to know the reason of the illness of Dr.Pooran
Singh from anybody. In December, 1990 Dr.Pooran Singh was
alright and he was a very intelligent doctor. In January, 1992
he was frail and in bed; suddenly he got up and started running
out and I and his son got hold of him and put him back in bed. I
have said that Dr.Pooran Singh was out of control of his
faculties on the basis of my general observation as he got up
from the bed and tried to run away from the room when he was
in a very feeble physical condition. I have stated that he was not
mentally stable on the basis of common sense. The word
"faculties" stated by in para 3 of my affidavit I mean to say that
abnormal behavior which I saw of Dr.Pooran Singh when he
was very sick of getting up from the bed and running out from
the room."
16. Dr.B.G.Kachru PW-3, deposed that he is a practicing Psychiatrist.
The deceased was his patient. The deceased was referred to him by his
colleague Dr.Jasbir Kaur Khera, the daughter of the deceased. The
deceased was mostly accompanied by his daughter Dr.Jasbir Kaur when
he used to visit his clinic. It would be relevant to note the following
portion of the examination-in-chief of the witness:-
"I had examined Dr.Pooran Singh for the first time in
December 1991. He suffered from Senile Dementia. I would
term his Non Compos Mentis. He had lost the powers &
faculties of regulating his actions and conduct. He had become
incapable of looking after himself & managing his own affairs
- his memory was failing him - Power of self control was lost -
power of reasoning stood interfered with, his judgment had
become weak and faulty. He had not sufficient mental capacity
to understand the nature & consequences of his acts. He was
impulsive & forgetful. He appeared to be under acute mental
strain & stress for which he was prescribed appropriate
treatment."
17. On being cross-examined, Dr.B.G.Kachru PW-3, stated as under:-
"I did not know Dr.Pooran Singh prior to December, 1991. In
December, 1991 I examined Dr.Pooran Singh for the first time
and second time in middle of January, 1992 and so on till April,
1992. I examined him for half an hour on each occasion. I have
said he was impulsive because he used to get away from the
clinic. He was forgetful because he did not remember what he
had in the breakfast and also he used to forget the names of his
children. I attended number of cases of Dementia Senile. There
is no instrument by which Dementia is found out. It is by
examination only. Senile Dementia was diagnosed clinically by
me about Dr.Pooran Singh. Senile Dementia and Alzheimer
disease have similar symptoms. I enquired from his daughter
about his treatment which were going on which were B.
Complex and some tonics. She told me the illness of Dr.Pooran
Singh as physically weak. Senile Dementia accrues gradually. I
cannot say since how long he was suffering from Senile
Dementia when he came to me. There is no specific test for
ascertaining the degree of Dementia of any patient. I cannot
say for how long Dr.Pooran Singh had been suffering nor I can
make any guess. Dr.Pooran Singh never came to me alone and
mostly accompanied Dr.Khera.
Rebuttal Evidence
A person suffering from Dementia can write coherently if asked
to write on dotted lines or given a draft to copy but it depends
upon the degree of Dementia."
18. Suresh Ram PW-4, a LDC with L&DO produced the record
relating to the suit property evidencing that perpetual lease-hold rights
were conferred by L&DO in the name of the deceased.
19. Jaswant Singh PW-5, a Medical Record Technician with Ram
Manohar Hospital produced the Original Admission Register of the
hospital for the period from June 12, 1992 to June 29, 1992 and Original
Death Register of the hospital for the year 1992. The entry Ex.PW-5/1
made in the Admission Register records that the deceased was admitted
in the hospital on June 18, 1992. The entry Ex.PW-5/2 made in the Death
Register records that the deceased died in the hospital on June 28, 1992
and that cause of his death was „Senile Dementia with Respiration‟.
20. Inderpal Singh PW-6, a LDC with L&DO deposed that a perusal of
the record of L&DO relating to the suit property shows that the suit
property was allotted to the deceased. The record contains an affidavit
dated April 22, 1965 of Jaswant Kaur, the wife of the deceased, wherein
it has been stated that Jaswant Kaur has been associated in the purchase
of the suit property and that she would not claim any interest, share or
title in the suit property.
21. In support of his case, Inderjeet Singh Khurana, defendant No.1,
examined himself as DW-1.
22. Inderjeet Singh Khurana DW-1, defendant No.1, deposed that he is
in possession of the first floor of the suit property. During his lifetime, the
deceased had executed Will dated January 04, 1992 Ex.DW-1/1, which
Will was in his possession. He deposed that he was also having a letter
dated January 14, 1992, Ex.DW-1/2, written by the deceased to the Chief
Engineer, DESU. During his lifetime, the deceased had executed three
more Wills dated September 12, 1991 Ex.DW-1/3, June 10, 1991
Ex.DW-1/4 and September 2, 1988 Ex.DW-1/5. The deceased was
mentally fit and agile at all times.
23. On being cross-examined, defendant No.1 stated as under:-
"It is true Ms.Lata Krishnamurthy, an Advocate who is the
attesting witness of alleged Will dated 4.1.1992 had been
appearing as my Advocate in my case and was known to me. It
is true that Dr.B.M.Singh Lamba, the other attesting witness on
this Will is related to me. He is son of my wife‟s sister. It is true
that there are nine Wills purported to have been executed by my
father but I have filed four Wills as mentioned in my affidavit
which only I was aware of. May be these nine Wills are in a
sequence like one Will executed in 1982, three in 1988 and next
three in 1991 and two in 1992. May be five Wills are
handwritten and four are typed one. I am aware that a will to
be a valid in law must bear attestation by two witnesses. It is
true that I have not filed any list of witnesses and I do not
propose to examine any other witness besides myself in this
case. it is true that will dated 10.6.1991 filed by me in this case
does not bear signature of any attesting witness on it.
Quest: You do not propose to examine the two attesting
witnesses of the will dated 4.1.1992?
Ans: Not on my own but if the plaintiff wishes so they can be
produced.
Quest: Is it a fact that defendants had been procuring
writings from Dr.Pooran Singh not bearing attestation of any
witness like the will dated 10.6.1991 and later on got signed
from persons of their choice terming them as attesting witness?
Ans: I cannot speak of my father having given wills to his
other children in what form. As far as I am concerned, he
reposed confidence in me, me being the eldest son, and gave me
those four wills which I have produced and if these were not
attested, were not attested and I have nothing to say or add, but
I did not add anything in the will.
I do not remember the dates when first three out of the four
wills were given to me by my father but it were given in Delhi
and as far the last fourth will is concerned which is dated
4.1.1992, my father had asked my describing his requirement
which are mentioned in this will, and asked me to get it
executed properly with the assistance of a Lawyer and a
Doctor. This will was then prepared in the office of Advocate
Sh.Ram Jeth Malani at House No.11 Harish Chandra Mathur
Lane, where Sh.Ram Jeth Malani was residing as M.P. and
Ms.Lata Krishnamurthy was his associate Advocate and the
moment this will was executed, it was delivered to me.
I cannot speak any reason or logic as to how and why in a Will
dated 14.1.1992 plaintiff Sh. T.S.Khurana was excluded from
any portion in the property C-511 Defence Colony New Delhi
on the ground that he owned a house in Delhi but then in the
Will ten days before dated 4.1.1992 he was bequeathed second
floor in this house property C-511, Defence Colony, Delhi. I
cannot speak for a reason or logic that plaintiff No.2,
Dr.Mrs.Jasbir Kaur Khera was assigned a portion in the
property C-511, Defence Colony, Delhi in the Will dated
12.09.1991. I cannot say any reason as to why my father
executed as many Wills as are being pleaded in this case
including five Wills executed between a short period of seven
months i.e. 10.6.1991 till 4.1.1992?
Ques: Why do the Wills demonstrate a ding dong battle between
you and defendant No.2 i.e. Col.Khurana i.e. if vide a
particular Will you got the first floor then in the next Will
Col.Khurana got the first floor and vice versa?
Ans. There was no ding-dong battle which is a surmise. I am
not aware if in any of the Will defendant No.2 Col.Khurana has
been given the first floor in the house property C-511, Defence
Colony, Delhi.
I am claiming right in the first floor in the house property C-
511, Defence Colony, Delhi on the basis of the Will dated
4.1.1992 even as well Will dated 14.1.1992.
Quest: When you did everything to help your father get
prepared a Will, why do you want to take steps to get Will dated
4.1.1992 proved especially when the onus is upon you?
Ans: The will was signed by My father, a Doctor and two
other witnesses and to the best of my knowledge that should
have been adequate. He selected me to be the Karta of the will
being eldest son and around in Delhi at that time.
Quest: What is the accommodation in 189, Golf Links,
New Delhi?
Ans: Golf Link property has since been demolished.
Quest: Yesterday you said it is under construction. What
have you to say?
Ans: Yes. It is under construction almost for the last four-five
years.
Quest: Who is the owner of 189 Golf Links property and
since when?
Ans: The owners are my wife Mrs.Govindera Khurana, my
daughter Ms.Raveena Khurana, my son Mr.Amrinder Singh
and the fourth share is the HUF share. They are the owners. I
think, since 1991, most probably.
Quest: In 1992 it is fact that you had a noise in Noida and
a bunglaw in Faridabad. What have you to say?
Ans: Yes.
Q. I put it to you that all along in the written statement you
have stated and referred to the Will dated 14.1.1992 as the last
valid Will. What have you to say?
Ans. It is true."
24. To prove the due execution of the Will Ex.T-D2/1 dated January
14, 1992 defendants Nos.2 and 3 examined defendant No.2 as DW-2.
25. In his examination in chief, Manjeet Singh Khurana DW-2,
defendant No.2, reiterated the contents of the written statement filed by
him. Additionally, he deposed that the deceased had invited him and his
family to reside in the first floor of the suit property. The letter dated July
20, 1988 written by the deceased to him is a testament to said effect.
Pursuant to the aforesaid invitation, he and his family started residing in
the first floor of the suit property. This caused resentment in the family
due to which reason the deceased suggested that he would raise
construction in the second floor of the suit property and he i.e. defendant
No.2 should move there. Thereafter the deceased raised construction over
the second floor of the suit property. He contributed a sum of `80,000/-
for raising construction over second floor of the suit property. On January
14, 1992 the deceased had written letters to the civic authorities for
providing water and electricity connections in the second floor of the suit
property. Will Ex.DW-1/1 dated January 04, 1992 is a contrived
document. On January 14, 1992 the deceased informed him that he had
bequeathed the second floor of the suit property to him. Will Ex.T-D2/1
dated January 14, 1992 was executed by the deceased out of his own free
will and accord. The deceased was in state of sound disposing mind at the
time of execution of Will Ex.T-D2/1 dated January 14, 1992. Being
relevant, we note the following portion of the examination in chief of the
defendant No.2:-
"9. WILL DATED 14.1.1992 was found by me alongwith his
pension file, income tax returns and pass books pertaining to
his PPF/SAVINGS BANK ACCOUNT AFTER his demise on
28.6.1992 in late father‟s cupboard. I took possession and filed
all the above original documents in Delhi High Court (on
record).
20. That the contents of the letter dated 12/30th November,
1991 (Ex.P-3) are being misrepresented, distorted to mislead
the Hon‟ble Court. These contents were due to emotional
outbursts arising out of my serious illness when there was
initial resentment from all my brothers and sisters which were
ultimately resolved amicably as such rumblings/differences do
crop up in my family....." (Emphasis Supplied)
26. On being cross-examined, defendant No.2 stated as under:-
"Quest: (Please see letter dated 12/30th November 1991 Ex
P-3 addressed to plaintiff no.1). Is it in your handwriting?
Ans: Yes.
Quest: It was a very well thought and deliberate letter
correctly described the scenario and clamor for property at the
relevant time i.e. after you landed up at C-511 after your
retirement. What have you to say?
Ans: I shared my pentup feelings ever since I landed up in my
father‟s house. My aim of writing this letter was that plaintiff
no.1 as an elder brother mediate over certain disputes among
the brothers and sisters specially as envisaged in Para-4 and
post script of my letter. But he did not had the decency to stay
back and sort out the matter instead he vanished into thin air
only to save this letter as and expedient to support his case
because he anticipated that he would be dispossessed of my
father‟s property for the reasons which are well known to him.
Quest: That the contents of your letter were correct and
you never at any time denied the same in your pleadings,
replies or affidavits. What have you to say?
Ans: I stand by what I wrote at Para-2 of this letter which
depicts certain affairs at that point of time. But all these
disputes and issues were resolved by my father amicably in a
judicious wise manner and by constructing second floor for me
to over come his dilemma and alarm for his fear to settle me in
this house as per his commitments made in his letter dated
20.7.1988. This letter has no bearing on the will dated
14.1.1992.
Quest: In your letter Ex P-3 you have suggested that every
one should be entitled to 1/5th legitimate share. How did you
arrive at this conclusion?
Ans: As I suggested so because all brothers and sisters sit
together to appeal to father to give 1/5th share to everybody
irrespective of rank and other consideration but plaintiff no.1
found it convenient not to meet father to discuss this over the
table.
Quest: What did you mean by saying that defendants were
not and will not be successful and that you knew how to play
your cards henceforth?
Ans: I said that my brothers will not be successful because I
was very confident that my father with his intellect would
discriminate between the right and wrong and had full
confidence in his ability and playing cards I meant that I will
also pay back my brothers and sisters in the same coin for ill-
treating me. The word "Playing Cards" is not associated with
any will or any co-relations. I am not stupid or foolish to write
a letter to plaintiff no.1 to say that I will play card against
plaintiff no.1 himself. It defies no logic.
It is correct that my father made nine Wills (vol. He
reviewed/updated Wills from time to time necessitated by
changes in family circumstances arising out of demise of our
mother on 15.2.1985, on set of my illness in 1984-85 and my
impending retirement from the Army as well as addition of a
second floor to the existing suit premises in the year 1991-92.
All nine Wills except the last Will dated 14.1.1992 are non-est
and gone by the wisdom of my father for whatever cogent
reasons which cannot be called into question). I have produced
three Wills in original in the sealed cover dated 12.8.1988,
15.9.1991 and the last Will dated 14.1.1992.
Quest: How did you come in possession of the Will dated
14.1.1992?
Ans. On 16.1.1992 my father showed me the Will dated
14.1.1992 in original and asked me to make photocopies of the
same and returned the original to him, which I did and he
placed the Will in the cupboard of his bedroom on the ground
floor, on the top shelf under the newspaper and indicated its
location to me which I recovered later after his death.
Quest: Can you tell me why your father executed five wills
in seven months between 10.6.1991 till 14.1.1992, three wills in
1988 and three wills in 1991 and two wills in 1992. What have
you to say?
Ans: I cannot speak of his mind and it was prerogative of my
father.
Quest: Please see handwritten wills dated 15.9.1991,
2.9.1988, 10.6.1991 and 12.9.1991 therein the handwriting is
even spaced while in will dated 14.1.1992 the later portion is
cramped up. What have you to say?
Ans: The cramping of two-three lines in the end of the will
dated 14.1.1992 is a manifestation of my father‟s alertness to
leave some margin for the two attesting witnesses to sign on the
will, avoiding use of next page, I cannot say definitely, he has
written in the margin space also. It is also a tendency on the
part of any writer to be liberal in the beginning and later he
may squeeze a bit to complete the space in the same page.
It is correct that as per Will dated 12.9.1991, first floor of
property no. C-511, Defence Colony, New Delhi was
bequeathed to defendant no.1 and second floor to Smt.Jasbeer
Kaur Khera plaintiff no.2. Vol. It is a freak Will whereby
second floor was bequeathed to my sister i.e. plaintiff no.2.
Being a freak will in her favour which shows that she had no
reckoning in any of the eight Wills which by itself excites a
suspicion whether this freak will could have been a father‟s
own volition and free disposition and the fact that this Will was
revoked within three days, buttresses the arguments that there
must be some cogent reasons to drop her out.
The will dated 12.9.1991 has been duly signed by my father and
I identify his signatures as correct. I deny that my father could
yield to any pressure because he was a strong resolute person
and not timid to be moved or swayed by any member of the
family. He was inviolable a character.
Q. Please see will dated 4.1.1992, under this will second
floor was given to Sh.T.S.Khurana plaintiff no.1. What have you
to say?
Ans. The righteousness of transaction of will dated 4.1.1992 is
in serious doubt in the glaring in the face of its record by own
disclosure of defendant no.1 during his cross-examination on
10.5.2007 by plaintiff no.1 and subsequently on 17 and
18.12.2007. This will dated 4.1.1992 is surrounded by
suspicious circumstances, numerous in number which shall be
argued by me at appropriate stage" (Emphasis Supplied)
27. In his examination in chief, Kanwaljit Singh Khurana DW-3, wife
of defendant No.3, reiterated the contents of the written statement filed by
her husband i.e. Manmohan Singh Khurana, defendant No.3.
Additionally, she deposed that her husband was the favourite son of the
deceased evidenced from the facts that the deceased had bequeathed
major portion of the ground floor of the suit property to her husband in all
the Wills executed by him and got transferred the telephone installed at
the suit property in the name of her husband.
28. Pertinently, the witness had also sought to tender the affidavit
Ex.DW3/I of Late Arjan Singh, the brother of the deceased, in her
affidavit by way of evidence, which was objected to by the plaintiffs for
the affidavit of a dead man cannot be tendered in evidence.
29. On being cross-examined, Kanwaljit Singh Khurana DW-3, stated
as under:-
"Q: I put it to you that defendant No.1 had a house in Delhi
also in Noida and a bungalow in Faridabad as also defendant
No.2 in Faridabad and defendant No.3 in Green Field.
(objected to by Counsel for the defendant No.3 on the ground
that individual properties of the parties are not subject matter).
A: It is correct that the defendants were having the
properties mentioned above.
Q: I put it to you that under will dated 4.1.92 second floor
was given to Sh.T.S.Khurana while under will dated 14.1.92
second floor was given to defendant No.2 Col.Khurana within a
gap of 10 days?
A: It is true that both the wills are on record but I can‟t say
why my father-in-law why he did like this.
30. Commander (Retd.) Satbir Singh Butalia DW-D-2/A, deposed that
he retired from Indian Navy and had known the deceased since the year
1952. He had witnessed the execution of Will Ex.T-D2/1 dated January
14, 1992 by the deceased at his residence. Lt.Col.(Retd.) Sukhbir Singh
was also present in the residence of the deceased at the time of the
execution of Will Ex.T-D2/1 dated January 14, 1992 by the deceased.
The deceased seemed to be in good health and sound mind at the time of
the execution of Will Ex.T-D2/1 dated January 14, 1992. The deceased
had executed Will Ex.T-D2/1 dated January 14, 1992 out of his own free
will.
31. On being cross-examined, Satbir Singh Butalia DW-D-2/A stated
as under:-
"Question: I put it to you that Dr.Pooran Singh had executed
two different Wills in ten days i.e. 4.1.1992 and 14.1.1992?
How you assess the state of mind of such a person?
Ans. He was in full control of his mind and very clear in his
thinking. As I have already stated that I have no knowledge
about the Will dated 4.1.1992. I have seen Will dated 4.1.1992
which is Exhibit D-2/Z. It does bear signatures of Dr.Pooran
Singh at point A.
Will dated 14.1.1992 was executed at C-511, Defence Colony
between 9.00 A.M. and 10.00 A.M. I did not go through the
same and I signed after Dr.Pooran Singh signed the same. I
remember the dates because of the letter sent by Local
Commissioner and I pressed my mind thereafter.
I did not write this date anywhere. Dr.Pooran Singh,
Col.Sukhdev Singh and myself were present on 14.1.1992.
There was nobody else present at the time of signing of the Will.
No medical practitioner was present.
Dr.Pooran Singh rang me and called me to sign his Will on
14.1.992. First it was signed by Dr.Pooran Singh then
thereafter by both the witnesses. I do not remember who signed
first between us.
Dr.Pooran Singh wrote the Will in his own hand and himself
drafted it."
32. Lt.Col.(Retd.) Sukhbir Singh DW-D-2/B, deposed that he retired
from Indian Navy and had known the deceased for the last 20 years. He
had witnessed the execution of Will Ex.T-D2/1 dated January 14, 1992
by the deceased at his residence. Commander (Retd.) S.S.Butalia was also
present in the residence of the deceased at the time of the execution of
Will Ex.T-D2/1 dated January 14, 1992 by the deceased. The deceased
was in sound mind and health at the time of the execution of Will Ex.T-
D2/1 dated January 14, 1992. The deceased had executed Will Ex.T-D2/1
dated January 14, 1992 out of his own free will.
33. On being cross-examined, Sukhdev Singh DW-D-2/B stated as
under:-
"I have seen Will dated 15.9.1991 which bears my signatures.
The same was attested by me. My signatures appear at Point A.
The Will is Exhibit D-2/2.
With changing circumstances things keep on changing. So
different Wills were executed by Dr.Pooran Singh. Even before
his death he was at my house and he was absolutely normal
human being. I say on my general observation that Dr.Pooran
Singh was of sound mind and health and he was not perplexed.
At the age of 90 he called me and walked to my house so he was
normal. He walked without a stick and told me to drop him
back and thereafter I dropped him back. He expired next day.
I do not know where the Will dated 14.1.1992 was written. I
signed the same in the drawing room of Dr.Pooran Singh. I
signed the same at 11.00 A.M./12 Noon. There was another
witness Commander S.S.Butalia. Nobody had called me and I
dropped at his place and he showed me the Will and took my
opinion I said it was correct so he requested me to sign. I did
go through the same. It is difficult to say that how I remember
date 14.1.1992 but under my signatures I had put the date as
14.1.1992.
I do not recall any other incident on 14.1.1992. I think I must
have signed it first of all. About others I do not know. I do not
know who signed after me.
I have seen my affidavit Ex.DW2/B/X which is dated 3.2.2006
and it bears my signatures at points "A" and "B". I have not
appeared before any other Local Commissioner. I signed my
affidavit but I do not recollect where and at which place I
signed the same. I do not recollect who had brought the
affidavit to me for my signatures.
The affidavit dated 3.2.2006 was not got typed by me. I do not
remember if I got it attested before the Oath Commissioner or
who got it attested. I do not think if I had ever gone to Oath
Commissioner to get it attested.
I do not know who made the draft of the affidavit I do not know
if he had any properties in Pakistan.
It is quite possible that affidavit dated 3.2.2006 might have
been brought by Shri Lt.Col.Manjit Singh Khurana to me and I
signed the same."
34. The relevant documentary evidence adduced by the parties is as
follows:-
A Plaintiffs
(i) Will Ex.TP-1/1 dated February 04, 1988 stated to have been
executed by the deceased. (Will Ex.TP-1/1 was admitted by all the three
defendants).
(ii) Letter Ex.P-3 dated November 12/30, 1991 stated to have been
written by the defendant No.2 to the plaintiff No.1. (The letter Ex.P-3 has
been admitted by the defendant No.2). The letter Ex.P-3 dated November
12/30, 1991 reads as under:-
"My dear Lochi,
1. I have been wanting to have a chat with you, but
somehow you have not made it convenient to meet me; may be
on a/c of circumstances beyond your control. I, therefore, take
the liberty to put across to you my pent-up feelings over
unpleasant/unsavory happenings in our family ever since I
landed up at C/511, after my retirement.
2. That there is no affection anymore, no true delicacy of
feelings, no harmony or coherence of behavior. This house is
now always in confusion. It is not only a place of vice, but a
place of chaos reigning all over - no decency or decorum -
mistrust flowing in the same blood - no sanity - only property,
property, property !!! It‟s all poverty/bankruptcy of mind.
3. I vividly recollect (during my tenure in DGI at Delhi)
your positive contribution towards construction of C/511,
negated by Mohini who would send contractors away - to be
chased up by you. How funny is it now to hear people say that
Mohini has done lot of hard work & put lot of money in
constructing this house to claim the biggest chunk.. no one says
though everyone knows that I spared my car to Perfection
House people to fund the house - sold it at a loss - What an
irony!!! Mohini was unemployed till 1993 & later got in Border
Roads at a salary of just `300/- p.m.
4. I have always maintained & reiterate the same that all of
us deserve legitimate 1/5th share in whatever manner; w/out
favour, discrimination on grounds of rank/efforts/money since
all of us have put in our bit in some way or the other besides
being legitimate children!!
5. I really wish to get lost from here but there is no safe
haven for me at FBD for obvious reasons - since 1984 riots
(anti-Sikh). You probably got lost as you had an alternative
arrangement. I can claim my legitimate right even if I get lost &
so I am not afraid.
6. That Mohini/Kanwal have both ill-behaved with us in a
most perverted manner without regret, remorse or compassion.
You probably do not know the other side of the story since you
have kept distanced from me for reasons best known to you.
7. Your worthy Admiral brother has, of late, been
malicious, vicious & vindictive - most unscrupulous like
behavior for a wrong stand taken by him to demolish certain
structures of C/511 to my detriments - placing his own selfish
interests before those of mine, exploiting Papaji old
age/simplicity to cause undue influence my image/sincerity
which I dare say, are beyond reproach. Poor Papaji seems to
be under some fear/apprehensions from Mohini/Kanwal & our
Admiral brother. I do not know WHY He succumbs - I was
stabbed Thrice at the behest of my own kith & kin living in
Delhi - but they were Not & will NOT be successful. I know
how to play my cards henceforth. This is our ancestral property
& rightly said so by Papaji on the basis of which he called me
here with a long affectionate letter & I have done no crime.
8. I do hope that you‟ll kindly make it convenient to give me
a few minutes during your next visit.
With regards to dear Bhabiji & love to children from
both of us.
Yours affly
BHOLI
PS I have suggested a proposal to Papaji recently to sort out
this property tangle & to give everyone due share regardless of
any extraneous considerations. So let us all sit down & thrash it
out once for all. If someone declines to take part in mutual
discussion, he may not do so at his own risk & advantage."
(Emphasis Supplied)
(iii) Letter Ex.P-2 dated February 24, 1992 written by the deceased to
the plaintiff No.1 (Letter Ex.P-2 is admitted by the defendant No.2 and
denied by defendants Nos.1 and 3). Being relevant, we note the following
portion of the letter dated February 24, 1992:-
"Many thanks for the birthday letter you sent me....On the 21 st I
will be in the 89th year of life. I am very grateful to Almighty
God who have blessed with me sons like you - so dear and
sincere. May He grant you and all my dear grand children &
great grand children a long happy & prosperous life. Believe
me I love you all so much. Last two months I have been ill with
one thing and then another thing and have recovered from the
third thing. Do not worry I am alright now - only praying not
to fall victim to any more.
Are you coming to Delhi in near future...." (Emphasis
Supplied)
B. Defendant No.1
(i) Will Ex.DW-1/4 dated June 10, 1991 stated to have been executed
by the deceased. (Will Ex.DW-1/4 has been admitted by the defendants
Nos.2 and 3 and denied by the plaintiffs).
(ii) Will Ex.DW-1/5 dated September 2, 1988 stated to have been
executed by the deceased. (Will Ex.DW-1/5 has been admitted by the
defendants Nos.2 and 3 and denied by the plaintiffs).
(iii) Will Ex.DW-1/3 dated September 12, 1991 stated to have been
executed by the deceased. (Will Ex.DW-1/3 has denied by the defendants
Nos.2 and 3).
(iv) Will Ex.DW-1/1 dated January 04, 1992 stated to have been
executed by the deceased. (Will Ex.DW-1/1 has denied by the defendants
Nos.2 and 3).
(v) Letter Ex.DW-1/2 dated January 14, 1992 stated to have been
written by the deceased to Chief Engineer, DESU. (Letter Ex.DW-1/2 has
been admitted by the defendants Nos.2 and 3 and denied by the
plaintiffs). Be it noted here that the letter Ex.DW-1/2 dated January 14,
1992 records that the deceased has constructed second floor in the suit
property for his son Manjit Singh Khurana i.e. defendant No.2 and that an
electricity connection be sanctioned for the said newly constructed floor.
C. Defendant No.2
(i) Will Ex.TD-2/1 dated January 14, 1992 stated to have been
executed by the deceased. (Will Ex.TD-2/1 has been admitted by the
defendants Nos.1 and 3 and denied by the plaintiffs).
(ii) Will Ex.TD-2/2 dated September 15, 1991 stated to have been
executed by the deceased. (Will Ex.TD-2/2 has been admitted by the
defendants Nos.1 and 3 and denied by the plaintiffs).
(iii) Will Ex.DW-2/10 dated August 12, 1988 stated to have been
executed by the deceased. (Will Ex.DW-2/10 has been denied by the
plaintiffs).
(iv) Death report Ex.D-2/9 of the deceased issued by Dr.R.K.Gupta,
RML Hospital. (Death report Ex.D-2/9 has been admitted by the plaintiffs
and defendant No.1). The death report Ex.D-2/9 records that the cause of
death of deceased was senile dementia with aspiration and duration of
illness of the deceased was 2 ½ months.
v) Letter Ex.D-2/8 dated July 20, 1988 stated to have been written by
the deceased to defendant No.2. (Letter Ex.D-2/8 has been admitted by
the plaintiffs and denied by defendant No.1). Being relevant, we note
following portion of the letter Ex.D-2/8 dated July 20, 1988:-
"My dear Lal Bholi,
Received your affectionate letter. I am highly pleased that you
are resigning.....
You are most welcome to immediately occupy the First Floor &
I have already told dear Jit about my decision that you will
settle here with me in our Defence Colony house. I will be glad
with you and your family company. I will love to see you settle
here with me. I love you very dearly. You will independently
during my life time and after I am gone. I assure of you of this.
Keep this letter safe as guarantee for what I say. I will discuss
with you all about this when we meet. Why are you removing
your tenant from Faridabad. Why lose the rent when your
father guarantees you an independent accommodation in your
ancestral house....
Come here immediately along with dear Bhajan & Gunny (of
course your Doggi - I forget this fellow‟s name). I am not doing
you any favour if I say "come and occupy first floor". It is your
right. Have no tension whatsoever....Put a sign board outside
the house "Lt. Col. M.S. Khurana Retd.". this will gladden your
Father & it will be a name for him that one of sons is Lt.
Col....You may send this letter to dear Bhajan so that she
accepts your resignation with great joy after reading this. She
must keep this letter safe. Now I close with loving regards to
you & wanting to know when you are reaching Delhi.
....
Yours V. affectionately
Pooran Singh" (Emphasis Supplied)
(vi) Letter Ex.TD-2/6 dated January 14, 1992 stated to have been
written by the deceased to Chief Engineer, MCD. (Letter Ex.TD-2/6 has
been admitted by the defendant No.1). Be it noted here that the letter
Ex.TD-2/6 dated January 14, 1992 records that the deceased has
constructed second floor in the suit property for his son Manjit Singh
Khurana i.e. defendant No.2 and that a water connection be sanctioned
for the said newly constructed floor.
(vii) Letter Ex.D-2/6 dated January 31, 1992 stated to have been written
by the plaintiff No.1 to the defendant No.2. (Letter Ex.D-2/6 has been
admitted by the plaintiffs). Being relevant, we note the following portion
of the letter dated January 31, 1992:-
"My dear Bholi,
Thank you for your letter dated 23 Jan 92 received
yesterday, alongwith a letter from Bulbul. We are all relieved to
learn that Dear Papa ji is alright & well cared for, with all of
you in Delhi.
It was indeed nice visiting you and meeting both of you in Delhi
recently.
...."
(viii) Letter Ex.TD2/20 dated February 25, 1992 stated to have been
written by the deceased to the House Tax Department, MCD. The letter
Ex.T-D2/20 records that the deceased had constructed second floor in the
suit property; House Tax Department should reassess the suit property for
purposes of House Tax on the basis of said newly raised construction and
that he i.e. the deceased would sent documents for said purpose through
his son Manjit Singh Khurana defendant No.2.
D. Defendant No.3
(i) Will dated May 18, 1982 stated to have been executed by the
deceased. (Will dated May 18, 1982 has not been exhibited and denied by
the defendants Nos.1 and 2).
(ii) Medical prescriptions Ex.TD-3/1 to Ex.TD-3/16 of the deceased
for the period from January 31, 1992 to May 15, 1992. (Prescriptions
Ex.TD-3/1 to Ex.TD-3/16 have been admitted by the defendants Nos.1
and 2).
(iii) Letter Ex.TD-3/8 written by the deceased to MTNL. (Letter
Ex.TD-3/8 has been admitted by the defendants Nos.1 and 2). Letter
Ex.TD-3/8 records that the deceased is desirous to transfer the telephone
installed in the suit property in the name of defendant No.3.
35. A perusal of the afore-noted documentary evidence adduced by the
parties brings out that as many as nine Wills are stated to have been
executed by the deceased, the salient features whereof are as follows:-
S. Particulars Nature of Details regarding Details regarding
No. of Wills Wills attestation of Will registration of
Will
1. Will dated Typed on Attested by three Unregistered
May 18, plain paper persons.
2. Will dated Typed on Attested by two Unregistered
February letter head persons.
04, 1988 of deceased.
Ex.TP-1/1
3. Will dated Typed on Attested by two Unregistered
August 12, plain paper persons.
Ex.DW-
4. Will dated Handwritten Attested by two Unregistered
September on letter persons.
2, 1988 head of
Ex.DW- deceased.
5. Will dated Handwritten Not attested by Unregistered
June 10, on letter any person.
1991 head of
Ex.DW- deceased.
6. Will dated Handwritten Attested by two Unregistered
September of letter of persons.
12, 1991 deceased.
Ex.DW-
7. Will dated Handwritten Attested by two Unregistered.
September on letter
15, 1991 head of persons.
Ex.TD-2/2 deceased.
8. Will dated Typed on Attested by two Unregistered.
January 04, plain paper. persons.
Ex.DW-
1/1.
9. Will dated Handwritten Attested by two Registered after
January 14, on letter persons. the death of
1992 head of the deceased.
Ex.TD-2/1 deceased.
36. The details of bequest(s) made under the afore-noted nine Wills
stated to have been executed by the deceased are as follows:-
S. Particulars Bequest of suit Details of Bequest of
No. of Wills property movable movable assets
(immovable assets
asset of mentioned in
deceased) Wills
1. Will dated Bequeathed to Cash, fixed Bequeathed to
May 18, wife Jaswant deposits wife Jaswant
1982 Kaur. certificates, Kaur.
provident
fund and
If wife pre- gratuity. If wife pre-
deceases the deceases the
deceased the deceased the cash
house shall be assets shall be
exclusively distributed
owned by equally amongst
defendant No.3. all five children
of deceased.
After the death
of wife of
deceased the
house shall be After the death of
exclusively wife of deceased
owned by the cash assets
defendant No.3. shall be equally
distributed to all
five children of
deceased.
2. Will dated (i) Ground floor, Unit Trust of A central pool of
February garage, servant India, money shall be
04, 1988 quarter and National created from the
Ex.TP-1/1 personal effects Saving money received
lying in ground Certificates, from cash assets
floor shall Fixed of the deceased.
belong to Deposit
defendant No.3 Receipts,
provident A sum of `Ten
fund, Pfizer Thousand from
(ii) First floor shares and central pool will
shall belong to State Bank of be spent towards
defendant No.1. India and education etc of
Defendant No.1 Hapur daughter of maid-
shall also get `1 savings servant of
Lakh from accounts. deceased.
central pool for
completion of
construction of After giving
1st floor. money to
defendants Nos.2
and 3 from
(iii) Defendant central pool, the
No.2 shall have remaining money
right to in the central
construct second pool shall be
floor of the suit shared equally
property. He between the
shall also get `3 plaintiffs.
Lakhs from
central pool.
3. Will dated (i) Ground floor Unit Trust of A central pool of
August 12, and garage shall India, FDRs, money shall be
1988 belong to Saving created from the
Ex.DW- defendant No.3. accounts, money received
2/10 post office, from cash assets
provident of the deceased.
(ii) First floor fund scheme,
shall belong to Pfizer shares
defendant No.2. and national A sum of Rupees
savings .Ten Thousand
certificates. from central pool
(iii) Second will be spent
floor which has towards
a servant quarter education etc of
only shall daughter of maid-
belong to servant of
defendant No.1. deceased.
Defendant No.1
shall get a sum
of Rupees 2 A sum of
Lakhs from `5Lakhs shall be
central pool for given to plaintiff
raising No.1.
construction on
second floor.
Servant quarter Remaining
on the second money in the
floor shall also central pool shall
belong to belong to plaintiff
defendant No.1. No.2.
4. Will dated (i) Ground floor Unit Trust of A central pool of
September and garage shall India shares, money shall be
2, 1988 belong to National created from the
Ex.DW-1/5 defendant No.3 Saving money received
Certificates, from cash assets
FDRs, saving of the deceased.
(ii) First floor accounts Post
shall belong to Office,
defendant No.1. Provident
Fund Scheme
After giving
accounts and
money to
(iii) Second Pfizer shares.
defendants No.2
floor which has
from central pool,
a servant quarter
the remaining
only shall
money in the
belong to
central pool shall
defendant No.2.
be shared
Defendant No.2
between the
shall get a sum
plaintiff No.1 and
of Rupees 2
plaintiff No.2 in
Lakhs from
the proportion of
central pool for
80% and 20%
raising
respectively.
construction on
second floor.
Servant quarter
on the second
floor shall also
belong to
defendant No.2.
(iv) Driveway of
suit property
shall be used by
all of his sons
who reside in
the suit
property.
5. Will dated (i) Ground floor FDRs, A central pool of
June 10, shall belong to National money shall be
1991 defendant No.1. Savings created from the
Ex.DW-1/4 Defendant No.1 Certificates, money received
shall pay a sum Unit Trust of from cash assets
of Rupees One India shares, of the deceased.
and half lakhs to Saving
defendant No.3 account,
i.e. amount Provident After giving
spend by Fund money to
defendant No.3 Scheme, Post defendants No.2
towards Office, State from central pool,
renovation of Bank of India the remaining
ground floor. and Pfizer money in the
All personal shares. central pool shall
effects lying on be shared equally
ground floor between the
belong to plaintiffs.
defendant No.3
and shall be
returned to him.
(ii) First floor
which is
partially built
shall belong to
defendant No.3.
(iii) Second
floor which has
one room shall
belong to
defendant No.2.
Defendant No.2
shall also get a
sum of Rupees
One Lakh from
central pool.
6. Will dated (i) Ground floor, FDRs, saving Cash assets of the
September garage and accounts, deceased shall be
12, 1991 furniture lying Unit Trust of shared equally by
Ex.DW-1/3 in ground floor India shares, the plaintiff No.1
shall belong to State Bank of and defendant
defendant No.3. India No.2.
Provident
Fund
(ii) First floor Scheme, Post
shall belong to Office
defendant No.1. National
Savings
Scheme,
(iii) Second Pfizer shares
floor shall and national
belong to saving
plaintiff No.2. certificates.
(iv) Driveway of
suit property
shall be used by
all residents
thereof.
7. Will dated (i) Ground floor, Unit Trust of A central pool of
September garage and India shares, money shall be
15, 1991 furniture lying FDRs, State created from the
Ex.TD-2/2 on ground floor Bank of India money received
shall belong to Provident from cash assets
defendant No.3. Fund of the deceased.
Scheme, Post
Office
(ii) First floor Saving The money in
shall belong to Scheme, central pool as
defendant No.1. Saving also the
Defendant No.1 Accounts, contributions
shall contribute Pfizer shares made by
a sum o Rupees and Saving defendants Nos.1
Two Lakhs to Accounts in and 2 in central
central pool. Post Office. pool shall be
shared equally by
the plaintiffs.
(iii) Second
floor and
servant quarter
constructed
therein shall
belong to
defendant No.2.
Defendant No.2
shall contribute
a sum of `2
Lakhs to central
pool.
(iv) Driveway
can be used by
all residents of
the suit
property.
Note: Defendant
No.3 shall not
contribute any
sum to central
pool as he had
supervised
construction of
suit property
and spent lot of
money in
construction.
8. Will dated (i) Ground floor FDRs, Cash assets and
January 04, shall belong to National Rupees Five
1992 defendant No.3. Saving Lakhs paid by
Ex.DW- Certificates, defendants Nos.2
1/1. Unit Trust of and 3 shall be
(ii) First floor India shares, shared equally by
shall belong to State Bank of the plaintiffs.
defendant No.1 India
upon payment Provident
of Rupees Five Fund
Lakhs. Scheme, Post
Office
National
(iii) Second Savings
Floor shall Scheme,
belong to Saving Bank
plaintiff No.1 Accounts and
upon payment Pfizer shares.
of Rupees Five
Lakhs.
9. Will dated (i) Ground floor, Unit Trust of A central pool of
January 14, garage and India, FDRs, money shall be
1992 personal effects Post Office created from the
Ex.TD-2/1 lying on ground National cash assets of the
floor shall Scheme, Post deceased.
belong to Office
defendant No.3. Saving Bank,
Provident The money in
Scheme and central pool as
(ii) First floor Pfizer shares. also the
shall be owned contributions
by defendant made by
No.1. Defendant defendants Nos.1
No.1 shall and 2 in central
contribute a sum pool shall be
of `Three Lakhs shared equally by
towards Central the plaintiffs.
Pool.
(iii) Second
floor and
servant quarter
constructed
therein shall
belong to
defendant No.2.
Defendant No.2
shall contribute
a sum of `Three
Lakhs towards
Central Pool.
37. At the outset it needs to be highlighted that save and except the
Will dated January 14, 1992 Ex.TD-2/1, no other Will contains any
reasons for the bequests made in said Wills. The reason contained in the
Will Ex.TD-2/1 dated January 14, 1992 for the bequest made under said
Will is that the deceased is desirous that all his five children should settle
in Delhi and since they own houses in Delhi the plaintiffs would not be
bequeathed any portion of the suit property.
38. Vide impugned judgment and decree dated November 18, 2010 the
Single Judge has dismissed the suit filed by the plaintiffs and held that
Will Ex.TD-2/1 dated January 14, 1992 is the last legal valid testament of
the deceased.
39. With respect to issue No. (i) it has been held by the learned Single
Judge that:-
(i) Burden to prove that the suit property was ancestral in nature was
upon the plaintiffs which burden has been failed to be discharged;
(ii) Plaintiffs have led no cogent evidence to establish that the status of
the suit property was ancestral;
(iii) Merely because there is a passing reference to the suit property as
an ancestral property in the letters Ex.D-2/8 and Ex.P-3 dated July 20,
1988 (written by the deceased to defendant No.2) and November 12/30
November, 1991 (written by the defendant No.2 to plaintiff No.1)
respectively the suit property would not automatically become ancestral
property, for in a suit for partition, the reference to the suit property as
ancestral in some correspondences exchanged between the parties to the
suit would not by itself be sufficient to effectively conclude that the status
of the suit property is ancestral;
(iv) Best evidence to prove nature of the suit property was the lease-
deed dated March 22, 1963 (an undisputed document) regarding
allotment of the suit property by L&DO wherein the deceased has been
shown as the recorded owner of the suit property. Had the allotment been
made to the deceased in lieu of the ancestral properties left behind by him
in Pakistan then said fact would have certainly found a mention in the
lease-deed dated March 22, 1963 or the documents accompanying said
lease-deed; and
(v) The inescapable conclusion which emerges from the lease-deed
dated March 22, 1963 is that the suit property is the self-acquired
property of the deceased.
40. With respect to issues Nos. (ii) and (iii) it has been held by the
learned Single Judge that:-
(i) It is not necessary to examine the validity of Will Ex.DW-1/1 dated
January 04, 1992 for it is neither admissible in evidence nor an admitted
document inasmuch as attesting witnesses to said Will have not been
examined by the defendant No.1 who produced said Will or by any other
party to the suit;
(ii) The testimony of the attesting witnesses to the Will Ex.TD-2/1
dated January 14, 1992 viz. S.S.Butalia and Sukhbir Singh inspires
confidence when seen in light of the fact that it is an undisputed fact that
the Will Ex.TD-2/1 has been handwritten by the deceased and bears his
signatures; the legal position being that holograph Wills i.e. handwritten
Wills carry a greater presumption in favour of its genuineness, for the
reason, the mind of testator in physically writing out his own Will is more
apparent in holograph Will than where his signatures alone appear to be
appended either on a typed script or on a script written by somebody else;
(iii) The testimony of Dr.B.G.Kachru PW-3, that the deceased was
suffering from senile dementia and was forgetful and could not
understand nature and consequences of his acts during last days of his life
does not inspire confidence for the reasons:-
(a) The symptoms mentioned by witness i.e. B.G.Kachru to conclude
that the deceased was suffering from senile dementia are general
symptoms of dementia;
(b) B.G.Kachru had medically examined the deceased on three
occasions only;
(c) The testimony of B.G.Kachru was not based on any record;
(d) B.G.Kachru claimed in his testimony that he can recall the
treatment given by him to his patients even after thirteen years but he
could not give the names of even ten patients examined by him in
December, 1991, which would evidence his contrived testimony;
(e) B.G.Kachru had stated in his testimony that a person suffering
from senile dementia cannot always write coherently whereas in rebuttal
evidence the witness contradicts himself by stating that a person suffering
from senile dementia can write coherently if asked to write on dotted
lines or given a draft to copy it but it depends upon the degree of
dementia;
(f) B.G.Kachru has nowhere stated in his testimony that what was the
degree of senile dementia which the deceased was suffering;
(g) Despite the fact that she is a doctor and used to medically attend
the deceased the plaintiff No.2 has neither stepped into the witness box to
corroborate the testimony of Dr.B.G.Kachru nor produced any medical
record pertaining to the illness/treatment of the deceased; and
(h) No suggestion has been given to the attesting witnesses to Will
Ex.TD-2/1 to the effect that the deceased was made to write on dotted
lines or was given a draft to copy at the time of execution of Will Ex.TD-
2/1;
(iv) The entry Ex.PW5/2 made in Death Register of RML Hospital to
the effect that cause of death of deceased was senile dementia with
aspiration is suspicious for the reason Senile Dementia by itself cannot
possibly be a cause of death whereas aspiration can be. Aforesaid entry in
Death Register is superfluous because senile dementia with aspiration can
never be the cause of death. In fact, aspiration alone can be the cause of
death. This renders entry Ex.PW-5/2 made in Death Register of RML
Hospital quite doubtful, more so in the absence of any record regarding
illness/treatment of the deceased;
(v) Two prominent symptoms of senile dementia are forgetfulness and
state of frequent or regular confusion in carrying out routine activities or
decision making, which state of mind is not depicted in the letter Ex.P-2
dated February 24, 1992 written by the deceased to plaintiff No.1;
(vi) There are three broad degrees of a disease viz. mild, moderate or
severe. The testimony of Dr.B.G.Kachru PW-3, does not establish the
degree of senile dementia suffered by the deceased;
(vii) The fact that the deceased had not bequeathed any portion of the
suit property to the plaintiffs would not make Will Ex.T-D2/1 invalid;
(viii) The circumstance that multiple Wills have been executed by the
deceased during his lifetime by itself cannot be a ground to discard Will
Ex.T-D2/1 for the reason except Will Ex.T-D2/1 no other Will is proved
or admitted to have been executed by the deceased. Furthermore, the
letter Ex.P-3 dated November 12.30, 1991 written by the defendant No.2
to plaintiff No.1 reveals that during the lifetime of deceased there had
been inter-se fights and discord amongst the children of the deceased
regarding division of the suit property. This could be the reason for
execution of Wills prior to the execution of Will Ex.T-D2/1;
(ix) It is meaningless that the defendant No.1 owned a house in Delhi
yet the deceased had bequeathed a portion of the suit property to him for
it has not been stated in Will Ex.T-D2/1 that the deceased is bequeathing
the suit property to the defendants for they do not own any house in
Delhi;
(x) The burden was upon the plaintiffs to establish that execution of
Will Ex.T-D2/1 by the deceased is a result of undue influence exercised
upon him by the defendants in view of the facts that it has been
established from evidence on record that Will Ex.T-D2/1 has been
handwritten and signed by the deceased in the presence of attesting
witnesses to said Will, which burden has not been discharged by the
plaintiffs for they have led no worthwhile evidence to establish that
execution of Will Ex.T-D2/1 by the deceased is a result of undue
influence exercised upon him by the defendants; and
(xi) Evidence on record makes it crystal clear that Will Ex.T-D2/1 has
been executed by the deceased out of his own free will and in a state of
sound disposing mind in the presence of two attesting witnesses viz.
S.S.Butalia and Sukhbir Singh whose evidence is unimpeachable and
completely reliable.
41. Aggrieved by the afore-noted impugned judgment and decree dated
November 18, 2009 passed by the Single Judge the plaintiffs have filed
the present appeal.
42. During the hearing of the appeal, following submissions were
advanced by the counsel appearing for the plaintiffs:-
A It is settled law that in order to execute a Will the testator must
have a sound disposing mind and memory. In the instant case, the
deceased was not having sound disposing mind at the time of execution
of Will Ex.T-D2/1 dated January 14, 1992 as he was suffering from senile
dementia around and on the date of the execution of Will Ex.TD-2/1.
Such being the position, Will Ex.T-D2/D1 is invalid.
B The evidence of Dr.B.G.Kachru PW-3, clearly established that the
deceased was suffering from senile dementia during the last days of his
life. The testimony of Dr.B.G.Kachru established that the 'deceased had
lost the powers & faculties of regulating his actions and conduct.
Deceased had become incapable of looking after himself & managing his
own affairs - his memory was failing him - Power of self control was lost
- power of reasoning stood interfered with, his judgment had become
weak and faulty. Deceased had not sufficient mental capacity to
understand the nature & consequences of his acts. Deceased was
impulsive & forgetful. He appeared to be under acute mental strain &
stress‟. Dr.B.G.Kachru PW-3, was cross-examined at length by the
defendants but nothing was elicited therefrom which could discredit his
testimony. Furthermore, the entry Ex.PW-5/2 made in the Original Death
Register of RML Hospital that the cause of death of deceased was „Senile
Dementia with Aspiration‟ corroborates the testimony of Dr.B.G.Kachru
that the deceased was suffering from senile dementia during last day of
his life. Not only this, the recordings contained in the letter Ex.P-2 dated
February 24, 1992 written by the deceased to the plaintiff No.1 to the
effect that since last two months the deceased has been ill and with one
thing and then another thing leaves no manner of doubt that the deceased
was not enjoying good health in the last days of his life, more particularly
around the time of execution of Will Ex.T-D2/1 dated January 14, 1992.
Such being the position, the Single Judge committed an error in terming
Dr.B.G.Kachru PW-3, as an unreliable witness.
C It is well settled that the propounder of the Will should prove the
execution of the same in accordance with Section 63 of the Indian
Succession Act, 1925 and prove the same in accordance with Section 68
of the Indian Evidence Act, 1872. If there are suspicious circumstances
surrounding the execution of the Will, the onus becomes greater on the
part of the propounder and they must lead evidence to clear those
suspicions and satisfy the Court that the Will propounded was the last
testament of the testator. A circumstance would be suspicious when it is
not normal or is not normally expected in a normal situation or is not
expected of a normal person. In the instant case, as many nine
'inconsistent' Wills have been executed by the deceased during his
lifetime. Surely, it is not normal for a person to execute not one or two
but as many as nine inconsistent Wills in his lifetime. The circumstance
that the deceased had executed nine inconsistent Wills during his lifetime
is itself sufficient to establish a non-testamentary state of mind. It was
incumbent upon the defendants to have led the evidence to clear the
suspicious circumstance of the deceased having executed nine
inconsistent Wills in his lifetime. However, the defendants have neither
led any evidence nor offered any reasonable explanation, much less
satisfactory, as to why the deceased had executed nine inconsistent Wills
in his lifetime. The learned Single Judge has failed to deal with the aspect
of execution of multiple inconsistent Wills by the deceased in his
lifetime. In view of failure of the defendants to explain the execution of
multiple inconsistent by the deceased in his lifetime Will Ex.T-D2/1
deserves to be discarded and cannot be held as last legal valid testament
of the deceased, more particularly when it is seen that the last two-three
lines in Will Ex.T-D2/D1 are cramped up.
D Letter Ex.P-2 dated February 24, 1992 written by the deceased to
the plaintiff No.1 nearly a month after the execution of Will Ex.T-D2/1
dated January 14, 1992 brings out that the deceased was very fond of the
plaintiff No.1. In view of deep affection between the plaintiff No.1 and
deceased, it does not lie to reason and logic that the deceased would
bequeath suit property all his sons except the plaintiff No.1. In said
regards, it was further highlighted that the reason given in Will Ex.T-
D2/1 dated January 14, 1992 for not bequeathing a portion of the suit
property to the plaintiff No.1 that the deceased is desirous that all his five
children should settle in Delhi and plaintiff No.1 owns a house in Delhi is
palpably false inasmuch as even defendant No.2 owned a house in Golf
Links, Delhi as admitted by him in his testimony.
43. Per contra, the counsel appearing for the defendants supported the
impugned judgment and decree dated November 18, 2010. The
arguments advanced by the defendants can be summarized as follows:-
A It is settled law that where testamentary capacity of a testator is
proved by the evidence of competent and disinterested witnesses, the fact
that the testator was admittedly in a state of health which affected his
memory and rendered him incapable of managing his affairs falls far
short of establishing that he was incapable of considering what
dispositions of his property he should make in favour of members of his
family or that he did not understand the dispositions which in fact he did
make. In the instant case, the evidence of attesting witnesses to Will
Ex.T-D2/1 dated January 14, 1992 viz. S.S.Butalia and Sukhbir Singh
establishes that the deceased was in a state of sound disposing mind at the
time of execution of Will Ex.T-D2/1 dated January 14, 1992. The
evidence of B.G.Kachru PW-3, who is stated to have examined the
deceased on mere three occasions cannot be accepted against the positive
testimonies of competent and disinterested attesting witnesses to Will
Ex.T-D2/1 dated January 14, 1992 who prove testamentary capacity of
the deceased at the time of execution of Will Ex.T-D2/1 dated January
14, 1992.
B A perusal of all the nine Wills executed by the deceased shows that
the said nine Wills are fairly consistent with each other. Save and except
Wills Ex.DW-1/3 and Ex.DW-1/1 dated September 12, 1991 and January
04, 1992 respectively the deceased has not bequeathed any portion of the
suit property to the plaintiffs in any of the Wills.
C Letter Ex.D-2/8 dated July 20, 1988 written by the deceased to the
defendant No.2 that the deceased was very fond of defendant No.2 and
had invited him i.e. defendant No.2 to reside in the suit property.
Furthermore, vide letter dated July 20, 1988 the deceased had assured the
defendant No.2 that he would get to reside in the suit property even after
his death. Will Ex.T-D2/1 dated January 14, 1992 is in harmony with the
aforesaid assurance given by the deceased in the letter dated July 20,
1988 inasmuch as the deceased had bequeathed second floor of the suit
property to the defendant No.2 vide said Will.
D The law raises a great presumption in favour of the genuineness of
a holographic Will. There is strong presumption of regularity of
holographic Will and of its being duly executed and attested. In the
decision reported as AIR 1964 SC 529 Shashi Kumar Banerjee & Ors.
Vs. Subodh Kumar Banerjee it was held by the Supreme Court that the
propounder of a holographic Will is only required to formally prove the
Will and very little evidence is required to prove due execution and
attestation of the Will. In the instant case, Will Ex.T-D2/1 dated January
14, 1992 was a holographic Will i.e. written by the deceased himself. In
view of categorical and unimpeachable evidence of attesting witnesses
S.S.Butalia and Sukhbir Singh the inescapable conclusion which emerges
is that Will Ex.T-D2/D1 was executed by the deceased out of his own
free will and in a state of sound disposing mind.
E A perusal of the letters Ex.DW-1/2 and Ex.T-D2/6 dated January
14, 1992 written by the deceased to DESU/MCD, letter Ex.T-D2/20 dated
February 25, 1992 written by the deceased to House Tax Department and
letter Ex.P-2 written by the deceased to the plaintiff NO.1 (relevant
contents whereof have been noted by us in the foregoing paras) leaves no
manner of doubt that the deceased was very much in control of his affairs
and enjoying good mental health around the time of execution of Will
Ex.T-D2/1 dated January 14, 1992.
44. From the afore-noted conspectus of facts, it is apparent that the
core issue which has arisen for consideration in the present appeal is :
Whether Will Ex.T-D2/1 dated January 14, 1992 is the last legal and
valid testament of the deceased. (Be it noted here that the plaintiffs that
the finding returned by the Single Judge that the suit property was the
self-acquired property of the deceased has not been challenged by the
plaintiffs in the present appeal).
45. 'Will' as defined under Section 2(h) of the Indian Succession Act
means 'the legal declaration of the testator with respect to his property
which he desires to be carried into effect after his death'. The essential
characteristic of a will, as is well known, is that it is a mere declaration of
an intention so long as the testator is alive, a declaration which may be
revoked or varied by the testator during his lifetime; it is a disposition
that requires the testator's death for its consummation and is but
ambulatory or without fixed effect until the happening of this event. The
document is a will if it contains specific words of bequest to come into
effect after the death of the testator.
46. A will is a solemn document. By it, a dead man entrusts to the
living to carry out his wishes and since it is impossible that he can be
called either to admit or deny his signatures or to explain the
circumstances in which it was executed, duty of care is cast on the
shoulders of the court while considering a probate case.
47. The rules governing the propounding of a will are two. First, the
onus probandi lies in every case upon the party propounding the will and
he must satisfy the conscience of the Court that the instrument so
propounded is the last will of the testator. Second, if a party actively
participates in the execution of a will under which he takes a benefit, it is
a circumstance to excite the suspicion of the Court and calls upon the
court to be vigilant and zealous in examining the evidence on record.
48. The strict meaning of the term 'onus probandi' is this, that if no
evidence is given by the party on whom the burden is cast, the issue must
be found against him. In all cases the onus is imposed on the party
propounding the will. It is in general discharge by proof of capacity and
the fact of execution from which the knowledge of and assent to the
contents of the instrument are assumed.
49. The nature of proof required to prove a will is not different from
those required to prove other documents except the requirement of
attestation prescribed under Section 63 of the Indian Succession Act. The
proof is to be tested on the usual satisfaction of a prudent mind. What
distinguishes a will from other document is that the testator would not be
available to testify the same as his last will. This introduces an element of
solemnity in the decision. Even then the Court has to proceed with the
enquiry in the same manner as is done in respect of any other document.
The propounder is called upon to show by satisfactory evidence that (i)
the will was signed by the testator in the presence of two attesting
witnesses; (ii) at the relevant time he was in sound and disposing state of
mind; (iii) he understood the nature and effect i.e., the content of the
disposition; (iv) he put the signature to the document of his own free will.
The onus of the propounder can be said to be discharged on proof of the
above essential facts.
50. The testamentary capacity of the testator is required to be proved
under Section 59 of the Indian Succession Act, 1925. As to the testator's
capacity, he must, in the language of the law, have a sound and disposing
mind and memory. In other words, he ought to be capable of making his
will with an understanding of the nature of the business in which he is
engaged, a recollection of the property he means to bequeath, of the
persons who are the objects of his bounty and the manner in which it is to
be distributed between them.
51. Sound testamentary capacity means that these conditions must
exist at one and same time: (i) the testator must understand that he is
giving his property to one or more persons; (ii) he must also understand
and recollect the extent of his property and (iii) he must also understand
the nature and extent of claims upon him both of those whom he is
including in his will and those whom he is excluding from the will. The
testator must realize that he is seizing a will and his mind and will must
accompany his physical act of execution.
52. The testator's age, illness and mental weakness are all important
considerations in determining if the will had been got executed as a result
of importunity or undue influence. Illness of the testator, mental or
physical, militates against the voluntary character of the will.
53. The question of sound mind is a dominant question in a court of
probate. The test of sound disposing mind is in law a workable test. It
means in plain language an appreciation of the fact that the man is
making a will, an appreciation of the contents of that will and an
appreciation of the nature of the disposition that he is making having
regard to the claims of his family members.
54. What is required is for the validity of the will is that the testator
should have been able at the time of making it, to comprehend the nature
and effect of disposition, and should have sufficient memory and
intelligence to form a proper judgment regarding it and should have
freely decided to make it.
55. Section 12 of the Indian Contract Act, 1872 prescribes that a
person is said to be of sound mind, if at the time he makes a contract, he
is capable of understanding it and forming a rational judgment to this
effect. Mere ability to sign one's name, nor mere consciousness, nor the
fact that the testator was able to maintain ordinary conversation and
answer familiar and easy questions does not necessarily constitute a
sound and disposing mind. The testator must be capable of disposing of
his property with understanding and reason. He must be able to appreciate
his property and form a judgment with respect to the parties whom he
chooses to benefit by it after his death. The question of sound and
disposing mind is a question of fact and of degree of mental capacity in
each case.
56. Cases in which the execution of the will is surrounded by
suspicious circumstances stands on different footing. In such cases, the
initial onus upon the propounder of the will very heavy; and unless
satisfactorily discharged, the Court would be reluctant to treat the
document as the last will of the testator. Where the propounder takes a
prominent part in the execution of the will conferring benefit upon him,
that is a suspicious circumstance attending the execution of the will; the
propounder is required to remove the doubt by clear and satisfactory
evidence. In other words the propounder must satisfy the conscience of
the Court that the document is the last will and testament of the testator.
57. Any and every circumstance is not a suspicious circumstance. A
circumstance would be suspicious when it is not normal or is not
normally expected in a normal situation or is not expected of a normal
person.
58. Where the caveator alleges undue influence, fraud and coercion,
the onus is on him to prove the same. Even if there is no such plea but the
circumstances give rise to doubts, it is for the propounder to satisfy the
conscience of the Court.
59. Keeping afore-noted legal principles in mind, we proceed to
determine whether Will Ex.T-D2/1 dated January 14, 1992 is the last
legal and valid testament of the deceased.
60. In order to find out answer to the above question, let us note the
basic facts of the case.
61. It is not seriously disputed by the parties to the suit that the
deceased had executed as many as nine Wills in his lifetime. First one
being; Will dated May 18, 1982 and last one being; Will Ex.T-D2/1 dated
January 14, 1992.
62. Out of nine Wills executed by the deceased, one Will viz. Will
Ex.T-P1/1 dated February 04, 1988 has been produced by the plaintiffs;
four Wills viz. Will Ex.DW-1/5 dated September 02, 1988, Will Ex.DW-
1/4 June 10, 1991, Will Ex.DW-1/3 dated September 12, 1991 and Will
Ex.DW-1/1 dated January 04, 1992 have been produced by the defendant
No.1; three Wills viz. Will Ex.TP-1/1 dated August 12, 1988, Will Ex.T-
D2/2 dated September 15, 1991 and Will Ex.TD-2/1 dated January 14,
1992 have been produced by the defendant No.2 and one Will dated May
18, 1982 has been produced by the defendant No.3.
63. The plaintiffs admit that Will Ex.T-D2/1 dated January 14, 1992 is
in the handwriting of the deceased and contains his signatures. They
assail the validity of Will Ex.T-D2/1 on the ground that the deceased was
not in a state of sound disposing mind at the time of execution of said
Will. The case set up by the plaintiffs is that after the death of his wife
(mother of parties in the present case) on February 15, 1985 the deceased
was a shattered man and completely lost his bearings. During the last
days of his life the deceased was suffering from senile dementia as a
result whereof the deceased was a bundle of nerves, totally incoherent
and confused and dependent on others for his daily needs. Taking
advantage of ill-health of the deceased, particularly his poor mental
health, the defendants made the deceased to write on dotted lines and
subsequently gave the shape of 'Wills' to the aforesaid writings of the
deceased by getting them attested from their known persons.
64. Relevant would it be to note that the suit property comprises of
ground, first and second floors.
65. The first in the series of Wills executed by the deceased is the Will
dated May 18, 1982. As per said Will, the suit property has been
bequeathed to Jaswant Kaur, the wife of the deceased. After the death of
Jaswant Kaur, the suit property was to be exclusively owned by the
defendant No.3. The movable assets of the deceased were to be equally
divided between all five children of the deceased.
66. Nearly three years thereafter, the deceased executed Will Ex.T-
P1/1 dated February 04, 1988 whereby the deceased had bequeathed
ground, first and second floors of the suit property to the defendants
Nos.3, 1 and 2 respectively. Central pool of money was to be created
which was to be shared equally by the plaintiffs.
67. Nearly four months thereafter, the deceased executed Will Ex.DW-
2/10 dated August 12, 1988 whereby the deceased had bequeathed
ground, first and second floors of the suit property to the defendants
Nos.3, 2 and 1 respectively. Central pool of money was to be created. A
sum of Rupees Five Lakhs from central pool was to be paid to the
plaintiff No.1. Remaining money in the central pool was to belong to the
plaintiff No.2.
68. Nearly twenty one days thereafter, the deceased executed Will
Ex.DW-1/5 dated September 02, 1988 whereby the deceased had
bequeathed ground, first and second floors of the suit property to the
defendants Nos.3, 1 and 2 respectively. Central pool of money was to be
created which was to be shared by the plaintiffs in the proportion of 80-
20.
69. Nearly three years thereafter, the deceased executed Will Ex.DW-
1/4 dated June 10, 1991 whereby the deceased had bequeathed ground,
first and second floors of the suit property to the defendants Nos.1, 3 and
2 respectively. Central pool of money was to be created which was to be
shared equally by the plaintiffs.
70. Three months thereafter, the deceased executed Will Ex.DW-1/3
dated September 12, 1991 whereby the deceased had bequeathed ground,
first and second floors of the suit property to the defendants Nos.3 and 2
and plaintiff No.2 respectively. No central pool of money was created.
Cash assets of the deceased were to be shared equally by the plaintiff
No.1 and defendant No.1.
71. Three days later, the deceased executed Will Ex.T-D2/2 dated
September 15, 1991 whereby the deceased had bequeathed ground, first
and second floors of the suit property to the defendants Nos.3, 1 and 2
respectively. Central pool of money was created which was to be shared
equally by the plaintiffs.
72. Three and half months later, the deceased executed Will Ex.DW-
1/1 dated January 04, 1992 whereby the deceased had bequeathed ground,
first and second floors of the suit property to the defendants Nos.3 and 1
and plaintiff No.1 respectively. Central pool of money was created which
was to be shared equally by the plaintiff No.2 and defendant No.2.
73. Ten days later, the deceased executed Will Ex.T-D2/1 dated
January 14, 1992 whereby the deceased had bequeathed ground, first and
second floors of the suit property to the defendants Nos.3, 1 and 2
respectively. Central pool of money was created which was to be shared
equally by the plaintiffs.
74. An analysis of the afore-noted facts and in particular that nine
Wills were executed by the deceased brings out the possibility of two
facts. The first being the result of the deceased suffering from senile
dementia that he was fixed in his mind with the idea looming large of he
being required to execute a Will and forgetting that he had already
executed one. After having executed a Will, he forgot a few days after or
perhaps a few months after that he had executed a Will and thus he
executed another Will. Interlinked with this is the possibility that the
deceased would not recollect whom he had to bequeath what. The second
being the mind of the testator being so weak and wavering that suddenly
he would pick up a pen and write something on a piece of paper. This
penning of thought cannot be equated as a conscious decision which is
the hallmark of a sound and a stable mind.
75. The evidence of Dr.B.G.Kachru PW-3 and entry Ex.PW-5/2 made
in the original Death Register of RML Hospital is to the effect that the
deceased was suffering from senile dementia. Senile dementia is the
disease of brain caused loss of cognitive functions (reasoning, memory
and other mental abilities) due to trauma and normal ageing. Senile
dementia impairs the capacity of person to carry out everyday acts such
as driving, household chores and personal care etc. In addition thereto,
persons suffering from senile dementia experience decline in intellectual
functions like use of language and numbers, awareness of what is going
on around them, judgment and ability to reason and solving problems etc.
Perhaps, the confusion in the mind of the deceased regarding manner of
distribution between his children was caused due to senile dementia. (Be
it noted here that it has also been observed by the Single Judge two
prominent symptoms of senile dementia are forgetfulness and state of
frequent or regular confusion in carrying out routine activities or decision
making). Be that as it may. The fact of the matter is that the deceased had
no clear understanding about the manner in which he distributed his
assets between his children.
76. As already noted by us, in order to execute a valid Will the testator
must be having sound testamentary capacity at the time of execution of
Will. Meaning thereby, the testator ought to e capable of making his will
with an understanding of the nature of the business in which he is
engaged, a recollection of the property he means to bequeath, of the
persons who are the objects of his bounty and the manner in which it is to
be distributed between them.
77. In view of the fact that the deceased had no understanding about
the manner in which he distributed his assets of his children at the time of
making of Will Ex.T-D2/1 dated January 14, 1992 it has to be held that
the deceased was not having sound testamentary capacity at the time of
execution of Will Ex.T-D2/1 dated January 14, 1992. As a necessary
corollary thereof, it has to be held that Will Ex.T-D2/1 dated January 14,
1992 is not last legal and valid testament of the deceased.
78. There is another aspect of the present case.
79. The propounder of Will Ex.T-D2/1 dated January 14, 1992 is
defendant No.2.
80. In his examination-in-chief defendant No.2 deposed that he found
Will Ex.T-D2/1 dated January 14, 1992 in the cupboard of the deceased
along with his pension, provident fund papers etc after the death of the
deceased. The defendant No.2 gave a completely different version in his
cross-examination with respect to his possession of Will Ex.T-D2/1 dated
January 14, 1992. In his cross-examination, the defendant No.2 stated that
on January 16, 1992 the deceased showed him Will Ex.T-D2/1 dated
January 14, 1992 and asked him to make photocopies of the same. After
making photocopies he returned (original) Will Ex.T-D2/1 dated January
14, 1992 to the deceased. The deceased kept Will Ex.T-D2/1 dated
January 14, 1992 under a newspaper in the top shelf of his cupboard.
After the death of deceased he i.e. defendant No.2 retrieved Will Ex.T-
D2/1 dated January 14, 1992 from aforesaid cupboard.
81. The letter Ex.P-3 dated November 12/30, 1991 written by the
defendant No.2 to the plaintiff No.1 brings out that the children of the
deceased were embroiled in a bitter fight over the distribution of suit
property. The letter further brings out that the defendant No.2 was very
angry with his siblings regarding distribution of the suit property and
highly apprehensive that his siblings would try that he i.e. defendant No.2
does not get his share in the suit property. Most significantly, it was
stated by the defendant No.2 in the letter dated November 12/30, 1991
that his siblings would not succeed in their attempt to disinherit him from
the suit property as „he knows how to play his cards‟. It also needs to be
noted that defendant No.2 has not been given a portion of the suit
property in Will Ex.DW-1/1 dated January 04, 1992 which was executed
immediately prior to Will Ex.T-D2/1 dated January 14, 1992. In these
circumstances, the possibility that the defendant No.2 „played his cards‟
and took advantage of poor mental health of deceased and him write on
dotted lines cannot be ruled out, more so when we find that there is
glaring contradiction in the version of defendant No.2 regarding his
possession of Will Ex.T-D2/1 dated January 14, 1992.
82. In view of above discussion, it has to be held that Will Ex.T-D2/1
dated January 14, 1992 is not the last legal and valid testament of the
deceased.
83. The evidence on records suggests that Will dated May 18, 1982
was clearly revoked by the deceased. But, by which Will? We do not
know. Certainly not by Will Ex.T-D2/1 dated January 14, 1992. From the
wavering and confused nature of bequests made by the deceased it is
most difficult for us to determine that which of the Wills executed by the
deceased is the correct manifestation of the intention of the deceased
regarding distribution of the suit property. In any case, none of the other
eight Wills executed by the deceased have been propounded by any of the
parties to the suit. In that view of the matter, it has to be held that the
deceased had died intestate. As a result thereof, the suit for partition of
the suit property filed by the plaintiffs had to succeed.
84. We allow the appeal and set aside the impugned judgment and
decree dated November 18, 2010 and pass a preliminary decree declaring
share of each sibling i.e. the plaintiffs and the defendants to be 1/5 th i.e.
20%.
85. The suit is revived for further proceedings and parties shall appear
before the learned Single Judge when the suit would be listed for
directions on March 25, 2014.
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
MARCH 19, 2014
mamta
