Rajesh Sharma vs Krishan Kumar Sharma
2014 Latest Caselaw 1716 Del

7

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO 641/2002

%                                                       31st March, 2014

RAJESH SHARMA                                         ......Appellant
                          Through: Mr. Aseem Malhotra, Advocate

                          VERSUS

KRISHAN KUMAR SHARMA                        ...... Respondents

Through: Ms. Geetanjali Mohan, Advocate

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

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

Act, 1925 challenging the judgment of the probate court dated 3.8.2002

dismissing the probate petition as barred by time. I may note that probate

court has otherwise held that the Will in question dated 13.7.1989 of the

deceased testatrix Smt. Sneh Prabha Sharma was duly executed and attested,

and the deceased testatrix Smt. Sneh Prabha Sharma was of sound disposing

mind at the time of making of the Will. In this appeal cross-objections have

also been filed by the respondent, and who was respondent no. 2/objector

before the probate court. Cross-objections challenge the findings of the

probate court that the Will has been proved as the same was duly executed

and attested and the deceased testatrix Smt. Sneh Prabha Sharma was of

sound disposing mind at the time of making of the Will.

2. Learned counsel for the appellant has argued that the probate court

has committed an error in dismissing the petition as barred by time because

in the present case limitation does not arise from the date of the death of the

testatrix and limitation only arises on arising of a cause of action under

Article 137 of the Limitation Act, 1963 and which would be in knowledge of

the appellant that the objector/respondent is disputing the Will, and since no

such objection has been proved to have been raised by the

objector/respondent by leading of any evidence that the Will in question was

disputed to the knowledge of the appellant/petitioner three years prior to

filing of the probate petition, the probate petition cannot be dismissed as

being barred by time.

3. The Supreme Court has now held in the judgment passed in this very

case in Civil Appeal no. 1967/2009 that Limitation Act, 1963 applies to

filing of a probate petition. The first appeal filed in this Court was allowed

by a judgment of a learned single Judge of this Court on 5.7.2007 and it was

also held therein that Limitation Act, 1963 does not apply to a probate

petition. This judgment of the learned single Judge dated 5.7.2007 was

challenged in the Supreme Court, and the Supreme Court vide its judgment

dated 27.3.2009 in Civil Appeal no. 1967/2009 held that Article 137 of the

Limitation Act, 1963 applies to filing of a probate petition.

4. It is not disputed before me that there is no specific written notice or

any oral objection by the respondent/objector to the appellant that Will in

question has been disputed prior to three years of the filing of the petition.

The only argument urged on behalf of the respondent/objector is that since

the objector/respondent is living in 65 square yards of the property of the

testatrix situated at 51-A, East Azad Nagar, Delhi-110051, on this very

aspect itself that the objector was in possession of a part of the property is

sufficiently deemed objection to the Will of the deceased testatrix Smt. Sneh

Prabha Sharma to the knowledge of the appellant/petitioner for limitation to

commence on the death of Smt. Sneh Prabha Sharma on 9.7.1990. Reliance

is placed by the respondent upon a judgment of a learned single Judge of this

Court (Vikramajit Sen, J., as he then was) in the case of Pamela Manmohan

Singh Vs. State & Ors., 83(2000) DLT 469 and the judgment of a Division

Bench of this court in the case of Pratap Singh & Anr. Vs. State & Anr.,

173(2010) DLT 132 (DB).

5. In the case of Pamela Manmohan Singh (supra) para 7 of the

judgment is relied upon and which reads as under :

"7. In a decision of a Division Bench rendered in Hari Narain Vs . Subhash Chander, AIR 1985 Punjab & Haryana 211, the argument that no limitation had been prescribed in filing of an application for revocation of a probate granted under the Succession Act was referred to as an "astounding proposition of law put forth by the learned counsel for the Applicant". After discussing the law as enunciated by the Supreme Court, it was held by the learned Division Bench that Article 137 of the Limitation Act, 1963 would apply to any petition or application filed in a Court where no other period of limitation had been prescribed. After careful consideration I would extend the ratio of this decision mutates mutants to also cover cases pertaining to the grant of probate, where it can be fairly assumed that the Petitioner had knowledge that the Will was likely to be disputed. Article 137 of the Limitation Act, 1963 reads as under :

      Description of suit         Period of             Time from which
                                  Limitation            period begins to run

      137. Any other             three years            When the right
      application for which                             to apply accrues
      no period of limitation
      is provided elsewhere
      in this Division.

The period of three years would surely commence atleast from the date on which a legatee under a Will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by other persons especially the natural heirs of the Testatrix. By way of adumbration, hypothetically, a Will may have been executed in Delhi in 1950. The bequests made and dealt with therein may not have come into any dispute for several decades. It could be that some legatees were in possession of the properties with the tacit permission or approval of the other legatees,

which approval was subsequently withdrawn. So long as the rights of any particular legatee are to emanate and flow from the Will, probate proceedings ought to be filed atleast within three years from this conjectured withdrawal of permission. That would then be the latest date on which "the right to apply accrues". This would be the most appropriate and meaningful interpretation given to the words "when the right to apply occurs". The applicant in the present case must surely have been well aware that the Will would be indefatigably contested. His right to apply surely accrued on the death of the alleged Testatrix Dr. Raseel Kohil on 11.10.1987. Yet he chose not to initiate probate proceedings, and over a decade has passed thereafter.

6. It is argued that it must be held in the facts of the present case that the

right to sue for probate of the Will in question dated 13.7.1989 of the

deceased testatrix Smt. Sneh Prabha Sharma arose on her death on 9.7.1990,

and since the probate petition was filed on 12.4.1994, the probate petition is

barred by time. For the completion of narration I would like to state that

firstly the probate petition was filed on 12.4.1994, and the same was

dismissed as withdrawn with liberty to the appellant/petitioner to file a fresh

probate petition subject to payment of costs of Rs. 5,000/- to the

respondent/objector and the present probate petition was thereafter filed on

1.10.1996 after payment of costs to the respondent/objector. The order by

which the earlier probate petition was dismissed as withdrawn with

permission to file fresh is dated 25.9.1996 i.e the present probate petition has

been filed within a week of withdrawal of the earlier probate petition.

7. A right to sue accrues as per Article 137 of the Limitation Act, 1963

depending upon the facts of each case. Whereas in a particular case right to

sue may arise on the death of the testatrix inasmuch as circumstances would

show objections existing to a Will of the deceased even on the date of death

of the testatrix, in other cases merely from the date of death it is not

necessary that the right to sue accrues. The mere fact that the

respondent/objector was in possession of some part of the property cannot

mean that the petitioner/appellant has a deemed notice of objection to the

Will inasmuch as mere possession does not necessarily lead to an inference

of possession being claimed in derogation of a Will of a deceased testatrix/

Smt. Sneh Prabha Sharma in this case. I have already noted above that there

is no written document, whether of a legal notice or a letter or any other

documentary evidence such as a pleading in a court case, showing that three

years prior to filing of the probate petition the respondent/objector had

objected to the Will dated 13.7.1989 of the deceased testatrix Smt. Sneh

Prabha Sharma. Therefore, in the facts of the present case I am not inclined

to hold that cause of action accrued on the death of testatrix Smt. Sneh

Prabha Sharma.

8. So far as the judgment relied upon in the case Pratap Singh & Anr.

(supra) is concerned, the facts of that case are totally different because in the

said case sufficient evidence existed of the Will dated 11.3.1983 in that case

being disputed as early as in 1984 when a Civil Suit No. 1355/1984 was

filed, but, the probate petition was filed almost 14 years later on 5.9.1997

and hence held to be time barred. Therefore, the judgment in the case

Pratap Singh & Anr. (supra) will have no application to the facts of the

present case.

9. In view of the above, I hold that the probate petition cannot be

dismissed as being time barred having been filed three years after arising of

the cause of action inasmuch as the mere death of testatrix Smt. Sneh Prabha

Sharma on 9.7.1990 cannot be said to be arising of a cause of action for

filing of the probate petition in this case.

10. So far as the issue with respect to execution, and attestation of the

Will and soundness of mind of the deceased testatrix is concerned, as

already stated above, the probate court has held that these aspects are in

favour of the appellant/petitioner. The relevant paras of the judgment of the

probate court are paras 9 to 14 and the same read as under :

"The onus to prove that the Will dated 13.7.89 was made by the testatrix legally and validly in a sound disposing state of mind in presence of two attesting witnesses, was on the petitioner. In this regard the petitioner has examined Shri Ved Prakash Gupta, one of the attesting witnesses to the Will. Shri Ved Prakash Gupta testified that Smt. Sneh Prabha Sharma was his neighbour. On 13.7.1989 she had executed a Will in his

presence without any pressure, coercion or inducement, while in sound disposing mind. She had signed the Will in his presence at point-A. He signed the same at point-B and Miss Vijay Laxmi had signed it at point-C. He deposed that this Will was registered in the office of the Sub Registrar, Asaf Ali Road, Delhi, on 11.9.1989. At the time of registration, he had put his signature at point-D. Smt. Sneh Prabha Sharma, the testatrix signed at point E and affixed her thumb impression at point-F. He added that one Advocate Mr. Kapoor had also signed the Will at point-G. The contents of the said Will were read over to the testatrix in vernacular. The Will was proved as Ex. PW1/A. The witness was cross-examined at length. During cross- examination, the witness stated that the Will was drafted by Shri Sushil Chaddha Chartered Accountant and that he had not appended his signatures on the Will. He also clarified that he had read the contents of the said Will before he had signed the same. He stated that he could not give the full name of the Advocate Mr. Kapoor and his address, who had signed at point- G. He denied the suggestion that he had not signed the Will at point-B in presence of Smt. Sneh Prabha Sharma, the testatrix and Vijay Laxmi, another attesting witness to the Will. He also denied the suggestion that the Will Ex. PW1/1 was forged by him in collusion with the petitioner and Smt. Vijay Laxmi. He denied the suggestion that Smt. Sneh Prabha Sharma remained bed-ridden for the last about 12 years prior to her death. On this point, RW-6 Sh. Krishan Kumar Sharma (Respondent No. 2) deposed that Will Ex. PW1/1 was not signed by his mother at point-A. He stated that Vijay Laxmi, one of the attesting witnesses to the Will was his step-sister. He testified that his step-brother Umesh Kumar died at a young age as a result of which, his mother suffered a great mental shock and therefore, she used to remain ill. He stated that his mother was suffering from epilepsy even before the death of his step-mother. During cross-examination, the witness stated that he met his step- mother last in the year 1972-73, when she had herself come to him.

10. It has been urged by the learned counsel for the respondents that execution of the Will was done under

suspicious circumstances and that is why, only one of the attesting witness has been produced in the court. The other attesting witness to the will was Smt. Vijay Laxmi, step-sister of the respondent and natural sister of the petitioner. A perusal of the Will Ex. PW1/1 shows that the Will was presented for registration by Shri J.C. Chopra Advocate, who identified the testatrix, but the Will does not contain the signatures of said Shri J.C. Chopra. It has been argued that Vijay Laxmi also did not appear before the Sub Registrar at the time of registration of the Will and therefore, the execution of the Will is shrouded in mustery, the petitioner has not been able to dispel the suspicious circumstances and therefore, Will Ex. PW1/1 cannot be acted upon.

11. Of course, it is true that the Will has to be attested by two witnesses, however Section 68 of the Evidence Act permits the execution of the Will, to be proved by only one attesting witness, being called. If any authority is needed on the point, a reference can be made to Vishnu Ram Krishana & Ors. Vs. Nathu Vithal and Ors., AIR 1949 Bombay 266. Similarly, it is not the requirement of law that both the attesting witnesses to the Will must appear before the Sub Registrar at the time of registration of the Will. The contention of the learned Counsel for the petitioner that Shri J.C. Chopra, Advocate, has not signed the Will Ex. PW1/1 as a person, identifying the testatrix, is also without any substance. PW1 Shri V.P. Gupta in his statement, made reference to the advocate Shri Kapoor, who had presented the Will for registration signed it at point-G. It appears that Shri Ved Prakash Gupta, PW1, had confused the name of Mr. Kapoor with Mr. Chopra Advocate, and it is the signature of Shri J.C. Chopra, which appears at point-G on the back of page 1 of the Will. Otherwise also, it is would not be very material if two or three persons are present at the time of registration of the Will and one of them fails or does not sign the same in proof of presentation of the Will or identifying the testator.

12. Of course death certificate Ex. PW2/1 gives the duration as 12 years yet this by itself would not show that the testatrix was not in a sound disposing mind at the time of execution of

the Will. PW1 V.P. Gupta attesting witness to the Will has categorically stated that the Will was made by the deceased Sneh Prabha Sharma, without any pressure and in a sound disposing mind. Nothing has been brought on record to shatter this part of testimony of PW1 Shri V.P. Gupt. No motive has been imputed to his as to why Shri V.P. Gupta would be making a false statement. Moreover, respondent Krishan Kumar Sharma had himself admitted during his cross- examination that he had met his step mother last in the year 1972-73; then how could he depose about the state of mental condition of the testatrix at the time of execution of the Will in the year, 1989.

13. It is true that the second attesting witness to the Will Smt. Vijay Laxmi, is the daughter of the testatrix. But that by itself also, does not create any suspicion about the execution of the Will. It would be natural for a person, to make arrangement with regard to his/her properties in presence of close relations and neighbours.

14. I do not find any suspicious circumstance regarding Will Ex. PW1/1. On the other hand, from the testimony of Shri V.P. Gupta, PW1, I am convinced that the Will Ex. PW1/1 was made by testatrix Smt. Sneh Prabha Sharma in sould disposing mind, which was duly registered in the office of Sub Registrar, Asaf Ali Road, Delhi on 11.9.1989 and that this was the last Wil of the testatrix. The issue is decided accordingly." (underlining added)

11. I completely agree with the aforesaid conclusions of the probate court

and I am of the opinion that the Will has been proved to have been duly

executed and attested and the deceased testatrix was of a sound disposing

mind at the time of making of the subject Will. Also no unnatural suspicious

circumstances have been proved to discard the subject Will.

12. Learned counsel for the respondent/cross-objector argued before this

Court the following cross-objections and which are stated in the cross-

objections filed before this Court :

"ii) The testimony of PW-1, Ved Prakash Gupta who is a witness to the Execution of the WILL and its registration is shaky and is surrounded by suspicious circumstances. He has deposed that the Testator has four sons and two daughters, whereas the Testator had four sons and three daughters, as per probate petition. He has deposed in his testimony that he has visited the suit property on many occasions, but he does not know whether K.K. Shar,a Objector No. 2 is residing in the rear portion of the plot. The PW-1 has further deposed that the Testator was not bed-ridden for 12 years prior to death which is self- contradictory to her death certificate Ex. PW-2/1. Further he has failed to depose how the witness to registration Sh. J.C. Chopra, Advocate had signed below the witnesses during the execution of the said 'WILL', to whom he has referred one advocate Mr. Kapoor in his Chief Examination. Hence PW/1 is a procured witness.

iii) The PW-1 has further deposed that the 'WILL' was drafted by Sh. Sushil Chaddha, C.A., but admit that he did not sign the said WILL.

iv) The second witness Ms. Vijaya Laxmi, who is the sister of the present appellant and alive till date, was neither examined by the present appellant to prove the execution of the WIL, nor the said Sh. J.C. Chopra, Advocate, nor Shri Sushil Chadha, C.A. have been examined on behalf of the appellant to prove the genuineness of the WILL."

13. The respondent/objector has also argued that since the Will does not

mention the details of the properties, probate of such a Will cannot be

granted.

14. Taking the last objection first in this regard, I would seek to refer to

the relevant observations of the probate court and which are contained in

paras 15 and 16 of the impugned judgment, and which read as under :

3. Whether the petition is not maintainable for the reasons, stated in the preliminary objection No. 1 ? OPR It has been urged by the learned Counsel for the respondent No. 2 that the petitioner has not given the details of the amount of the assets, which were likely to come to the petitioner's hand as required under Section 276 of the Act. The valuation of the property has also not been correctly made and therefore, the petition is not maintainable.

16. I have perused the Will Ex. PW1/1. It does make mention that the deceased had also bequeathed gold ornaments and bank deposits, which may be held single or jointly with any person, whatsoever. The petitioner was not cross-examined as to the other properties i.e. jewellery etc., left by the deceased. In any event when the petitioner is seeking probate in respect of immovable property, the petition cannot be dismissed simply ont eh ground that the amount of assets, which are likely to come to the hands of the petitioners, have not been given. Similarly tentative valuation of the property is to be done at the time of filing the petition and the final valuation is to be obtained at the time of grant of probate or letters of administration, if any, by the Collector of the area. It cannot be said that the petition is not maintainable. This is decided accordingly against the respondent No. 2."

15. I completely agree with the observations of the probate court because

final valuation is obtained at the time of grant of letters of administration and

merely because the Will does not contain the details of valuation cannot

mean that probate cannot be granted on such a Will. This objection urged on

behalf of the respondent/objector is, therefore, rejected.

16. So far as the objection that the attesting witness PW-1, Sh. Ved

Prakash Gupta had wrongly mentioned that the deceased testatrix had four

sons and two daughters and whereas she has four sons and three daughters is

concerned, all that needs to be said is that such minor contradictions cannot

take away the factum of the Will otherwise having been duly proved to have

been executed and attested, and more so because Will in question is a

registered Will.

17. The second argument that the attesting witness PW-1, Ved Prakash

Gupta admitted in cross-examination that he did not know that

respondent/objector was living in the back portion of the property, and

therefore, it must be held that the witness lacks credibility, all that requires

to be stated is that on such minor issues a proved Will cannot be held not to

have been validly proved. After all, it is perfectly possible that the attesting

witness may only have visited the deceased testatrix and would not have

been interested to know who all are the other persons living in the different

portions of the property. Visiting to the testatrix and by virtue of being an

ex-neighbour continuing to have good terms, there is nothing unnatural in

only talking to the testatrix during the life time and not enquiring from the

testatrix or making other enquiries as to who are in possession of the

different parts of the property. Accordingly, this objection urged on behalf

of the respondent/objector is also rejected.

18. So far as the objection that Sh. J.C. Chopra, Advocate who was

present at the time of the registration, and Sh. Sushil Chadha, who had

drafted the Will, should have been called in the witness box is concerned, I

may note that the probate court has rightly dealt with the same that a Will is

proved through the testimony of one attesting witness and it was not

necessary in the facts of the present case to have summoned Sh. J.C. Chopra,

Advocate who was present at the time of registration of the Will before the

Sub-Registrar and nor was Sh. Sushil Chadha who had drafted the Will

required to be called in the witness box. At this stage, I would like to state

that learned counsel for the respondent argued that presence of Sh. J.C.

Chadha was required for proving registration of the Will inasmuch as no one

was called from the office of the Sub-Registrar for proving registration of

the Will, Ex. PW-1/1, but in my opinion, this objection is misconceived

because a court takes judicial notice of official seals as per Section 57 of the

Evidence Act, 1872 and if the respondent/objector wanted to prove that the

Will was not duly registered the onus was upon the respondent/objector to

summon the record of the Sub-Registrar to establish that the Will was not

duly registered. Obviously, this respondent/objector did not do so because

he was fully aware that the Will stands duly registered before the Sub-

Registrar. Accordingly, this objection urged on behalf of the

respondent/objector is also rejected.

19. One other objection which was urged on behalf of the

respondent/objector was that the other attesting witness Smt. Vijaya Laxmi,

and who is the sister of the appellant and the step-sister of the respondent

ought to have been called as a witness but was not called, and nor was any

reason given for not calling her as the attesting witness. It is argued that the

Will therefore should not have been believed. Even this argument urged on

behalf of the respondent lacks any substance because the other attesting

witness Smt. Vijaya Laxmi was in fact the respondent no. 6 in the probate

petition but she after service did not file any objection to the probate

petition. Therefore, in addition to the fact that only one attesting witness

was required to prove the Will, the very fact that the other attesting witness

did not file any objection shows that there was no need of calling of this

second attesting witness Smt. Vijaya Laxmi.

20. Finally, on behalf of the respondent/objector it was argued that the

deceased objector should be held not to be of sound disposing mind

inasmuch as the death certificate Ex. PW-2/1 shows that the deceased was

suffering for 12 years prior to her death. In my opinion, this argument urged

on behalf of the respondent/objector is misconceived because illness of 12

years cannot be equated to mental illness of 12 years for holding lack of

soundness of mind by the deceased testatrix at the time of making of Will.

Probate court has rightly rejected this contention in para 12 of the impugned

judgment. It is relevant to note that the probate court has noted that the

objector met the deceased testatrix for the last time in the year 1972-73, and

therefore, he was in no position to depose about mental condition of the

testatrix at the time of execution of the Will in the year 1989. Also, before

holding that a person is of unsound mind, in my opinion, that there must be

sufficient medical record showing on preponderance of probabilities any

lack of soundness of mind, but in the present case I note that the

respondent/objector has not filed any medical record showing unsoundness

of the deceased testatrix, much less at the time of the execution of the

subject Will dated 13.7.1989.

21. In view of the above, appeal is allowed. It is held that the probate

petition is within limitation. The cross-objection of the respondent/objector

are meritless hence dismissed and the judgment of the probate court below

dated 3.8.2002 is upheld to the extent that it holds that the subject Will dated

13.7.1989 of the deceased testatrix Smt. Sneh Prabha Sharma has been duly

executed and attested and that the deceased testatrix Smt. Sneh Prabha

Sharma was of sound disposing mind at the time of making of the subject

Will. Petitioner/appellant be granted probate on completion of the requisite

formalities before the probate court below.

MARCH 31, 2014                                    VALMIKI J. MEHTA, J
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