Neeraj Katyal & Ors vs State & Ors.
2016 Latest Caselaw 1066 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                                 F.A.O. No.176/2011

                                       Decided on : 11th February, 2016

NEERAJ KATYAL & ORS                                  ...... Appellants
            Through:                Mr. P.K. Aggarwal & Ms. Mercy
                                    Hussain, Advocates.

                         Versus
STATE & ORS.                                        ...... Respondent
                       Through:     Mr. Sanjeev Anand, Mr. Arush Khanna
                                    and Ms. Anubha Surana, Advs. for R-2.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J.

1. This is an appeal filed by the appellants against the judgment dated

17.1.2011 passed by learned Additional District Judge-06, Delhi in

Probate Case Nos.258/2006 titled Ramesh Katyal vs. State and 562/2006

titled Neeraj Katyal & Ors. vs. State & Ors.

2. Briefly stated the facts leading to filing of the present appeal are

that one Hari Narain Katyal, father of Ramesh Katyal and grandfather of

Neeraj Katyal and Gourav Katyal is purported to have made a Will dated

21.7.1998 in respect of a house bearing No.A-284, Derawal Nagar, Delhi

measuring 500 square yards in favour of his three grandsons. Two cases

came to be filed; one by Ramesh Katyal s/o Hari Narain Katyal bearing

No.258/2006 in which he claimed letter of administration in respect of the

aforesaid house on the ground that his father had died intestate and

therefore, he and his brother Yashpal Katyal had inherited the property in

the proportion of one-half each. As against this, Neeraj Katyal and two

others, who are the sons of Yashpal Katyal had filed a separate probate

case bearing No.562/2006 making Ramesh Katyal, their uncle and their

own father Yashpal Katyal as respondents by setting up a Will dated

21.7.1998 purported to have been executed by their grandfather. Both

these matters were clubbed together and following issues were framed :-

Issues framed in P.C. No.562/2006

"1. Whether the Will dated 21.7.1998 of Sh. Hari Narain Katyal is proper and valid ? OPP

2. Whether the petition has not been properly verified ?

OPR-2

3. Whether the Will dated 21.7.1998 of Sh. Hari Narain Katyal is forged and fabricated ? OPR-2

4. Whether the petitioner is entitled to the grant of probate and letter of administration in respect of the Will dated 21.7.1998 of Sh. Hari Narain Katyal ? OPP

5. Relief."

Issues framed in P.C. No.258/2006

"1. Whether the deceased Sh. Hari Narain Katyal died intestate as claimed by the petitioner ? OPP

2. Whether the petition is not maintainable in view of preliminary objections taken by the respondents/objectors Yashpal Katyal, etc. in their written statement/objections? OPR

3. Relief."

3. The case filed by Ramesh Katyal was treated as a lead case and he

filed his affidavit Ex. PW1/A. Apart from his examination, one R.S.

Verma is examined as PW-2, Manish Narang is examined as RW-1, the

respondent/objector, Neeraj Katyal examined himself as RW-2, Naresh

Kumar Parashar as RW-3 and Q.L. Kanijow, Advocate as OW-1. Both

RW-1 and OW-1 are the attesting witnesses to the Will (Ex. RW 2/2).

4. The trial court dismissed the probate petition filed by Neeraj Katyal

and two other holding that the Will purported to have been set up by

Neeraj Katyal was fraught with suspicious circumstance and cannot be

relied upon. It granted letter of administration to Ramesh Katyal to share

the property in the proportion of one-half each in his favour and his

brother Yashpal Katyal. The reason for saying that the Will of the

deceased testator was surrounded with suspicious circumstance was that

the deceased testator Hari Narain Katyal, had stated in the Will dated

21.7.1998 that he is creating a life interest to the extent of 1/3rd in the

property in favour of his wife Vidya Wati while as admittedly Vidya Wati

had died on 21.11.1997, much before the Will was made.

5. The appellant, Neeraj Katyal and others feeling aggrieved by the

said findings of the learned Additional District Judge have filed the

present appeal.

6. I have heard Mr. P.K. Aggarwal, the learned counsel for the

appellant and Mr. Sanjeev Anand, the learned counsel on behalf of the

respondent, Ramesh Katyal and have also gone through the record.

7. Mr. Aggarwal, has contended that learned Additional District

Judge has passed an erroneous finding by rejecting the Will dated

21.7.1998 without deciding upon the genuineness of the Will. It was

contended by him that the probate court has to consider the proof of Will

in order to see whether it is genuine or not. It was contended that it does

not lie within the domain of the learned trial judge to comment upon the

contents of the Will and state that the same is surrounded with suspicious

circumstance. Mr. Aggarwal has stated that the reason for inclusion of

name of Vidya Wati in the Will in question, was an inadvertent mistake

which had occurred on account of the fact that before making the Will

dated 21.7.1998, the respondent had executed a Will dated 12.3.1997 (Ex.

PW 2/DC in favour of the present appellant when his wife was alive.

Mr. Aggarwal has further stated that as the deceased testator was

informed that in case the Will is registered, it has a greater probative

value, therefore, he asked the entire Will to be re-typed in verbatim which

was subsequently got registered with the office of the Sub-Registrar on

21.7.1998. But in the meantime, his wife had died and therefore, this

inadvertent mistake had occurred in the Will.

8. It is further contended by Mr. Aggarwal that the learned trial court

had framed two issues. First, whether the Will dated 21.7.1998 of

Sh. Hari Narain Katyal is proper and valid? OPP and second whether the

Will dated 21.7.1998 of Sh. Hari Narain Katyal is forged and fabricated?

OPR-2.

9. It was contended that the learned trial court deleted issue No.3 and

did not adjudicate on the question of forgery and fabrication of the Will

in question. It is stated that as a matter of fact, neither any evidence was

produced by respondent No.2 in order to prove this forgery and

fabrication nor was any suggestion given to any of the attesting witnesses

that the Will in question is forged and fabricated. It was contended that

the probate court is not to comment on the contents of the Will but has to

only see as to whether the Will in question was validly and properly

executed or not. It has been contended that in the instant case, not only

RW-1, Manish Narang, attesting witness but even the second attesting

witness OW-1, Q.L. Kanijow had stated that the deceased testator had

signed the Will in their presence and both of them had put their signatures

on the Will. It was stated that this statement of the two attesting

witnesses, whose testimony has not been demolished, clearly establish the

Will in question being a genuine Will and properly executed by the

deceased testator. Merely because the wife of the testator had

predeceased him and this fact was not mentioned in the Will or that the

life interest in the Will in question was created in favour of the wife of

the deceased testator would not make the Will as invalid as it has been

exhibited also.

10. It was also contended that it is essentially for the propounder to

explain any suspicious circumstance in the execution of the Will and in

the instant case, the propounder has given a reasonable explanation in the

petition itself as well as in the submissions that it happened because of

simply copying the earlier Will dated 12.3.1997. It is, therefore,

contended that the judgment and the decree of dismissal of the probate

petition in respect to the Will dated 21.7.1998 of the appellants is totally

unsustainable in the eyes of law.

11. In support of his contention the learned counsel has placed reliance

on Smt. Indu Bala Bose and Others vs. Manindra Chandra Bose and

Another; AIR 1982 SC 133, Harmes and Another vs. Hinkson; AIR (33)

1946 Privy Council 156, Madhukar D. Shende vs. Tarabai Aba Shedage;

AIR 2002 SC 637, P.P.K. Gopalan Nambiar vs. P.P.K. Balakrishnan

Nambiar & Others; 1995 Supp. (2) SCC 664, Hari Singh & Anr. vs. State

& Anr.; 2010 (120) DRJ 716 (DB), Sridevi & Others vs. Jayaraja Shetty

& Others; (2005) 2 SCC 784 and Leela Rajagopal & Ors. vs. Kamala

Menon Cocharan & Ors.; 2014 (10) SCALE 307.

12. Most of the judgments which are relied upon are on the question of

proof of Will and the fact that if there is any suspicious circumstance, it is

for the propounder to explain the same. It has been also observed that

every circumstance may not be a suspicious circumstance. There cannot

be any quarrel with regard to the proposition of law laid down in these

judgments. But the question which arises for consideration is as to

whether any of these judgments is helpful to the appellants, remains to be

seen.

13. It has also been contended by Mr. Aggarwal that the son Ramesh

Katyal was excluded from the normal devolution to the property because

he was sufficiently compensated by the deceased. Further, his relations

with his parents were not good which he tried to show from his cross-

examination.

14. Mr. Sanjeev Anand, the learned counsel for the respondent has

contested the submissions made by the learned counsel for the appellants.

It has been contended that the Will is shrouded with mystery and

suspicious circumstance and therefore, notwithstanding the fact that the

attesting witnesses have come and testified with regard to their signatures

on the Will in question does not ipso facto be taken as the proof of the

Will. It has been stated that every suspicious circumstance in the

execution of the Will has to be explained by the propounder or the

beneficiary. It is contended that in the instant case, no reasonable

explanation has been furnished by the propounder of the Will as to why

the name of wife was included in the Will when the wife of the appellant

had died much earlier than the death of the deceased testator. In this

regard, the learned counsel has relied upon H. Venkatachala Iyenger vs.

B.N. Thimmajamma & Ors.; AIR 1959 SC 443, Guro (Smt.) vs. Atma

Singh & Ors.; (1992) 2 SCC 507, Bharpur Singh & Ors. vs. Shamsher

Singh; (2009) 3 SCC 687, S.R. Srinivasa & Ors. vs. S. Padmavathamma;

(2010) 5 SCC 274 and Babu Singh & Ors. vs. Ram Sahai alias Ram

Singh; (2008) 14 SCC 754.

15. I have carefully considered the submissions made by the learned

counsel for the parties and have also gone through the judgments cited by

the respective sides. However, I find myself unable to accept the

contention of the appellants that the suspicious circumstance with regard

to the life interest having been given to the wife of the deceased testator,

when she was already dead was because of inadvertent mistake of

copying the Will made earlier on 12.3.1997. It cannot be accepted that

this was on account of an inadvertent mistake as the deceased testator had

got the Will typed out afresh in verbatim because it was conveyed to him

that the Will which is registered with the Sub-Registrar's office has a

greater credibility. The probate court is to see as to whether the Will has

been proved in accordance with Section 63 of the Indian Succession Act,

1925 and Section 68 of the Evidence Act, 1872 which read as under :-

"Section 63 of the Indian Succession Act:-

Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to given effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the

testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and not particular form of attestation shall be necessary.

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Section 68 of the Evidence Act:-

Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at lease has been called for the purpose of proving the execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence."

16. I do not agree with this contention of Mr. Aggarwal that the

suspicious circumstance of the Will stand explained by the testimony of

the propounder of the Will or by the circumstance. First of all, the

propounder in his probate petition has tried to give this explanation that

as the second Will was got typed out in verbatim with a view to get the

same registered with the Sub-Registrar, therefore, this bequest of life

interest in favour of his wife inadvertently got reflected inasmuch as she

had in the meantime died. Though his explanation is stated to have been

given in the petition but there is no statement to that effect when testified

before the court. Further, the question is even if this explanation is

accepted, the deceased testator was expected to read the Will after re-

typing afresh and understand the contents and then put his signatures

while as he seems to have done the same blindly without knowing the

implications about the factum of his wife's death. The contention of

Mr. Aggarwal that the testator was of sound state of mind also gets

demolished by the fact alone. Merely because the attesting witnesses

have identified their respective signatures and the signatures of the

testator alone does not prove the Will. Both the witnesses ought to have

or at least one of them should have stated that the testator read the Will,

understood the same and then put his signatures. In my view, this

singular fact is fatal to the case of the grant of probate to the appellants

because the very fact that the name of the deceased testator's wife is

included and life interest is given to her while as she was actually dead, it

only cuts at the root of the Will itself and makes the Will a suspect.

Under these circumstances, it is not safe to rely upon the Will. One of the

earlier judgment of Justice P.B. Gajendragadkar in H. Venkatachala's

case (supra) is squarely covering the facts of this case as to how the Will

is to be proved and what is the effect of a suspicious circumstance.

Further, it is not necessary that there should be series of suspicious

circumstances before a Will is discarded. A circumstance like the present

one in the instant case, makes the court to draw an inference that either

the Will was not read by testator or that he was not in a sound state of

mind because he did not comprehend what he was doing.

17. The contention of the learned counsel for the appellants that the

learned trial court ought to have considered the second issue, namely, the

forgery and fabrication of the Will as alleged by him, is of no

consequence because this question of forgery and fabrication would arise

only when the Will itself was proved in accordance with law which, in

the instant case, has not been done because of the fact that there were

suspicious circumstances and the court considered it to be safe not to rely

on the Will and grant a probate. Therefore, this argument of the appellant

is without any merit. The judgment of Smt. Indu Bala Bose (supra) relied

by Mr. Aggarwal supports the case of the respondent because the

suspicious circumstance of giving life interest to the deceased's wife of

the testator is not cogently and convincingly explained.

18. The contention of the learned counsel for the appellants that

relation of Ramesh Katyal was not good with his father or mother is also

of not much importance. This is because of the fact that almost in all the

families there would be some kind of friction/difference in perception of

the parents and the children but unless and until there is something

fundamentally wrong with the child, a parent would not exclude his son

from getting the benefit of his property. Merely because the testator had

not permitted Ramesh Katyal, his son, not to see his mother, in my view,

is not a sufficient circumstance to deprive him of this benefit.

19. It was also contended by Mr. Aggarwal that both the Wills dated

12.03.1997 Ex. PW-2/DC and the second Will dated 21.07.1998 Ex.

RW2/2 having been proved, therefore, the court could not have dismissed

the petition.

20. Mr. Sanjeev Anand had cited the judgments of Sudir Engineering

Company v. Nitco Roadways Ltd.; 1995 (34) DRJ and Narbada Devi

Gupta v. Birendra Kumar Jaiswal & Anr.; (2003) 8 SCC 745 to contend

that merely because the document has been exhibited does not tentamount

to the proof of the said document. The court still has to see the modality

as to whether the document has been rightly proved or not.

21. I fully agree with the contention of Mr. Anand that merely because

of the exhibit mark having been put on the document does not mean that

the contents of the document gets established. On the contrary, the court

still has to see as to whether the document has been proved in accordance

with law or not.

22. In my considered opinion, in the instant case, the document has not

been validly proved by the witnesses. Even the testimony of both the

attesting witnesses is not worth credence. To give an illustration, RW-1,

Manish Narang, says that Neeraj Katyal is his friend while as the

beneficiary Neeraj Katyal, who examined himself as RW-2 denies that

Manish Narang (RW-1) is his friend. He only calls him as acquaintance.

Similarly, each attesting witness does not know the name of the other

attesting witness nor this fact is reflected from the testimony. Therefore,

it cannot be said that the Will is validly proved and the question of

discharging the onus by respondent No.2 to prove that the Will is forged

or fabricated does not arise. This question would have arisen only if the

Will had been proved in accordance with law then only the onus would

have shifted on to respondent No.2 to prove the said issue.

23. For the reasons mentioned above, I am fully satisfied that the

appeal of the appellant is totally misconceived and accordingly, I dismiss

the same.

V.K. SHALI, J.

FEBRUARY 11, 2016 'AA'