Surender Rana vs State And Ors.
2017 Latest Caselaw 4263 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No. 55/2008

%                                   Reserved on: 16th August, 2017
                                    Pronounced on: 21st August, 2017

SURENDER RANA                                              ..... Appellant
                                Through:        Mr. Vijay Kishan, Adv.

                           versus

STATE AND ORS.                                            ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J

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

Succession Act, 1925 impugning the judgment of the trial court dated

22.10.2007 by which the trial court has granted to the respondent no.2

herein, petitioner in the trial court, letters of administration of the Will

dated 19.9.2000 executed by Sh. Nand Lal, the father.

2. The facts of the case as pleaded in the petition in the trial

court, filed by the respondent no.2/Sh. Sanjay Rana, were that his

father Sh. Nand Lal died on 20.1.2001. Sh. Nand Lal had prior to his

death left behind his Will dated 19.9.2000 and which was duly

registered with the Sub-Registrar. By the Will the deceased testator

bequeathed his property bearing no. 4249-51, Tail Mandi, Pahar Ganj,

New Delhi to his one son i.e the respondent no. 2 herein and his

widow Smt. Nirmal Rana. The petition in the trial court was originally

filed by Smt. Nirmal Rana widow of Sh. Nand Lal along with Sh.

Sanjay Rana, the son of Sh. Nand Lal, however after the death of Smt.

Nirmal Rana, she was deleted from the array of the two petitioners

because by the subject Will the property was bequeathed half to the

widow Smt. Nirmal Rana and half to the son Sh. Sanjay Rana with the

half belonging to the mother also falling to Sh. Sanjay Rana on the

death of Smt. Nirmal Rana. The testator Sh. Nand Lal at the time of

his death left behind his widow Smt. Nirmal Rana and one son the

petitioner in the court below Sh. Sanjay Rana (respondent no.2

herein), two more sons Sh. Surender Rana (appellant herein), Sh.

Navin Rana (one other objector who has chosen not to file the appeal

against dismissal of his objections and granting letters of

administration) and one daughter Smt. Hema Chadha (respondent no.3

in the court below and who gave her no objection to the grant of

probate/letters of administration in favour of two petitioners Smt.

Nirmal Rana and Sh. Sanjay Rana). Therefore, on the one side were

the widow, one son and one daughter of the deceased testator Sh.

Nand Lal and on the other side were two other sons who had filed

objections against the subject Will.

3. To prove the Will the petitioners in the court below led

evidence of six witnesses. PW-1 was the petitioner no.1 Sh. Sanjay

Rana being the respondent no.2 herein. PW-2 was Sh. Rajesh Rana

one of the attesting witness to the Will. PW-3 was Sh. A. Rehman, a

UDC from the office of the Sub-Registrar to prove the registration of

the Will. PW-4 was Dr. Arun Kumar Yadav from RBTB Hospital to

show that the deceased Sh. Nand Lal had been discharged for a few

hours from the hospital on 21.9.2000. PW-5 Smt. Kanta Chadha and

PW-6 Smt. Bimla Mehta were the two sisters of the deceased testator

Sh. Nand Lal.

4. Both the objectors being the appellant/Sh. Surender Rana

and the respondent no.3 herein Sh. Navin Rana stepped into the

witness box to prove their objections, however, they did not lead any

evidence of any independent third party witness.

5. Trial court has held that the subject Will was proved as it

was duly executed and attested by the deceased testator Sh. Nand Lal

and two attesting witnesses. For holding that the subject Will has to

be accepted, the trial court has given the following reasoning, and

which I adopt and agree with:-

(i) The Will was duly proved to have been executed and attested,

both by the deposition of the attesting witness Sh. Rajesh Rana who

deposed as PW-2, and also by the deposition of the petitioner no.1 in

the trial court Sh. Sanjay Rana as PW-1. These two witnesses deposed

and proved the execution and attestation of the Will being signed by

the testator in presence of the attesting witnesses and the attesting

witnesses signing in the presence of the deceased testator.

(ii) The deceased testator Sh. Nand Lal was of sound disposing

mind although the deceased testator was suffering from TB as also

Asthama inasmuch as these diseases which the deceased testator was

suffering from were not diseases of the mind and the evidence was led

by the petitioners in the court below that the deceased testator was of

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

conclusion with respect to the deceased testator being in sound

disposing mind has been buttressed by the trial court by observing that

the Will stands duly registered with the photograph of the deceased

testator on the Will and the fact that the deceased testator died more

than three months after execution and attestation of the Will i.e there

was a period of about three months between execution of the Will and

the death of the testator.

(iii) There was nothing unnatural in the Will having been executed

in favour of only one son Sh. Sanjay Rana and the widow Smt. Nirmal

Rana, inasmuch as the appellant being the one other son had separated

from the family after his marriage and after his marriage Sh. Nand Lal

and his wife Smt. Nirmal Rana had never visited the appellant, and in

fact appellant was not even invited to the marriage of his own real

sister Smt. Hema Chadha/respondent no.4. Sh. Surender

Rana/appellant had also separated from the business with his father

way back in the year 1989. The other son being the other objector Sh.

Navin Rana, respondent no.3 herein, was settled since his age of 23

years in USA and he was not living in India since his marriage. Not

only Sh. Sanjay Rana was found to be living with his parents being

deceased Sh. Nand Lal and Smt. Nirmal Rana, but also that it was Sh.

Sanjay Rana who was taking care of his parents and was also incurring

expenditure for medical purposes of the deceased testator.

(iv) Not too much should be made out on account of certain

discrepancies existing in the statements of PW-1 Sh. Sanjay Rana and

PW-2 Sh. Rajesh Rana with respect to different dates of execution and

registration of the Will being deposed as to 19.9.2000, whereas the

date of execution and registration of the Will was 21.9.2000, inasmuch

as, the Will is found to have been duly registered before the Sub-

Registrar on 21.9.2000 and therefore once there was one same date of

execution and registration of the Will then this date should be taken as

21.9.2000. Any doubt with respect to registration of the Will is

removed on account of photographs found existing of the deceased

testator on the Will, with the fact that the witness from the Hospital

Dr. Arun Kumar Yadav who deposed as PW-4 deposed that Sh. Nand

Lal had been discharged from the hospital for a few hours on

21.9.2000 i.e on the date of execution and registration of the Will.

In my opinion, there is another reason for holding that the Will

was duly executed and registered on 21.9.2000 inasmuch as, as per

Section 114(e) of the Indian Evidence Act, 1872 courts have to draw a

presumption with respect to judicial and official acts being properly

performed, and therefore, this Court has to draw a presumption in

favour of execution and registration of the Will as the Will is found to

be duly registered and proved through the witness from the office of

Sub-Registrar Sh. A. Rehman (PW-3) thus showing that the official

acts were duly performed by the Sub-Registrar at the time of

registration including putting questions on the execution of the Will

and its attestation to the testator and to the attesting witnesses of due

execution and attestation of the Will.

6. In my opinion, the aforesaid reasons are valid reasons for

the trial court to have held that the Will stood duly proved to have

been executed and attested and thus proved as Ex.PW2/1.

7.(i) Learned counsel for the appellant firstly argued that the

petition seeking letters of administration was liable to be dismissed on

account of violation of the provision of Section 276(1)(c) of the Indian

Succession Act inasmuch as this section provides an averment being

required to be made in the probate petition of due execution and

attestation of the Will but in the petition it is found that there was no

averment made that the deceased testator had duly executed the Will.

(ii) In my opinion, the procedural argument raised by the appellant

has no substance because even if the procedural requirement was not

complied with by the petitioners, however, the deficiency stood

removed once depositions were recorded of both the PW-1 and PW-2

with respect to due execution and attestation of the subject Will. This

argument of the appellant is therefore rejected.

8.(i) It was then argued by the appellant that the attesting

witness has not deposed to the due execution and attestation of the

Will and that otherwise also there is no deposition to the due execution

and attestation of the Will and therefore, the petition filed before the

trial court had to be dismissed.

(ii) I cannot agree with this argument firstly because PW-1 Sh.

Sanjay Rana, respondent no.2 herein, has specifically deposed with

respect to the testator and the attesting witnesses signing in the

presence of each other in his deposition recorded on 21.8.2003.

Secondly, even in the statement of the attesting witness PW-2 Sh.

Rajesh Rana it is specifically deposed with respect to the testator

putting his signatures and thumb marks at as many as 8 places in the

Will and that the attesting witness Sh. Rajesh Rana had also put his

signatures at two points on the Will. The attesting witness Sh. Rajesh

Rana PW-2 has further deposed that even before the Sub-Registrar the

testator had put his signatures and he along with the other attesting

witness Sh. P.K. Singh had put his signatures on the Will. The said

statement of the attesting witness has to be read in a logical manner in

view of Section 71 of the Indian Evidence Act and which provides that

a Will can be proved even if one attesting witness is not summoned or

the attesting witnesses deny the execution and attestation of the Will

showing that the proving of the Will is not left wholly and solely to

technically and strictly reading the deposition of the attesting

witnesses of the Will, and therefore, when the attesting witness has in

fact deposed, such deposition has to be read in a complete manner and

it is seen that the attesting witness PW-2 Sh. Rajesh Rana has duly

deposed with respect to putting of signatures on the Will by the

testator and also putting of signatures on the Will by two attesting

witnesses and thus the requirements of law are satisfied. I therefore

reject the argument that the petitioners in the trial court failed to prove

the due execution and attestation of the Will.

9.(i) On behalf of the appellant thereafter two connected

arguments were raised with respect to discrepancies in the statements

of PW-1 Sh. Sanjay Rana and PW-2 Sh. Rajesh Rana with respect to

the date of execution and registration of the Will being 19.9.2000

whereas the Will is found to have been actually executed and

registered on 21.9.2000. To buttress this argument counsel for the

appellant also argued that in the Will the place for putting of the date

was left as blank when the Will was typed and it is only in hand that

the date of the Will has been written as 19.9.2000. It is accordingly

argued that there are suspicious circumstances with respect to the

execution and attestation of the Will, and therefore, the petition

seeking letters of administration was bound to be dismissed.

(ii) In my opinion, the argument urged on behalf of the appellant

seemed to carry weight on the first blush, inasmuch as, the date of the

Will written in hand is 19.9.2000 and this was also the date of

execution and registration of the Will as deposed to by both PW-1

(originally) and PW-2, whereas the Will has been found to be

executed and registered on 21.9.2000 and not on 19.9.2000, however

it is seen that Sh. Nand Lal who was admitted to the hospital from

1.9.2000 to 19.11.2000 was in fact discharged for a few hours on

21.9.2000 as proved by the deposition of Dr. Arun Kumar Yadav PW-

4 from RBTB Hospital. No doubt it is only after the statement of Dr.

Arun Kumar Yadav was recorded on 19.12.2003, that the petitioner

Sh. Sanjay Rana in his statement recorded later on 9.11.2004 stated

that the date of registration of the Will should not be taken as

19.9.2000 but should be taken as 21.9.2000, but once there is

admittedly only on one day that the Will was executed and registered,

then the mistake of dates in the depositions of PW-1 and PW-2 should

not be given that much weight to reject the Will which is natural as per

the facts and circumstances of the case as found.

(iii) It seen that the Will contains the date of 19.9.2000 at two places

in hand. It is obviously for this reason that confusion has occurred and

mistakes had taken place in the deposition of the date of the execution

and registration of the Will. Whereas the date of execution and

attestation of the Will was 21.9.2000, it was only on account of hand

written dates being filled in the blank spaces in the Will being written

as 19.9.2000, and that factually there was only one day/date of

execution and registration of the Will, hence the witnesses PW-1 and

PW-2 Sh. Sanjay Rana and Sh. Rajesh Rana deposed this date

wrongly as 19.9.2000 whereas this date is 21.9.2000. Obviously and

clearly a mistake/wrong of deposition as to the date happened because

the date of 19.9.2000 was written by the second attesting witness Sh.

P.K. Singh, Advocate who had drafted the Will as per the instructions

of the deceased testator Sh. Nand Lal. However, once the Will is

shown to have been duly registered before the Sub-Registrar on

21.9.2000, then in my opinion, the statement of the attesting witness

as PW-2 as also PW-1 that the Will was executed and registered on

one date should be read and understood to mean that the one date

which was talked of by the witnesses PW-1 and PW-2 was 21.9.2000

and not 19.9.2000. At the cost of repetition it is noted that the most

relevant aspect is that it is only on one date that the Will was executed

and registered being 21.9.2000 and confusion had occurred on account

of the blank spaces left which were filled in hand, and therefore, the

depositions of the witnesses of the date of the execution and

registration of the Will deposed wrongly of 19.9.2000 whereas the

endorsements from the Sub-Registrar clearly shows that the Will was

registered on 21.9.2000 and since the Will was executed and

registered on the same date, therefore, the date of execution should

also be taken as 21.9.2000.

(iv) A civil case is decided on balance of probabilities and in view

of the presumption to be drawn under Section 114(e) of the Indian

Evidence Act with the fact that there is a photograph of the deceased

testator on the original Will as also in the copy of the registered Will

before the Sub-Registrar showing that the Will was registered on

21.9.2000, and this date of 21.9.2000 is also the date of discharge of

the deceased testator Sh. Nand Lal from the hospital on 21.9.2000 for

a few hours, in my opinion, therefore no conclusive capital can be

made by the appellant with respect to the confusion of the dates of

execution and registration of the Will being different date of 19.9.2000

as written in the Will and the different date of 21.9.2000 on which

date the Will was registered and hence also executed on the same date.

(v) I therefore reject the argument urged on behalf of the appellant

especially because not only the Will is duly registered but also the fact

that there is nothing unnatural in the Will because in the Will the

deceased testator has given his property to his son who stayed with

him throughout his life and also took care of him as also his mother

Smt. Nirmal Rana and spent money for medical expenses and which

aspects are buttressed by the fact that the two objectors being the two

sons Sh. Surender Rana (appellant) and Sh. Navin Rana (respondent

no.3) had separated from the family long back and were living

separately from the deceased testator.

10. It was next argued by the appellant that since it is

admitted by PW-2 in his cross-examination on 21.8.2003 that the

deceased testator was very sick and weak, and therefore clearly it

should be held that execution and registration of the Will on 21.9.2000

was not by the testator in sound disposing mind. This argument

however is without merit, and has been rightly rejected by the trial

court by observing that the deceased testator died more than three

months after making of the Will and in fact in the three months the

deceased testator had in fact taken part in business. Once therefore the

Will is proved to have been duly executed and registered, then there

was very heavy onus upon the objectors to lead sufficient credible

evidence with respect to lack of sound disposing mind but the

objectors except giving self serving depositions have led no

independent evidence, much less documentary evidence, to show that

the deceased testator was not of sound disposing mind when the

subject Will was executed. This argument of the appellant is therefore

rejected.

11.(i) Learned counsel for the appellant then argued by placing

reliance upon the judgment of the Supreme Court in the case of

Adivekka and Ors. Vs. Hanamavva Kom Venkatesh (deceased by

LRs.) and Anr. AIR 2007 SC 2025 to argue that the registration of the

Will would take more than two hours as held by the Supreme Court

and therefore once the attesting witness PW-2 Sh. Rajesh Rana

deposed that typing, execution and registration of the Will was

completed in about 1 ½ hours, therefore, suspicious circumstances

exist for this Court to hold that the Will was not duly executed and

registered.

(ii) In my opinion, appellant can take no benefit of para 17 of the

judgment of the Supreme Court in the case of Adivekka (supra)

because in the facts of that case Supreme Court made general

observations of time of about two hours for being taken, however, it is

not the law laid down by the Supreme Court in the case of Adivekka

(supra) that for every execution and registration of the Will two hours

must necessarily be taken. It is also relevant to note that in

Adivekka's case (supra) the issue was of the Will being registered

after the office hours because execution of the Will was completed by

about 4.30 PM and whereafter it was taken for registration. In my

opinion therefore reliance placed by the appellant upon the judgment

in the case of Adivekka (supra) is misconceived and is therefore

rejected.

12.(i) Finally, the appellant argued that petitioner Sh. Sanjay

Rana had actively participated in making of the Will, and he was also

a beneficiary and executor of the Will, and therefore, in terms of

various judgments of the Supreme Court once propounder actively

participates in making of the Will of which he is the beneficiary, such

a Will should be held to be shrouded in suspicious circumstances and

set aside.

(ii) In my opinion this argument urged on behalf of the appellant is

also liable to be rejected because the issue of suspicious circumstances

existing is a question of fact depending upon the facts of each case.

The law that when a propounder participates in making of the Will and

thus suspicious circumstances exist is not an absolute statement in fact

and law and this statement is only for the purpose of deciding as to

whether by the propounder taking active part in making of the Will the

thinking of the testator was overwhelmed and he was not made to

think naturally i.e the Will is not a natural outcome of a natural mind

of the testator. In the present case, it is seen that there is nothing

unnatural about the Will, inasmuch as, both the objectors were living

separately from the family not only for residence but also for their

business, with one objector being the respondent no. 3 herein having

settled in USA since 1988 i.e around 12 years prior to the death of the

testator and other objector being the appellant had separated after his

marriage and the parents had never visited him ever after his marriage

and in fact the appellant/objector was not even called to the marriage

of his own/real sister Smt. Hema Chaddha. Also, it was the petitioner

Sh. Sanjay Rana/respondent no. 2 herein who was not only living with

his parents, but he was also taking care of them and incurring medical

expenses for the treatment of his father/deceased testator. In my

opinion, therefore it cannot be held in the facts of the present case that

simply because the propounder has taken active part in making and

registration of the Will, the Will is necessarily to be held to be

shrouded in suspicious circumstances for the same to be rejected. This

argument of the appellant is also therefore rejected.

13. In view of the above discussion, I do not find any merit in

the appeal and the same is hereby dismissed.

AUGUST 21, 2017                              VALMIKI J. MEHTA, J
ib/Ak