Shri Prem Prakash vs State And Ors

Delhi High Court

Shri Prem Prakash vs State And Ors. on 2 March, 2005

Equivalent citations: 118 (2005) DLT 681, 2005 (81) DRJ 157

Author:P Nandrajog

Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

1. Petitioner, who is the son of the brother of late Sh. Sudershan Lal, seeks probate of a Will dated 15.6.1984 alleging that the Will is the last legal and valid testament of Sh. Sudershan Lal. Opposition to the Will is by the sisters of the deceased. Admitted position between the parties is that the deceased was a bachelor. He died on 1.2.1987.

2. The Will purports to be registered with the Sub-Registrar as Document No. 1975, Volume No. 399 at page No. 26; registration being after the death of Sh. Sudershan Lal. Date of registration is 8.5.1987.

3. The Will, Ex.PW-1/2 purports to be witnessed by one Sh. Kulbhushan and one Sh. Pehlad.

4. To prove the Will, Kulbushan has been examined as PW-2. Pehlad, having died before evidence was recorded, could obviously be not examined as a witness. However, petitioner has filed certified copies of deposition of Pehlad recorded in a civil proceeding in the court of Smt. Sunita Rani, Civil Judge, Delhi.

5. Deposition of Pehlad in the suit aforesaid was sought to be brought on record in the present proceedings by and under I.A. No. 331/05. Certified copy of the deposition by Pehlad has been filed Along with the said application. Vide order dated 1.11.2004, deposition of Pehlad was permitted to be tendered in evidence. It was however, recorded that its evidentiary value would be determined when the occasion arises. The occasion has arisen now as final judgment is being pronounced.

6. According to the sisters of the deceased, the Will relied upon by the petitioner is stated to be a fabricated document.

7. On 18.9.1995, following issues were framed:-

1. Whether the deceased had executed a valid Will on 15-6-1984? OPP

2. Whether the properties mentioned in the Will are Joint Hindu Properties? If so, to what effect? OPD

3. Whether the Will dated 15-6-1984 is forged and fabricated and as a result of a conspiracy as alleged in para 8 of the preliminary objections in the written statement? OPD

4. Whether the petition is not in accordance with Sections 276, 280 and 281 of the Indian Succession Act? If so, to what effect? OPD

5. Whether the registration of the Will is in accordance with law? OPD

6. Whether the schedule of properties filed Along with the petition is not in accordance with the contents of the Will? If so, to what effect? OPD

8. Counsel for the parties agree that the probate proceedings have a limited jurisdiction, being whether the testament relied upon is the last, legal and valid testament of the executor and therefore, issue No. 2 need not be decided.

9. I was informed at the Bar that the issue of title to the properties bequeathed by the deceased is a subject matter of civil proceedings. Sisters have taken up the stand that the properties belonged to the Joint Hindu Family. This issue would accordingly be decided in the civil suit.

10. Since the Will purports to be registered after the death of the deceased, counsel agreed that issue No. 5 is of no consequence and accordingly need not be decided. A caveat; counsel for the petitioner made limited reliance on the issue of registration, reliance being to the effect that the document in question existed as on 8.5.1987. This submission was made by counsel for the petitioner, in light of the argument of Dr. K.S. Sidhu, learned senior counsel for the objectors that the conduct of the petitioner shows that the Will was brought into existence much later, somewhere around May, 1988.

11. Being inter-related, the two issues may be decided together.

12. Probate petition was filed in the registry of this Court on 1.12.1987. Registry recorded certain objections to the petition as filed and accordingly returned the petition to the petitioner for removing the objections. Petitioner took back the petition for removing the objections and refilled the same on 26.5.1988. Petitioner did not prosecute the petition. He neither filed the process for issuing notices to the respondents nor got published the citation in a newspaper. Vide order dated 3.7.1989 petition was dismissed in default. It was restored on 12.12.1989.

13. Dr. K.S. Sidhu, learned counsel for the objectors, relying upon the aforesaid conduct of the petitioner urged that since the Will was a fabricated document and had been brought into existence much after the death of Sudershan Lal, petitioner was buying time for the reason, the alleged attesting witnesses had to be bought over by him. Dr. K.S. Sidhu, placing reliance on a written statement filed by Kulbushan in Suit No. 2400/90 (Ex.R-20), urged that evidenced by the written statement, Kulbushan admitted that Sudershan Lal did not execute any Will.

14. Ex.R-20, being the written statement relied upon shows that it was verified by Kulbushan on 31.7.1991. In said written statement filed in response to a suit filed by the sisters of the deceased, Kulbushan, in para 1 of the parawise reply has admitted to be correct that Sudershan Lal died interstate.

15. Submission urged by Dr. K.S. Sidhu was that Kulbushan, one of the attesting witnesses to the Will took a stand in the written statement that the deceased died interstate. The other attesting witness, Pehlad was also not ready to support the petitioner and it was for this reason that the petitioner firstly got the petition dismissed in default as he was aware that he could not prove the Will and secondly by not filing the process for issuance of notice to the objectors, delayed the matter and utilized the extended time to win over Kulbushan and Pehlad.

16. Sh. V.K. Makhija, learned Senior Counsel for the petitioner urged that Kulbushan was the brother of the deceased. Pehlad was an outsider to the family. By supporting the Will, Kulbushan would loose interest in the estate of the deceased and there was thus no inducement for Kulbushan to support the Will. It was further urged by Mr. Makhija that photocopy of the Will was filed along with the petition on 1.12.1987. Petitioner had thus bound himself to the Will in question as of 1.12.1987 and question of fabricating the Will after said date does not arise. Counsel further urged that when the petition was refilled on 26.5.1988, original Will was filed. It was further urged that whatever be the defect in registration, registration of the Will on 8.5.1997 at least proves its existence as on said date. Dr. K.S. Sidhu, learned counsel for the objectors relied upon , Indu Bala vs. M. Chandra to urge that if there were suspicious circumstances surrounding the execution of the Will, onus is on the profounder to explain the circumstances to the satisfaction of the Court. Suspicious circumstances pointed out were as under:-

(i) Petitioner did not summon the official witness from the office of the Sub-Registrar, Delhi. It was urged that this Court should infer there from that had the witness been summoned, factum of registration itself could be demolished.

(ii) The document, as per oral evidence was executed at the site of the petrol pump of the testator where, as per oral evidence, testator was residing. However, the Will records residence of the testator at II-K-44, Lajpat Nagar, New Delhi. Conduct of the petitioner in not prosecuting the petition and buying time casts suspicion on the existence of the Will. Petitioner was buying time to win over the witnesses.

(iii) Verification required by Section 281 of the Indian Succession Act, appended to the petition by Pehlad is worded as a declaration of marginal witnesses for the reason that Pehlad did not want to verify the petition as per law since he knew that a false verification would attract the offence of perjury.

17. It would be noted from the submissions above, that save and except the alleged suspicious circumstances pertaining to the place of residence of the deceased, all other circumstances are not related to the point of time when the Will was executed and therefore, these circumstances would be considered in the overall context of the evidence led.

18. Let me collate the evidence as led by the petitioner and in light of the same, view the alleged suspicious circumstances as purported to be made out by the objectors.

19. Kulbhushan, who appeared as PW-2 deposed that Sudershan Lal was his elder brother. He left behind a Will dated 15.6.1984. He stated that his brother used to live and work at the site of a petrol station at Badarpur. His brother executed the Will, Ex.PW-1/2, in his presence by signing the same at the first instance. Thereafter he signed as a witness followed by Choudhary Pehlad. Signatures of Sudershan Lal were identified at point `D'. Kulbushan categorically deposed that Sudershan Lal was in a sound, mental and physical state at the time of execution of the Will.

20. In cross examination, witness admitted that he had studied up to Class X. Deceased was about 62 years of age when he died. He admitted that there was civil litigation between the sisters and the brothers after their father died. He stated in cross examination that the Will was written in the office at the petrol pump site in village Badarpur. He stated that he reached the site at about 10.30 a.m. Typed Will was available when he reached. He admitted that after the death of the father, sisters had filed a suit claiming share in the joint family property. Confronted with the written statement, Ex.R-20, he admitted having signed the same. However he explained:- Even though it may have been stated in the written statement that Sudershan Lal died without leaving a Will, I affirm that Sudershan Lal did leave a Will and there may have been some typing mistake in the written statement.

21. The witness has explained the alleged admission in the written statement as a typing mistake. Objectors have not put any supplementary questions to the witness on the answer that the written statement contains a typing mistake. It has further to be noted that the testimony of the witness in examination-in-chief that Pehlad also signed as the attesting witness to the Will has gone unchallenged.

22. Pehlad, the other attesting witness to the Will had deposed in a suit filed by the petitioner herein against one, Mr. Pokhraj Dharmachand. In said suit, Pehlad who appeared as PW-1 deposed that the Will in question was executed by Sudershan Lal and he had signed the same as an attesting witness. He also stated that brother of Sudershan Lal had also signed as an attesting witness. It may be noted that Kulbhushan is the brother of Sudershan Lal.

23. Since Pehlad is dead, his statements made on the issue of the Will in a judicial proceeding would be admissible evidence and would have corroborative value.

24. It may be true that the petitioner remained negligent in timely prosecution of the present petition, but that leads us nowhere.

25. Prosecution of petitions after they are filed is more in the hands of counsel for the petitioner. It may not be a very happy situation for a Court to record, but it pains this Court to note day after day, callous and clumsy prosecution of petitions and suits by members of the Bar. I have been noticing that each day at least 2-3 applications come up for disposal where it is stated that inadvertently some documents were not filed or that inadvertently mistakes have been committed in recording the municipal number or description of the property or that the counsel inadvertently failed to note the correct date or inadvertently failed to file the process fee. It is hoped and expected from the members of the Bar who are all living in the computer age to be prompt, thorough and alert in prosecuting petitions, as a smooth flowing petition not only reaches its destination in the shortest possible span of time but even obviates issues of the kind raised in the present petition for determination.

26. Callous prosecution of the petition is no suspicious circumstance to throw a cloud on the authenticity or the existence of the Will.

27. It may be true that the petitioner did not summon any witness from the office of the Sub-Registrar, Delhi to prove the registration of the Will. But that does not mean that nothing can be inferred from the fact of Will being registered on 8.5.1987.

28. The factum of registration has at least one evidentiary value, being that the document was in existence on 8.5.1987.

29. It has to be noted that when the petition was filed, photocopy of the Will was filed on 1.12.1987. It is obvious that on 1.12.1987, the document in question was existing.

30. Much was made out by the objectors from the fact that the Will records the residence of the deceased as II-K-44,Lajpat Nagar, New Delhi and the fact that PW-2 stated that the deceased was residing at the site of the petrol pump when he executed the Will.

31. Death certificate of the deceased, Ex.PW-1/1 records his residential address as II-K-44, Lajpat Nagar, New Delhi. The Will records the same as his residential address. The Will has been executed on 15.6.1984. Date of death is 1.2.1987.

32. It may be true that PW-2 stated that the deceased used to reside at the site of the petrol pump when the Will was executed, but that is neither here nor there. The deceased came from a rural background. Site of the petrol pump at village Badarpur does not have a postal address. Being a bachelor, deceased may have been sleeping in the building at the site of the petrol pump, but post address, being II-K-44, Lajpat Nagar, New Delhi cannot be ruled out. It does happen that while executing a document and stating ones address, postal address is furnished if the executants is residing at a place which does not have a postal address or a municipal number. I do not find this to be a suspicious circumstance.

33. It has to be noted that the brothers of the deceased are not questioning the Will. It may be unfortunate in this country, but there is a marked tendency to bequeath ones estate within the male members of the family. Deceased was a bachelor. Beneficiary under the Will is his real nephew; the son of his brother.

34.Submission of Dr. K.S. Sidhu that the verification of the petition by the attesting witness in compliance with Section 281 of the Indian Succession Act, 1925 shows that Pehlad, one of the two attesting witnesses did not verify the petition but signed the same as a declaration and therefore presumption should be drawn against the petitioner may be dealt with.

35. Section 281 of the Indian Succession Act, 1925 requires that a petition for probate should be verified by at least one of the witnesses to the Will (when procurable), verification being as under:-

I (C.D), one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last Will and testament in my presence.

36. Present petition has been verified by Pehlad as under:-

DECLARATION OF MARGINAL WITNESS I, Pehlad, s/o Sh. Bhikha, r/o- 4, village Badarpur, New Delhi, one of the witnesses to the last will and testament of Sh. Sudershan Lal, the testator mentioned in this petition bequeath that I was present and saw the testator affixing his signature.

37. Though styled as a declaration, Pehlad has verified the petition in substantial and material conformity with Section 281 of the Indian Succession Act, 1925.

38. In cross examination, petitioner who appeared as PW-1 identified signatures of Pehlad on the verification. He stated that Pehlad had signed the petition in his presence.

39. PW-3, Ravindera Nath Abhilashi, hand writing expert proved his report dated 1.5.2001, Ex.PW-3/1. His report and testimony are to the effect that the signatures on the Will are those of late Sh. Sudershan Lal. Report, Ex.PW-3/1 shows that PW-3 compared the questioned signatures on the Will with the admitted signatures of the deceased as appended to the specimen signature card of Oriental Bank of Commerce as also the admitted signatures on the balance sheet dated 22.5.1984 of M/s Auto Grit, New Delh and the signatures on the profit and loss account of the said firm attached as an appendix to the balance sheet.

40. Learned counsel for the objectors could not point out any infirmity from the cross examination of PW-3 to show that the report was not worthy of any credence.

41. Totality of the evidence on record establishes that the deceased, Sudershan Lal executed the Will dated 15.6.1984 (Ex.PW-1/2) as his last, legal and valid testament. Issue Nos. 1 and 3 are accordingly decided in favor of the petitioner and against the objectors.

42. This issue would require this Court to consider whether the petition conforms to the

requirements of Sections 276, 280 and 281 of the Indian Succession Act. If not, what would be the effect of non-compliance.

43. Issue of compliance with Section 281 of the Indian Succession Act has been dealt by me while dealing with issue Nos. 1 and 3. I need not repeat. For the reasons recorded in paras 35 to 38 above, I hold that there is substantial and material compliance with the provisions of Section 281 of the Indian Succession Act, 1925.

44. Non-compliance with Section 276 of the Indian Succession Act, 1925 pointed out by Dr. K.S. Sidhu, learned counsel for the objectors was two fold. The first non-compliance pointed out was that the petition does not disclose the amount of assets which are likely to come to the petitioner's hands. Second non-compliance pointed out was the petition does not state that the petitioner is the executor named in the Will.

45. Sub-clause (d) of sub-section 1 of Section 276 requires a petition for probate to distinctly state the amount of assets which are likely to come to the petitioner's hands. Sub clause (e) of sub-section 1 of Section 276 requires a petition for probate to distinctly state that the petitioner is the executor named in the Will.

46. A perusal of the petition would reveal that the petitioner has appended to the petition a schedule of property and against different properties has stated the money value thereof. Each and every asset has been valued and thereafter totaled. In para 5 of the petition, petitioner has stated that as a beneficiary under the Will, petitioner would be entitled to the properties of the deceased as set forth in Annexure `A'.

47. A reading of the petition i.e. para 5 of the petition and the schedule of property appended thereto would reveal that the petitioner has distinctly set out the amount of assets which are likely to come to the petitioner's hand. I may note here, since it was highlighted by counsel for the objector that the schedule of properties in which the amount of the assets likely to come to the hands of the petitioner have been set out has not been marked as Annexure A. This is another glaring instance of why embers of the Bar are functioning. I fail to understand as to how learned counsel would not even read the petitions drafted by them and ensure meticulous compliance and not leave issues to be determined in the context of substantial compliance. Be that as it may, a meaningful reading of the petition shows compliance with sub-clause (d) of sub Section (1) of Section 276.

48. On the issue of compliance with clause (e) of sub-section (1) of Section 276, I do not find any assertion in the petition that the petitioner has been named as an executor under the Will. Indeed, the Will, Ex.PW-1/2 does not name any executor.

49. Statement in a petition seeking probate that the petitioner is the executor named under the Will, is to my mind, required by law, for the reason Section 222 of the Indian Succession Act, 1925 enjoins the Court to grant a probate only to executors appointed under the Will and therefore where the petition is for probate of Will, the petitioner must aver that he is an executor under the Will. This assertion is otherwise immaterial to the issues of the Will being a genuine Will or not.

50. Where no executor is appointed under a Will, the beneficiary would be entitled in terms of Section 228 of the Indian Succession Act, 1925 to be granted letters of administration with Will annexed.

51. Accordingly, non-compliance with clause (e) of sub-section (1) of Section 276 is immaterial.

52. Section 280 of the Indian Succession Act, 1925 requires a petition for probate to be signed and verified by the petitioner. The petition in question has been signed by the petitioner and his counsel. It does not contain any verification subscribed by the petitioner.

53. Verification to be subscribed by the petitioner as per Section 280 of the Indian Succession Act has to be in the following manner:-

I (ab), the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief.

54. Fortunately for the petitioner, though his counsel remained negligent when he drafted and filed the petition, has got filed an affidavit of the petitioner in support of the probate petition. In the affidavit, the petitioner has deposed that he is filing a petition under Section 276 of the Indian Succession Act, contents whereof may be read as part of the affidavit. The affidavit has been verified as under:-

Verified at Delhi on this 24th day of August 1987 that the contents of the above affidavit are true to my knowledge, no part of it is false nor anything material has been concealed there from.

55. It is trite that purpose of every verification is to bind the subscriber to the truthfulness of what is stated in the petition. It is a solemn act. In the instant case, though not in form, in substance, petitioner has subscribed to the petition as required by law i.e. Section 280 of the Indian Succession Act, 1925.

56. Issue No. 4 is accordingly decided in favor of the petitioner and against the objectors.

57. No arguments were addressed on this issue by learned counsel for the objector. However, since I have on my own noticed, it would be my duty to bring on record the mis-description of the properties as set out in the schedule of properties vis-a-vis the Will.

58. One of the properties referred to in the Will is House No. XVII 318-322, Joshi Road, Karol Bagh, New Delhi. Schedule of properties filed with the petition describes the property as XVII/318-323, Hisgu Road, Karol Bagh, New Delhi/.

59. It is another glaring instance of a typing mistake which the counsel should have noticed. It is true that every petitioner must ensure that what he signs, records correctly. But it is a fact that in India, people blindly sign what is required to be signed by their counsel.

60. Be that as it may, a typing error cannot be equated with a material error. It cannot be classified as a substantial non-compliance with law. Holding on Issue No. 6 that one of the properties referred to in the schedule of properties does not describe the same in accordance with the Will, I hold that its effect is nil.

61. During arguments, objectors filed an application under Section 340 Cr.P.C. It was taken in Court. In sum and substance, it is stated in the application that the petitioner has fabricated the Will and has used the same in judicial proceedings, thereby committing an act punishable under Section 467 read with Section 471 I.P.C. Prayer made was to direct the registry of this Court to make a complaint to the Chief Metropolitan Magistrate for enquiry and trial according to law against the petitioner.

62. In view of my decision on issues Nos. 1 and 3, I hold that the Will dated 15.6.1984 has not been proved to be a forged document and accordingly, I dismiss the application filed by the objectors. Registry is however directed to number this application as it does not bear any number.

63. The petition succeeds. However, since the petitioner is not appointed as an executor under the Will, in view of Section 222 of the Indian Succession Act, 1925, it is hereby ordered that the petitioner would be entitled to a letter of administration with copy of the Will dated 15.6.1984 (Ex.PW-1/2) annexed.

64. Petitioner to comply with Section 291 of the Indian Succession Act, 1925. On the petitioner filing the requisite administration bond as also filing the requisite stamp papers, registry would draw the instrument of letters of administration with Will annexed.

65. No costs.