IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : PROBATE MATTER FAO 248/1996. Reserved on: Decided on :

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : PROBATE MATTER FAO 248/1996 Reserved on: Decided on : PUSHPAWATI JOSHI (THR. LRS CHANDRAKALA JOSHI & ORS)... Appellants Through Mrs. C.K. Joshi, Mr. Prem Swaroop Joshi, Appellants in person. VERSUS BEENA SHARMA & ORS Through... Respondents Mr. L.D. Adlakha, Ms. Ripu Adlakha, Advs. for R-1 & 5. Mr. Dharamvir Singh Gupta, Mr. Kshitij Sharda, Advs. for R-2. CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG MOOL CHAND GARG,J 1. This appeal has been filed by the appellant against the order granting probate of the Will dated executed by late Shri Harbans Lal Joshi who expired on leaving behind 4 sons, two daughters and 1 widow. The grant of probate was opposed by all the 4 sons and his widow vide objection dated As per the Will in respect of accommodation available in H.No. C-66, Soami Nagar, New Delhi -17 front portion in its entirety is given to the daughter Mrs. Beena Joshi Sharma except one bed room opposite to kitchen of the said portion. Rear portion

2 consisting of two rooms was given to two sons, namely, Prem Swaroop Joshi & Basant Kumar Joshi, who took one bedroom each along with common corridor & kitchen. 2. Similary, bequeath of some portion of the first floor has been made in favour of Shri Sahab Swaroop and Gur Swaroop Joshi in the following words:- (a)space over front portion - may be built by my son Sahab Swaroop when convenient to him, so as to have decent accommodation when he settles down in Delhi permanently after his retirement from Govt. Service in M.P., or earlier according to his choice. (b) Space over rear portion 1st floor Gur Swaroop Joshi my son is permitted to build one room in continuation of the space above the kitchen of the rear portion. He will have to pay the cost of land (roof portion) (a) 1/3 portion of the market rate of land on the date of construction by him. He is also permitted to construct lavatory bath and kitchen by paying the cost of land as stated i.e. 1/3 of the market rate of land on date. The cost of land paid by Gur Swaroop Joshi will be shared by Prem Swaroop Joshi & Basant Kumar Joshi equally. 3. Smt. Shanti Sharma was also permitted to build over the second floor according to the need on date. She has neither filed any objection nor she is a contesting party. Besides that there were some bequeath of movable properties in the following words: It is my frank & open confession that the house as it stands at date has come to being with the funds loaned out by Dayal Bagh Radha Soami Finance Co., J.P. Sahajpal and loans share of money provided by Beena Joshi Sharma out of her salary earned as teacher both before and after her marriage with Shri Nand Kishore Sharma. I wish & hope that my loan obligation on date will be paid by Mrs. Beena Joshi Sharma so as to permit my unfettered departure to better world which has matured. 4. According to the respondent whatever liabilities were left to be discharged and which were required to have been discharged by the respondent Smt. Beena Sharma stands discharged. 5. As far as the objectors are concerned, they had opposed the grant of probate by making following averments:

3 Shri Harbans Lal Joshi had been keeping very bad health, several years before his death. During the first week of December, 1979 Shri Harbans lal Joshi became seriously ill and was completely bed-ridden. He was suffering from a disease which brought about the symptoms of inattentiveness and confusion. He was incapable of balanced sensory perception and was in a state of stuper. In view of the serious illness of Shri Harbans Lal Joshi, he was incapable of making a Will on It is denied that Shri Harbans Lal Joshi executed any Will in question on , a photo copy of which has been produced in this Hon ble Court. In the alternative it is submitted that the petitioner was staying of and on with Shri Harbans Lal Joshi during the period of his illness. The petitioner was attending upon him. Shri Harbans Lal Joshi was greatly under the influence of the petitioner. The Will in question alleged to have been executed by him, was under the undue influence of and under pressure exercised by the petitioner upon her father, Shri Harbans Lal Joshi. It is also denied that Dr. N.N. Tandon and Shri Karam Narain Khanna signed the Will as attesting witnesses. 6. In addition to that it was also submitted that no provision was made for the widow of Shri Harbans Lal in spite of the fact that Smt. Pushpawati Joshi widow of Harbans lal Joshi was the allottee of the land in question. It is also alleged that the property was not self-acquired property of late Shri Harbans Lal Joshi, the payment of the construction of the plot was assured by Sahab Swaroop Joshi and Sushila Joshi wife of Sahab Swaroop Joshi. Late Shri Harbans lal Joshi was not able to make payments and notice were received by Sahab Swaroop Joshi and his wife Smt. Sushila Joshi from where installments were remitted. It was stated that in these circumstances Shri Harbans Lal Joshi had no right to make any Will regarding the property in question. 7. It is informed by learned counsel for the respondent that the objections were withdrawn by Shri Gur Swaroop Joshi by moving an application dated which was supported by his affidavit and the statement of the said objector was also recorded by the Court. An order in this regard accepting withdrawal of the objection was passed on The said order including the statement made by the said objector Shri Gur Swaroop Joshi reads as under: Present: Shri P.D. Adlakha Adv. for the petitioner. Shri M.L. Bhargava Adv. for Shri Gur Swaroop Joshi respondent no.2, with respondent No.2 in person.

4 None for others. Objector No.2 wants to make statement, withdrawing his objections. Let his statement be recorded. ADJ. Statement of Shri Gur Swaroop Joshi s/o Shri Harbans Lal Joshi aged 58 years, respondent No.2 on SA I have filed joint objections on along with the other relations. I do not want to pursue my objections. My objections may be dismissed as withdrawn. ADJ. RO&AC In view of the statement made by Shri Gur Swaroop Joshi, his objections dated in so far as they pertain to him, are dismissed as withdrawn. Case taken up today as was declared a holiday. Case now to come up for arguments on other pending applications on ADJ Learned counsel appearing for the second respondent submits that this statement was procured by misleading him. His counsel was not present at the time when the aforesaid statement has been recorded. However, it is a matter of record that he has not filed any appeal against the grant of probate in favour of the respondent. 9. Shri prem Swaroop Joshi moved an application supported with his affidavit on He was also represented by an Advocate Shri M.K. Bhargava. The statement of that objector was also recorded on which order reads as under: Present: Shri L.D. Adalakha, adv. for the pet. Shri Gur Swaroop, respondent no.2 in person along with Shri Kanwal Narain, Adv. Shri M.K. Bhargava, Adv. for respondent no.3 This is an application by respondent No.3 for withdrawal of his objections. The objector is hereby permitted to withdraw the objections. Hence, the objections are hereby dismissed as withdrawn.

5 Shri Adlakha, Adv. prays for an adjournment on the ground that he has to think over the matter in view of the withdrawal of the objections by respondent No.3, whether he has to press his application for additional evidence or not. In view of the above, adjourn and put up on for disposal of the said application. DJ/ In view of the aforesaid, the objections remained for being adjudicated only on behalf of Smt. Pushpawati Joshi, Dr. Sahab Swaroop Joshi and LRs of Shri Basant Kumar Joshi. On the pleadings of the parties, the Addl. District Judge framed the following issues: (i) Whether Shri Harbans Lal Joshi (deceased) validly executed Will dt propounded by the petitioner and he was of sound disposing mind at the time of execution of the Will? (ii) Relief. 11. It may be observed here that Shri Basant Kumar Joshi died during the pendency of proceedings before the Addl. District judge. His legal heirs were taken on record during those proceedings. They have not appeared as witnesses. 12. The respondent who propounded the Will examined three witnesses, namely Shri Karam Narain PW1, Dr. N.N. Tandon PW2 the attesting witness of the Will and Smt. Beena Sharma the propounder of the Will, daughter of the deceased. 13. On the other hand Smt. Pushpawati Joshi and Dr. S.S. Sharma appeared as witnesses on behalf of the objectors besides brother of Smt. Pushpawati Joshi an Advocate. 14. The Addl. District Judge had come to the conclusion that the Will in question was executed by late Shri Harbans Lal Joshi. Its execution was duly proved by the two attesting witnesses. The Addl. District judge has not found any infirmity or any suspicious circumstances as pleaded on behalf of the appellants to be reasons for refusing the grant of letters of administration. 15. After the grant of probate by the Addl. District judge the appellants filed an appeal before this Court. During the pendency of the appeal,

6 Smt.Pushpawati Joshi also expired. Since the legal heirs of Smt. Pushpawati Joshi are already on record, no other person was brought on record. 16. It is of importance to note that Shri Sahab Swaroop Joshi during the pendency of the appeal also filed an application dated whereby he accepted the Will and stated that he was not pressing the Will on merits. This Court has recorded the statement of Dr. Sahab Swaroop Joshi in the order dated The said order reads as under: C.M.1108/2001 Heard. This application has been moved by legal representative of deceased/executor of the Will who is appellant No.4 as he does not want to join proceedings. The objection raised by learned counsel for respondent No.2 cannot be sustained for a party who does not wish to contest any further cannot be forced to join the proceedings with other appellants who are pursuing the matter does not appeal in the facts and circumstances of the matter. In such circumstance, appellant No.4 is transposed as respondent No.5. Accordingly, this application is allowed. Mr. Vinod K. Srivastava stands discharged so far as his Vakalatnama for appellant No.4 is concerned. Amended memo of parties be filed. Application is filed. 17. The application dated is also reproduced hereunder for the sake of reference: IN THE HIGH COURT OF DELHI AT NEW DELHI C.M.1108/2001 In FAO 248/ Smt. Chandra Kala Joshi 2. Ms. Gunjan Joshi 3. Master Sidharth Joshi 4. Dr. Sahib Sarup Joshi..Appellants. Versus

7 Smt. Beena Sharma & Ors. Respondents APPLICATION UNDER SECTION 151 CPC SHOWETH 1. That the aforesaid appeal against the order dated granting Letters of Administration to respondent No.1 in respect of the Will of Late Shri Harbans Lal Joshi dated is pending before this Hon ble Court and is fixed for final disposal for That appellant No.4 Dr. Sahib Sarup Joshi does not wish to continue with the appeal and wishes to withdraw the same. The appeal was initially filed by the appellant No.4, applicant s mother Smt. Pushpawati Joshi and the present appellants. On the death of Smt. Pushpawati Joshi during the pendency of the appeal her name was struck off. 3. The in view of the fact that the appellant No.4/applicant does not wish to prosecute and pursue the appeal and admits the judgment of the Trial Court his name needs to be removed from the array of appellants and he be transposed as Respondent No That in the aforesaid circumstances the Vakalatnama executed by the applicant/appellant No.4 Sahib Sarup Joshi in favour of Shri Vinod K. Srivastava Advocate is liable to be withdrawn and cancelled since he will continue to represent the remaining appellants. 5. It is therefore prayed that it may kindly be recorded that appellant No.4/applicant Sahib Sarup Joshi does not wish to pursue and prosecute the appeal as an appellant and his name may be deleted from the array of appellants and be transposed as respondent No.5. Prayed accordingly. 18. In terms of the aforesaid order Shri Sabah Swaroop Joshi was transposed as respondent No During the pendency of this appeal an interim order was passed by this Court on whereby certain rights/ permissions were granted by this Court for completing the construction in the following words:

8 Present: Mr. Vinod K. Srivastava, Advocate for the appellant. Mr. L.D. Adalakha, adv. for respondent No.1 Mr. Dharamvir Singh Gupta, adv. for respondent No.2 The respondent No.5 (appellant No.4) Dr. S.S.Joshi shall file an undertaking by Monday to the effect that he will complete the construction within a period of six months and in case the construction is not made in terms of the will by him then the brother who is entitled to raise the construction over his portion shall be entitled to raise his construction at his cost, plus ` 25/- to ` 100/- cost for supervision per square feet for the time which he would be required to spend unnecessarily. List the matter on S.N.Kapoor, J. 20. After taking benefit of the aforesaid order Dr. Sahab Swaroop Joshi moved an application before the MCD for the sanction of plan etc., an SLP was filed by Shri Gur Swaroop Joshi before the Hon ble Supreme Court against the order granting permission to construct some portion of the property. In that petition while dismissing the SLP some observation has been made by the Hon ble Supreme Court: 12. The contents of the said Will are alleged to be vague. Whether the terms stipulated therein are capable of being implemented, would be a matter of construction of the Will at the hands of the High Court. The High Court, therefore, was first required to determine the validity or otherwise of the said Will. Section 81 & 89 of the Indian Succession Act reads thus: 81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency- Where there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted. 89. Will or bequest void for uncertainty- A will or bequest not expressive of any definite intention is void for uncertainty. 13. Thus, if the contents of the Will are found to be vague despite the genuineness thereof, the grant of probate in favour of the 1st respondent may, ultimately, be declined. It is in that view of the matter, the High Court must be held to be not justified in passing interim orders in mandatory form in terms of which not only the appeal preferred by the respondent Nos. 2, 3, 5 & 6 herein would become infructuous, the parties would also be forced to give effect to the provisions of the said Will although, they may have

9 reservations in relation there. Grant of mandatory injunction on the aforementioned premise, in our opinion, therefore, suffers from manifest error. (see Union of India & Ors. Vs. Modiluft Ltd. (2003) 6 SCC 65, Para 11 and Shrikrishna & Ors. Vs. Anirudha Singh & Ors. (2005) 12 SCC 389). 21. The counsel appearing for respondent No.2 who, as stated above, has withdrawn his objections but has gone to the Hon ble Supreme Court submits that in view of the aforesaid order the order granting probate must be set aside. 22. However, the learned counsel for the respondent submits that this order in no way affect the order granting the probate. Some observations which have been made only with regard to the interim order having been passed by this Court and passing reference regarding the contents of the Will does not make the order of grant of the Will a nullity. He submits that there are good grounds that the order granting probate must be upheld. He also says that the Will is very specific and deals with shares of different parties to whom bequeath had been made, and therefore, it cannot even be said that this Will has any vagueness. Moreover, he submits that there are no pleadings regarding the vagueness of the Will in question by the objectors before the Addl. District Judge. They have also not led any evidence in this regard. No issue was framed on that and therefore they cannot draw any benefit out of the order of the Supreme Court inasmuch as even arguments were not raised before the Addl. District Judge. 23. Learned counsel for respondent No.2 has also adopted the written arguments filed on behalf of the appellant. In those arguments, the basic submission made by the appellant are twofold; firstly, the will was vague as even observed by the Hon ble Supreme Court as stated above. It was thus submitted that on account of vagueness and uncertainty the will has become void and could not have been the basis for granting probate in favour of the respondent. 24. To highlight the vagueness the appellant has referred to paragraphs 1 and 2 of the Will which reads as under:- Front portion of its entirety is given to my daughter Mrs. Beena Joshi Sharma except one bed room 12 X12 opposite to the kitchen of the said portion. This bed room is given to my son Sahib Saroop Joshi. After some structural change and position of doors it may form part of rear portion so as to have easy access to the roof and use of bath rooms and lavatory etc. of the rear portion.

10 Rear Portion consisting of 2 bedrooms are given to my sons Prem Sarup Joshi and Basant Kumar Joshi who will take one bed room each and use corridor and kitchen in common. 25. It has been submitted that a conjoint reading of paras 1 and 2 of the Will would further prove its vagueness, uncertainty and unclear intention. The Will does not detail the entire accommodation in the property including the open areas and common areas. It does not specify as to what exactly is given to Beena Sharma and what is bequeathed to Prem Sarup Joshi and Basant Kumar Joshi. The entire bequest, on reading paras 1 and 2 is confusing, vague and uncertain. 26. It is also submitted that the perusal of the above clause (a) and (b) in para 3 of the Will would show again the vagueness, uncertainty in the Will and the confusion therein. In clause (a) the Will says that space over the front portion may be built by Sahibe Saroop Joshi when convenient to him. It does not say over which front portion of the property can Sahib Saroop built. Again it says he may build when convenient to him. It may never be convenient to him. The alleged bequest is absolutely vague and uncertain. Similarly, clause (b) says space over rear portion 1st Floor-Gur Saroop Joshi is permitted to build one room in continuation of the space upon the kitchen of the rear portion. It is again not clear as to on what portion Gur Saroop Joshi can build. The present property admittedly is a single storey structure. Then clause (b) says that Gur Saroop will have to pay the cost of land (roof portion) which may be 1/3 portion of the market rate of land on the date of construction by them. Today the cost of the land in the area is not less than Rs. 1 lakh per sq. yard. Gur Saroop according to this bequest will have to pay 1/3 portion of the market rate of land on the date of construction by him. He is permitted to construct the lavatory bathroom etc. How much portion will be constructed and what will be the amount payable by him is absolutely unclear. He may not be able to pay anything at all. Taking into consideration the present market value of the land, the cost of the land so payable by Gur Saroop is to be shared by Prem Saroop Joshi and Basant Kumar Joshi (LRs of deceased Basant Kumar Joshi) equally. Gur Saroop Josh may never build and Prem Saroop Joshi and LRs of Basant Kumar Joshi will never get anything. Shanti Sharma is permitted to build over the second floor according to her need on date. There is no construction on the first floor. The persons permitted to build on the first floor may never so

11 build and thus Shanti Sharma will never be able to make any construction on the second floor. 27. It is, therefore, submitted that the Will is not executable nor can the intentions of the testator be given effect to. The will or bequest is absolutely uncertain and not expressive of any definite intention on the part of the testator. The Will is wholly ambiguous and deficient on the face of it. It cannot take effect to the full extent. No extrinsic evidence can be led to show the intention of the testator under Section 81 of the Indian Succession Act. The will makes to mention of the wife Smt. Pushpawati Joshi. Section 89 of the Indian Succession Act says that the Will or bequest which is not expressive of any definite intention is void for uncertainty. It is, therefore, submitted that the Will Ex.P-1 being uncertain, vague and incapable of putting into execution is void. No probate could be granted. 28. Insofar as the plea taken by the appellant and respondent No.1 regarding vagueness of the Will, it is apparent from a reading of the Will as discussed above that the Will bequeaths the entire front portion of the House No.C-66, Soami Nagar, New Delhi-17 his daughter Mrs. Beena Joshi Sharma except one bedroom opposite to kitchen of the said portion. The Will also bequeaths the rear portion consisting of two bedrooms to two sons of the deceased namely, Prem Swaroop Joshi and Basant Kumar Joshi along with common corridor & Kitchen. 29. Now, coming to the first floor, the Will makes the following provisions: (a) Space over front portion - may be built by my son Sahab Swaroop when convenient to him, so as to have decent accommodation when he settles down in Delhi permanently after his retirement from Govt. Service in M.P., or earlier according to his choice. (b) Space over rear portion 1st floor Gur Swaroop Joshi my son is permitted to build one room in continuation of the space above the kitchen of the rear portion. He will have to pay the cost of land (roof portion) (a) 1/3 portion of the market rate of land on the date of construction by him. He is also permitted to construct lavatory bath and kitchen by paying the cost of land as stated i.e. 1/3 of the market rate of land on date. The cost of land paid by Gur Swaroop Joshi will be shared by Prem Swaroop Joshi & Basant Kumar Joshi equally.

12 30. This division of the shares of the property at the first floor divides space over the first floor in two parts. The space over front portion has been given to Sahab Swaroop Joshi who has been authorized to build up a house in that portion after he settles down in Delhi permanently after his retirement from Government service in M.P. There is no vagueness in the aforesaid bequeath. As far as the rear portion is concerned, the said space has been given to Gur Swaroop Joshi where he has been authorized to build one room in continuation of the space above Kitchen of the rear portion subject to certain obligation that he will pay the cost of land on the proposed date of construction by him. Thus, if he wants to enjoy the property he would be entitled to do so subject to payment of the market rate of land to be shared by Prem Swaroop Joshi & Basant Kumar Joshi equally. This clearly demarks the portion which has been given to Gur Swaroop Joshi, respondent No.2 with a stipulation of payment of market rate of land on the date he decides to carry out the construction. There is no vagueness in the aforesaid bequeath. 31. Now coming to the second floor. Smt. Shanti Sharma has been permitted to build over the second floor according to the need. Obviously, this right is subject to availability of the second floor. In case the construction is not raised on the first floor then this right may not be available to Smt. Shanti Sharma. It is a matter of record that Smt. Shanti Sharma has not come to the Court to object to the grant of probate. Thus, if she has no objection to such bequeath and is not interested in carrying out construction over the second floor, it cannot be said that there is any vagueness in the Will. 32. At this stage, it may be observed here that Sh. Gur Swaroop Joshi, respondent No.2 who is trying to carry the flag regarding objections filed by the appellants and himself had withdrawn objections raised by him specifically on In facts, after withdrawal of the objections, it will have to be considered that he has no objection to the grant of probate. Merely, because observations were made by Hon ble Supreme Court in relation to an interim order passed by this Court permitting raising of construction by some of the legal heirs or the beneficiaries does not open the question for grant of probate in toto. In any event for the reasons stated above, I find that the will is not vague and is capable of execution. 33. The appellant had also challenged the veracity of the deposition made by the witnesses led on behalf of the respondent whereas reference has been

13 made to the witnesses examined by them in particular, prescription R-1 prepared by RW-1 Brig. D.D.Joshi to show incapacity of the deceased to execute the will. 34. Reliance has also been placed on the statement of Dr.S.S.Joshi to show regarding ill health of the deceased testator. 35. It is also submitted that the evidence led by the appellants revealed that Shri Harbans Lal was suffering from Enlarged Prostate with retention of urine upto the upper part of abdomen and he was taken to Army Hospital, Delhi Cantonment on by RW-1 Brig. D.D.Joshi. 36. Criticizing the Will in which no provision has been made for wife of the deceased, it has been submitted that it is unnatural for any person executed the Will not to make some provision firstly, for his wife and then for his children. 37. It has also been submitted that the will was disclosed much later, which also caused aspersions on the intentions of the respondent. 38. It may be observed here that according to the respondents the Will was disclosed to all concerned on the 13th day of the death of the deceased. After that the widow of the deceased took certain actions which brought cloud on the right of the respondent in the property bequeathed to him, and therefore, he filed a probate petition on which was within 3 years of the date of filing of the suit for eviction by Smt. Pushpawati Joshi. In 1983 it was her case that she was the owner of the property. 39. In nutshell it appears that thrust of objections taken by the objectors are threefold; firstly, testamentary in capacity of the deceased on account of bad health as alleged by them; secondly, his incapacity due to the averments made in the written statements that he was not the owner of the property; and thirdly, the Will was not executed by the deceased testator which ground appears to have not been pressed by them rather Smt. Pushpawati Joshi in her cross-examination admits the Will had been disclosed on the 13th day of the death of the deceased. 40. There is no handwriting expert examined by the parties to prove/ disapprove the signatures of the testator or the witnesses on the Will in question. The Will is in the hand-writing of the testator as alleged by the respondent in the examination-in-chief.

14 41. In view of the aforesaid, only two objections needs to be considered in addition to the vagueness of Will which I have already discussed above; one is attestation of the Will by two witnesses who have come in the witness box. Even though it has been stated by the appellant that the two attesting witnesses, namely, Sh. Karam Narain Khanna and Dr. N.N. Tandon have not attested the said Will, however, both these witnesses have come in the witness box and have deposed regarding attestation of the Will and its execution by the deceased testator. The learned ADJ, in this regard has taken note of the testimony of these two witnesses inasmuch as it has been observed that: Before I advert to the testimony of RW1 Brig. D.D. Joshi regarding deposing state of mind of the testator at the time of making the Will, I consider it necessary to deal with the evidence produced by the petitioner on this aspect of the matter. The petitioner has examined both the attesting witnesses of the will besides herself in her evidence. They all have deposed in their statement on oath that the testator was in a sound disposing state of mind on when he made his will Ex.P.1. There is nothing in the cross-examination of any of the PWs which may create a doubt on the disposing state of mind of the testator at the relevant time when he executed his will Ex. P Going through the statement of these two witnesses, I find that nothing material has been taken out from their cross-examination which may discard their testimony. No contrary evidence which may establish that either two witnesses had not signed the Will Ex.P-1 or that their signatures were forged has been led on behalf of the appealnt or even by respondent No Now, therefore, the only other point which needs to be dealt with is the medical testimony regarding illness of the deceased testator and the effect of such illness on the testamentary capacity of the deceased. In this regard, the only evidence which has been led on behalf of the objectors is the deposition of RW-1, Brig. D.D. Joshi, who in his statement-in-chief has deposed that he was employed as a Chief consultant Urology and was posted in the Army Hospital, Delhi Cantt. at the relevant time and that he had received a telephonic call on at about noon time informing him that his cousin brother Sh.H.L.Joshi was seriously ill. He deposed that he had examined the testator and found him suffering from enlarge prostate with retention of urine upto the upper part of the abdomen and he took him in his car to the Army Hospital, Delhi Cantt and with the help of his assistant inserted

15 indwelling catheter and thereupon he passed urine in the bag attached therewith. He further deposed that the condition of the testator was stabilized after about 3 hours and he thereafter brought him back to his house in his car and remained with him till about 7 PM that evening. He also stated that he had written the prescription Ex. R-1 upto the portion encircled X on and he again went to the house of the testator in the evening of , at about 4 PM and found him in the same condition. This witness further stated that the testator was suffering from the aforesaid disease for about one year prior to but he did not know about his sickness before that day, as he was treated by some other doctor. He stated that he had referred the testator to Urology department in AIIMS to his friend Dr. Surender Man Singh, head of the Urology Department, where he was operated upon for enlarge prostrate after about one year of Jan According to RW1 Dr.Joshi, the testator was not in a position to move about and go to Bhogal on In Cross-examination RW1 stated that he was not maintaining any diary as he was in Govt. service. He further deposed in his cross-examination that he had deposed about his having examined the testator on only after seeing his prescription Ex. R-1. He could not tell specifically who had accompanied him with the testator on the day he took him in his car for treatment to Army Hospital, Delhi cantt. and stated that no entry was made in the record of the Army Hospital regarding treatment having been given to the testator. He denied the suggestion of the petitioner s counsel that he was called to the house of the testator for his alleged sickness on and not on The learned ADJ further observed that: The objectors have tried to create doubt on the genuineness of the will in question by showing that the testator was suffering from such a sickness on that it was not possible for him to execute a Will on that date. The case of the petitioner is that the testator was being treated for urinary problem by RW1 Dr. Joshi on whereas the case of the objector is that he was so treated on and not on In this context the date of treatment of the testator for his urinary problem assumes significance. When RW1 was asked in his cross examination whether the date which he gave alleged treatment to the testator was a holiday or working day he simply replied that he did not remember. The petitioner who appeared as her own witness is quite emphatic on this aspect. She stated in her cross-examination that her father was taken to the Army Hospital, Delhid Cantt. On and she stated that she remember the said date as it was a gazette holiday and was at her home when she received

16 telephonic call from her brother regarding illness of her father. It has come in the cross-examination of RW1 that he has deposed about the date of on the basis of his prescription R-1. It will be pertinent to note here that when objections were filed by the objectors, they have not stated anything about the alleged treatment given by RW1 Dr. Joshi to the testator on and also regarding the prescription Ex.R-1. PW3 who is the petitioner himself was cross-examined on and it was suggested in her cross-examination on that day that her father remained admitted for one night in Army Hospital, Delhi Cantt. On , RW1 Dr. Joshi stated in his statement that the testator was brought back to his house after he was kept in observation there in the Army Hospital for 3 hours and this contradictory stand taken from the objectors side tend to show that the objectors were probably in the process of manipulating the prescription Ex.R-1. Prescription Ex.R-1 was not filed by the objectors alongwith their objections and they filed the photo copy fo the said prescription for the first time on The manner and style of writing the date and on Ex.R-1 prima facie creates a doubt about the date of treatment of the testator. It appears to me that the date of has been changed on Ex.R-1 by converting the digit 1 of date 31 into a long stroke after the digit 3 of the said date so as to give an impression as if the testator was treated on and not on which is the case of the petitioner. No authentic medical record has been produced from the objectors side either from the Army Hospital or from any other Hospital to show that the testator was actually treated for his alleged ailment on and not on The aforesaid discussion points out that firstly, the witness who was examined by objectors to prove the illness of the deceased testator, only refers to his treatment with regard to his Enlarged Prostate on a particular day about which also he is not sure as to whether it is or while according to the respondent it is and as observed by the learned ADJ the documents Ex.R-1 contains some overwriting/manipulation. This shows that the evidence led on behalf of the appellants was not trustworthy. 46. Even if it is presumed for the sake of arguments that the deceased testator was suffering from enlargement of prostate gland, there is no evidence that such ailment was such which would disentitle or would incapacitate the deceased testator to execute the Will. Therefore, the objections with regard to illness of the deceased testator as a ground that he

17 was incapable of executing the probate is also of no consequence and the same has been rightly rejected by the learned ADJ. 47. Before dealing with the next point it taken by the appellant i.e. making no provision for the widow of the deceased, I may observed that insofar as the execution of the Will in question is concerned, it has been proved by the propounder of the Will i.e. respondent No.1 and the two witnesses who have deposed on oath that the deceased testator had executed the Will Ex.P-1 in his own handwriting in their presence on and he has signed at point A after reading it and they had also signed on the said Will at points B and C in presence of each other. In the cross-examinations of these two witnesses nothing could be taken out so as to controvert their deposition. No suggestion was given to any of the attesting witness that the handwriting and signatures on the Will Ex.P-1 was not that of the deceased testator. Despite taking a plea that Ex.P-1 was not in the handwriting of the deceased testator as stated by RW-2, no evidence to prove such a fact has been led. There is also contradiction in the statement of RW-2 and RW-3 who stated that the Will was disclosed at the time of tehravi of the deceased testator and have only tried to avoid answering regarding handwriting of the deceased testator when she had specifically asked about it. More over in the case of Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529, it was held as under: The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. 48. In view of the aforesaid, the learned ADJ was right in holding that respondent No.1 had proved the execution and attestation of the Will in question. 49. Now coming to the last point i.e. suspicion on the Will in view of the widow of the deceased having not given any share in the property, I may

18 observed that the issue has been discussed by the learned ADJ in para-12 of impugned judgment: 12. It was argued by the learned counsel for the objectors that the very fact that the testator has not given anything to his wife in his Will Ex.P1 itself creates a strong suspicion on its genuineness. Learned counsel for the objectors has relied upon two judgments of the Hon ble Supreme Court of India, 1) In Ram Piari Vs. Bhagwanti & Ors. AIR 1990 SC 1742 and the other in Kalyan Singh Vs. Smt. Chotti, AIR 1990 SC 396, in support of his above arguments. I have carefully gone through both these judgments but they are not applicable in the facts and circumstances of the present case. In the case of Ram Piari Vs. Bhagwanti (Supra) the Will by which the testator had disinherited his daughter was held to be unnatural by the Hon ble Supreme Court for several other suspicious circumstances existing in that case and prominent amongst them being that the testator in that case had thumb marked on his Will whereas it was proved on record that he was fully capable of signing and the other strong suspicious circumstance existing in that case was that the scribe who executed the will had found the testator covered with quilt in the afternoon of August at the time of his visit to his house. No such suspicious circumstances exist in the present case. Similarly, in the case of Kalyan Singh Vs. Smt. Chhotti (Supra) there were several other suspicious circumstances apart from the fact that the testator had disinherited his own wife while making his Will. Therefore, the objectors cannot take any dividend out of any of the aforesaid two judgments of the Hon ble Supreme Court. In Rabinder Nath Mukherjee Vs. Panchanan Banerjee (Dead) by L.Rs. & Ors. AIR 1995 SC 1684, it was held as under: Deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. 13. Applying the ratio of the law laid down by the Hon ble Supreme Court of India in the aforementioned cases, I do not find Will Ex.P1 to be suspicious merely on account of the fact that the testator had disinherited his own wife from succeeding to his estates after his death. I have gone through the contents of the Will Ex.P1 very carefully. The testator by his Will (Ex.P1.) in question has given some or the other share to each of his children except his widow. The Will was made by the testator on and the

19 widow of the testator is living peacefully with her sons till now. The testator is stated to have died on and there is nothing on record to suggest that the widow of the testator has faced any problem with her children either regarding her residence or for her maintenance. As such, I hold that the Will of the testator cannot be said to be suspicious since he had disinherited his wife from succeeding to his estate. 50. In this regard, Supreme Court in the case of Savithri & Ors. Vs. Karthyayani Amma & Ors. (2007) 11 SCC 621 has also observed as under: 22. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant. 51. Issue with regard to delay in filing the probate petition was also raised by the appellant and respondent No.2 inasmuch as the probate was filed after 4 years of the death of the deceased. However, in this regard it may be observed here that a plausible explanation has been given for the time in filing of the probate petition by answering the question put to her in this regard. The question put to her and the answer given by her is quoted hereunder for reference: Q. Please tell the court as to why you kept quiet with the will for more than 3 years before filing the petition in court? A. For about 2 years or so, after the death of my father my elder brothers had been trying to persuade me not to take advantage of the Will and any fight in the property. They even offered me some consideration. A part of the house is with tenant and I did not want to assert my right and claim the rent from the tenant who is in occupation of the portion bequeathed in my favour, during the life time of my mother but since at the instance of my brothers my mother filed suit against the tenant, claiming title in the property, I had to file this petition. I had disclosed to my brother Dr. S.S. Joshi that my father had executed the Will in my favour, I had disclosed him that this fact when he came to

20 meet me after 5-7 months of the death of my father and my said brother had told this fact to my mother and other brother and thereafter my brothers had been persuading me not to claim any right in the property. The persuation was by my two elder brothers Dr. S.S. Joshi and Sh. G.S. Joshi. 52. There is another aspect which also supports filing of the probate petition little later and also reflects as to when the cause of action had arisen for filing of the probate petition. This is relevant in view of the law as applicable in Delhi which does not require a probate to be filed in respect of a Will is that : RW3 is the widow of the testator has admitted in her cross-examination that she had filed a suit for eviction against the tenant on the ground floor of the property in August, The present proceedings were filed by the petitioner on 1st May, It has been argued on behalf of the respondent that Smt. Pushpawati Joshi, the widow of the testator in the eviction petition filed by her described herself as the full owner of the property which had given rise to the cause of action in favour of the respondent to seek declaration that it was she who was the owner of the property. 54. There is no dispute that the deceased was the owner of the property. Merely because some loans were taken by his daughter and which are yet to be paid would not deprive the respondent to file the probate petition. 55. In view of the aforesaid, I find no infirmity in the order granting probate of the Will Ex.P-1 dated in favour of respondent No.1. The appeal filed by the appellant is accordingly, dismissed with no order as to costs. Trial court record be sent back forthwith along with a copy of this order. CM Nos. 4512/1999, 1226/2000 & 20938/2010 Dismissed as infructuous. Sd/- MOOL CHAND GARG,J