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2014 Supreme(Del) 1036
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
KRISHAN LAL DILAWARI - Appellant
VERSUS
STATE & ORS. - Respondents
FAO No. 100/1994
Decided on: 2nd April, 2014
Mr. Manoj Swarup, Adv. Ms. Lalita Kohli, Adv. Mr. Abhishek Swarup, Advocates.
The judgment underscores the necessity of establishing the authenticity of a Will, the mental capacity of the testator, and the credibility of witnesses in probate cases.
Headnote:
Indian Succession Act - Probate - Section 299 - Summary
Fact of the Case:
The appellant filed a probate petition seeking validation of a Will dated 8.5.1974, claiming to be treated as a son by the deceased testator and thus bequeathed the Kashmere Gate property. The probate court dismissed the petition due to various objections raised by the respondent, including the lack of evidence for the original Will and the suspicious circumstances surrounding the propounded Will.
Finding of the Court:
The court found that the propounded Will lacked credibility due to the absence of the original Will, the dubious conduct of the appellant, and the suspicious circumstances surrounding the execution and attestation of the Will. The court also noted that the appellant failed to provide sufficient evidence to prove his claim of being treated as a son by the deceased testator.
Issues: The issues revolved around the validity of the propounded Will, the mental capacity of the deceased testator at the time of execution, and the exclusion of the widow and grand-daughter from the inheritance.
Ratio Decidendi: The court emphasized the importance of proving the authenticity of the Will, the mental capacity of the testator, and the credibility of the witnesses. It also highlighted the significance of providing evidence to support claims of familial relationships and inheritance rights.
Final Decision: The appeal was dismissed, and the appellant was ordered to pay costs of Rs.1,00,000 to the respondent.
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 299 of the Indian Succession Act, 1925 impugning the judgment of the probate court dated 3.11.1993 by which the probate court dismissed the probate petition filed by the petitioner. Petitioner is in no way related to the deceased Asa Singh whose Will dated 8.5.1974 was sought to be got probated.
2. The facts of the case are that the appellant/petitioner propounded the Will dated 8.5.1974 of the deceased testator Asa Singh. Asa Singh was the owner and resident of House no.1/455, Gali Rajan Kalan, Kashmere Gate, Delhi. Asa Singh died on 29.9.1975. The Will dated 8.5.1974 which is relied upon is said to have been registered with the sub-Registrar on 9.5.1974 i.e. on the next day of the execution. Petitioner claims that though he was not related to the deceased testator, since he took care of deceased testator Asa Singh and his wife Bhagwanti; physically and financially; during their life time, the deceased testator hence treated him like a son and thus bequeathed to him the Kashmere Gate property.
3. Initially, before the court below, the probate petition proceeded till the stage of completion of evidence. The widow Smt. Bhagwanti (treated as the sole surviving relative) is alleged to have given no objection with respect to the petition through her lawyer Mr. Nasim Ahmad, and evidence was led of one attesting witness Sh. Madan Lal, PW-1 and the petitioner as PW-2. It was however noticed at this stage that the deceased had also left behind another legal heir being a grand-daughter Smt. Updesh Kaur/Guddi inasmuch as there was a reference of the grand-daughter in the Will itself. Petition was therefore amended and notice was sent to the grand-daughter Smt. Updesh Kaur/Guddi. The grand-daughter did not file any objections but objections were filed by the respondent no.2 herein, and who is the nephew of the deceased testator. It was contended on behalf of the objector that the deceased was about 100 years old at the time of his death i.e about 98 years when the alleged Will was made on 8.5.1974. Objector also stated that the deceased was not in a sound disposing mind at the time of making of the Will and was suffering from various ailments because of the old age. The objector also pleaded that the appellant-petitioner had never taken care of the deceased testator and that the deceased testator and his wife were taken care of by the objector and the grand-daughter Guddi including helping them financially. The propounded Will was stated to be a forged and fabricated Will. The Will was pleaded to be surrounded by unnatural and suspicious circumstances. Objector also pleaded that the deceased could not bequeath the property as it was an ancestral property. It was the case of the objector that the petitioner who was carrying on the business in an adjoining small shop as a tenant of one landlord Sohan, he was in a position to have and thus in fact had obtained the thumb impression of the deceased by playing fraud upon the deceased.
4. The following issues were framed by the probate court:-
“1. Whether the will in question was duly executed by Sh. Asa Singh deceased and is attested according to law? OP
2. Whether Shri Asa Singh was of sound disposing mind at the time of the execution of the said Will?
3. Relief.”
5. On behalf of the petitioner, evidence was led of 8 witnesses. PW-1 and PW-7 is the same person Sh. Harnam Singh who is said to be deed and petition writer. PW-2 Sh. A.N.Seth was the clerk from the office of the Sub-Registrar to prove the registration of the Will. PW-3 Sh. Madan Lal is an attesting witness of the Will. PW-4 Sh. Aman Kumar was the neighbor of the deceased testator who deposed with respect to visiting the house of deceased testator Asa Singh and that Asa Singh was of sound disposing mind. PW-5 Iqbal Singh Chinna was the sub-Registrar at Kashmere Gate in May 1974 when the subject Will Ex.P-1 was registered. PW-6 Sh. Krishan Lal Dilawar
