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IN THE HIGH COURT OF DELHI AT NEW DELHI
J.R. MIDHA, J.
C.S. Aggarwal - Appellant
Versus
State - Respondent
Test Case No. 8 of 1995
Decided On : 29-03-2019
WILL - Probate - Will dated 02.08.1988 executed by the testator in the presence of two witnesses - Will registered on 08.11.1988 - Objector claiming that the testator executed a subsequent will dated 21.10.1994 and thereafter another will dated 07.12.1994 - Objector failed to produce the original will dated 21.10.1994 and stopped appearing in the proceedings - Objector examined her son and herself in exercise of power under Section 165 of the Indian Evidence Act - Court satisfied that the will dated 02.08.1988 is the last and valid will of the testator - Will dated 02.08.1988 proved - Probate granted.
Fact of the Case:
The petitioner is the executor of the will dated 02nd August, 1988 (Ex.P/2) executed by late Shanti Devi which was duly registered with the Sub-Registrar as document No.5217 in Book No.3, Volume No.473 at pages 146 to 160 on 08th November, 1988. The will dated 02nd August, 1988 has two Schedules. The First Schedule to the will is statement of the wealth and total assets of the testator whereas the Second Schedule is the Trust created by the testator for charitable purposes. The petitioner appeared in the witness box as PW-1 and proved the death certificate as Ex.P/1. Anil Sharma, appeared in the witness box as PW-2 and deposed that late Shanti Devi executed the will, Ex.P/2 in his presence and in the presence of A. Jhunjhunwala, Chartered Accountant. PW-2 further deposed that the contents of the will were read over to the testator and she signed the will and the Schedules after understanding the contents in his presence and in the presence of the other witness. PW-2 identified the signatures of the testator, his signatures as well as signatures of other witness at points A, B and C on the will, Ex.P/2. He further deposed that the will was registered and the testator as well as both the witnesses were present at the time of registration. He deposed, in his cross-examination, that he was filing Income Tax and Wealth Tax returns of the testator and the testator asked him to witness the will dated 02nd August, 1988. The objector, Surinder Aggarwal admitted the will dated 02nd August, 1988 but pleaded that the testator executed a subsequent will dated 21st October, 1994. However, Surinder Aggarwal failed to produce the original will dated 21st October, 1994 and stopped appearing after 22nd January, 2003. The objector, Sneh Lata challenged the will dated 02nd August, 1988 on the sole ground that the petitioner was a junior Advocate with late Asa Ram Aggarwal (husband of late Shanti Devi) and he used to file Income Tax and Wealth Tax returns of Shanti Devi and he fraudulently obtained the signatures of C.S. Aggarwal in the garb of filing Income Tax and Wealth Tax returns. However, Sneh Lata has relied upon the will dated 21st October, 1994 set up by Surinder Aggarwal.
Finding of the Court:
The will dated 02nd August, 1988 (Ex.P/2) executed by late Shanti Devi in the presence of two witnesses has been duly "proved". The suspicions established a high degree of probability that both the wills dated 21st October, 1994 and dated 07th December, 1994 are fabricated documents. The onus to remove the above suspicions was on the objector. However, the objector miserably failed to remove the suspicions. The conscience of this Court is not satisfied that the wills dated 21st October, 1994 and dated 07th December, 1994 are genuine wills of the testator. Both the wills appear to be wills of the objectors. It appears that the objectors are dishonest litigants who have fabricated the wills to grab the property of the testator.
Issues: Whether the will dated 02.08.1988 executed by the testator is the last and valid will of the testator.
Ratio Decidendi: The Court observed that the will dated 02nd August, 1988 (Ex.P/2) executed by late Shanti Devi in the presence of two witnesses has been duly "proved". The suspicions established a high degree of probability that both the wills dated 21st October, 1994 and dated 07th December, 1994 are fabricated documents. The onus to remove the above suspicions was on the objector. However, the objector miserably failed to remove the suspicions. The conscience of this Court is not satisfied that the wills dated 21st October, 1994 and dated 07th December, 1994 are genuine wills of the testator. Both the wills appear to be wills of the objectors. It appears that the objectors are dishonest litigants who have fabricated the wills to grab the property of the testator.
Final Decision: The Court held that the will dated 02nd August, 1988 (Ex.P/2) executed by late Shanti Devi in the presence of two witnesses has been duly "proved". The will dated 02nd August, 1988 is the last and valid will of the testator. Probate granted.
J.R. MIDHA, J.
1. The petitioner is seeking letters of administration in respect of the will dated 02nd August, 1988 of late Shanti Devi Aggarwal (hereinafter referred to as "Shanti Devi").
2. The petitioner instituted this petition on 22nd February, 1995 on the averments that Shanti Devi died at New Delhi on 04th January, 1995; Shanti Devi was the permanent resident of Delhi at the time of her death and she was staying at flat No.3, 4th floor, Jeevan Deep Building, Parliament Street, New Delhi-110001 at the time of her death; Shanti Devi executed her last will and testament dated 02nd August, 1988 duly registered with the Sub-Registrar as document No.5217 in Book No.3, Volume No.473 at pages 146 to 160 on 08th November, 1988; the husband of late Shanti Devi pre-deceased her and there were no class-I legal heir; Shanti Devi was the owner of the properties mentioned in the will; Shanti Devi bequeathed Rs.20,000/- to her domestic servant, Bidhi Chand and the balance estate to a charitable trust, Asa Ram Shanti Devi Memorial Charitable Trust of which H.L. Bedi and C.S. Aggarwal (the petitioner) shall be the first trustees; the petitioner is the executor of the will and is entitled to grant of the probate. The petitioner has placed on record the original death certificate of Shanti Devi; original will dated 02nd August, 1988 and the copy of the complaint dated 16th February, 1995 made to SHO, P.S. Parliament Street against certain relatives of late Shanti Devi.
3. Notice of this petition was issued to Jitender Aggarwal and Surinder Aggarwal (nephews of the husband of the late Shanti Devi) and Mr. Bidhi Chand (domestic servant of late Shanti Devi) on 02nd March, 1995. However, the summons were not served on them and vide order dated 16th April, 1996, this Court directed substituted service in pursuance to which the citation of this petition was published in the "Statesman" on 29th April, 1996.
4. The petitioner examined two witnesses, namely, C.S. Aggarwal (the petitioner) as PW-1 and Anil Sharma as PW-2. Vide ex-parte judgment dated 16th July, 1997, this Court granted the probate to the petitioner in respect of the will dated 02nd August, 1988 executed by late Shanti Devi.
5. On 26th July, 1997, Surinder Aggarwal, nephew of the husband of the testator filed I.A.10969/1997 under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte judgment dated 16th July, 1997 on various grounds inter-alia that H.L. Bedi who was appointed as a trustee by the testator in the trust deed dated 30th June, 1988 expired during the life time of the late Shanti Devi and therefore, the testator revised her will dated 02nd August, 1988 by executing a subsequent will dated 21st October, 1994 in which she appointed six trustees who had the option to co-opt the petitioner as a trustee as he was the tax consultant of the testator; the testator bequeathed Rs.50,000/- to her domestic servant, Bidhi Chand and the balance estate to the trust. Copy of the will dated 21st October, 1994 was filed by Surinder Aggarwal along with I.A.10969/1997.
6. On 25th May, 1998, Jitender Aggarwal, other nephew of the husband of the testator, filed I.A.10434/1998 under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte judgment dated 16th July, 1997 on the ground that he was not served with the summons. The applicant pleaded that the testator was very close to her; had great affection towards the applicant and had met her several times in her life time. According to the applicant, the petitioner connived with his brother, Surinder Aggarwal with the intention to keep the applicant out of the property of the testator and included the names of his favorites as trustees in the will dated 21st October, 1994.
7. On 26th March, 2001, I.A.10434/1998 and I.A.10969/1997 were allowed on the no objection of the petitioner. The respond
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