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ALLAHABAD HIGH COURT
Sunil Ambwani
BINA GUPTA
Versus
KUMKUM MITTAL
Decided On : 10 November 2006
Testamentary Suit No. 2 of 1994
Probate - Testamentary Case - Indian Succession Act, 1925 - Section 228, Section 280, Section 222, Section 223, Section 224 - The court analyzed the genuineness and due execution of the Will, the mental condition of the deceased, and the ownership of the properties. The court found the Will to be proved by the attesting witnesses and the testator to be in a fit mental condition. The issue regarding the ownership of the properties and the right of the testator to bequeath such properties in the Will was found to be outside the jurisdiction of the testamentary Court. The testamentary suit was decreed, and probate was issued to the named executor, who had expired, and an application was allowed to bring her heirs on record.
Fact of the Case:
The plaintiff filed a testamentary case for grant of probate of a Will alleged to be executed by the deceased. The defendant objected to the Will's validity, alleging forgery and the deceased's unsound mental condition. The court struck issues related to the validity of the Will, the deceased's mental condition, and the ownership of the properties mentioned in the Will.
Finding of the Court:
The court found the Will to be proved by the attesting witnesses and the testator to be in a fit mental condition. The court also found that the issue regarding the ownership of the properties and the right of the testator to bequeath such properties in the Will was outside the jurisdiction of the testamentary Court. The testamentary suit was decreed, and probate was issued to the named executor, who had expired, and an application was allowed to bring her heirs on record.
Issues: The issues included the validity of the Will, the deceased's mental condition, and the ownership of the properties mentioned in the Will.
Ratio Decidendi: The court's decision was based on the proof of the Will by the attesting witnesses, the testator's fit mental condition, and the exclusion of the issue regarding the ownership of the properties from the jurisdiction of the testamentary Court.
Final Decision: The testamentary suit was decreed, and probate was issued to the named executor, who had expired, and an application was allowed to bring her heirs on record.
The plaintiff Late Smt. Bina Gupta filed testamentary case No. 13 of 1993 for grant of probate of Will dated 1-4-1993 alleged to be sealed in the envelope and handed over to the plaintiff executed by late Sahu Basheshwar Dayal (the deceased), died on 15-6-1993 at New Delhi leaving behind properties
mentioned in the schedule including a residential house alongwith Nohra at Chandpur District Bijnore, a grove plot 2105 measuring 6 bigha 14 biswa in Kasba Chandpur and all land and trees thereon, which were his Bhumadhari as well as shares in Delhi Cold Storage Private Ltd. and interest in the firm of Sahu Basheshwar Dayal. The deceased had one son Shri Suresh Mittal, who predeceased him and six daughters including the plaintiffs.
2. Notices were issued to next of kin mentioned in para 2 of the plaint, which include Smt. Kumkum Mittal, widow of late Suresh Mittal and her minor children Sandeep Mittal and Ravi Mittal and other daughters namely Smt. Malti Mangla, Smt. Meena Gupta, Smt. Sarojani Agrawal, Smt. Manju Gupta and Smt. Asha K. Gupta.
3. Smt. Kumkum Mittal wife of late Suresh Mittal filed objections stating that Section 228 of the Indian Succession Act, 1925 is not applicable to the case of the Will. Sahu Basheshwar Dayal never executed any Will on 1-4-1993. The Will is manufactured/forged by Smt. Bina Gupta, Smt. Meena Gupta and Smt. Malti Mangla in collusion with the attesting witnesses. At the time of execution of the Will Sahu Basheshwar Dayal was not keeping sound health and mind. After the death of his wife Smt. Sudama Devi on 22-11-1992, Sahu Basheshwar Dayal became mentally disturbed and was not in a position to look after his affairs, and was not living at his residence at Commissioner Lane, Delhi. In November 1992 Smt. Malti Mangla took him to her residence at 66/61 Safdar Jung Development Area, New Delhi. Smt. Bina Gupta and Smt. Meena Gupta used to visit him. The other family members were not allowed to meet him. Smt. Bina Gupta, thereafter, took him to her residence at 18-A, Kanpur Road, Allahabad and never allowed Sahu Basheshwar Dayal to reside at 2, Commissioner Lane, Delhi. He was wrongfully confined by his three daughters. The Will is manipulated and is concocted by his three daughters in collusion with Shri C. M. Gupta, the husband of Smt. Bina Gupta.
4. The Will is also challenged on the ground that no share has been given to the three daughters namely Smt. Sarojani Agrawal, Smt. Manju Gupta and Smt. Asha K. Gupta. The deceased was not the sole owner of the residential house mentioned in Clause 1 of the Will and the grove of plot No. 2105 situate in Kasba Chandpur. The house and grove are ancestral properties, which were inherited by late Suresh Chandra prior to abolition of Zamindari. The property in Clause 2 were not under sole ownership of the deceased. The total value of the share of partnership firm is approximately Rs. 2 lacs. After payment of all liabilities, taxes etc. out of said share nothing Will remain for her benefit.
5. Regarding the properties in Class 4 it is alleged that Sahu Basheshwar Dayal and sons is a hindu undivided family in which the deceased and his son Shri Suresh Mittal were partners. After the death of Shri Suresh Mittal his share was transferred to his widow and two sons. As regards deposits in Clause 5
of the Will the defendant states that a sum of Rs. 2,85,000/- was in deposit and it is incorrect to say that there have been more deposits. Clause 6 deals with unspecified properties and thus the Will is bad in law and void. The names of Ravi Mittal and Sandeep Mittal, the sons of Shri Suresh Kumar Mittal were mutated over the village Chandpur property in February 1991. The defendant also denied the signatures of the deceased on the Will.
6. In her replication Smt. Bina Gupta, the plaintiff denied that the deceased was mentally disturbed after the death of his wife. He stayed for a few months but since objectors did not visit him or look after him, the decease
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