FAO 408/2015

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 8^th September, 2016

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FAO 408/2015

SANJEEV DESAI

..... Appellant

Through:

Mr. Mukesh Gupta, Advocate

versus

STATE NCT OF DELHI & ORS

.....Respondents

Through:

Mr. Arun Kumar Panwar, Ms.

Aayushi Gupta, Advocates for Mr.

Raman Duggal, Standing Counsel

for Respondent No.1.

Ms.Vrishti Gupta, Advocate for

Respondent Nos.2 and 3.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

JUDGMENT

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1.

Impugned order of 06^th July 2015 dismisses appellant’s probate

petition in respect of the Will dated 14^th March, 2011 by holding that the

Will produced by the appellant/petitioner does not inspire confidence.

2.

The factual backdrop, as noticed in the impugned order, is that

appellant is Executor of the Will of 14^th March, 2011 executed by late Sh.

Lalit Mohan Gupta who had passed away on 05^th January, 2013. The

parents of the Testator had pre-deceased him and the Testator was

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FAO 408/2015

survived by his wife Mrs. Constance Gupta and daughter, namely

Ms.Charu. The appellant/petitioner was appointed as Executor of the Will

in question as he was a neighbour and the close friend of the Testator.

The Will in question pertains to various amounts lying in the banks in

fixed deposits, shares etc. and immovable property i.e. First floor of the

property No.174-Golf Links, New Delhi which is under lease to M/s.

Desaico Consulting Pvt. Ltd. for a period of 20 years.

3.

The contents of operative portion of the Will in question

(paragraph Nos.7 to 9 thereof) have been reproduced by Trial Court in the

impugned order. A bare perusal of the Will in question reveals that the

aforesaid immovable property shall devolve upon wife and children of the

appellant. So far as the two only heirs of the Testator are concerned, as

per the Will in question, they get assets of the Testator which are in

United States of America.

4.

The death certificate of the Testator and the original Will in

question running into 4 pages was tendered in evidence. The valuation

report as well as publication in the newspaper was also tendered in

evidence. The daughter of the Testator had filed her evidence by way of

an affidavit before the Trial Court in which she had given no objection to

the grant of probate of the Will. The Testator’s daughter had also made a

verification and she filed Affidavit of 11^th November, 2013 to this effect.

The original Will produced before the Court was laminated. The LRs of

the deceased resides in USA and they had sent self-attested signatures of

theirs which were tabulated by the Trial Court in paragraph 12.2 of the

impugned order. It is noted in the impugned order that last page of the

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Will filed in the Court contained 2 sets of signatures of the LRs of the

Testator.

5.

The Trial Court found that signatures of Testator’s daughter on the

left side of the Will did not match with her signatures on the right side of

the Will and the copy of the said Will is on appeal record as Annexure

A-5. It is noted in the impugned order that the explanation of petitioner to

the variation of signatures on the Will in question was that the signatures

on the right side on the Will were affixed on 27th January 2013 before the

Notary to get the Will attested, which has been done after the death of the

Testator. Trial Court concluded that this explanation raised further doubts

which were expressed in the impugned order in the following manner:-

6.

Trial Court has relied upon the Supreme Court’s decision in

477 and Surinder Pal Vs. Saraswati Arora (1974) 2 SCC 600 to observe

that where the propounder takes prominent part in the execution of the

Will which confers on him a substantial benefit, that is itself one of the

suspicious circumstances, which must be removed by clear evidence. The

Trial Court concluded that by disowning fourth page of the notarized