Vivek Gupta v. The State & Ors.

7. The petitioner has thus, sought the Probate/Letter of Administration of the Will dated 20.04.1998 of his father, Late Shri Braham Vira Gupta.

8. The respondent No. 2-Vinod Gupta (brother of the petitioner-Vivek Gupta), contested the Petition and took the Preliminary Objections that the Probate/Letter of Administration of the Will, cannot be granted till the shares of the parties are determined in the Partition Suit, which is still pending adjudication.

9. The respondent No. 2-Vinod Gupta has further claimed that the petition has not been valued property, since it is only one of the properties of the deceased-Shri Braham Vira Gupta which has been purportedly bequeathed by the deceased-Shri Braham Vira Gupta, that has been considered for payment of the court fee.

10. On merits, all the averments made in the petition are denied. The respondent No.2 though admits that the Will dated 20.04.1998, has the signatures of their father, but claims it to be not a genuine Will and challenges its authenticity/genuineness on the following grounds: -

(i) That as per the Will, the deceased-Shri Braham Vira Gupta had signed before the attesting witness on 26.05.1998 thereby implying that the deceased-Braham Vira Gupta did not sign the Will in the presence of the witness on 20.04.1998;

(ii) That the Will was executed under undue influence and coercion of the petitioner;

(iii) that he and respondent No. 3-Dr. Ved Gupta, daughter, and their children have been excluded from the Will;

(iv) That there is a lot of overwriting which is not signed/

(v) That the Will does not appear to be an old document executed about 15 years ago;

(vi) That the valuation of one property and not of other properties, has been mentioned in the Will;

(vii) That the purported Will stated that he had left a thousand sq.

yard residential plot in Faridabad, Haryana to the respondent No.3-Dr. Ved Gupta, which is of substantial value, but in the Affidavit dated 02.11.2012 filed in CS(OS) 3626/1992, the respondent No.3-Dr.Ved Gupta had formally asserted that the plot had been acquired by her from her own resources. The incorrect description of Faridabad property further leads to suspicion in respect of the Will.

11. The respondent No. 2-Vinod Gupta has further asserted that he is the eldest son of Late Shri Braham Vira Gupta and his sister, respondent No. 3-Dr. Ved Gupta is the second child, while the petitioner is the youngest child. He has been an ideal son of his father throughout his life. He is highly qualified and had left his flourishing career in US when the father suffered a heart attack in early 1974 and needed to be looked after. After his return, he undertook the completion of the construction of the suit property. Thereafter, he has been a support of his father not just in the family business but also emotionally, physically and financially.

12. It is claimed that ever since in 1978, when he got married to an accomplished girl of his parents‟ choice, the sister Dr. Ved Gupta has been constantly instigating the father and the mother against him and his wife. She remained unmarried and exercised enormous negative influence on their father and the mother largely because she was a Doctor and both the parents required constant medical care. However, the mother, Smt. Kamla Gupta unfortunately died in 1988.

13. In these efforts of the sister, the petitioner was an accomplice as he stood to gain enormously by alienating the father against him and thereby depriving him of the family business and other assets. So much so, he was forced to leave the first of the floor of the suit property in early 1979 along with his pregnant wife and live in a rented accommodation. The first floor of the suit property was then rented out on a high rent.

14. Also, the deceased-Shri Braham Vira Gupta had normal inclination of emotions towards the grandsons i.e. the children of the respondent No. 2- Vinod Gupta. Consequently, when the lease of the first floor of the suit property expired, he was welcomed by the father to again occupy the first floor of the suit property which fell vacant in October, 1990. This was greatly resented by the petitioner and the respondent No. 3, who lost substantial rental income.

15. It is asserted that in 1982, the father was instigated by the petitioner to institute a Partition Suit against him. Thereafter, respondent No. 2-Vinod Gupta and his family were not even allowed to meet the father by respondent No. 3-Dr. Ved Gupta as well as the petitioner on several occasions, including when the father suffered the heart attack and again underwent a bypass surgery and the third time, when he had a fall and broke his hip; and also when the eldest grandson was leaving for abroad for higher studies. Their old ailing father who needed love and respect of the entire family, more so from the eldest son, was left physically dependent and emotionally distraught by respondent No. 3-Dr. Ved Gupta who scarcely had any sensitivity for him.

16. Therefore, no Probate/Letter of Administration of the Will dated 20.04.1998 can be granted to the petitioner Vivek Gupta.

17. The petitioner-Vivek Gupta in his Rejoinder has explained that the minor corrections in the Will dated 20.04.1998 cannot be termed as an overwriting and do not in any way change the meaning or desire of Shri Braham Vira Gupta and cannot be termed as a factor casting doubt about the genuineness of the Will. It is denied that the Probate cannot be granted till the Suit for Partition is adjudicated. All the averments made in the Objection of the respondent No. 2-Vinod Gupta are denied and the averments made in the petition are reaffirmed.

18. The respondent No. 3-Dr. Ved Gupta despite service has not filed any Objections to the petition.

19. Issues on the pleadings were framed on 19.05.2015 which read as under: - “1. Whether the testator Mr. B.V. Gupta validly executed last will and testament dated 20.4.1998? OPP.

2. Whether the Will dated 20.4.1998 has been signed by the deceased testator under undue influence or coercion? OP R[2].

3. Whether the petitioner is entitled to the probate/letters of administration as sought in the petition? OPP.

4. Relief.”

20. The petitioner Vivek Gupta as PW-1, tendered his evidence by way of Affidavit, Ex.PW1/A and reiterated the assertions made in the Probate Petition.

21. PW[2] Sunil Sapra and PW[3] Raghunath Sahai are the two attesting witnesses, who have deposed that they and the Testator signed the Will in the presence of each other.

22. D2W/1 Vinod Gupta tendered his evidence by way of Affidavit, Ex.DW2/A.

23. The detailed testimony of the witnesses shall be considered subsequently.

24. The Written Submissions have been filed on behalf of all parties.

25. Learned counsel for the petitioner-Vivek Gupta has argued on similar lines as the petition. He has placed reliance on the decisions in Rabindra Nath Mukherjee & Anr. vs. Panchanan Banerjee (D) by LRs and Ors., (1995) 4 SCC 459, Leela Rajagopal & Ors. vs. Kamala Menon Cocharan & Ors., (2014) 15 SCC 570, Pentakota Satyanarayan & Ors. vs. Pentakota Seetharatnam & Ors., (2005) 8 SCC 67, Madhukar D. Shende vs. Tarabai Aba Shedage, (2002) 2 SCC 85 and Joydeb Paul vs. Smt. Dipanwita Pal,

26. Learned counsel for the respondent No.2-Vinod Gupta has also argued on the similar lines as the Objections with special emphasis on the testimony of the attesting witnesses. Ld. Counsel has also referred to the testimony of petitioner Vivek Gupta in extenso, to point out that the petitioner Vivek Gupta has failed to dispel the suspicious circumstances which have been relied upon by the respondent No. 2.

27. In support of his assertions, he has placed reliance on the decision in Kavita Kanwar vs. State (N.C.T. Delhi) & Ors., 2014 SCC OnLine Del 3399, wherein it was observed that the Will can be said to be validly executed once it is proved that the Testator fully knew the contents of the Will, to which he was putting his signatures. Reliance has also been placed on Dhani Ram (Died) Through LRs and Others vs. Shiv Singh, 2023 SCC OnLine SC 1263, wherein it has been held that for lawful cause of action of the Will, it has to be proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Mere registration of the Will is not sufficient to dispel the suspicious circumstances around the Will, as has been held by the Supreme Court in the case of Rani Pnrnima Debi and Another vs. Kumar Khagendra Narayan Deb and Another, 1961 SCC OnLine SC 89.

28. In the end, it is submitted that in view of the evidence on record, no Probate/Letter of Administration of the Will dated 20.04.1998 can be granted in favour of the petitioner-Vivek Gupta.

29. Submissions heard and the Written Submissions along with the record and the evidence perused.

30. The issue-wise findings are as follow: - ISSUE NO.1: - Whether the testator Mr. B.V. Gupta validly executed last will and testament dated 20.4.1998? OPP.

31. The petitioner-Vivek Gupta in his testimony as PW-1 has deposed that their father died on 19.10.2010 in Delhi and his Death Certificate is Ex.P[1]. Their mother, Smt. Kamla Gupta died on 09.08.1988 prior to the demise of their father. The petitioner-Vivek Gupta along with his elder brother, the respondent No.2-Vinod Gupta and his elder sister, the respondent No. 3-Dr. Ved Gupta are the sole surviving heirs of Late Shri Braham Vira Gupta.

32. The petitioner-Vivek Gupta has further deposed that his father, Shri Braham Vira Gupta had executed the Will dated 2.04.1998, Ex.P[2] which was registered on 26.05.1998. Shir Sunil Sapra and Shri Raghunath Sahai are the two attesting witnesses to the Will. According to this Will, the father, Late Shri Braham Vira Gupta had bequeathed his entire estate, including his 1/4th share in the suit property, to the petitioner-Vivek Gupta. It is explained that the suit property was owned by the father, but the same had been put by him in the hotchpotch of HUF in regard to which he has also filed a Suit for Partition in the year 1992.

33. Admittedly, since the construction of the suit property in the year 1975, father and also the Petitioner with his family were residing together on the Ground Floor while the respondent No.2 with his family came to reside on the first floor in 1990.

34. The PW-1 in his cross-examination, has clarified that that he had been told about the execution of the Will by the father during his lifetime and also where it was kept about four or five years prior to his death. However, he found the Will in the safe of the almirah in the store room on the ground floor of the suit property, after the demise of the father. He further deposed that his father had not consulted him regarding the Will nor did he ever request his father for the execution of the Will. He denied having put any pressure on his father for execution of the Will. He also deposed that he is not aware of the exact date of execution and the registration of the Will. He was informed by his father, Shri Braham Vira Gupta about the attesting witnesses who had attested the Will.

35. From his entire cross-examination, there is no circumstance elicited creating a doubt about the genuineness of the Will. Also, there is no material contradiction in the cross-examination in regard to the execution of the Will by the father during his lifetime.

36. The testimony of petitioner therefore, validly proves the execution of the Will by the deceased-Shri Braham Vira Gupta in terms of Section 63 of the Indian Succession Act, 1925.

37. The petitioner-Vivek Gupta has examined the two attesting witnesses, namely, PW2/Sunil Sapra and PW3/Raghunath Sahai in terms of Section 68 of the Indian Evidence Act, 1872.

38. PW2/Sunil Sapra deposed that Shri Braham Vira Gupta had put his signatures in his presence, on the Will. He has explained in his testimony that the photocopy of the Will had been shown to him by respondent No. 3- Dr. Ved Gupta at his residence and he had signed the Will on her request. He further explained that he knew Late Shri Braham Vira Gupta as he was known to his father. Shri Braham Vira Gupta had a shop in Darya Ganj, Delhi, while his father was an Officer in the Sales Tax Department sometime in the year 1975 and knew each other since then. After the retirement of his father, they shifted their residence close to the house of Shri Braham Vira Gupta and both used to take the morning walks together. His father died in the year 2000 due to cardiac arrest.

39. The second attesting witness PW3/Raghunath Sahai corroborated the testimony of the petitioner and the first attesting witness as he also deposed that he had gone to the Office of the Sub-Registrar on 26.05.1998 and had signed the Will in the presence of the Sub-Registrar and the same was also signed by the deceased- Shri Braham Vira Gupta.

40. Though both the attesting witnesses were duly cross-examined, but no material contradiction could be brought forth in their respective cross-examination. Pertinently, it was argued that there is material contradiction in the testimony of the two attesting witnesses; PW[2] Sunil Sapra, the first attesting witness deposed that he signed as an attesting witness on the Will on 20.04.1998 and it had the signatures of Shri Braham Vira Gupta. However, as per PW-3 Raghunath Sahai, he and Late Shri Braham Vira Gupta had signed the Will before the Sub-Registrar on 26.05.1998. This proves that the deceased had not put signatures on the Will in the presence of the attesting witnesses.

41. Pertinently, the Will was executed on 20.04.1998 as is also mentioned therein, while the same got registered on 26.05.1998. The signatures of Shri Braham Vira Gupta appears twice at „Point B-4‟on the Will Ex.P[2] which proves that Shri Braham Vira Gupta had put his signatures on the Will dated 20.04.1998 when the first attesting witness Sh. Sunil Sapra had signed the Will. It was again signed by the Testator as well as PW-3 Raghunath Sahai in the presence of the Sub-Registrar, on 26.05.1998. It is a registered Will and the signatures of the attesting witnesses as well as the deceased-Shri Braham Vira Gupta, are proved on the Will.

42. From the testimony of the two attesting witnesses as well as the Petitioner, it is proved that the Will was executed on 20.04.1998 and was signed by testator and PW2/Sunil Sapra on the same day, while the testator as well as PW3/Raghunath Sahai had signed as a witness on the Will Ex.P[2] before the Sub-Registrar, on 26.05.1998.

43. It is also pertinent to refer to the cross-examination of respondent No. 2-Vinod Gupta who has admitted in his cross-examination that the signatures of his father on the Will, are genuine.

44. The petitioner-Vivek Gupta has proved that Shri Braham Vira Gupta had validly executed his last and final Testament dated 20.04.1998, Ex. P[2].

45. Therefore, the issue is decided in favour of the petitioner and against the respondents.

ISSUE NO.2: -

2. Whether the Will dated 20.4.1998 has been signed by the deceased testator under undue influence or coercion? OPR[2].

46. The respondent No. 2-Vinod Gupta, elder brother of the petitioner has asserted various grounds to claim that the Will is not a genuine document.

(i) Overwriting at various points:

47. The respondent No.2-Vinod Gupta has deposed that there was an overwriting in the Will on „Point G‟, which was not countersigned by the deceased-Shri Braham Vira Singh. The perusal of Will makes it evident that it is only a white fluid which has been put and the words „by him‟ has been typed. The said correction by putting a fluid has been made in running while typing the document and is not an over writing done after the document was executed. Furthermore, except being a minor correction, it does not change the contents of the Will in any manner. It cannot be stated that there is any manipulation in the Will.

48. The second overwriting is claimed at Point „X‟, wherein the amount 1,35,000/- has been typed. However, the perusal of the Will Ex. would show that the first „0‟ (zero) has been typed close to the second „0‟ (zero). Furthermore, the reference there is to „deposit of Rs. 1,35,000/- from myself as an individual along with interest while defining the liabilities‟. The way 1,35,000/- is written with the „comas‟, it is quite evident that there is no overwriting, but has been typed in such a way. There is no overwriting at Point „X‟, as has been alleged by the respondent No. 2-Vinod Gupta.

49. The third alleged overwriting is at point „Z1‟ in respect of the word „is‟. However, the said sentence reads as under: “I have already given to my daughter Ved a plot of land measuring 1000 square yards in Faridabad, which is at present of great value and an asset to her”.

50. The alleged re-writing of the word „is‟ does not make any difference to the contents of the Will which essentially has been challenged in regard to bequeathing of the GK-II property to the petitioner.

51. The authenticity of the Will is proved by the petitioner as well as the two attesting witnesses. Pertinently, these alleged over writings had not been put to the two attesting witnesses. From the bare perusal of the Will Ex.P[2], it is evident that they all have been written while the documents were being typed. There is neither any over writing nor does these alleged over writing pertain to anything significant or relevant for the purpose of the Will.

52. This ground as taken by respondent No.2 is without any merit. (ii)Undue Influence of the Petitioner & Respondent No. 2:

53. The respondent No.1 has alleged that the Will to be not genuine as it had been executed under the influence of petitioner and the sister respondent No.3 Ved Gupta. In this regard, there are certain facts which are of extreme relevance. Shri Vinod Gupta has admitted in his cross-examination that in the year 1968 when the HUF was created by his late father, he was added as a co-parcener/ a beneficiary under the HUF. He further admits that the GK- II property was the property belonging to HUF. This reflects that till then father had equal affection for him.

54. Admittedly, he was in USA in January, 1974 when the father suffered the minor heart attack and according to him, he was able to return only in April, 1974, though it was suggested on behalf of the petitioner that he returned only in July, 1974. He gave an explanation that it took him some time to get the permission from his USA employer to return back to India. However, it is admitted that he never ever went back to USA. He also admitted that he had not given any resignation to his employer. He denied the suggestion by the petitioner that he was unemployed and never returned to USA for this reason. The respondent however, claimed that his reason for not returning to US after he came back to India in 1974, was because his presence was required in India by his parents. What thus, emerges from the testimony of respondent No.2 is that he did not return to India immediately on the ailment of his father but came back only thereafter, which may have been due to administrative reasons.

55. The respondent No.2 has further admitted that he had few 100 dollars in savings which he brought back to India. He admitted that he had been employed in USA for less than one year and had taken small loans from his friends which he had discharged before coming. He had only few hundred dollars which he did not deposit in any bank. He further explained that he had got employed in Compu-Guard inc. incorporated in Pittsburgh in May,

1973.

56. The respondent No.2 further admitted that he got married to a girl through newspaper advertisement and that he was never a Director or an employee of Metropolitan Book Company Private Limited, a business being run by their father. He, however, admitted that petitioner Vivek Gupta had joined the Company sometime in 1978. The respondent No.2 further clarified that he got married on 06.10.1978 and after about six months of his marriage, he moved out of GK-II property, though he denied that he did so under the influence of his wife.

57. The respondent No.2 has also admitted that there was a tenant Mr. Jhunjhunwala on the First Floor of the property in question who vacated in 1990 and handed over the key to him and that he thereafter, came to reside in the First Floor of the GK-II property. A suggestion was given to him that he had connived with the tenant in taking the keys of the First Floor and forcibly entered into the said property.

58. The respondent No.2 has further admitted that the suit for Partition was filed by the father in the year 1992 and that since then he has never visited the father. His only explanation was that he was obstructed by the petitioner and the family members. However, he came to live on the First Floor of the GK-II property since 1990, while the father of the petitioner and his family were residing on the Ground Floor of the GK-II property, ever since it was constructed 1974.

59. Furthermore, admittedly, he did not go to meet his father when he suffered his second heart attack and underwent his by-pass surgery; when he fell and broke his hip and lastly when his elder son went overseas for his higher studies. It clearly reflects that it is the respondent No.2 who had withdrawn from his father and had not ever met him during his life time since prior to 1990, while the father had been through out residing with the petitioner and was being taken care of by him.

60. Moreover, a specific question was put to him to explain the basis on which he had alleged that the petitioner had instigated the father against him, but he stated that the same has been mentioned in his reply/affidavit. However, there are no circumstances explained on the basis of which it could be asserted that petitioner or Ved Gupta had instigated the father against Vinod Gupta. There is nothing to suggest that there was any undue influence or coercion exercised by the petitioner in getting the Will executed in his favour.

61. The circumstances and the admissions made by the respondent No.2 clearly establish that it was his own conduct for which the father had bequeathed the entire property, whether individual or a share in HUF property, in favour of the petitioner. Pertinently, none of these factors were put to the petitioner in his cross-examination.

62. The respondent No.2 had desperately tried to challenge the genuineness of the Will by asserting that Dr. Ved Gupta had given an affidavit of evidence in the Partition suit explaining that the Faridabad property had been purchased by her own resources, but in the Will Ex.P[2] it has been indicated that the Faridabad property has been given by the father to her. The recital in the Will that the father has given the Faridabad property to his daughter in any case does not reflect about the Faridabad property being in the ownership of the deceased. It is a recital made by the father in respect of the unmarried daughter been sufficiently taken care of. In no manner does this recital create any doubt about the genuineness of the Will.

63. While the respondent No.2 had asserted that respondent No. 2/Ved Gupta along with the petitioner had exerted an undue influence on the father, but he has admitted in his cross-examination that his sister Ved Gupta had got him treated for the cancer of larynx and also helped him in the treatment of his son Rahul when he fractured his leg. He volunteered that he is grateful to his sister for the help extended. It again reflect that the sister was equally cordial towards respondent No.2 her elder brother and there was no reason for her to have connived against him or influenced the father in writing a Will excluding him from his properties.

64. From the overwhelming evidence on record to show that the Will Ex.P[2] had been executed by his father out of his free will and was not influenced or coerced into by the petitioner, in executing the Will.

(iii) Exclusion of the elder son and the daughter from the Will:

65. Though the respondent no.2 has tried to create a doubt about the Will by challenging his exclusion from the Will, but as already discussed in detail above, the respondent no.2 had practically no contact with the father since 1990 even though he was residing on the first floor of the suit property. He did not take care of the father even during his ailments. The reasons for exclusion are writ large and the conduct and relationship of the respondent No.2 with the deceased. In this view, the exclusion is understandable in the given circumstances, and does not amount as a suspicious circumstance, in the present case.

(iv) No ascertained portion till partition is effected:

66. The another ground taken by respondent No.2 is that the Will cannot be probated till the share of the father is ascertained by way of the Partition Suit which is pending. However, the Probate case is only concerned with the bequeathing of the properties as stated therein, in favour of the beneficiary. The question of title is not a subject matter is not to be ascertained while considering the genuineness of a Will in a Probate case.

(v) The paper of the Will did not appear 15 years old:

67. This is the last desperate attempt made by the respondent No.2 to challenge the Will. It cannot be overlooked that no suspicious circumstance has been explained which could lead to an iota of suspicion about the execution of the Will. Pertinently, as per the testimony of PW-1 Sh. Sunil Sapra, the Will after execution, was kept in the locker of the almirah, from where it was redeemed by him after the demise of his father. The document when not handled after execution, would not have any wear and tear as compared to the document used and frequently handled over a period of time.

68. There is no merit in this objection.

69. To conclude, the respondent No.2 has not been able to lead any evidence whatsoever to create a suspicion in regard to registered Will dated 20.04.1998 Ex.P[2].

70. The issue is decided against the respondents. Issue No.3:

71. In view of the findings on Issue No.1 and 2, the Probate is hereby granted in favour of the petitioner who is the named Executor in the Will dated 20.04.1998 registered on 26.05.1998 Ex.PW1/2. RELIEF:

72. Probate in respect of the Will dated 20.04.1998, Ex PW[2], is hereby granted in favour of the petitioner, who is also the named Executor, subject to payment of requisite court fees.

73. Petitioner shall furnish Administrative Bond with one Surety to the satisfaction of he learned Joint Registrar General of this court.

74. On payment of the requisite court fee and other formalities noted above, the Letter of Administration in respect of the Will dated 20.04.1998 shall be issued by the Registry. The Petition stands allowed and accordingly disposed of in the above terms.

75. List before the Joint Registrar on 03.12.2024 for depositing of the Bonds.

JUDGE OCTOBER 29, 2024 S.Sharma