Shashi Jawa v. State of NCT of Delhi & Ors

1. This appeal has been filed by the appellant under Section 299 of the Indian Succession Act, 1925[1] read with Section 151 of the Code of Civil Procedure, 1908[2] challenging the Impugned Judgment and Order dated 05.02.2019 passed by the Court of learned Additional District Judge, Patiala House Courts, New Delhi[3], wherein the learned ADJ dismissed the uncontested Probate Petition of the appellant who is the mother of the deceased/testator late Shri Anil Jawa seeking probate of the Will dated 18.02.2012. The testator passed away on 26.04.2012.

2. Shorn of unnecessary details, the appellant, who is the mother of the deceased/testator, namely Late Shri Anil Jawa had filed a petition under Section 276 of the Act for grant of the Probate of the Unregistered Will dated 18.02.2012 executed by her late son Shri Anil Jawa. Respondent Nos.[2] and 3, i.e., wife and daughter respectively, did not respond to the notices and proceedings were held ex-parte. During the trial, the appellant herein stepped into the Witness Box and was examined on 15.02.2016 and 21.04.2016. To bolster her case, one of the attesting witnesses to the Will namely Shri Kalyan Singh Gambhir was also examined on 15.02.2016. Additionally, two bank officials, whose testimonies will be expounded upon later in this judgment, were also subjected to examination.

IMPUGNED ORDER:

3. Learned Trial Court raised certain concerns with regard to the thumb impression of the deceased testator on the Will since he was otherwise an educated person. Furthermore, the Court was not convinced about the mental soundness of the deceased/testator at the time of alleged execution of the Will. It was also noted by the learned Trial Court that the fact that the deceased/testator mentions that respondents No. 2 and 3 shall have no right with respect to his property implies that the medical condition of the testator ought to have been proved on record. The Court based its observation on the ground that there is a lingering suspicion with regard to the execution of the Will since the testator used his thumb impressions instead of his signatures, coupled with the fact that the wife and daughter of the deceased/testator were excluded from the Will and also for the fact that the medical record providing the mental condition of the deceased/testator was not produced on record. It is also mentioned by the learned Trial court that the details of his savings account and his locker details have not been mentioned in the Will so that the proceeds could be taken care of. Hence, the petition seeking probate was dismissed.

4. What stares on the face of the record is that no evidence was led by the appellant regarding mental state or condition of the deceased son. However, during the course of hearing of the present appeal, CM No. 21219/2019 was moved under Order XXXXI Rule 27 of the CPC for placing on record additional documents in the nature of certificates of two medical practitioners/experts about the mental condition of the deceased/testator: Annexure A-1 appears to have been issued by Dr. Tejinder Kataria, MD, DNB, CCST, FIMSA, Chairperson, Radiation Oncology; and Annexure A-2 has been issued by Dr. Ajay Nand Jha, MS, FRCS, FRCS (Surgical Neurology), Chairman- Institute of Neurosciences, both from Medanta Cancer Institute, Gurgaon, Haryana.

5. In order to clear the cloud over the mental condition of the deceased, particularly in the face of the fact that respondents No. 1 & 2 i.e., wife and the daughter of the deceased have not responded to any notices by the learned Trial Court as also of this Court. It would be expedient that the aforesaid doctors/specialists be summoned to depose either in person or through Video Conferencing and to give evidence on such aspect.

6. Accordingly, in terms of the powers of this Court under Order XLIII Rule 27 of the CPC, it is expedient that the evidence of the aforesaid doctors/experts be recorded, and therefore, the matter be placed before the Joint Registrar, High Court of Delhi with the direction to summon the above named doctors/experts with relevant medical documents and record their deposition, who may either be called upon to appear in person or through Video Conferencing, as may be convenient to the Joint Registrar, and remit the matter back to this Court.

7. The parties shall appear before the learned Joint Registrar for further proceedings on 10.01.2024.

DHARMESH SHARMA, J. DECEMBER 19, 2023