Geeta Tandon v. Anil Gomber

12. He has further claimed that on 01.06.2012, the plaintiff came to India and left on 14.06.2012. During her stay, she tortured and tormented her mother to transfer the suit property in her name, to which she did not relent. However, she could not tolerate the torture and trauma, and died on 18.06.2012 i.e.just after four days of the plaintiff leaving the country. The present suit is asserted to be without any merit and is liable to be dismissed.

13. The defendant no. 2 in his written statement, took the preliminary objection that the suit was barred by limitation as plaintiff had failed to institute any action in law to establish her purported right in the suit property. Moreover, the suit property has been valued by the plaintiff at Rs. 4,00,00,000/- and she has also sought relief of possession but the requisite court fee has not been filed. She is guilty of suppressio veri as well as suppressio falsi as she has attempted to over reach the process established by law and on this ground itself she is liable to be non-suited.

14. On merits, the defendant no.2 Anil Gomber has re- affirmed that the suit property was purchased by Smt. Usha Gomber to the exclusion of all others on 29.10.1969 from her father-in-law by way of GPA, SPA, Receipt as well as Will. She had arranged the funds from her Stridhan and it became a self acquired property in her hands. Defendant no.2 has further asserted that neither Sri. Surinder Pal Gomber nor Shri. Hari Kishen Gomber ever relinquished their share in the suit property.

15. Defendant No.2 has further explained that Shri. Surinder Pal Gomber, after the demise of Shri. Jail Gopal Gomber, had filed a Civil Suit to challenge the title of Smt. Usha Gomber which was dismissed. Thereafter, in magnanimity and in order to preserve and maintain and harmony, Smt. Usha Gomber gave a sum of Rs. 65,000/- to Shri. Surinder Pal Gomber on her own accord. Defendant no. 2 likewise, has also claimed that the suit property never attained the status of HUF as was being claimed erroneously by the plaintiff.

16. Defendant No.2 has taken an additional plea that the suit property had been purchased from the family funds and all the parties are entitled to use, occupy and enjoy the said property jointly without any interference and have no right to seek partition by metes and bounds. The plaintiff has failed to institute appropriate proceedings with regard to joint family property purchased from the family funds and held for the benefit of the coparceners of the family.

17. It is further submitted that the family of Shri. Inderjit Gomber had purchased two other properties namely F-4 Vijay Nagar, Delhi-110009and F-4 (A), Vijay Nagar, Delhi-110009 admeasuring 100 sq. yards each along with Shri. Padam Chand Jain who came to own the remaining 100 sq. yds. of property bearing no. F-4, Vijay Nagar Delhi-110009. Shri. Padam Chand Jain has now privately numbered his part of the property as F-4 (B), Vijay Nagar, Delhi-110009. The said property though was purchased in the name of defendant no. 1, who at that time, had been working as an apprentice/trainee on a monthly stipend of Rs. 450/- with the LNJP Hospital in New Delhi.

18. In 1986-87, Smt. Usha Gomber also cobbled together her life savings to invest to purchase a flat bearing no. 35, Priya Co-operative Group Hosing Society Ltd, Sector-13, Rohini, Delhi-110085 but she sold the same in the year 2003 on the insistence of the plaintiff who kept on asking for her share in the property left behind by their father, even though a handsome sum of money had already been spent by the family towards her marriage and dowry. The plaintiff has been living away from India for more than last two decades and has even acquired citizenship and permanent residency in the U.S and has thereby relinquished all her interest in India. Despite having received the sale proceeds of the aforesaid flat in Priya Cooperative Group Housing Society, the plaintiff has filed this suit for partition.

19. It is admitted that the grandfather of the parties had purchased the suit property but have submitted that it was a single storey property at that time. The property was constructed to the level of 2 ½ storey by the defendant no.2 in the year 1998-1999 from his own separate funds with the clear understanding that the ground floor of the property which was occupied by the mother, would eventually fall to the share of the defendant no.1 as he along with his wife Dr. Sangeeta Gomber, was using this property for running his Clinic while the first floor along with the roof right, shall vest exclusively in defendant no.2.

20. The defendant no.2 has claimed that Smt. Usha Gomber had executed her last Will on 29.02.2012 which was duly registered. He had been noticing that during the last 6 months of the life time of mother, the plaintiff used to call her on telephone nearly every day which left the mother perturbed and upset and she told the defendant no.2 that the plaintiff had been acting greedy and inconsiderate and was seeking a share in the suit property despite being informed that the mother had no intention to leave any interest/share in immovable property in her favour.

21. The plaintiff last came to Delhi from 01.06.2012 to 14.06.2012 to pressurize and torment the mother for a share in property, despite her ill health. It is submitted that the plaintiff is not entitled to any share in the immovable property and the suit is liable to be dismissed.

22. The plaintiff in the replication to the respective written statements has explained that each of the two defendants had presented their own version of the Will purportedly executed by the mother in favour of the defendants to her exclusion. The two separate instruments of Will of the mother are of two different dates within a gap of about 14 months and also tell two different tales. The Will relied upon by defendant no. 1 refers to vertical split of the property because it suits his convenience as he would then be able to club his purported share in the suit property with his other adjoining property. However, the Will relied upon by defendant no. 2 refers to the floor wise division because it suits defendant no.2 as he would get all the floors except the ground floor. It is claimed that one of the Will is purported to be registered while the other Will is unregistered. The mother was seriously ill on both the dates and was undergoing Psychiatric Treatment for Reactive Depression as is admitted by both the defendants. A person with such state of health could not have executed a Will on her own accord and could not have visited the office of the Registrar. These circumstances raise questions about genuineness of the two Wills.

23. The mother was an illiterate housewife who never had any independent source of income. All her life she had displayed equal love and affection for all her children and in fact somewhat more for her only daughter as is customary and traditional in all Indian homes. There was no reason for her to debar the daughter from her property as has been claimed by the defendants. The veracity and genuineness of the two Wills produced by the defendants, is seriously questioned by the plaintiff.

24. The plaintiff admitted that she has been residing in U.S.A along with her family which includes her handicapped daughter aged 19 years (diagnosed of mental retardation and Autism at the age of 3 years) who cannot be left alone for a long period of time. Notwithstanding her own personal family circumstances, the plaintiff claims that she had been visiting her ailing mother from time to time who had confided in the plaintiff about her ill-treatment at the hands of her sons and their wives during her illness. The mother in fact wrote a letter as early as in January 1997 stating that she had contemplated of committing suicide due to such cruel behavior of sons and their wives. It is further asserted that as per the admissions of the defendants, the mother was bed-ridden and was attended to by two full time attendants for daily needs. She was also undergoing Psychiatric Treatment and was under medication for various illnesses. On merits, all the averments made in the respective written statement, were denied.

25. The issues were framed on 19.03.2013 as under:

1. Whether the writing dated 27.12.2010 is the last Will and Testament of late Smt. Usha Gomber? OPD-1

2. Whether the writing dated 29.02.2012 is the last Will and Testament of late Smt. Usha Gomber? OPD-2

3. Whether proper court fee has been affixed on the plaint? OPD

4. Whether the plaintiff is guilty of suppression and concealment, if yes, then to what extent? OPD

5. Whether the plaintiff is entitled to the relief of partition and separate possession, if yes, then to what extent? OPP

6. Whether the suit is barred by limitation? OPD

7. Whether the suit is not maintainable in view of the provisions of Hindu Succession Act? OPD

8. Relief.

26. The plaintiff despite being given opportunities failed to adduce any evidence and her evidence was closed vide Order dated 20.12.2014.

27. D1W-1Dr. Sunil Gomber, Defendant no. 1proved his affidavit of evidence as Ex. D1W-1/1. He also proved the documents as Ex DW-1/1 to Ex DW-1/9. He examined DW[3], Shri. K.K Sharma, the scribe of the Will dated 27.12.2010 Ex. DW-1/7 who deposed in his affidavit of evidence Ex DW3/A that he had family relations with Smt. Usha Gomber and the parties to the suit and on her request, had drafted and prepared the Will dated 27.12.2010 which he read over and explained the contents of the Will to Smt. Usha Gomber who thereafter signed the Will at point A, Shri. Padam Chand Jain and Shri. Kamlesh Chand Arora, the attesting witnesses at Point C & B respectively while he signed at point D.

28. DW[5], Shri. Padam Chand Jain, the attesting witness in his affidavit of evidence Ex DW 5/A, deposed that he had signed the Will Ex. DW 1/7 at point C while it was signed by Smt. Usha Gomber at point A, by Shri. Kamlesh Chand Arora at point B and by Shri. K.K Sharma at point D, in his presence.

29. Defendant no[1], in order to prove the mental soundness of Smt. Usha Gomber at the time of execution of Will, also examined DW[6] Dr.Vishal Girotra, who deposed that prescriptions dated 22.06.2011, 23.09.2011 and 05.09.2011 were prescribed by him. DW-8 Smt. Mohinder Kaur, wife of Dr.Gurmukh Singh identified the signatures of Dr.Gurmukh Singh on the medical prescriptions Ex DW-1/9 (collectively).

30. Defendant no[1] in order to prove the genuine signatures of Smt. Usha Gomber, examined DW[7], Shri Shivanshu Pundhir, CTOA of PNB, Vijay Nagar Branch who proved the signatures of Late Smt. Usha Gomber and Sunil Gomber on the Account Opening Form.

31. DW[2] Shri. Anil Gomber, defendant no. 2, tendered his affidavit of evidence as D2W1/and deposed on similar lines as the defense contained in his Written Statement. He proved the Will dated 29.02.2012 as Ex D2W1/X-

2.

32. DW[2] Shri. Shital Kumar Jain, the attesting witness to the Will dated 29.02.2012 deposed in his affidavit of evidenceEx D2W2/A that Will dated 29.02.2012 was the last and final Will of Smt. Usha Gomber on which she had signed on each page at point A; Shri. Roshan Lal, the other witness at point B and he had signed at point C.

33. Submissions heard. The written submissions have also been considered. The issue-wise findings are as under: Issue No.7:Whether the suit is not maintainable in view of the provisions of Hindu Succession Act? OPD

34. The plaintiff has sought partition of the suit property claiming that initially her father, Shri. Inderjit Gomber was the exclusive owner of the suit property and after his demise the property devolved in equal share on Smt. Usha Gomber, his wife and his three children who are the parties to the suit and on demise of Smt. Gomber, the parties have become owners of 1/3rd share each by way of inheritance.

35. It is the admitted case of the parties that Mr. Jai Gopal Gomber, grandfather of the parties to the Suit, had purchased the suit property consisting of ground floor in the year 1947-48. The defendant No. 1/Sunil Gomber in his testimony recorded by way of affidavit in Ex. DW1/A had explained that the suit property admeasuring200 sq. yards was allotted by the Office of the Regional Settlement Commissioner, Jam Nagar House, New Delhi, Department of Rehabilitation, Ministry of Labour, Employment and Rehabilitation, Government of India in lieu of the properties left in Pakistan for the purpose of rehabilitation in the name of Mr. Jai Gopal Gomber, the grandfather of the parties to the Suit. The Purchase Agreement was executed in favour of Mr. Jai Gopal Gomber on 02.04.1959 which is Ex.DW1/1. The amount was deposited and thereafter, the requisite documents were executed in favour of Mr. Jai Gopal Gomber and the Lease and Conveyance Deed dated 31.07.1969, Ex. DW-1/2 and 3 respectively were executed. Mr. Jai Gopal Gomber, during his lifetime, executed a Will dated 17.02.1969 in favour of his daughter-in-law, Ms. Usha Gomber. Subsequently, on the basis of theWill and on completion of the requisite formality, the suit property was mutated and transferred in her name vide Letter dated 26.07.1979, Ex. DW-1/4. The suit property was made freehold on 01.10.1997 and the Conveyance Deed was registered in the Office of lawful owner of the suit property. It is further not disputed that the house tax was assessed in the name of Ms. Usha Gomber and the house tax receipts are in Ex. DW-1/6.

36. The testimony of the DW-1 regarding the title of Smt Usha Gomber, is not challenged. The plaintiff has failed to step into the witness box to prove her claim. However, she has admitted in her written submissions that Smt. Usha Gomber was the registered owner of the suit property. The property was thus to devolve by way of inheritance, upon her legal heirs i.e., the plaintiff, who is the daughter and the defendant Nos. 1 and 2, who are the two sons. Usha Gomber, being the registered owner, also had an exclusive right to bequeath it by virtue of a Will by virtue of Section 14 of the Hindu Succession Act, 1956.

37. The two defendants have propagated a Will each i.e., the Will dated 27.12.2010, Ex. DW1/7 and the Will dated 29.02.2012, Ex. D2W1/X-2. The right of the plaintiff to seek partition is thus, dependent upon the adjudication of the other issues relating to the genuineness of the Wills and shall be answered accordingly.

38. With the subsequent admission of the plaintiff on the title of Smt Usha Gomber, it is held that Smt. Usha Gomber, being the exclusive owner, had the right to bequeath the suit property by virtue of Will or inheritance. The suit is maintainable under Hindu Succession Act, 1956. The Issue No. 7 is accordingly decided. Issue No. 4: Whether the plaintiff is guilty of suppression and concealment, if yes, then to what extent? OPD

39. Though, it has been asserted that the plaintiff is guilty of suppression and concealment, but there is no further elaboration of these averments by either of the defendants. There is no evidence brought on record to explain the facts which have been suppressed by the plaintiff to her knowledge. Issue No.4 is therefore, decided against the defendants. Issue No. 6: Whether the suit is barred by limitation? OPD

40. The defendants have raised an objection that the present suit is barred by limitation as the plaintiff has been claiming her right in the suit property for several years but has filed the partition suit only in the year 2012. The defendants have however, neither given any details of time from when the plaintiff had begun claiming her share, nor have they led any evidence to prove that the plaintiff has been claiming her share for several years.

41. It is pertinent to note that, even otherwise, Article 65 to the Schedule of the Limitation Act, 1963, provides that the limitation period to file a partition suit is 12 years which begins to run only when possession of the defendant becomes adverse to the plaintiff.

42. The emails of the plaintiff claiming a share in the suit property were exchanged between her and defenbant no.1 soon before the institution of this suit in the year 2012 and no other evidence has been produced by the defendants in this regard. The right to claim partition is a continuing right and the limitation of 12 years commences only when an adverse interest is claimed.

43. Moreover, the right to a share in property, whether by succession or bequest, would arise only after the demise of the Smt Usha Gomber, the exclusive owner who died on 18.06.2012. The suit has been filed on 12.07.2012. The suit is therefore well within limitation. The issue no.6 is decided in favour of the plaintiff. Issue No. 3: Whether proper court fee has been affixed on the plaint? OPD.

44. In the present case, the plaintiff is the sister of defendant nos. 1 and 2 who got married and has been residing in USA along with her family and has acquired US Citizenship. She has statedthat the suit property belonged to her father, Sh. Inderjit Gomber, who died intestate in March, 1979 and hence she along with her brothers and her mother, Ms. Usha Gomber were entitled to an equal share in the property. After the demise of her mother on18.06.2012, the plaintiff asserts a right to1/3rd of the suit property by stating that she is a joint owner and is therefore, in constructive possession of the property in question and has paid a fixed court fee.

45. It was held by this court in Prakash Wati vs Dayawanti, (1990) 42 DLT 421, that it is a settled principle of law that in the case of co-owners, the possession of one is in law the possession of all unless ouster or exclusion is proved. By relying on the judgement in Jagdish Pershad v. Joti Pershad, 1974 SCC OnLine Del 214, this court in Prakash Wati (Supra) reiterated that, when the plaintiff asserts shared possession of the property for which partition is requested, whether actual or constructive, the plaintiff is only required to pay a fixed court charge in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870. Thus, ad volarem court fee under Section 7(iv) (b) of the Court Fees Act, 1870 can be applied only when the plaintiff has been ousted from its enjoyment of the suit property and seeks restoration of the joint possession by way of a suit as was held in Asa Ram Vs. Jagan Nath and others, AIR 1934 Lahore 563.

46. In Jagdish Pershad & ors vs Jyoti Pershad & ors, ILR 1975 Delhi 841, this court held that when a joint owner seeks partition of the property, they merely seek a change in the mode of enjoyment of the said property, where a mere denial of right or title by the other co sharers does not amount to an ouster of the plaintiff.

47. To appreciate implication of denial of title in a suit property and the necessary ingredients of ouster, a reference may be made to the judgement of the Apex court in Nagabhushanammal (Dead) vs C.Chandikeswaralingam, (2016) SCC 434, which placed reliance on judgement in Vidya Devi vs Prem Prakash, (1995) 4 SCC 496 wherein the meaning and connotation of the term „ouster‟ was expounded as follows: “28. „Ouster‟ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of coowner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and

(iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another coowner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

48. In the case of Nisheet Bhalla Vs. Malind Raj Bhalla, AIR 1997 Delhi 60, as well Coordinate Bench of this Court had held that in order to decide the question of court fee, averments made in the plaint are to be seen and the decision cannot be influenced by the pleas taken in the written statement or by the final decision of suit on merits. It is only when the ouster or the exclusion from the property is proved that the question of ad valorem Court Fee may arise. So long as there is joint possession in law, it is not necessary that the plaintiff should be in actual possession in whole or part of the property.

49. This court in Krishna Gupta AndAnr. vs M/S Rajinder Nath & Co HufAndOrs, 2013 SCC OnLine Del 547 held that while ascertaining if the plaintiff had been ousted from the suit property, the same must be indisputably admitted by the plaintiff in their plaint. Specific sentences and paragraphs in the plaint cannot be read in abstract while determining an ouster especially when the plaintiff has categorically stated that they are in joint and constructive possession of the suit property. Thus, once an express plea of constructive possession has been made, the onus to prove ouster for the payment of ad volarem court fee shifts on to the defendants.

50. From a combined reading of the aforesaid judgements, it is clear that a party claiming partition of the property is liable to pay ad volarem court fee only in those circumstances where „ouster‟, pleaded as a defence by defendants for the purpose of making out a case of adverse possession, is established.

51. The plaintiff may be residing in USA and may have acquired US Citizenship, but she does not cease to be a legal heir of Mrs. Usha Gomber in whose property, she is claiming to be a co-owner along with the defendants/ her brothers. This court is only required to look into the averments in the plaint to be satisfied if the proper court fee has been affixed especially when the plaintiff has expressly stated in her plaint that she is in constructive possession of the suit property.

52. Defendant no.1 in his written statement stated that since the plaintiff is not in possession of the suit property, appropriate court fee ought to have been paid by the plaintiff under Section 7 of the Court Fees Act. Yet, no specific case of adverse possession leading to ouster has been made out by the defendants in discharge of their onus. Mere fact that the plaintiff had got married in 1987 and thereafter settled in her matrimonial home is not a circumstance which may be held as legal ouster. Thus, any objection on insufficient court fee raised by the defendants is not tenable.

53. The claim of the plaintiff is for a partition being the legal heir of Ms. Usha Gomber. Therefore, the fixed court fee has been paid by the plaintiff in accordance with the Court Fee Act, 1870. Issue No.3 is decided in favour of the plaintiff. Issue No. 1: Whether the writing dated 27.12.2010 is the last Will and Testament of late Smt. Usha Gomber? OPD-1.

54. It is not in dispute that Smt. Usha Gomber, mother of the parties, was the exclusive owner of the suit property and she had an absolute right to bequeath it. The plaintiff has asserted that the mother died intestate and she has become entitled to 1/3rd share in the suit property while defendant no[1] has put forth a Will dated 27. 12.2010 bequeathing the suit property to the two defendants.

55. The plaintiff, at the outset in her written submissions has taken a preliminary objection that the determination of genuineness and authenticity of the Will lies in the exclusive domain of the Probate Courṭ under Section 213 of the Indian Succession Act, 1925 and the jurisdiction of civil court to determine the probative value of the Wills in the suit for partition, is barred by virtue of Section 9 of Code of Civil Procedure, 1908. The Defendants ought to have filed for a Probate within 3 years from the date on which the Will was challenged in this suit for partition, which the defendants have failed to do making the two Wills ex-facie unenforceable. Since the defendants having failed to take probate, they cannot claim any right based on their respective Wills as the authenticity of Wills cannot be determined in these proceedings.

56. It would be pertinent to mention that this is a suit for partition that has been filed by the sister against the two brothers, who in turn have contested her claim to property by relying upon a Will each, to claim division of property in the manner specified in the respective Wills. A Letter of Probate has admittedly, not been obtained by either defendant no. 1 or defendant no.2 nor have they initiated any such proceedings.

57. The nature of Probate proceeding was considered in Razia Begum vs. Sahebzadi Anwar Begum &Ors. (1959) 1 SCR 1111 and K.S. Abraham vs. Mrs. Chandy Rosamma&Ors. AIR 1989 Ker 167, wherein it has been observed that the actions relating to succession of an estate, are on different footing from a civil suit, the rationale substantially being that these proceedings have an efficacy in rem rather than in personam. Third party interest may not be in jeopardy inter alia, because of the application of the principles of res judicata in the latter category. Public citation, among other reasons, is therefore, carried out in Probate/ Letter of Administrative/ Succession petitions.

58. In the case of Chiranjilal Shrilal Goenka through LRs. Vs. Jasjit Singh, (1993) 2 SCC 507, the Apex court made similar observations as under: “20…The Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgement in rem and conclusive and binds not only the parties but also the entire world, the award deprives the parties of statutory right of appeal provided under Section 299. Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the appellant.”

59. The Apex Court in Ishwardas vs. Kanta Devi AIR 1954 SC 280 observed that the Court of Probate is primarily concerned with the question as to whether the document put forward as the last Will and Testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the Testator had sound disposing mind. It does not concern itself with the determination of the title of the properties.

60. Similarly, in the case of Amrita vs Rakesh Kumar, 2016 SCC OnLine Pat 824, it was held that probate proceedings and partition suits are completely different. The probate proceedings are summary in nature while detailed evidence is required to be led by the parties in the partition suit before a civil court to determine the question of unity of title and possession. In the title suit, the legality and validity of the Will can also be considered by the civil court. It was further observed that the partition suit and the probate proceedings are distinct and title suit need not be stayed while the probate proceedings are pending.

61. It was explained in Amar Deep Singh vs. The State and Others AIR 2006 Delhi 190 by the Co-ordinate Bench of this Court that once the Probate Court is considering a petition for grant of Probate or Letter of Administration in respect of a Will, that Court alone is competent to decide on the question of execution or validity of the Will in question. In such a situation, it is not open to the civil court to go into that question, or else it may lead to inconsistent and conflicting findings, which has to be avoided.

62. However, the Coordinate Bench of this Court in Praveer Chandra Vs. Aprajita and others, 2019 SCC OnLine Del 10820 was confronted with a similar question of stay of a partition suit till the determination of the probate petition. Reliance was placed on the observations in Chiranjilal Shrilal Goenka(Supra) where it was held that the Probate Court alone has the exclusive jurisdiction to grant the probate and a Civil Court is not entitled to examine the validity of the Will, but it was qualified by observing that it was in the context of seeking a probate of a will. Thus, a Civil Court cannot examine validity of a Will for the purpose of granting a probate which also implies that the scope of the issues to be determined in the probate petition is limited. In a civil suit where the Will is called in issue, the court can look into various surrounding circumstances including allegations relating to suspicious circumstances, if any. The genuineness of a Will, the Wills prior or subsequent to the execution of the Will relied upon are issues which may not arise in a probate petition. Thus, the scope of proceedings in a partition suit is thus broader than that in a probate petition.

63. The Supreme Court in the case of Shamita Singh Vs. Rashmi Ahluwalia, (2020) 7 SCC 152, found that though the scope and the nature of a partition suit and a probate petition are different, the outcome in a probate petition does have an impact on the judgement in a partition suit.

64. Likewise, the Supreme Court in Sameer Kapoor Vs. State (2020) 12 SCC 480 observed that in an application filed for grant of probate or Letters of Administration, no right or claim of the applicant is ascertained as he merely seeks recognition of the Court to perform a duty. The probate or Letter of Administration issued by the competent Court is a conclusive proof of the legal character of the Will. That the proceedings filed for grant of probate or Letters of Administration is not an action in personam but is an action in rem.

65. Thus, what emerges from the judgements referred above is that where a Probate has been sought in respect of a Will, then the genuineness and the validity of the Will as determined by the Probate Court shall operate in rem and shall be conclusive and binding not only upon the parties before the Court but also upon all other persons in all proceedings arising out of the Will or the claims under or connected thereto.

66. However, in the present case, neither defendant no. 1 nor defendant no.2 has initiated any probate proceedings for the respective Wills propounded by them. It is only in the present suit for partition initiated by their sister/plaintiff that they have sought to define their claims and entitlement to the suit property in terms of their respective Will. In order to adjudicate the rights of the plaintiff in the suit property, this Court has to necessarily consider the validity of the Wills. There is nothing which bars the civil court to consider the defence of the defendants on the basis of the Will. The situation would have been different, had the defendants sought an independent right on the basis of the Will for which they would have been necessarily required to seek Probate. Since the Wills are being set up in defence and not for the purpose of Probate, it cannot be said that their defence based on Will, is barred by limitation. In Delhi, the Probate of a Will is not mandatory and if there is a challenge raised to the title of the defendants in any proceedings, they cannot be rendered remediless to set up the Wills in support of their claim to a share in property. Merely nonseeking of Probate by the defendants, would not render the Wills invalid nor are they debarred under law to rely on the Wills to establish their title to the suit property. This inference finds full support from the observations of the Apex Court in Razia Begum (supra) wherein it was observed that while the civil suit is confined to determination of rights of the parties in personam, the probate proceedings operate in rem and are binding on the world at large. Thus, the two Wills can be considered in the present suit for the sole purpose of determining the respective shares of the parties in the suit property.

67. The next argument of the plaintiff to discard the two Wills is that the limitation period to file a probate petition stands expired. Reliance has been placed on Article 137 of Schedule I of the Limitation Act, 1963, which prescribes a period of three years for all applications and petitions for which no limitation has been specifically provided.

68. In Ramanand Thakur vs. Permanand Thakur AIR 1982 Pat 87, the Court observed that the “right to apply for a probate accrues from day to day so long as the Will remains unprofaned”. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the Will remains unprofaned and, therefore, for such an application, there is no period of limitation. This view has also been taken by the Madras High Court in GnanmuthuUpadesi vs. Vana KoipillaiNadan (1894) 2nd 17 Mad. 379.

69. This aspect was explained by the Supreme Court in Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur, (2008) 8 SCC 463, that an application for grant of probate or Letter of Administration is for the Court‟s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed.

70. In Pamela Manmohan Singh vs. State and Ors. 83 (2000) DLT 469, the Co-ordinate Bench of this Court concluded that so far as the application for grant of Probate or Letter of Administration is concerned, they are not governed by any Article of the Limitation Act, 1963. The question of limitation would arise only when there is any projected challenge to the Will.

71. In Kerala State Electricity Board, Trivandrum vs. T.P. Kunhaluumma (1977) 1 SCR 996, the applicability of Article 137 of the Limitation Act, 1963 to Probate proceedings was considered and it was observed that Article 137 of the Limitation Act, 1963 is not confined to applications contemplated by or under the Code of Civil Procedure. It is applicable to other Acts as well.

72. This decision was followed by the Coordinate Bench of this Court in Pratap Singh and Ors. vs. The State and Ors. 173 (2010) DLT 132 and also reiterated Pamela Manmohan Singh(supra) to conclude that the rationale for the applicability of Article 137 of the Limitation Act, 1963 to a petition or application filed in the case where there is no limitation prescribed, would apply mutatis mutandis to cases relating to Probate. Article 137 of the Limitation Act, 1963 prescribes the period of limitation of three years from the date when the cause of action accrues. It was explained that the cause of action accrues not from the date of demise, but from the date on which the legatee under a Will could be justifiably ascribed with the knowledge that Will on which his claim is founded, is likely to be disputed by other persons, especially the natural heirs of the testator. It was further explained by way of adumbration, that hypothetically a Will may have been executed in Delhi in 1950 and the bequest made, may not come into any dispute for several decades. It is only when there is a conjectured withdrawal of the possession or is a challenge taken by other legatees that the cause of action would accrue from the date of such withdrawal of permission. The cause of action would thus, arise for applying for Probate when he becomes aware that the Will would be indefatigably contested.

73. The Supreme Court in the case of Lynette Fernandes Vs. Gertie Mathias(2018) 1 SCC 271 considered the applicability of the period of limitation in the context of Article 37 of the Limitation Act to cancellation of Probate or Letter of Administration. The Court held that the grant of probate by a competent court operates as a judgement in rem and once the probate is granted, it is good not only in respect of the parties but against the whole world. If the probate is granted, the same operates from the date of the grant of the probate and thus in proceedings for revocation of probate, the limitation period commences from the date of grant of probate in terms of Article 137 of the Limitation Act.

74. Thus the period of limitation as has been explained in the aforementioned judgements, is applicable only when a challenge is raised to a Will or to cases where revocation of grant of Probate is sought. It may thus, be concluded that law of limitation would not be attracted in cases where the Will is relied upon by the defendant as a defence in the suit for partition. It also follows that any findings in respect of the Will would only be determinative of rights of the parties to the suit in personam and would be subject to any Probate proceedings that may be initiated by any third party as has also been held in Praveer Chandra (Supra). The question of limitation while considering the defence of the defendants based on the two Wills therefore, does not arise.

75. To determine the entitlement of the parties to the suit property, the facts may now be analysed.

76. Smt Usha Gomber, mother of the parties to the suit, was admittedly the owner of the suit property. The property would have devolved equally on the three parties but for the two Wills propounded by the two defendants, the genuineness of which needs to be determined. The consideration of Will involves an element of solemnity as it is produced before the court after the testator has departed from the world and cannot say that the Will is his own or not and thus, arises the need and necessity for requirement of proof of Will as has been elucidated by the Apex Court in H. Venkatachala Iyengar v. B.N. Thimmajamma and Others AIR 1959 SC 443.

77. The person producing the Will not only has the onus to adduce evidence which is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, at the same time it is also necessary to remove suspicious circumstances surrounding the execution of Will for which no hard and fast or inflexible rules of evidence can be laid down.

78. In Surendra Pal and Others vs. Dr. (Mrs.) Saraswati Arora and Another (1974) 2 SCC 600, the Supreme Court observed that the nature and quality of proof must be commensurate with such essentiality so as to remove any suspicion which a reasonable or prudent man may, in the prevailing circumstances, entertain. Where coercion and fraud are alleged by an objector, the onus is on him to prove the same and on his failure, probate of the Will must necessarily be granted when it is established that the testator had full testamentary capacity and had in fact executed the Will with a free will and mind.

79. This being a Civil suit for partition, stringent requirements of clause

(c) to Section 63 of the Indian Succession Act, 1925 may not be applicable in same rigor, yet in order to appreciate the claims of the defendants based on the Will, two aspects need consideration to determine the proof and validity of a Will, namely the mode of execution of Wills and the manner of proof of Wills as provided under Sections 68 and 71 of the Indian Evidence Act, 1963. For this, the following facts are required to be proved by satisfactory evidence:

(i) The Will was signed by the testator;

(ii) The testator at the time was in a sound and disposing state of mind;

(iii) The testator understood the nature and effect of the dispositions; and

(iv) That the testator had put his signature on the document of his own free will.

80. In the light of above principles, the evidence led by the parties may be considered. Execution of Will dated 27.12.2010:

81. DW-1, Dr. Sunil Gomber, in his Affidavit Ex. D1W1/A has deposed that their mother, Smt. Usha Gomber during her lifetime in her full senses with a sound and disposing state of mind without any pressure, coercion or undue influence from any corner, had executed her last and final Will dated 27.12.2010 Ex. DW1/7 according to which the property was divided as follows: “I wish to bequeath the aforesaid residential house No.F-3 Vijay Magar, Delhi-110009 to my sons namely 1. Dr Dr. Sunil Gomber r/o F-4-A Vijay Magar, Delhi-110009 and Dr. Anil Gomber r/o F-3, first floor, Vijay Magar, Delhi-110009, who Shall become the absolute owners of the 100 sq.yards each in the total property area of 200 sq.yds. The 100 sq.yards portion adjoining the property no. F-4-A Vijay Magar, Delhi-110009 shall devolve upon my elder son Dr. Sunil Gomber while 100 sq.yards portion adjoining the property no. F-2-B, Vijay Nagar, Delhi-110009 Shall devolve upon my younger son Anil comber with absolute powers to sell or dispose off which 1 possess at present being the owner thereof, to the exclusion of my daughter Mrs. Geeta Tandon. I wish that both my sons shall pay 15lakhs each to my daughter Mrs Geeta Tandon after my demise.”

82. The property was thus to be divided in equal share between defendant nos.[1] & 2 while the plaintiff was to be given Rs. 15,00,000/- each by the two brothers i.e. defendant no. 1 and defendant no.2 respectively.

83. Dr. Sunil Gomber has further deposed that the Will was prepared/scribed by Advocate K.K Sharma, whom Smt. Usha Gomber knew from before, being a close family friend and on whom she had faith, a fact admitted by both the defendants. While Defendant no.2 in his affidavit of evidence Ex. D2W1/A had asserted that Mr. K.K. Sharma was not known to him but he admitted in his cross-examination conducted on 01.10.2019 that Mr. K.K.Sharma was his advocate in a case before the Motor Accidents Claims Tribunal which lasted for 5 or 6 months and was decided by the Lok Adalat in 1989. The testimony of Defendant No.1 and defendant no.2 establishes that Mr. K.K.Sharma Advocate was known to the family.

84. The testimony of DW1/Sunil Gomber is fully corroborated by DW[3] K.K. Sharma who by way of his affidavit of evidence Ex.DW3/A, had deposed that he is an Advocate by profession and has family relations with the parties to the Suit for more than forty years and he used to visit the defendant No.1 as well as defendant No. 2 at their house, since they all resided in the same locality. He has further explained in his evidence that in December, 2010 Smt. Usha Gomber was living on the ground floor of F-3, Vijay Nagar while defendant no. 1 was living in F-4A Vijay Nagar but they were having a common kitchen. He admitted that during the period of 2007 to 2011, defendant no. 1 was not living in Vijay Nagar, though he and his wife had a Clinic in half portion of the ground floor of F-3 Vijay Nagar while he was in possession of the rest of the ground floor of F-3 Vijay Nagar. There was a gate and passage connecting F-3 and F-4A on the ground floor in the front side. He further clarified that he used to meet defendant no. 1 as and when he was called by him, while he used to meet defendant no. 2 whenever he had a problem or wanted him to handle his legal matters.

85. The testimony of DW-3 Mr. K.K. Sharma reinforces that he was a family friend who was on visiting terms with Late Smt. Usha Gomber as well as defendant nos. 1 & 2. He had no special affection for any of the family members and was equally friendly to all and had no motive to fabricate the Will. Mr. K.K. Sharma being known to the family since long was a natural choice for Smt. Usha Gomber to repose confidence in him for preparation of her Will, which faith was discharged by him in full earnestness as is brought forth from his testimony.

86. Mr. K.K. Sharma has further deposed that in December, 2010, Late Smt. Usha Gomber had called him to her residence in the evening. She was in prefect mental condition and expressed her desire for execution of a Will. He explained to her all the rigors of formalities and requirements and also that the registration of the Will was not mandatory. He also explained that she would continue to be the owner of the property and the property would devolve upon her beneficiaries only upon her demise. He had also informed her that the Will should not be executed under pressure of anybody or family members, to which she replied that there is no pressure or influence from anybody and it is her wish and desire to execute the Will to bequeath the property equally to her two sons by giving hundred sq. yards of the property adjoining to Property No. F-4A, Vijay Nagar, Delhi to DW1/Sunil Gomber, while remaining hundred sq. yards portion adjoining to Property No. F-2 Vijay Nagar, Delhi to DW[2] Anil Gomber. She further stated that since her daughter, Geeta Tandon was settled in U.S.A. and she had been financially helping her daughter and had given to her the sale proceeds of her flat in Rohini, Delhi, she would not get any share in the immoveable property, but her both the sons, namely, Sunil Gomber and Anil Gomber would give Rs. 15,00,000/- each to her daughter after her death. Mr. K.K. Sharma prepared the Will dated 27.12.2010 in accordance with the wishes of Late Smt. Usha Gomber.

87. His testimony explains in detail that the Will was drafted on her instructions by him and was in consonance with her wishes. That Smt. Usha Gomber desired to execute a Will, is also confirmed and corroborated by the admission of Defendant no.2 in his testimony that his mother had desired to execute a Will since 2008-09.

88. DW-3 K.K Sharma further explained in his cross examination that that he was called by Ms. Usha Gomber from a landline number but was not aware if she took number from defendant no. 1. He visited Ms. Usha Gomber three times while preparing the Will. He denied that at least on one occasion, the Clinic was open. The first time when he visited Ms. Usha Gomber in connection to the Will, the door was opened by the attendant and the attendant used to be present with her on every visit. He remained for about half an hour on his first visit in the second week of December, 2010. He had entered the gate on his first visit of F-4A Vijay Nagar. The conversation in the second week of December took place in the bedroom of Ms. Usha Gomber as she was confined to bed due to her knee surgery. She did not go to the bathroom during their conversation and on all the three visits she may have offered water but he did not take it since he had gone from his house which is near to the house of Ms. Usha Gomber. On one occasion, she was lying on the bed but sat up with the help of the attendant and on another occasion she was sitting on the wheel chair.

89. On being questioned in cross examination, Mr. K.K.Sharma deposed that on 27.12.2010, he went with the prepared Will, to the bedroom of the Ms. Usha Gomber where all including the witnesses, were sitting. The Will was read over and explained to Ms. Usha Gomber in Hindi and the entire process took about 20 to 25 minutes. He denied that he prepared the Will at the instance of the defendant no 1 or that there was no witness present at the time of singing of the Will. He also denied the suggestion that he was in touch with defendant no.1 while drafting the Will Ex. DW1/7. He did not inform either of the defendants that their mother was in touch with him for executing the Will as she wanted him to maintain confidentiality about their conversation and execution of the Will.

90. The DW-3 has further clarified in his cross examination that Smt. Usha Gomber used to sign in English and also spoke few words in English but he was not aware if she could read or write English language. He admitted that all his conversations with her were in Hindi. He further clarified that he had explained everything to her in Hindi. His testimony thus, establishes that the Will was executed in accordance with her wishes and she had signed the Will after understanding its contents.

91. The truthfulness of the testimony of Mr. K.K. Sharma is further established from his deposition that because of the utmost faith that Smt. Usha Gomber had on Sh. K.K. Sharma, Advocate, she directed him to keep the Will in his custody till her demise. He kept the Will in his custody as told by Late Smt. Usha Gomber with a pledge that he would maintain absolute secrecy till her death.

92. Defendant No.1‟s testimony that Sh. K.K. Sharma disclosed about the Will to the defendants after her demise after the last rites were concluded, finds corroboration from the deposition of Mr. K.K. Sharma that after she expired in June, 2012 and her last rites and Uthala/Kriya Ceremony were performed, he called both Mr. Sunil Gomber and Anil Gomber to his residence and disclosed to them about the Will dated 27.12.2010 and handed over the original Will to Sunil Gomber in the presence of Dr. Anil Gomber.

93. Defendant no. 2 in his cross examination has admitted that he was handed over the copy of the Will dated 27.12.2010 at his residence in the presence of Mr K.K Sharma through Sunil Gomber one week after the tehrvi of their mother and then he mentioned about the last Will dated 29.02.2012, though he did not furnish them with a copy of the same.

94. The truthfulness of the testimony of DW-3 K.K. Sharma about the existence of Will not being in the knowledge of either Defendant no.1 or 2 is not only corroborated by the testimony of DW-1 Sunil Gomber but finds further corroboration from the E-mails dated 03.06.2012 and 07.06.2012 (The E-mails were not exhibited, but admitted by DW-1 and D2W[1] in their evidence) i.e. prior to the demise of the mother exchanged between defendant no. 1 and husband of plaintiff, and the Legal Notice dated 14.06.2012 (not exhibited) issued on her behalf through the counsel, whereby a share in property was claimed for the plaintiff by her husband. These e-mails though not proved by supporting certificate under Section 65 B of Indian Evidence Act, can still be read against the plaintiff as these are the documents relied upon by her. Significantly, defendant no. 1/ Sunil Gomber in the exchange of emails had not mentioned a word about the Will dated 27.12.2010. Had it been in his knowledge, there was no reason for him to have not mentioned about the same. This fact further corroborates the testimony of DW-3/ K.K. Sharma that the existence of the Will dated 27.12.2010 was disclosed to defendant nos. 1 and 2 only after the demise of Late Smt. Usha Gomber.

95. The testimony of DW1/Sunil Gomber stands fully corroborated by DW[3] K.K. Sharma who had scribed the Will dated 27.12.2010 and no challenge whatsoever to the execution of the Will has been brought forth. Attestation of Will dated 27.12.2010 by witnesses:

96. The other aspect to prove the Will in accordance with Sections 68 and 71 of the Indian Evidence Act, 1872, is the testimony of the attesting witnesses.

97. The interplay of S.63 Indian Succession Act and Section 68 of the Evidence Act was resolved beyond controversy in Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 wherein it has been held that clause (c) of Section 63 of the Indian Succession Act requires and mandates attestation of a Will by two or more persons as witnesses, albeit Section 68 of the Evidence Act gives concession to those who want to prove and establish a Will in the court of law by examining at least one attesting witness who could prove the execution of the Will. However, where one attesting witness examined fails to prove due execution of the Will, then the other available attesting witness must be called to supplement his evidence to make it complete in all respects to comply with the requirement of proof as mandated by Section 68 of the Indian Evidence Act, 1872.

98. The defendant no. 1/ Sunil Gomber has deposed that the Will was duly signed by his mother in the presence of the witnesses namely Sh. P.C. Jain & Sh. K.C. Arora. Sh. K.K. Sharma, Advocate also signed the Will in the presence of the executants and the witnesses and thereafter affixed his stamp on the Will.

99. DW-3 Mr. K.K. Sharma, who had prepared the Will Ex.DW1/7 has deposed that after preparing the Will, he informed Late Smt. Usha Gomber telephonically in the morning of 27.12.2010 that the Will was prepared and he would be coming to her house at about 08:00 P.M. to get it signed and told her to keep the two witnesses ready for signing. Accordingly, he went to the house of Late Smt. Usha Gomber where two witnesses were already present. He read over and explained the contents of the Will in the presence of two witnesses, after which Late Smt. Usha Gomber signed on every page and last page of the Will at Point „A‟ and the attesting witnesses, namely, Mr. Kamlesh Chander Arora and Mr. Padam Chand Jain signed on the Will in the presence of each other at Point „B‟ and „C' respectively. Mr. K.K. Sharma also attested the Will by putting his signatures at Point „D‟ in the presence of all and affixed his stamp on it.

100. These facts are further corroborated by DW-5 Shri. Padam Chand Jain, the attesting witness who has deposed on similar lines He has deposed that on the asking of Late Smt. Usha Gomber, he had gone to her residence on 27.12.2010 where another witness Kamlesh Chander Arora and Advocate K.K. Sharma were already present; the contents of the Will were explained and read over in Hindi to Late Smt. Usha Gomber, who after understanding the contents had signed the Will along with her name and address, in her full senses and sound disposing mind. She had signed on every page of the Will at Point ‘B’ and the two attesting witnesses, Mr.Padam Chand Jain and Kamlesh Chander Arora, signed at Point „B‟& „C‟, respectively while Mr. K.K. Sharma signed at Point „D‟. Again, nothing much could be elicited from the cross-examination of this Witness to disapprove the execution of the Will.

101. The Will dated 27.12.2010 Ex. D1W1/7 is therefore, duly proved by DW-1 Sunil Gomber whose testimony is supported by that of DW-3 K.K. Sharma, and by the attesting Witness DW-5 Padam Chand Jain. The execution of the Will by Late Smt. Usha Gomber on 27.12.2010 as being an authentic and genuine document thus, stands proved. The Soundness of mind and undue influence at the time of execution of Will dated 27.12.2010:

102. Though the mental soundness was questioned by the plaintiff, but neither did she lead any evidence in support of her claim nor did she crossexamine any of the witnesses of the defendant. Moreover aside from bald assertions, she has failed to explain any circumstance to show that she was not having mental soundness at the time of execution of Will dated 27.12.2010.

103. To prove the sound mental state of Smt Usha Gomber, DW[1] Sh.Sunil Gomber has deposed that she was in good mental health. It was explained by him and corroborated by DW-3 K.K. Sharma and also not challenged by defendant no.2 that Late Smt. Usha Gomber had undergone a knee surgery in the year 2008 and was confined to bed and she was being taken care of by two maids, a fact not challenged by any of the parties. It is significant to observe that the physical ailment and confinement to bed of a person does not mean that the person is not mentally sound. Physical ailment is not equivalent to mental ailment or unsoundness of mind.

104. DW-3 Sh. K.K. Sharma who had prepared the Will at the instance of Smt. Usha Gomber, explained in his cross-examination that he did not ask any specific questions to determine her state of mind or mental health and that he cannot give any opinion about the mental health of anyone and also clarified that he had not seen any medical papers or conducted any test to establish the soundness of mind of Ms. Usha Gomber in December, 2010 but he deposed that he could note by talking to Ms. Usha Gomber that she was mentally sound. The testimony of DW-3 withstood the extensive crossexamination by Defendant no.2 and the evidence on record established that the Will was executed as per the instructions of Smt. Usha Gomber who was of sound mind at the relevant time. Moreover, defendant no.2 has not produced any independent documents and has raised the issue of mental soundness of Smt. Usha Gomber on the basis of medical documents Ex.DW- 1/9 (coll.) which are dated since July, 2011which are subsequent to the execution of Will dated 27.12.2010.

105. The medical documents Ex.DW-1/9 (coll.) reflect that she became unwell and was suffering from Reactive depression and schizophrenia, with poor coping skills with attention seeking behavior for which she was under treatment. In the extensive cross-examination carried out in respect of these medical prescriptions relied upon by defendant no. 1 to prove the medical condition of Late Smt. Usha Gomber since June, 2011, DW-2 Anil Gomber does not question or counter the mental health of Late Smt. Usha Gomber during the execution of the Will dated 27.12.2010.

106. It is therefore, proved that Late Smt. Usha Gomber was of sound mind at the time of execution of her Will dated 27.12.2010 which is her genuine Will. Late Smt Usha Gomber began to suffer from mental health issues only from June, 2011 as deposed by DW-1; the issue of soundness of mind shall be dealt with in detail in the context of the subsequent Will dated 29.02.2012. Suspicious Circumstances around the Will dated 27.12.2010:

107. In the end, it may be examined if exclusion of plaintiff from getting a share in suit property raises any suspicion in respect of the Will. As far as possible, all the clauses of the Will should be given equal importance, benefit and uniformity in conjunction with each other and not taken disjointly. While the clauses cannot be altered nor can any explanation be sought from the testator who is no longer alive, but the various clauses should be construed harmoniously, so that all the beneficiaries get their shares in accordance with the wishes of the testator.

108. In N. Kasturi vs. D. Ponnammal&Ors. (1961) 3 SCR 955, the Apex Court observed as under: “It is obvious that a Court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must be decided by construing the will as a whole and giving the relevant Clauses in the will their plain grammatical meaning considered together. In construing a will, it is generally not profitable or useful to refer to the construction of other wills because the construction of each will must necessarily depend upon the terms used by the will considered as a whole, and the result which follows on a fair and reasonable construction of the said words must vary from will to will. Therefore, we must look at the relevant Clauses carefully and decide which of the two rival constructions should be accepted.” Similar observations were made by the Constitution Bench in Ram kishore lal & Anr. vs. Kamal Narayan 1963 Supp (2) SCR 417.

109. In this context, it may be observed that not giving a share in suit property to the daughter/ plaintiff cannot be considered as a suspicious circumstance in view of the cogent explanation given by the defendants and also stated in the Will. Both the defendants have explained that the plaintiff got married in the year 1987 and an amount much more than their financial status was spent on her marriage. Thereafter, she shifted to South Africa and has now settled in USA. She required funds to settle in USA and requested the mother for money. She compelled and pressurized the mother to sell a flat in Rohini in the year 2003 and Rs. 10,00,000/- out of the sale proceeds of Rs. 13,00,000/- was given to the plaintiff. Therefore, no share in the suit property was given to her, but still Late Smt. Usha Gomber asked the two defendants to pay Rs. 15,00,000/- each to the plaintiff. Full justification has been given in the Will that the daughter, though not given a share in the suit property, but was still compensated by desiring that the two sons must give her Rs. 15,00,000/- each, while the suit property goes to the two sons in order to ensure equity, balance and fairness to all her progeny. There is no unfair exclusion of the plaintiff which could raise any suspicion. Pertinently, no evidence whatsoever, has been led by the plaintiff.

110. What can be gathered from the Will is that she wanted her children to have a fair share in her property and assets, and it was her own interpretation of fairness which can neither be termed as illogical, arbitrary or unfair. The Will from its terms cannot be termed as unconscionable or incapable of giving an effect. It may not be appropriate for the Court to substitute its own wisdom for that of the testator or to judge whether she was right or justified in bequeathing the suit property in the manner as stated in the Will.

111. The evidence produced by the defendant no. 1 coupled with the surrounding circumstances proves that there are no surrounding suspicious circumstances and Will dated 27.12.2010 Ex. DW- 1/2 was validly executed by Late Smt. Usha Gomber during her lifetime. Issue no.1 is decided in favour of defendant No.1. ISSUE NO. 2 Whether the writing dated 29.02.2012 is the last Will and Testament of late Smt. Usha Gomber? OPD-2

112. The defence of defendant no. 2, Dr. Anil Gomber to the Will Ex. DW-1/2 proved by Defendant no.1 gyrates essentially around a subsequent registered Will dated 29.02.2012 Ex. D2W1/X-2 which he has claimed to be the last Will and testament of Late Smt. Usha Gomber. D2W[1] deposed as under: “I say that Smt. Usha Gomber during her lifetime had executed her will and testament on 29/02/2012 which has been duly registered before the Sub-registrar, Pitampura (N.W.), Delhi”

113. In Rani Purnima Debi &Anr. vs. Kumar Khagendra Narayan Deb &Anr., 1962 (3) SCR 195, it was observed that mere registration of a Will cannot dispel the suspicious circumstances surrounding it. A registered Will shall be considered the true testament of the testator only when the evidence on the registration indicates that the contents of the Will were admitted by the testator and subsequently signed by the testator.

114. Thus, the circumstances surrounding the Will 29.02.2012 need to be further examined to ascertain its authenticity. Testimony of Attesting witness as to Authenticity of Signatures on the Will dated 29.02.2012

115. To prove the subsequent Will, defendant no. 2 has examined D2W-2 Shital Kumar Jain, the attesting witness, in terms of Section 68 of the Indian Evidence Act, 1925, who has deposed that he and Sh. Roshan Lal (since deceased) were the two attesting witnesses who had accompanied Usha Gomber to the office of Sub- Registrar, Pitampura, North West, Delhi, to get the Will registered. The Will bears the signature of Late Smt. Usha Gomber at point A and also of Mr. Roshan Lal at Point B, and of Shri Shital Kumar Jain at Point C. He deposed in Ex D2W1/A as under: “That I state that I am one of the two witnesses to the said will signed by Late Smt. Usha Gomber. The other witness was Sh. Roshan Lal (since deceased) who was also a trusted family-friend to Smt. Usha Gomber.”

116. With respect to the signatures of Smt. Usha Gomber, D2W[2] Dr. Anil Gomber deposed as under: “That I state that the signature of Smt Usha Gomber is at Point A on each page of the said will. The signature of Roshan Lal is at Point B and my signature is at Point C. The said will is exhibited as D2W1/1.”

117. The attesting witness though has deposed that the signatures were put by Late Smt. Usha Gomber in his presence, but interestingly, he is unable to identify them during his cross examination.

118. Defendant no.2 Dr. Anil Gomber in order to prove the authenticity of the signatures of the Will, had also examined DW-7 Mr. Shivanshu Pundhir from Punjab National Bank who had produced the specimen signatures of Late Smt. Usha Gomber and Sunil Gomber on the Account Opening Form, which are Ex. DW 7/1. From the comparison of the signatures of Late Smt. Usha Gomber on her Will dated 29.02.2012 with the admitted specimen of signatures of Late Smt. Usha Gomber on the Account Opening Form Ex. DW 7/1 as well on the first Will Ex. D1W1/7, it can be held that the signatures on all the documents are that of Late Smt. Usha Gomber, though it is also quite evident that the signatures on the Will dated 29.02.2012/ Ex. D2W1/X-2 are shaky and have been made in a frail state of health. Mental Soundness of Smt. Usha Gomber:

119. The main challenge raised by defendant no. 1 to the subsequent Will is that mother was suffering medically and was not in a fit state of mind and the Will was fabricated by defendant no.2, who had obtained the signatures of the mother under coercion, without her understanding the contents of the document.

120. It is deposed by Defendant no.1 that the mother was residing on the ground floor and most of the time she was looked after by defendant no.1 and his wife. The defendant no. 2, who is a renowned doctor of North Delhi, was having good practice and had no time to take care of the mother. DW-1 along with his wife and two maid servants were taking care of the mother till her death as she was not able to move independently and she did not recover from the aforesaid disease. Because of her medical condition, she was not in a sound disposing mind and was not able to take any independent decision from June, 2011 till her death on 18.06.2012. She never executed the Will dated 29.02.2012.

121. DW[1] has further deposed that their mother, Smt. Usha Gomber since June, 2011 was suffering from “Reactive Depression and Schizophrenia, with poor coping skills with attention seeking behavior”. In his cross-examination, he clarified that the illness of the mother was detected in June 2011. The main symptoms of schizophrenia are forgetfulness, suspicious nature. She was also suffering from dementia but denied that the mother was suffering from these diseases since prior to June 2011 especially before December, 2010. She was treated by various Psychiatrists and doctors including defendant no.2, a physician by profession, Dr. Gurmukh Singh and Dr. Vishal Girotra and she had been advised to take antipsychotic drugs. The medical documents are collectively Ex. PW-1/9.

122. DW-1 Dr. Sunil Gomber was extensively cross-examined in respect of the medical prescriptions collectively Ex. PW-1/9 wherein he deposed that his mother was referred to psychiatric care for the first time in June, 2011. He admitted that the medicines mentioned in the prescription dated 22.06.2011 specially the Paxidep CR 12.[5] mg is prescribed for depression. He also admitted that Oleanz 2.[5] mg and Risdone 1 mg are prescribed for schizophrenia but explained that they are also given in different dozes for reactive depression. He also stated in his crossexamination that she was suffering from gamut of Psychiatric disorders, including dementia, depression and schizophrenia. However, he admitted that prescriptions Ex. PW 1/9 (Colly.) do not specifically mention dementia, though it included the medicines for the same. He further admitted that reactive depression has no connection with the ability of a person to think or act logically, clearly and cogently. It is usually associated with other psychiatric disorders which affect the cognitive functions of a person.

123. Defendant No.1 Dr. Sunil Gomber, has also examined DW-6 Dr. Vishal Girotra to prove the prescriptions dated 22.06.2011, 23.09.2011 and 05.09.2011 that had been prescribed by him. He has deposed that Late Smt. Usha Gomber was suffering from Reactive depression and had observed that he had poor coping skills and attention seeking behaviour and she remained under his treatment from 28.07.2011 to 05.04.2012. He further deposed that reactive depression has no direct relation to inability to take decisions, poor skills mean that she had poor capacity to deal with her daily activities. He also explained that reactive depression is a depression to a particular situation and is a treatable disorder. He has clarified in his crossexamination that from his prescriptions, he cannot state that he had diagnosed her to be suffering from schizophrenia. Moreover, from the prescriptions, it does not appear that Smt. Usha Gomber stood cured in April, 2012 which was the date on which he wrote his last prescription or else he would have tapered down the treatment. He was also unable to state that if her condition worsened during 2011 and 2012, but asserted that he had changed the medicines which is done when there is no improvement with the prescribed medicine or when there is a reaction or a side effect. He further explained that the medicine Risdone and Oleanz as mentioned in his prescriptions, are also prescribed for schizophrenia, but in different dozes; though these medicines are also given for reactive depression.

124. Some of the medical prescriptions were prescribed by Dr.Gurmukh Singh of Vinayak Hospital which are dated 22.06.2011 and 05.09.2011, which have been proved by his wife DW-8 Ms. Bhupender Kaur who has identified the hand writing and signatures on the prescriptions as that of Dr.Gurmukh Singh.

125. Defendant No. 2 Dr. Anil Gomber in his cross-examination has admitted that the medicines prescribed by Dr.Gurmukh Singh on 05.09.2011 work for restlessness, sleeplessness and anxiety. He further admitted that sleeplessness and restlessness is not a disease and that Smt Usha Gomber had been complaining about the sleeplessness after her knee operation, but was otherwise active and agile throughout her life.

126. From the testimony of the witnesses as well as the medical prescriptions Ex DW 1/9 (Colly.), it is established that Late Smt. Usha Gomber was only suffering from reactive depression which impacts the coping with day to day activities of life and was not suffering from any mental depression, or schizophrenia, or was of unsound mind. The claim of defendant no. 1 that since June, 2011 Late Smt. Usha Gomber was not mentally sound, is therefore, not established. Mode of Execution of Will dated 29.02.2012/Ex. D2W1/X-2:

127. Having concluded that the Will had the signatures of Late Smt. Usha Gomber and though she was in a frail physical condition, she was not mentally unsound, it needs to be further considered if the Will is voluntary and a free expression of the wishes of Late Smt. Usha Gomber or is shrouded with suspicious circumstances.

128. It is, however, undeniable that the health of Smt. Usha Gomber was frail and had deteriorated further since 2010 till the execution of the Will dated 29.02.2012 Ex. D2W1/X-2. It is also an undisputed fact that she was under the care of Defendant No. 1 and his wife at that point in time and also had cordial relations with defendant no.2.

129. The Madras High Court in Dharman and Six Ors. vs Marimuthu, 1996 (2) CTC 279 dealt with the presumption of undue influence on a person of frail health while signing a contract. It was found that when a donor who is physically infirm and under mental distress while signing a Gift Deed in favour of her son who is in a dominant position, it is undeniable that such a donee has an unfair advantage. The dependence and the helplessness of the donor further leads to the presumption of such unfair advantage. In the instant case as well, since the propounder of the Will was in a position of control, it gives way to suspicion on the legitimacy of the Will dated 29.02.2012.

130. The Apex Court in Raj Kumari v. Surinder Pal Sharma 2019 SCC Online SC 1747 made a reference to Jaswant Kaur v. Amrit Kaur (1977) 1 SCC 369 and observed as under: “(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

131. The first aspect which comes up for consideration is the manner of execution of Will i.e. the date, place and the manner in which this second Will dated 29.02.2012/Ex. D2W1/X-2 was executed especially because Usha Gomber was in a frail physical condition, was confined to bed and was not in a position to move unassisted. Defendant no. 2 Dr. Anil Gomber has admitted in his cross examination that he is not aware as to how and when and by whom the Will was drafted. He claims that it was drafted by the mother but has failed to give any further details thereof. D2W[1] also states that he does not know where the Will was typed or the manner of its execution. His testimony reads as under: “This Will Ex.D2W1/X-2 was not prepared in my presence. The signatures and thumb impressions on the Will were not put in my presence. The witnesses had also not signed the Will in my presence, On29/02/2012 at the time of execution of the Will I was busy with my work and I was either in Vinayak Hospital or Max Hospital. I cannot produce any document at this time to show that I was busy with my professional activity at the time of execution of the Will EX. D2W1/X-2. As the document shows this Will was executed in the office of the was executed in the office of the Registrar or at home. I have no personal knowledge how my mother went to the office of the Registrar or how long she stayed there. (Objected to).” … “The Will Ex.D2W1/X-2 remained in the custody of my mother after execution. From 29/02/2012 till the death of my mother I had no knowledge of the Will Ex.D2Wl/X-2 or that my mother had gone to the office of the Registrar to execute the Will. I found the Will Ex.D2Wl/X- 2 one or two days after the death of my mother. I do not remember whether this document came to my knowledge on 1st, 2nd or 3rd March, 2012.”

132. D2W[1] has further deposed in his cross examination as under: “It is wrong to suggest that on 29/02/2012 my mother was unable to go out of the house without the help of the maid or one of the two brothers. (Vol. She was totally agile)”

133. While D2W-1 Anil Gomber had deposed that Will dated 29.02.2012 Ex. D2W1/X-2 was the last Will of his mother, but he was unable to disclose as to how and in what manner the Will was executed. DW-2 Anil Gomber has admitted in his cross examination that he is not aware where the Will was executed but he has deposed that according to the Will, it was executed in the Office of Sub-Registrar. Considering the old age and the frail health of Late Smt. Usha Gomber, it is difficult to comprehend as to how and from whom in the Office of Sub-Registrar, she would have been able to get the Will prepared. Also as already discussed above, she was being attended to by two maids because of her confinement to bed as per the testimony of DW[2] as well as the attesting witness, Shital Kumar Jain and it is difficult to comprehend how and with whom she went to the Office of Sub

134. In this regard, the testimony of attesting witness D2W[2] Mr. Shital Kumar Jain assumes significance since he purportedly had accompanied Smt. Usha Gomber to the Office of Sub Registrar. He had deposed as follows: “That I state that the contents of the will were read out and explained to us by Late Smt. Usha Gomber at the time of signing and registering the said will. Late Smt. Usha Gomber was in a sound state of mind and had informed us that she has not in any way been pressurized or influenced with respect to execution of the said will.”

135. Significantly, D2W[2] Sheetal Kumar Jain also admitted in his cross-examination that he does not know where the Will dated 29.02.2012 was got typed and the Will was never dictated in his presence, though he was informed by Late Smt. Usha Gomber that she had got it prepared from a Judge. His testimony reads as follows: “I do not know where the Will dated 29.02.2012 was typed. Ms. Usha Gomber used to tell that she has taken the she had taken the help of some judge Mr. Rajnish Bhatnagar who is known to her in preparing the Will. I had never seen Ms.Usha Gomber talking to Ms Rajneesh Bhatnagar. Ms. Usha Gomber had never dictated the Will in my presence.”

136. There is no conclusive and satisfactory explanation forthcoming in the testimony of Defendant No.2 as well as attesting witness D2W[2] as to who and when the Will was prepared and whether it was on the instructions of the mother, which factors assume significance in view of her frail medical conditions, physical confinement and total dependency, as admitted by D2W[2] Sheetal Kumar Jain in his testimony that servants had been employed for Late Smt. Usha Gomber as she had the problem related to her knees and she was not agile. The testimony reads as follows: “The maid servant had been employed as she had some problem in her niece (sic) and was not very agile. (Vol. Sometimes I have also seen her walking outside the road).”

137. The second aspect which raises suspicion about the contents of Will is the date on which the Will was executed. Admittedly, date “29.02.2012” at Point „A‟ on the first page of the Will Ex. D2W1/X[2] has been mentioned in pen while the entire body of the Will is typed. D2W-1 Dr. Anil Gomber in his cross examination while admitting that the date had not been inserted by him, stated that he was also not aware about the person who may have inserted the date.

138. According to the defendant No.1 the falsity of the second Will relied upon by Defendant no.2 is evident from the fact that the date of 29.02.2012 has been entered manually on the already typed Will as per the suitability of the defendant no. 2 and the mother was made to sign it under coercion. The description of the property has also been mentioned incorrectly which further depicts that she was not in her full senses and was not able to understand the contents of the purported Will. Defendant no. 2 had fabricated the Will in active connivance and collusion with Mr. Shital Kumar Jain and Mr. Roshan Lal Kakkar, the two attesting witnesses of the Will.

139. D2W[2] Shital Kumar Jain stated the following in his cross examination: “The Will was not typed at the office of the Sub-Registrar in my presence. The date at Point Mark A on Ex.D2W1/X- 2 was written in office of the Sub-Registrar but not in my presence. This date was written after I had seen the Will.”

140. D2W[2] Sh. Sheetal Jain was unable to provide any clarity on how and when the date of 29.02.2012 was inserted in the Will. There is no explanation as to whether the date of 29.02.2012 was added on the Will that had already been typed and prepared as per the instructions of the mother or whether the Will in question was actually executed and prepared on that date. None seems to know how, when, where and on whose instructions the Will was prepared.

141. The third aspect is that there is a photograph pasted on the Will in Ex. D2W1/X[2]. Admittedly, the photograph has not been taken in the office of Sub-Registrar as it is clearly evident that this photograph has been taken while she is sitting on a bed. D2W[1] Dr. Anil Gomber in his crossexamination expressed his inability to explain where the photograph was taken. The relevant portion of his cross- examination reads as follows: “The photograph of my mother on the Will now exhibited as Ex.D2W1/X[2] was taken on the day the Will was executed that is about 6 months before her death. The photograph was not taken in my presence.”

142. D2W[2] Sheetal Kumar Jain, the attesting witness, who had allegedly accompanied Late Smt. Usha Gomber to the Office of Sub-Registrar for registration of the Will had deposed as follows: “That I state that I had gone to the Sub-Registrar Office, Pitampura (N.W.), Delhi for registration of the said will of Smt. Usha Gomber. That I went with Smt. Usha Gomber and Sh. Roshan Lal for this purpose.”

143. In his cross examination, D2W[2] stated that a photograph was taken while Smt. Usha Gomber was sitting in the taxi, but when he was confronted with the photograph pasted on the first page of the Will, he was unable to state if there was a pillow in the background of the photograph and tried to wriggle out by asserting that the photograph had already been pasted, when he first saw the Will. His cross examination reads as follows: “It is wrong to suggest that no photograph of Ms. Usha Gomber was taken in my presence. They had taken her photograph while she was sitting in the taxi. I cannot say if there is a pillow in the background in the photograph on the Will on the first page. I cannot say where the photograph which is appearing on the first page of the will was taken. This photograph was already fixed on the will when I saw the Will.”

144. D2W[2] Sheetal Kumar Jain‟s assertion that the photograph of Late Smt. Usha Gomber was taken while she was sitting in the taxi is absolutely contrary to the photograph which has been pasted on the Will. His contradictory testimony that the photograph was already pasted on the Will before he saw it, again creates a suspicion whether Late Smt. Usha Gomber had, in fact, gone to the Office of Sub-Registrar and whether the Will was prepared according to Late Smt. Usha Gomber‟s directions, or it was in accordance with her intention. Huge suspicion is created around the manner of execution of the Will as well as its registration.

145. Moreover, it has been stated by the attesting witness, D2W[2] Shital Kumar Jain in the cross-examination that Late Smt. Usha Gomber had remained seated in the car and it was some official of the Sub-Registrar who had come and taken the requisite signatures and also informed her about the contents of the Will. In these circumstances, it would have been most significant to have examined the Sub-Registrar to corroborate and to depose about explaining the contents of the Will to Smt. Usha Gomber before she signed this alleged Will. For this reliance has been placed on the decision in Rabindra Nath Mukherjee vs. Panchanan Banerjee (Dead) LRs (1995) 4 SCC 459 wherein it was observed that the suspicion would be minimised if the Will is registered and the Sub-Registrar certifies that the same was read over to the executor who, on doing so, had admitted the contents.

146. The fourth aspect pertains to the CD Ex. D2W1/X[3] which according to Defendant no. 2 was prepared to correctly record the intention/ instructions of the Late Usha Gomber for execution of the Will on the basis of which Will dated 29.02.2012 was prepared. Before delving into the objections raised by defendant no.1, it is pertinent to note that no Certificate under Section 65B of the Indian Evidence Act, 1872 in support of the authenticity of CD has been produced, making the CD inadmissible in evidence.

147. The non-production of Certificate under Section 65B of the Indian Evidence Act, 1872 assumes immense significance as there is no coherent evidence about how, when, where and by whom was this CD prepared. Defendant No[1] has deposed that the aforesaid Will as well as the CD filed in support of the said Will has been fabricated by defendant no. 2 as it is not a family video but has been shot under coercion.

148. The defendant No. 2 has placed reliance on the CD but its contents are not in consonance with the contents of the purported Will. D2W2/Anil Gomber has deposed in his cross-examination as under: „…….. 1 do not know if any video recording was prepared on 29/02/2012. I have filed a video recording on this file. I do not know the date, month or year of the video recording. I do not remember when this video recording had come to my knowledge. I have seen the video recording.

149. Peculiarly, he does not even remember when and by whom the video recording was prepared and when it came to his knowledge. Conflictingly, D2W[1] in his cross-examination at another place, states that the video recording was prepared in his presence about 5 or 6 months before the demise of Late Smt. Usha Gomber i.e., somewhere in January, 2012. He further deposed that when the video recording was prepared by him at F-3, Vijay Nagar, New Delhi, Sh. Roshan Lal was also present. The relevant part of cross examination reads as under: “… I must have seen the video recording several times. I had got the transcript of the video recording prepared myself. (Vol. For filing in Court). This video recording was got prepared by my mother in my presence about 5-6 months before her death and around 1 or 2 months before the Will Ex.D2W1/X-2 i.e. somewhere in January, 2012. At the time when the video recording was prepared my mother, Mr. Roshan Lal Kakkar and myself were present.”

150. The transcript of the video recording Ex.D2/W1-X[3] reads as under: “I am giving my Will on February, 2012. My younger son Anil has been given the upper portion and the lower portion I have given to my elder son Sunil and my daughter has already been given by me. Now, she will take 15,00,000/- (Rupees Fifteen Lacs Only) each from both of them and shall obey the Will. That‟s all.”

151. Firstly, in the absence of a certificate under section 65B of the Indian Evidence Act, 1872, the said certificate is not admissible in evidence. Secondly, it is evident from the contradictions in the testimony of defendant No. 2 in his cross-examination about when and how the CD was videographed that it is a procured document which disproves the authenticity of the CD and its transcript. Had the video been prepared in January, 2012, Late Smt Usha Gomber could not have possibly stated about the Will executed in February i.e., 29.02.2012. Since it is defendant no.2‟s own assertion that the video graph reflects the will and intention of the Late Smt Usha Gomber, the contradictions and ignorance about material facts establishes that the CD is a manipulated document.

152. The other glaring aberration visible in the testimony of Defendant no. 2 and the alleged Will is the apparent contradiction in the recitals of the Will. While the purported Will indicates that Rs. 10,00,000/- each be given by defendant nos. 1 and 2 respectively to the sister i.e. the plaintiff, the CD records that each brother shall pay Rs. 15,00,000/- each to the plaintiff.

153. D2W[2] Anil Gomber has admitted in his cross-examination about this apparent contradiction in the following words: “The CD containing the video recording is now Ex.D2W1/X-3. The transcript of this video recording is now Ex.D2W1/X-3A. I had noticed that there was a difference in the amount of Rs. 15 lakhs payable to the sister mentioned in the video recording and the amount mentioned in the Will Ex.D2W1/X[2]. I did not bring this difference to the notice of the two attesting witnesses of the Will Ex.D2W1/X-2.”

154. The disconnect in the purported CD recording and the contents of disputed Will raises a doubt about the genuineness of the Will and it being a genuine expression of intention of Late Smt. Usha Gomber. The only conclusion that can be drawn is that the alleged recording was a manipulated one and not a free expression of intent of Smt. Usha Gomber.

155. It is also argued on behalf of the defendant No. 2 that their mother had intended to give ground floor to the defendant No. 1, while the first floor and above was to go to the share of the defendant No. 2. In this context, it may be observed that though the validity of the second Will dated 29.02.2012 Ex. D2W1/X[1] has not been proved, even in the alleged Will there is no inequitable distribution of the suit property reflected from its terms. What is stated in the second Will dated 29.02.2012 Ex. D2W1/X[1] is that the ground floor shall go to Sunil Gomber, the defendant No. 1, while the first floor and roof shall go to Anil Gomber, the defendant No. 2.

156. In this context, it may be mentioned that it was a double story building and Late Smt. Usha Gomber in her wisdom, divided one floor each to her sons. When it comes to interpretation of the terms of a Will, it has to be read in the context of the surrounding circumstances and the intent of the testator has to be so inferred. It is nowhere indicated in the Will that the first floor and above shall go to Sunil Gomber, but as a layman what was stated that one floor would go to one son and the other floor shall go to the second son. There existed no second floor to have been bequeathed to either party. The only inference that can be drawn is that the suit property was intended to be divided equally. Merely because the roof right was given to the defendant No. 2 would not lead to an inference that the entire first floor and above, including the floor which may be constructed subsequently would go to the defendant No. 2. Essentially, in the Will Ex. DW1/2 as well as Will Ex. D2W1/X-2, Late Smt. Usha Gomber had intended to divide the suit property equitably between the two sons, only difference being between the first and the second Will be that under the first Will, the suit property was divided vertically, while in the second Will, it was sought to be divided horizontally. The alleged second Will has been misread to assume that defendant No. 2 gets a large share in the suit property.

157. To conclude, the evidence on record leads to irresistible inference that contents of the Will Ex. D2W1/X[2] is not an expression of intent of Late Smt. Usha Gomber. Rather, it is a document which has been prepared and procured and cannot be considered as a genuine Will of Late Smt. Usha Gomber even though her signatures may have been obtained on the same.

158. It is, therefore, held that the defendant No. 2 has not been able to prove the Will dated 29.02.2012 and the Will propagated by the defendant No. 1 dated 27.12.2010 Ex.DW1/7 is the last and genuine Will of Late Smt. Usha Gomber. Issue no.2 is decided against defendant no.2. Relief:

159. In view of the findings on the above issues, it is held that the plaintiff is not entitled to any share in the suit property and is entitled to a sum of Rs. 15,00,000/- from each defendant as her share in lieu of the suit property while defendant no.1&2 are the equal owners having 50% share each in the suit property as per the Will dated 27.12.2010 Ex. DW1/2. The preliminary decree of partition is hereby passed in terms of the said Will Ex. DW1/2.

160. Significantly, as per the Will dated 27.12.2010 Ex. DW1/2, the property has to be divided vertically, but it needs to be ascertained if the vertical division of the property is permitted under the municipal law. Therefore, the mode of partition needs to be further determined before passing any final decree.

161. List before the Roster Bench on 19.04.2023 for determination on the mode of partition for the purpose of Final Decree.

JUDGE MARCH 10, 2023 PA/S.Sharma/ek