Full Text
HIGH COURT OF DELHI
SANJAY KALRA ..... Petitioner
Through: Mrs. Kajal Chandra, Ms. Prerna Chopra and Ms. Sakshi Anand, Advocates
Through: Mr. Darpan Wadhwa, Sr.
Advocate with Ms. Ruby Singh Ahuja, Mr. Varun Khanna, Mr. Akshay Aggarwal, Mr. Vasu Singh, Ms. Aditi Mohan and
Ms. Megha, Advocates for LRs No. 1 and 4 Mr. Harish Malhotra, Sr.
Advocate with Mr. Rajiv Bahl and Mr. Vikas Tomar, Advocates for LR-5-Priya Jain
JUDGMENT
1. The instant application has been filed by the Applicant seeking issuance of directions to Petitioner/PW[1], PW[2], LR No. 1 and LR No.4 to discover and produce copies of all Income Tax Returns with Balance Sheets filed in the income Tax Department of Late Mr. Davinder Kumar Jain for the period 01.04.2003 to 18.03.2014.
2. The probate petition has been filed under Section 276 of the Indian Succession Act, 1925 with regard to the Will dated 11th December, 2004 executed by late Mr. Davinder Kumar Jain, son of late Mr. Satpal Jain, resident of D-19, Nizamuddin (East), New Delhi-110013. The Applicant is daughter and Legal Heir No. 5 of the deceased testator and has filed her objections to the petition on the ground that the purported Will is false, bogus and forged, and it has been fabricated to vest the entire estate in favour of Mrs. Usha Jain, wife of the deceased and to oust all other legal heirs of the deceased.
3. Mr. Harish Malhotra, Sr. Advocate, appearing for the Applicant submitted that the deceased testator owned several shares in his own name in various companies as furnished in paragraph 4 of the instant Application. Mrs. Usha Jain, L.R. No.1 has illegally and without the permission of this Court and consent of L.R. No.5/Applicant has got the aforesaid shares transferred in her favour. The said transmission is bad in law and as such liable to be set aside. Unfortunately, Mr. Sanjay Kalra, Petitioner/Executor has taken no action in preserving the aforesaid shares of late Mr. D.K. Jain. It is respectfully submitted that after the death of Mr. D.K. Jain on 18th March, 2014 the right, title and interest in all the said shares stood inherited immediately in favour of all the aforesaid five legal heirs of late Mr. D.K. Jain.
4. It is further submitted that the deceased also owned another set of shares in the different companies as enumerated in paragraph 5 of the Application and the same have not been transmitted in the name of Mrs. Usha Jain, LR. No.1. It is stated that in all the shares and dividends left behind by the deceased, Ms. Priya Jain, LR. No.5/Applicant has inherited 20% right, title and interest in the same. It is alleged that Sh. Sanjay Kalra PW-1/Petitioner and Sh. Mahesh Gupta/PW-2 were looking after the financial affairs of late Sh. D.K. Jain during his life time. It is stated that Sh. Mahesh Gupta/PW-2, claims himself to be a director and Vice President of some companies of Luxor Group. Income Tax Returns with balance sheet of late Mr. D.K. Jain, father of the applicant were being filed with the Income Tax Department through Sh. Sanjay Kalra and/or by Sh. Mahesh Gupta.
5. It is further stated that after the death of Mr. D.K. Jain, all his assets and papers/documents are in the physical custody of his wife, Mrs. Usha Jain and his daughter, Ms. Pooja Jain including his Income Tax Returns with balance sheets Sh. Sanjay Kalra PW-1/Petitioner and Sh. Mahesh Gupta (PW[2]) beign the CAs of the deceased, have in their possession, custody and power, copies of all the Income Tax Returns with balance sheets filed with the Income Tax Department from time to time, including for the financial years w.e.f. 1st April, 2003 to 18th March, 2014 being his Chartered Accountants and looking after his financial affairs. The said Income Tax Returns with balance sheets shall show all the properties owned by late Mr. D.K. Jain as on 11th December, 2004 (date of the alleged Will) and 18th March, 2014 (date of his death) along with other details during the above period.
6. In view of the aforesaid, it is submitted that the present petition relates to the properties owned by late Mr. D.K. Jain as on 11th December, 2004 (date of the alleged Will) and 18th March, 2014 (date of his death). Consequently, the aforesaid Income Tax Returns with balance sheets of late Mr. D.K. Jain for the financial years during the aforesaid period are relevant and necessary for fairly disposing the testamentary case.
7. Per contra, Mr. Darpan Wadhwa, learned senior counsel appearing for LRs No. 1 and 4 vehemently opposed the averments made in the instant application as well as the arguments advanced by the learned senior counsel for the Applicant. It is submitted that the instant Application is nothing but an abuse of process and a tactic to delay the proceedings.
8. It is therefore submitted that instant Application being devoid of merits should be dismissed by this Court.
9. Heard learned counsel for the parties and perused the record.
10. For a better appreciation of the case at hand, before delving deeper into the facts of the case, it is pertinent to peruse and analyse the provisions of law with respect to Wills in the instant petition to delineate the scope of jurisdiction of this Court in probate jurisdiction.
11. The Indian Succession Act, 1925 is the law governing Wills and matters relating thereto. Section 2(h) of the Indian Succession Act, 1925 defines Will, in the following terms: “(h) “will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”
12. A bare perusal of the definition reveals that there are three essential characteristics of a Will, as delineated hereunder:
(i) there must be a legal declaration;
(ii) the declaration must be with respect to the property of the
(iii) the declaration must be to the effect that it is to operate after the death of the Testator, i.e. it should be revocable during the life of the Testator.
13. As per the scheme of the Indian Succession Act, 1925, there are two types of Wills, namely – Privileged Wills and Unprivileged Wills. Privileged Wills have been provided for under Section 65 of the Act. It provided that any soldier being employed in an expedition or engaged in actual warfare, or an airmen so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a Will made in the manner provided in Section 86 of the said Act. All residual Wills, other than Privileged Wills, fall into the category of Unprivileged Wills.
14. Every person of sound mind, who is not a minor, may dispose of his property by Will. Section 59 of the Indian Succession Act, 1925 that deals with the capacity of a person to dispose of his property by way of a Will, reads as under:
15. A Will is rendered void in cases of it being polluted by the sin of fraud and other defects. The relevant provision being Section 61 of the Indian Succession Act, 1925 reads as under:
16. Section 63 of the Indian Succession Act, 1925 deals with the execution of Unprivileged Wills and reads as under:
17. What emerges from a bare perusal of the aforementioned provision is that the Testator shall sign or affix his mark to the Will. Alternatively, it can be signed by some other person in his presence and by his direction. The signature or mark shall be placed in such a manner that it can be inferred that it was intended to give effect to the writing as a Will. Next comes the aspect of attestation by witnesses. The Will needs to be signed by two or more witnesses in the presence of the Testator, if they have seen the Testator or some other person sign or affix his mark. Only those persons are eligible to attest, who have received personal acknowledgment from the Testator, of his signature or mark, or of the signature of such other person.
18. Section 2(f) of the Indian Succession Act, 1925 defines Probate and reads as under: “(f) “probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;”
19. Once the Probate is granted, it establishes the Will from the time of the death of the Testator and renders valid, all action of the executor during the interim period, i.e. from the time of the death of the Testator to the grant of Probate. Probate is conclusive evidence of the testamentary capacity of the Testator and due execution and validity of the Will. The finding of the Probate court as to the due execution of the Will is conclusive. The grant of Probate vests all the property in the person in whose favour the Probate is granted.
20. In the recent case of Murthy v. C. Saradambal, (2022) 3 SCC 209, the Hon’ble Supreme Court has summarised the law regarding Wills as under:
31. One of the celebrated decisions of this Court on proof of a will, in H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443] is in H. Venkatachala Iyengar v. B.N. Thimmajamma, wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under: (AIR p. 451, para 18)
32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.
33. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder: (Bharpur Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687: (2009) 1 SCC (Civ) 934], SCC p. 696, para 16)
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369], this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687: (2009) 1 SCC (Civ) 934], this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner: (SCC p. 699, para 23)
36. It was further observed in Shamsher Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687: (2009) 1 SCC (Civ) 934] that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.”
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433], in paras 34 to 37, this Court has observed as under: (SCC pp. 447-48)
21. The Hon’ble Supreme Court in Anil Kak v. Sharada Raje, (2008) 7 SCC 695, opined that the Court is required to adopt a rational approach while considering the question of grant of probate and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role.
22. Further, the Hon’ble Supreme Court in Leela Rajagopal v. Kamala Menon Cocharan, (2014) 15 SCC 570, opined as under:
23. In view of the aforesaid, the scope of the jurisdiction of the probate Court is limited to the extent of adjudicating whether the Will set up by the propounder is proved to be the last valid will of the testator in respect of which a probate can be granted. Therefore, what is required to be tested is whether the testator had signed the will. Next, it is to be seen whether he understood the nature and effect of the dispositions in the will. Lastly but importantly, whether he put his signature to the will knowing what it contained. It is also a settled law that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act, 1925. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
24. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. In a probate case, the burden of proof that is to be thus discharged by the petitioner is to establish beyond reasonable doubt that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and that he put his signature on the document of his own free will.
25. It is also a settled law that when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, the Court would be justified in making a finding in favour of propounder.
26. In cases where the Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. Therefore, the ultimate scrutiny of the evidence for removal of suspicion as to the circumstances is to be carried out on the anvil of the judicial conscience.
27. Having perused the provisions regarding the execution of an Unprivileged Will as well as the law applicable to the grant of probate in detail, it is now pertinent to apply the same to the facts and circumstances of the case at hand.
28. In the instant case, the said application has been filed with respect to discovery and furnishing of the Income Tax Returns with balance sheets between the period of 1st April 2003 and 18th March, 2014. There is no plausible reasoning offered to justify the correlation between the validity of the said will and that of the documents as prayed herein. In the facts and circumstances of the case, the Income Tax Returns of the said period shall serve no purpose in adjudicating the question of grant of probate of will. As already discussed, the scope of the jurisdiction of the probate Court is limited to the extent of adjudicating whether the Will set up by the propounder is proved to be the last valid will of the testator in respect of which a probate can be granted.
29. In any case, the application has been filed after a passage of 6 years of the filing of the instant petition. It is a well settled principle that delay defeats the rights of the cliamant - "Vigilantibus non dormientibus aequitas subvenit". Law assists the vigilant and not those who sleep on their rights. Unreasonable delay in bringing forth a claim or laches are a major hurdle in granting relief to the claimant, especially when the delay is substantial. Such an extraordinary delay in itself defeats the ends of justice. The pendency of the case cannot be a ground to make requests until the very fag end of the conclusion of the proceedings. No justification has been offered in filing the instant application after the proceedings have been continuing for past six years.
30. In view of the aforesaid, the instant application is nothing but an abuse of process and seems to be filed merely to delay and derail the proceedings in the testamentary case, and as such in the interest of justice the same cannot be allowed.
31. Therefore, the instant application being devoid of merits stands dismissed.
32. The judgment be uploaded on the website forthwith.
JUDGE MARCH 29, 2023 gs/ak Click here to check corrigendum, if any