Rajinder Parshad Sharma v. State

8. An application being I.A. 8606/1991 dated April 01, 1991 was filed by Smt. Renu Sharma as Legal representative of Late Nirmala Pushkarna (pre-deceased daughter of Testatrix) for impleadment as respondent in this petition and the same was dismissed vide Order dated May 11, 1994 for non-prosecution. Thereafter, neither Smt. Renu Sharma nor any other legal heirs of Late Nirmala Pushkarna ever appeared or filed any objections to the present probate petition.

9. Vide Order dated December 04, 2001, the following issues were framed:- “(i) Whether the Will dated 31.5.1989 is the last duly executed Will of Late Smt. Shyama Sharma in favour of the petitioner?

(ii) Relief.”

10. That on March 21, 2005, the proceedings in the present probate petition were adjourned sine die with liberty to seek revival of this petition, in view of the pendency of previously instituted partition suit of the property left by the Testatrix.

11. The Registry of this Court of its own listed the matter before the Court on May 31, 2007 and September 10, 2015 as neither party sought revival of the petition. Court notice was ordered to be issued.

12. It transpired that the partition suit was dismissed by the concerned Court of ADJ without rendering any finding on the validity of the document claimed to be the Will of the Testatrix. After which the respondent nos. 2 (a) & (b) preferred RFA No. TEST. CAS. 24/1990 Page 7 428/2015 as appellants against the said judgment of dismissal of suit and was pending consideration.

13. The counsel for the petitioner had stated and as recorded by the Court in Order dated October 18, 2016 that: “5. The counsel for the petitioner states that since all the parties have led their evidence with respect to the validity of the document stated to be the Will in the partition suit, the parties be permitted to file certified copies of that evidence in this proceeding and this proceeding be decided on the basis of the said evidence.” The Court noting the said submission has on the same day disposed of the present petition by stating as under: “10. … if in the aforesaid partition suit the documents stated to be the Will of the deceased Smt. Shyama Sharma is held to be her validly executed last Will, the petitioner on presentation of the certified copy of the said judgment, shall be entitled to grant of probate as sought in this petition; conversely, if in the said partition suit, it is held that the said document is not the validly executed last Will, this probate petition shall deemed to be dismissed.

12. The counsel for the petitioner has rightly pointed out that if that proceeding is finally disposed of without any adjudication with respect to the purported TEST. CAS. 24/1990 Page 8 Will, as has happened before the first Court, the petitioner would be left remediless.

13. For the said contingency, it is deemed appropriate to direct that the petitioner shall be entitled to either apply afresh for probate or shall be entitled to apply for revival of the present petition.”

14. The petitioner thereafter filed an application being I.A. NO. 7448/2019 seeking revival of the present probate petition. The Court vide Order dated May 21, 2019, issued Notice on the said application.

15. In the meantime, the petitioner along with respondent nos. 2 (a) & (b), 3, 4 (objectors) and 5 has entered into a Memorandum of Understanding (MOU) dated August 31, 2020. The respondents Nos. 2(a), 2(b), 3 and 4 have admitted that the property bearing no. F-1/136, Lajpat Nagar-1, New Delhi admeasuring 200 sq. yds. (‘subject property’ for short) was the self-acquired property of the testatrix and she had validly executed the Will dated May 31, 1989, as her last Will, wherein the subject property has been bequeathed by the testatrix in favour of the petitioner. Further the respondents accept the Adoption Deed dated September 09, 1980 wherein the testatrix adopted the petitioner as her son. The respondents / objectors and respondent No.5 have accepted that the petitioner is the sole and absolute owner of the subject property and they are left with no right, title, interest or claim of any nature whatsoever in the subject property.

16. I note that the appellants in RFA No.428/2015 and respondent nos. 2 (a) & (b) herein have simultaneously filed an TEST. CAS. 24/1990 Page 9 application CM No.22858/2020 for withdrawal of RFA under Order

23 Rule 1 CPC to facilitate the probate proceedings. Therefore, the parties to the MOU dated August 31, 2020 have bound themselves to the terms of the said MOU and accordingly filed ‘No objection’ affidavits to the said effect along with the application for withdrawal of said RFA. The Court passed the Order dated September 17, 2020 disposing of the RFA in view of the application for withdrawal. The order reads as under: “By the instant application preferred under Order 23 Rule 1 read with Section 151 CPC the appellants seek withdrawal of the appeal in pursuance of the compromise/settlement arrived at amongst the parties. Besides the compromise/settlement stated to have been arrived at, the appellants being the Dominus litis, the prayer made is granted. Original documents on the record of the Court be returned to the party(ies)- who filed, as per the rules. Appeal and the pending applications stand disposed of accordingly.”

17. The petitioner filed an application being I.A. No. 8340/2020 seeking grant of probate with the following prayers: “It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to: (a) Pass an order granting probate of registered will executed on 31.5.1989 by Smt. Shyama Sharma, registered as Document No. 2572 in Book No. 3 Volume TEST. CAS. 24/1990 Page 10 505 on pages 150-152 before the Sub- Registrar - New Delhi in favour of Petitioner. (b) Pass such or further orders as may be deemed fit, just and proper in the circumstances of the case.”

18. I may state here, that, the petitioner had filed 38 documents along with this application, which includes affidavit of the petitioner. The reference to some of the relevant documents shall be made in the later part of the judgment.

19. It is noted that the respondents/objectors to the present probate petition namely Respondent nos. 2 (a) & (b), 3 and 4 have filed their ‘No-Objection’ Affidavits along with the MOU dated August 31, 2020 for the grant of probate in the present petition and to withdraw their respective objections previously filed. The relevant paras of their affidavits exhibited (Ex.PW1/28 – PW1/31) are reproduced as under: “2. I accept voluntarily and out of my free will, that the subject property i.e. property bearing No. F-1/136, Lajpat Nagar-1, New Delhi admeasuring 200 sq. yards was the self-acquired property of Late Smt. Shyama Sharma and by virtue of that she validly executed the registered Will dated 31.5.1989, as her last Will, wherein the subject property has been bequeathed by Smt. Shyama Sharma in favour of petitioner. I admit petitioner as sole and absolute owner of the subject property and I am left with no right, title, interest or claim of any nature whatsoever in the subject property. TEST. CAS. 24/1990 Page 11

3. I voluntarily and out of my free will, withdraw all my objections filed against the Petitioner in the present case and state that I have no objection to grant of probate by this Hon’ble of the registered Will dated 31.05.1989 in favour of Petitioner.”

20. Even the affidavit of R[5] (Ex.PW1/32) vide paras 2 and 3 reads as under: “2. I accept that the subject suit property i.e. property bearing No.F-1/136, Lajpat Nagar-1, New Delhi admeasuring 200 sq. yards was the self-acquired property of Late Smt. Shyama Sharma and by virtue of that she validly executed the registered Will dated 31.5.1989, as her last Will, wherein the subject suit property has been bequeathed by Smt. Shyama Sharma in favour of Petitioner. I further accept the adoption deed dated 09.09.1980 wherein Late Smt. Shyama Sharma w/o Shri Baikunth Nath Sharma (Shri B.N. Sharma) adopted Petitioner as son, executed between Shri Om Prakash Sharma (biological / natural father of petitioner) vide document No. 2150 in Book No. 3 Vol. 168 on Page NO. 155-159 registered on 25.09.1990 with the office of Sub absolute owner of the subject suit property and I am left with no right, title, interest or claim of any nature whatsoever in the subject suit property.

3. I further undertake to extend full cooperation, file requisite applications, affidavits, make statements and do TEST. CAS. 24/1990 Page 12 all acts which may be necessary, before Hon’ble Courts for grant of probate and before land owning authorities for execution of freehold conveyance deed of the subject suit property in favour of Petitioner.”

21. The petitioner-PW-1 filed its evidence by way of affidavit in this case which is exhibited as Ex. PW 1-B and in the suit is exhibited Ex. PW 1/14 wherein he deposed as DW-5. He has proved the petition being Test Cas. 24/1990 which is exhibited as Ex. PW1/A, Adoption Deed as Ex. PW 1/1 and the Death Certificate of the deceased as Ex. PW1/2. Though he has also sought to prove the document exhibited as Ex. PW 1/3 dated May 31, 1989 as the validly executed last Will of the deceased but not being an attesting witness thereto, his evidence in that respect is irrelevant. Petitioner further proved the Lease Deed dated October 31, 1963 as Ex. PW 1/4. Evidence led by the attesting witness to the Will dated May 31, 1989, Shri. Anoop Bagai (D5W[2]) was examined in the partition suit and his evidence is to be read in the present case for purposes of deciding these proceedings. (Ref: Order dated October 18, 2016). He tendered evidence by way of affidavit dated April 22, 2010 in suit lastly re-numbered as CS No. 402/2014 which is exhibited in these proceedings as Ex. PW 1/5 and was cross-examined on February 28, 2012 and January 15, 2015 which orders are exhibited as Ex. PW1/6 and Ex. PW 1/7, respectively. Further documents are also proved by the petitioner, and are exhibited as: Citation published in newspaper is exhibited as Ex. PW 1/8, Valuation report is exhibited as Ex. PW 1/9, Application I.A. 8606/1991 dated April 01, 1991 filed by Smt. Renu Sharma for substitution of other heirs TEST. CAS. 24/1990 Page 13 of Late Nirmala Pushkarna as respondents in the present probate case was dismissed for Non-Prosecution vide Order dated May 11, 1994 as Ex.PW1/12. Smt. Santosh Sharma (respondent no.5) who gave no objection to the grant of probate, had filed evidence by way of affidavit in the said partition suit and was cross-examined on July 10, 2014. The affidavit and cross-examination are exhibited as Ex. PW 1/10 and Ex. PW 1/11, respectively. The petitioner filed evidence by way of affidavit in the partition suit on October 15, 2005 and was cross-examined on dated July 07, 2006, December 18, 2006, February 01, 2007, September 25, 2008 and March 16, 2009, May 19, 2009, December 18, 2009, April 06, 2011 and May 13, 2011 which are exhibited as Ex. PW 1/14 to Ex. PW 1/23, respectively. Testimonies of Shri Rambir (D5W[3]) examined on August 01, 2012 and Shri Shambu Sharma (D5W[1]) examined on April 04, 2014 in the partition suit are exhibited as Ex. PW 1/24 and Ex. PW 1/25, respectively. Order dated October 18, 2016 in this petition is exhibited Ex. PW 1/26. Parties entered into Memorandum of Understanding (MOU) dated August 31, 2020 and petitioner has proved the same as Ex. PW 1/27. The original No objection certificates/affidavits filed by the respondent Nos. 2 (a) & (b), 3, 4 and 5 are proved and exhibited as Ex. PW 1/28 to PW 1/32. The Annexure-A/ valuation of moveable and immovable properties of the testatrix stand revised as Schedule-A and has been proved as Ex. PW 1/33.

22. Having heard the learned counsel for the parties, the issue which arises for consideration is whether the petitioner is entitled to probate of the document said to be the Will May 31, 1989 TEST. CAS. 24/1990 Page 14 (Ex.PW1/3) of Late Shyama Sharma, testatrix. In terms of the document / Will dated May 31, 1989, the testatrix has bequeathed forever the entire house No. I/F-136, Lajpat Nagar, New Delhi- 110024 in favour of the petitioner. Late Usha Pushkarna had filed a partition suit being no. 410 of 1990 in this Court and thereupon replaced with CS No. 402/2014, with respect to the same property wherein the petitioner was made defendant no.5. Usha Pushkarna expired on November 28, 1994 and her surviving LRs i.e., respondent Nos. 2(a) and 2(b) were substituted in the said partition suit. The suit was dismissed on January 23, 2015 on the ground that the said suit is a nullity having been filed against a dead person. Against the dismissal of the said suit, the respondent Nos. 2(a) and 2(b) have filed Regular First Appeal before this Court being RFA 428/2015.

23. The objections to the probate petition have been filed by Usha Pushkarna (original objector) now represented by her LRs, i.e., respondent Nos.2(a) and 2(b), Smt. Kamla Sharma, respondent no.3 and Smt. Krishna Dwivedi, respondent no.4 and not by respondent no. 5, Smt. Santosh Sharma. The petitioner, respondent Nos. 2(a) and 2(b), 3, 4 & 5 have entered into a Memorandum of Understanding dated August 31, 2020 Ex. PW1/27 whereby the petitioner, respondent Nos. 2(a), 2(b), 3 & 4 have agreed to settle all their existing disputes and litigations relating to the property in question. The respondent Nos. 2(a) 2(b) 3 and 4 jointly and severally admitted and accepted the Will dated May 31, 1989 (Ex.PW1/3) as the last and validly executed Will of Smt. Shyama Sharma wherein the entire property in question, i.e., property being TEST. CAS. 24/1990 Page 15 F-1/136, Lajpat Nagar-1, New Delhi admeasuring 200 Sq. Yds. has been bequeathed by Shyama Sharma (testatrix) in favour of the petitioner.

24. The respondent Nos. 2(a), 2(b), 3, 4 and 5 have agreed that the petitioner is the sole and absolute owner of the entire property, i.e., F-1/136, Lajpat Nagar-1, New Delhi admeasuring 200 Sq. Yds and they have no right, title, interest or claim of any nature whatsoever in the same. The respondent Nos. 2(a), 2(b), 3 and 4 have agreed to withdraw their respective objections in this petition and file their no-objection affidavits for grant of probate in respect of the Will dated May 31, 1989 (Ex.PW1/3) bequeathing the said property being F-1/136, Lajpat Nagar-1, New Delhi admeasuring 200 Sq. Yds. in favour of the petitioner. Further the respondent Nos. 2(a) and 2(b) have agreed to withdraw RFA 428/2015 which has been done in terms of order dated September 17, 2020 in the RFA (document at page 62- 62A of the additional documents filed by the petitioner on September 21, 2020)

25. It is primarily on the basis of the MOU dated August 31, 2020 (Ex.PW1/27) petitioner had filed IA 8340/2020 for granting probate of Registered Will dated May 31, 1989 (Ex.PW1/3) of Shyama Sharma. It is stated in the application that as the objections have been withdrawn, their affidavits accepting the validity of the Will, the said prayer for grant of probate be made.

26. When the application was listed before the Court on September 23, 2020, the parties being respondent Nos. 3, 4 and 5 stated that they have settled an inter se dispute in terms of the memorandum of undertaking entered between them on August 31, TEST. CAS. 24/1990 Page 16 2020 (Ex.PW1/27). The said submission was also recorded on behalf of respondent nos. 2 (a) and 2(b) as well, in the order dated October 5, 2020.

27. In view of the MOU dated August 31, 2020 (Ex.PW1/27) the petitioner, respondent Nos. 2(a), 2(b) 3, 4 and 5 have filed their no-objection affidavits. A reference of which is already made above. The same are exhibited as Ex. PW1/28 to PW1/32.

28. I have already reproduced the contents of the affidavits of respondent Nos. 2(a), 2(b), 3, 4 and 5 in paras 19 and 20 above. So in view of the orders dated September 23, 2020 and October 5, 2020 in this petition and in view of the MOU dated August 31, 2020 (Ex.PW1/27) and affidavits of the respondent Nos. 2(a), 2(b), 3, 4 and 5, Ex. PW1/28 to PW1/32, it is clear that the respondents Nos. 2(a), 2(b), 3 and 4 wish to withdraw their objections to the probate petition. Further, respondent Nos. 2(a), 2(b), 3, 4 and 5 have stated in their affidavits that, (i) the property No.F-1/136, Lajpat Nagar-1, New Delhi admeasuring 200 Sq. Yds. was the self-acquired property of the testatrix Shyama Sharma, (ii) she has validly executed the registered Will dated May 31, 1989 (Ex.PW1/3) as her last Will wherein the subject property has been bequeathed in favour of the petitioner, (iii) the petitioner is the sole and absolute owner of the property and they are left with no alternative right, title interest or claim whatsoever in the subject property, (iv) the respondent Nos. 2(a), 2(b), 3 and 4 have no objection for grant of probate by this Court of the Registered Will dated May 31, 1989 (Ex.PW1/3). If that be so, the objections on behalf of respondents Nos. 2(a) and 2(b), 3 and 4 are liable to be withdrawn. It is ordered TEST. CAS. 24/1990 Page 17 accordingly. Having said that, as the prayer in the petition is for grant of probate of the Will dated May 31, 1989 (Ex.PW1/3) and the issue framed include whether the Will dated May 31, 1989 (Ex.PW1/3) is the last duly executed Will of Late Smt. Shyama Sharma in favour of the petitioner, so, to decide the Will dated May 31, 1989 (Ex.PW1/3) of which the probate is sought, it is to be seen that the petitioner has been able to prove that the Will dated May 31, 1989 (Ex.PW1/3) has been duly executed and proved. In order to prove the Will, petitioner has examined himself as PW[1] in these proceedings and one of the attesting witnesses namely Shri Anoop Bagai, in the partition suit. The requirement of attestation is spelt out in Section 63 (c) of Indian Succession Act, 1925 which reads as under: “63 (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

29. The manner of proving Will is provided in Section 68 read with Section 64 of the Indian Succession Act, 1872 which reads as under: “64. Proof of documents by primary evidence.— Documents must be proved by primary evidence except in the cases hereinafter mentioned.” TEST. CAS. 24/1990 Page 18 “68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

30. In the present case, the petitioner is required to prove that the testatrix Shyama Sharma has signed the Will of her own freewill having a sound disposing of mind and understood the nature and effect thereof. As far as this case is concerned, the petitioner has filed his evidence by way of affidavit Ex. PW1/B and has not been cross-examined by the counsel for the respondents. This is primarily due to the Memorandum of Understanding (Ex.PW1/27). In so far as one attesting witness namely Shri. Anoop Bagai is concerned, in view of order dated October 18, 2016, a reference of which is made above, it is clear that this Court had directed if in the petition being the partition suit, i.e., CS No. 402/2014, the document stated to be the Will of testatrix Shyama Sharma is held to be her validly executed Will, the petitioner on presentation of the certified copy of the said Judgment shall be entitled to grant of probate as sought in this petition. The attesting witness namely Shri. Anoop Bagai who appeared as (D5W[2]) in the partition suit had filed evidence by way of affidavit as filed in the suit is exhibited as Ex.PW1/5 in these proceedings and was also cross- TEST. CAS. 24/1990 Page 19 examined. The affidavit of Shri. Anoop Bagai in terms of Para 6 reads as under: “That thereafter the Deponent and the other witness Mr. Sanjeev Sindhwani, Advocate along with the testatrix, Late Dr. Mrs. Shayma Sharma went to the Office of the Sub Registrar-III, Asaf Ali Road, Darya Ganj, New Delhi – 110002 for getting the Will registered, whereupon the testatrix, Late Dr. Mrs. Shyama Sharma had put her signatures to the Will in my presence and thereafter the other attesting witness to the Will Mr. Sanjeev Sindhwani, Advocate put his signatures in the presence of the testatrix and the Deponent. I also signed the aforesaid Will dated 31.05.1989 as an attesting witness in front of the testatrix Late Dr. Mrs. Shyama Sharma as well as the other attesting witness Mr. Sanjeev Sindhwani, Advocate”.

31. In the cross-examination (Ex. PW 1/6) to a specific question “Was the original Will was executed in your presence as was signed by you as a witness”, Sh. Anoop Bagai has stated as under: Q Was the original Will was executed in your presence and was signed by you as a witness? Ans. Yes and original of same bears my signature on the back side of page 1 which is separately given a copy on a separate page and page 3. Photo impression of same is A and B. Mrs. Shyama Sharma had put her signatures on the originals at page 1, 2 and 3. Photo impression of same are at pont X[1] on the first page, back side of page 1 at pont X[2] and X[5], page No.2 at X[3]. Shyama Sharma signed before I signed. Again said she simultaneously signed when I put the signature. Mrs. Shyama Sharma, myself and Sh. Sanjeev Sindhwani, TEST. CAS. 24/1990 Page 20 Advocate signed at point X[4] at point B and at point X[6] simultaneously. Photo impression of same are already X[4], already marked B and already marked X[6]. I have seen the original Will, certified copy of same is Ex. D5W2/B.

32. He also stated in his affidavit (Ex.PW1/5) that the testatrix Shyama Sharma appeared to be in good health and sound disposing mind and there seemed to be no coercion or pressure from any quarter with regard to the execution of the Will. So, on a reading of the evidence by way of affidavit and the oral testimony of Sh. Anoop Bagai it is clear that testatrix Shyama Sharma was in good health, sound mind and there was no coercion and the testatrix Shyama Sharma had put her signature to the Will in his presence and thereafter other attesting witnesses including him have put their signatures in her presence. I find even an officer appeared from the Office of Sub-Registrar-III, Asaf Ali Rod was examined on August 1, 2012 (Ex. PW 1/24) who had brought the record of the registered Adoption Deed dated September 9, 1980 Ex. PW1/1 and registered Will dated 31.5.1989 (Ex.PW1/3). I also find that the PW[1] has not been cross-examined by any of the counsels for the respondent Nos. 2(a), 2(b) 3, 4 and 5.

33. In view of the testimony of the petitioner as well as of Sh. Anoop Bagai attesting witness and the fact that the objectors have withdrawn their objections and there is no cross-examination of the petitioner/ attesting witness it must be held that the Will dated May 31, 1989, (Ex.PW1/3) is the last duly / validly executed Will of the testatrix Shyama Sharma in favour of the petitioner. TEST. CAS. 24/1990 Page 21

34. I may at this stage state that the petitioner has revised the Annexure A to the petition in terms of Ex. PW1/33. The said document shall be read as part of the petition instead of Annexure A at Page 17-18 of the petition.

35. So, primarily the petitioner is seeking probate of the Will dated May 31, 1989 (Ex.PW1/3) whereby the property being F- 1/136, Lajpat Nagar-I, New Delhi has been bequeathed by testatrix in his favour.

36. It is a conceded case of the parties, the property as depicted in the Will is the same property which has been bequeathed by the testatrix in favour of the petitioner for which the probate has been filed.

37. In view of my above discussion, this petition is allowed. The probate with regard to the Will dated May 31, 1989, (Ex.PW1/3) annexed thereto, is granted in favour of the petitioner being the named executor subject to the fact that the fresh valuation of the property be called for from the concerned local authority for the purpose of filing requisite Stamp Duty / Court-Fee. The petitioner being the executor and sole beneficiary shall be exempted from furnishing the requisite Administration Bond/ Surety Bond. Reliance is placed on the following:i. Dr. Surendra Narain Raizada v. State & Ors., Test. Cas. No. 44/2013

15. In fact, a Coordinate Bench of this Court in Sanjay Suri Vs. State and Others, 2003 (71) DRJ 446 has held as under:-

16. Keeping in view the aforesaid mandate of law and the fact that the petitioner is the sole beneficiary under the Will, the petitioner is granted exemption from executing an administration bond with sureties.” ii. Rajesh Sinha & Ors. v. State, Test Cas. 84/2011

V. KAMESWAR RAO, J