Both appeals arose from a common judgment deciding two probate petitions over competing Wills of the deceased testatrix. One son appealed dismissal of his petition for letters of administration of the 1987 Will; he also challenged the grant of letters of administration of the 2002 Will to his father. The court upheld both, dismissing the appeals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Signature Not Verified Digitally Signed By:AM UL YA FAO
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two appeals have been filed against the common,judgment dated 2^^
1.10.2007. By the impugnedcommonjudgmentdated 1.10.2007,two probate petitionsseeking letters of administrationwere decided. First case beingProbateCase No.88/2006was filed by the appellantseeking letters of administration with respect to the Will dated 17.4.1987 executedby the mother of the appellantlate Smt. Ram ChandriDevi. In this first case seeking letters of administration filed by Sh. Gur Prasad Gupta, the objectors were the father and brother of Sh. Gur Prasad Gupta, namely, Sh. Har Swaroop Gupta and Sh. Ram Prasad Gupta. The second case was a case filed by the father Sh. Har Swaroop Gupta seeking letters of administrationwith respect to the Will dated 13.5.2002 of his wife Smt. Ram Chandri Devi, that is the mother of the appellant Sh. Gur Prasad Gupta and Sh. Ram Prasad Gupta.
FAO No.462/2007 &FAO No.463/2007
Page 2 of 25
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is, the appellant Sh. Gur Prasad Gupta and father/husband/Sh.Har ^ SwaroopGupta are registeredWills.
3 Let me first take up FAO No.463/2007,inasmuch as, by this FAO, appellantSh. Gur Prasad Gupta is seeking setting aside of the impugned judgment 1.10.2007 dismissing his petition filed for letters of administrationof the Will dated 17.4.1987of late Smt. Ram Chandri Devi.
FAO No.462/2007&FAO No.463/2007
Page3of25
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administration of the Will dated 17.4.1987 of the late Smt. Ram Chandri Devi carmot be faulted with and has to be upheld as per its reasoning, however this appeal can be decided by dismissing the same on a totally independent legal ground i.e on account of the provisions of Sections 70 and 237 of the Indian Succession Act, 1925. These Sections 70 and 237 of the Indian Succession Act show that letters of administration/probatecan only be granted on production and proof of the original Will and that a letter of administration/probatecan only be granted of a copy of the Will if it is shown that the original Will has not been revoked by destroying the Will such as by tearing of the same
or burning of the same etc etc. Sections 70 and 237 of the Indian
Succession Act read as under
"70. Revocation of unprivileged Will or codicil.—No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
original Will dated 17.4.1987has not seen the light of the day and the
FAO No.462/2007& FAONo.463/2007
Page4of25
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Q 3 original will dated 17.4.1987 was not filed and proved before the court 7. below. Further, it is conceded that neither in the petition filed seeking letters of administration of the Will dated 17.4.1987 of late Smt. Ram Chandri Devi the appellant had mentioned and nor the appellant has led any evidence that the Will has not been destroyed deliberately but by a mistake or an unintentional wrong. Therefore, in terms of the language of Sections 70 and 237 of the Indian Succession Act, since probate/letters of administration of a copy of the Will could only have been granted if it was pleaded and proved that the original Will was not destroyed deliberately but by a mistake/wrong or unintentional destruction, and which has not been done, thus the petition of the appellant Sh. Gur Prasad Gupta seeking letters of administration was bound to be dismissed and accordingly it is, inasmuch as, nonexistence of the original Will leads to the conclusion that the Will had been revoked by the testator by destruction of the same and no letters of administration can be granted of a copy in the absence of establishing the ingredients of Section 237 of the Indian Succession Act.
FAONo.462/2007& FAONo.463/2007
Page 5 of25
not provedby summoningof at least one attestingwitness,and which was required in view of Section 68 of the Indian EvidenceAct, 1872 the petitionof letters of administrationfiled by the appellantSh. Gur Prasad Gupta being case Probate Case No. 88/2006 will stand dismissed and additionally so by also applying the provisions of Section 70 and 237 of the Indian SuccessionAct. FAO No. 463/2007 will accordingly stand dismissed.
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FAO No.462/2007 & FAO No.463/2007
Page 6 of 25
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FAONO.462/2007& FAONo.463/2007
Page 7of 25
and cross-examination of PW-3 Sh. Ajit Singh and this examination-
in-chief and cross-examination reads as under:-
"PW-3 Shri Ajit Singh son of Shri Bansi Lai r/o 2261, Shora Kothi, Subzi . Mandi, Delhi.
Ex.PWl/1 is the certified copy of the Will which bears my signature at point A. I did not know Smt. Ramchandri Devi. The document Ex.PWl/1 when came for my signature, it had already signed by Smt. Ramchandri Devi and it was given to me by her husband. I was present before the Registrar at the time of registration of the document. Smt. Ram Chandri Devi was ahead of me before the Registrar. I did not see Smt. Ramchandri Devi signing before the Sub Registrar. The dealing clerk might have got her signature before him. I had not read the document. I cannot say if she knew Hindi. I cannot say what was the state of health of Smt. Ramchandri Devi when she presented herself before the Sub Registrar. It is correct that she was walking her own. I did not get to speak to her. Smt. Ramchandri Devi was of good health at the time of signature before the dealing clerk of the Registrar. It is correct that Amar Nath signed in my presence. Sh. Amar Nath signed at his seat which is about 15 seats away from my seat. Sh. Amar Nath Advocate signed before the Registrar in my presence on the Will dated 13.5.2002.
xxxxxxxxxxxxxx by counsel for petitioner.
It is correct that Smt. Ramchandri Devi had already signed the Will before it came to me for my signature. It is correct that she did not sign on the will in my presence at point A to L. The thumb impressions on all the six pages of the will were also not put in my presence by Smt. Ramchandri Devi. Smt. Ramchandri Devi was not present when affixed my signatures at point A. I took the will for signatures to Sh. Amar Nath. Smt. Ramchandri Devi was not present when Sh. Amar Nath signed the will. Vol. She was later called by the husband of late Smt. Ram Chandri Devi. The signatures of late Smt. RamchandriDevi before the Registrarare at point X & Y. I did not see Ramchandri Devi signing at point X & Y as I was standing behind her when she was signing before the dealing clerk of the Registrar. It is correct that no signatures were made by Smt. Ramchandri Devi on the body of the will before the dealing clerk of the Registrar."
light of the attesting witness Sh. Ajit Singh turning hostile and
conceding that the Will is not duly executed and attested, should it be
held that the letters of administrationfiled with respect to the Will
FAONo.462/2007<& FAONo.463/2007
Page 8 of25
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dated 13.5.2002of late Smt. Ram ChandriDevi shouldnot be granted. For this purpose, at this stage, it is also required to reproduce the
examination-in-chief and cross-examination of the second attesting
witness Sh. Amar Nath, and the same reads as under:-
"I, Amar Nath (Advocate),S/o Late Shri Hamam Dass, R/o A-25/F, DDA Flats,Munirka,New Delhi-110067do hereby solemnlyaffirmand declareas under;-
"PW-4 Sh. Amamath, Advocate, son of late Sh. Hamam Dass, Age-69 years,R/o A-25-F,DDA Flats,Munirka,New Delhi on S.A. I tender my evidence by way of my duly sworn affidavit. Ex.PW-4/A, whichbears my signaturesat pointsA &B respectively. xxxxxxxby Sh. AnupamSrivastavaadvocatefor objector.
j
It is correctthat Ram ChandariDevi had already signed once on the Will beforeit came to me for signature. The testatorhad signedthe Will second time in my presenceonly thereafterI attestedthe Will. I did not know the testatrixfrom before. It is wrong to suggestthat Ajit Kumar had already signedwhen the Will came to me for signature. It is wrong to suggestthat Ram ChandaiiDevi did not sign in my presence. Itis wrong to suggestthat I was engagedonly for the purposesofregistrationofthe Will. I did not make this Will. Ram ChandariDevi was accompaniedby her husbandand her son whom identifynamely Ram Prasad Gupta, presentin court today. It is wrong to suggest that Smt. Ram Chandari Devi was under pressure fi-om her husband and her son. It is wrong to suggestthat Ajit Kumar did not sign in my presence. Itis wrongto suggestthat I am deposingfalsely."
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Page 9 of 25
FAO No.462/2007 & FAO No.463/2007
Page 10 of 25
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prove this Will was on the objectors. In order to prove this Will, the objectorsproducedboth the v^itnesses. Sh. Aiit Kumar, in his depositionhas admitted his signatures at point A on the Will dated 13.05.2002 but stated that the Will v^hen came for his signatures, was already bearing the signatures of Smt. Ram Chandri Devi. According to him. Will was given to him bv her husband. He has stated that he did not see Smt. Ram Chandri Devi sipninp before the Sub Registrar. He could not sav as to what was the state of her health. He has further stated that the second witness Sh. Amar Nath, advocate had signed the Will in his presence at his seat, which is about 15 seats away from his seat. The second attesting witness Sh. Amar Nath. advocate has filed his affidavit stating that on 13.05.2002. Smt. Ram Chandri Devi along with Sh. Aiit Kumar came to him in his Chamber No. 3. Old Court Complex.Kashmere Gate and requestedhim to get the Will executed and registered Smt. Ram Chandri Devi was accompanied,bv her husband and her son. He has further stated that the Will was alreadv signed when it was brought to him by her, on all the pages. He got the said Will signed with thumb marks on all the pages by Smt. Ram Chandri Devi in his presence and also in the presence of Sh. Aiit Kumar. Thereafter, he and Sh. Aiit Kumar both signed the Will as attesting witnesses in the presence of Smt. Ram Chandri Devi. He has further stated in the affidavit that the Will was then presented for registration on the same day. Smt. Ram Chandri Devi signed on the back of the Will in the office of Sub Registrar. He and Sh. Aiit Kumar again signed the Will before the Sub Registrar as attesting witnesses. The objectors have also examinedSh. M.S. Dagar, Sub Registrar,Kashmere Gate. He has been examined to prove the registration of the Will. However, he stated that,the signatures were made by the testatrix in the presence of the Reader.
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Page 11 of 25
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did not sign the Will in his presence at point A to L and similarly, the thumb impressions on all the six pages were not put in his presence. 23. Section 71 of the Indian Evidence Act is one of the exceptions to the stringentrule of proof of an attesteddocumentin Section68. The fate of an attested document is not necessarily at the mercy of the attesting witnesses. In the event of an attesting witness denying the execution of the Will the proprounder can rely upon the other evidence to prove the proper execution and attestation. 24. The Will dated 13.05.2002 is bearing the signatures of the testatrix Smt. Ram Chandri Devi at two places on each of the six pages of the Will and is also bearing the thumb marks of the testatrix on each page. This is consistent with the affidavit of Sh. Amar Nath. advocate, who has stated that the Will was already signed when it was brought to him, on all the pages but he again got it signed with thumb marks of Smt. Ram Chandri Devi in his presence and in the presence of Sh. Aiit Kumar and thereafter he and Aiit Kumar signed the Will at attesting witnesses. It explains why the signatures of Smt. Ram Chandri Devi are present at two places on each page of the Will, otherwise, there is no reason why she would, put her signatures at two places on each page ofthe Will. The testimonyof Sh. Amar Nath. advocate finds corroboration from the testimonies/affidavits of objectors Sh. Har Swarup Gupta and Sh. Ram Prasad Gupta, in as much as. Sh. Har Swamp Gupta, in his cross examination,has stated that the testatrixhad signed the Will in his presence and in the presenceof her son Sh. Ram Prasad Gupta and the attesting witnesses. Similarly. Sh. Ram Prasad Gupta has stated in his affidavit that he had accompanied his mother and father to the Sub Registrar's office where his mother executed the Will and got it registered in the presence of witnesses Sh. Aiit Kumar and Sh. Amar Nath. advocate. There is no cross examination of both these witnesses about their presence at Sub Registrar's office at the time of execution of the Will. As already discussed, one attesting witness can prove the execution of the Will in terms of the Clause ("c) of Section 63 viz attestation by two attesting witnesses in the manner contemplatedthere that shall be sufficient. In my view, objectors have been able to prove the Will dated 13.05.2002despite the fact that the first attesting witness Sh. Ajit Kumar has not supportedthe objectors. 25. It has been argued by the learnedcounselfor the petitionerthat the Will dated 13.05.2002 was signed twice by the testatrix and admittedly as per evidence of the objectors, signatures were put by the testatrix first time in the absence of the attesting witnesses. According to the learned counsel, the execution of the Will was complete the moment the testatrix signed for the first time and therefore,.that being so, the Will could not have been signed second time and got attested. I am unable to accept this argument because the execution of the Will, includes its attestation. The act of putting signatures by the testatrix did not complete the execution of the Will. Obviously, the execution of the Will is complete when, it is signed by the testator and attesting witnesses and therefore, it cannot be said that execution of the Will was complete when the testatrix signed the Will for the first time." (underliningadded)
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Page 12 of 25
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"71. Proof when attestingwitness denies the execution.—Ifthe attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
court below and it is held that the court below has rightly held that the Will dated 13.5.2002 of late Smt. Ram Chandri Devi is proved to have been duly executedand attestedin view of the depositionof PW-4 Sh.
Amar Nath and who stood the test of cross-examination by confirming the due execution and attestation of the Will.
heldnot to have been duly executedandattestedwiththe fact that there
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Page 13 of 25
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were too many suspiciouscircumstancessurroundingthe executionof the Will. It has been argued that there are contradictionswhich have come out in the cross-examinations of Sh. Har Swaroop Gupta PW-1 and Sh. Ram PrasadGupta/respondentno. 1as PW-2, when compared with their own evidence given as examination-in-chiefas also other facts existing on record, and therefore it is argued that FAO No. 462/2007 be allowed and the impugnedjudgmentbe set aside which has granted letters of administrationto Sh. Har Swaroop.Gupta with respectto the Will dated 13.5.2002oflate Smt. Ram ChandriDevi.
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Page 14 of 25
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of Falsus in uno, Falsus in omnibus does not apply to this country because civil cases are decided on preponderance/balance of probabilitiesi.e evidences which are led by all the parties are taken togetherand thereafteron preponderanceof probabilitiesit is decided that which party has been able to prove his/her case and discharge his/her onus of proof. Issue of discharge of onus of proof is thus examined on taking of the evidence as a whole including any contradictionsor lack of proofon certainaspects in the depositionsof the witnessesof the respectiveparties. Withtheseinitialaspectsof law noted, let us examinethe argumentswhich have been urged on behalf of the appellant.
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dismissed:-
"(i) I donot know whethermy wife hadexecuteda Will dated 17.4.1987.
FAO No.462/2007& FAO No.463/2007
Page 15 of 25
and lies, yet, even if such aspects exists, however in my opinion the aforesaid contradictions are not such that on account of which the due
execution and attestation of Will dated 13.5.2002 which has been otherwise duly proved through the attesting witness Sh. Amar Nath PW-4, should be ignored, and which evidence led has resulted in the proof of due execution and attestation of Will dated 13,5.2002. Let me now take up each of the argument as regards the different contradictions/untruthful statements mentioned above of Sh. Har Swaroop Gupta and examine whether they at all are such to accept the arguments for setting aside of the impugned judgment.
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chief Sh. Har Swaroop Gupta admitted to the execution of the Will dated 17.4.1987but in the cross-examinationon point (i) above he has said that he does not know that his wife had executed Will dated 17.4.1987 and therefore it should be held that the witness is lying. As
FAONo.462/2007FAO No.463/2007
Page16 of25
already stated above, assuming that the witness Sh. Har Swaroop Gupta was avoidingtellingthe truth, in any case, at best the statement at point (i) above would only mean that there does exist a Will dated 17.4.1987 of late Smt. Ram Chandri Devi. However, even if Smt. Ram Chandri Devi had executed and attested her Will dated 17.4.1987, yet, as already stated above, that will not make any differencebecausethe original Will dated 17.4.1987 has not been filed, and reasons have alreadybeen given above for dismissingFAO No. 463/2007by which the appellanthad sought grant of lettersof administrationwith respect to the Will dated 17.4.1987. Another reason for rejecting this argument is that admittedlythe Will dated 17.4.1987is the earlierWill, and once a subsequentand later Will dated 13.5.2002of late Sh. Ram Chandri Devi stands proved,the earlierWill dated 17.4.1987thus cannotcreate rights between the parties because the earlier Will stands revoked by the subsequent Will dated 13.5.2002.
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Page 17 of 25
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earlier proved to be done, the testatrix had also further put her signatures before and in the presence of the Sub-Registrar as also two attesting witnesses (as also Sh. Har Swaroop Gupa and Sh. Ram Prasad Gupta at the time of registration before the Sub-Registrar). No valid argument thus can be urged on behalf of the appellant as regards point no. (ii) and therefore this argument is rejected.
y
(ii) This argument in my opinion is also without any substance because it is not at all that the appellant has been in any manner disinherited. In fact, the court below has rightly given a comparison of the contents of and the bequeathing under the earlier Will dated 17.4.1987 as compared to the later Will dated 13.5.2002 showing thereby that mostly the bequests under the Wills was substantially the same save and except for certain aspects and which were required
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Page 18 of 25
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because of change of circumstancesincludingsale of some portionof the Rajouri Garden propertyas also the appellantreceivingan amount of Rs.16,00,000/-from the sale considerationof this property. Two other reasons for change of some of the portionsof the earlierbequest in terms of the Will dated 17.4.1987as comparedto the bequestin the later Will dated 13.5.2002was on account of directionsfor doing of certaincharityas also the fact that in the first Will Smt. Ram Chandri Devi had only given moveable properties (including jewellery and moneys) to her husband Sh. Har Swaroop Gupta and Smt. Ram Chandri Devi would have realized that if her husband Sh. Har Swaroop Gupta was not given immovablepropertythen in his old age Sh. Har Swaroop Gupta would be without a roof on his head. Therefore,Sh. Har Swaroop Gupta was given the propertyat Banarsi Dass Estate at Delhi and which was earlier dividedbetweenthe two sons i.e appellant and Sh. Ram PrasadGupta in terms ofthe earlierWill dated 17.4.1987. In view of the above the argumenturged onbehalfof the appellanton accountofthe pointnos. (iii) and (v) is also rejected.
FAONo.462/2007& FAONo.463/2007
Page 19 of 25
(
has held that there is due executionand attestationof the Will dated
13.5.2002. The argumentso raisedis thus rejected.
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"(i) It is correctthat Gurprasadand his family is living on the ground floor of premisesNo. 3-B, B.D. Estate New Delhi till Sept. 04. Vol. They were stayingin the premisestill Oct. 2003. It is correctthat I and my family was livingon the first and 2"'' floor ofthe said property. It is correctthat my late mother lived on the ground floor ofthe suit premisestill her death. It is also correctthat my father also livedon the groundfloor and still lives on the ground floor. It is incorrectto suggestthat I have a separatekitchen since last 25 years. Vol. I was having a separate kitchen last 5 years. I do not remember since what year I have been living separately. It is incorrectto suggestthat I was having my separatekitchen only 5-6 years. It is correct thatthe kitchenof Sh.Gurprasadwas commonwithmy parents. (ii) I cannotsay ifmy father aloneused to take all decisionsofthe business. (iii) I do not know ifmy motherhad executedaWill dt. 17.4.89. (iv) I camiot say that the will was typed and brought to my mother. I cannotsay ifthe handwrittendate on the Will at page 6 is in the hand ofmy father. I do not know where this date was filled. (v) My motherhas signedthe will beforethe Sub Registrar."
contradictions or lies are similar to the arguments urged with respect to
the depositionofPW-1 Sh. Har SwaroopGupta, and have alreadybeen
dealt with hereinaboveand, adoptingthe reasons as stated above, the
argumentsurged for rejectingthe testimonyof PW-2 Sh. Ram Prasad
FAO No.462/2007&FAO No.463/2007
Page 20of25
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Gupta/respondent no.l are accordingly rejected. As regards the poinm t X (iv) the trial court has correctly given reasons in para 32 of the impugned judgment and I accept the same. Trial court has rightly held that the appellant has failed to prove this aspect and his argument had to be rejected.
27.(i) Learned counsel for the appellant finally argued that the Will dated 13.5.2002 talks of ownership of Dilshad Garden property by the mother, although this Dilshad Garden property way back in the year 1999 was sold to the appellant in terms of a sale deed dated 14.10.1999 proved as Ex.PW-l/R-1 during the cross-examination of the appellant and hence the contents of the Will are false and hence the Will dated 13.5.2002 has to be rejected.
(ii) I have examined the arguments as also the deposition of appellant Sh. Gur Prasad Gupta dated 18.11.2005 and it is found that firstly there is no pleading whatsoever of the appellant in the form of objections to the grant of letters of administration of the Will dated 13.5.2002 that the Will dated 13.5.2002 should be disbelieved because it contains a false statement of fact as regards the ownership of Dilshad Garden property by Smt. Ram Chandri Devi. Beside the fact that there
is no pleading, I put a query to the counsel for the appellant that if the
FAO No.462/2007 & FAO No.463/2007
Page 21 of 25
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Dilshad Garden property was of the appellant way back from the year 1999, whether appellant had led any evidence or it was a case of the appellant that with respect to the Dilshad Garden property, that the same was got mutated in favour of the appellant after the year 1999 during the life time of the mother, and till the death of the mother and also whether the appellant has ever paid any property tax or had ever received any rent from the tenant of the property and which is received as Rs.25,000/- per month and which is stated in the Will dated 13.5.2002. In response, the learned counsel for the appellant could not point out to me any pleading or any evidence led to show any of the above aspects of the mutation or payment of property tax or collection of rent by the appellant with respect to the Dilshad Garden property. In fact, learned counselfor the respondentno.l has vehementlyargued that deliberately the original sale deed Ex.PW-l/R-1 has not been produced, inasmuch as the appellant has fraudulently executed the sale deed himself and in favour of himself I however do not have to go into depth with respect to such an aspect inasmuch as, in my opinion, once there is no pleading of the appellant with respect to lack of correctness of the contents of Will dated 13.5.2002, this argument of the appellant has to be necessarily rejected. At this stage, I would like
FAO No.462/2007 & FAO No.463/2007
Page 22 of 25
to reproduce certain very important and relevant portions of the impugned judgment which show that the appellant has never challenged the contents and has, in fact, accepted all the factual contents stated in the Will dated 13.5.2002. These observations of the court below, which I accept and adopt, are contained in paras 30 to 31
of the impugned judgment and which read as under:-
}
"30. It has been argued by the learned counsel of petitioner there was no change in circumstances due to which testaitrixwould execute a second Will dated 13.05.2002. Although, technically speaking, this argument should not be available to the petitioner once it is held that the first Will is not proved but I would deal with this argument assuming that the testatrix had executed the first Will dated 17.04.1987. By virtue of the Will dated 17.04.1987, the testatrix bequeathed her Va share in her Rajouri Garden plot to her son Ram Prasad and bequeathed a godown situated at Dilshad Garden to the petitioner Gur Prasad and his fatnify. She bequeathed the ground floor and Miani between the ground floor and the first floor to petitioner Gur Prasad and whereas, the first floor and its roof has been bequeathed to Ram Prasad. She gave her deposits, cash and jewellery to her husband Sh. Har Samp Gupta. By virtue of the Will dated 13.05.2002, she has bequeathed the roof and terrace of Rajouri Garden property to her son Ram Prasad and her grandson Sachin. The godown situated at Dilshad Garden has been bequeathed to Gur Prasad and his family and property situated at Banarsi Dass Estate to her husband Har Sarup Gupta. The roof over the first floor and the second floor of the property situated at Banarsi Dass Estate has been given to Ram Prasad and his son Sachin. The reasons for executing the second Will are mentioned in the recitals of Will itself One reason for execution of the second Will, as mentioned in the recitals, is that % share in the Rajouri Garden property, which the testatrix was having, was sold out and therefore, only roof and terrace were left with the testatrix. The second reason which prompted the testatrix to execute the second Will is that she wanted to give certain properties in charity. She has directed her son Ram Prasad and her grandson Sachin to devote 10% of their income for charitable purpose. She allowed the use of ground floor of the property at Banarsi Dass Estate by Gur Prasad Gupta on payment of Rs.6000/- every month for charitable purpose. The third reason for the execution of the Will as per recitals is that her husband had given Rs.l6 lakhs to Gur Prasad after selling Rajouri Garden property. Gur Prasad Gupta has nowhere allegedthat the assertions made in the recitals of the Will are incorrect. He has not disputed the fact that Rs.l6 lakhs were given to him. by objector Har Sarup Gupta after the sale of Rajouri Garden
FAO No.462/2007 & FAO No.463/2007
Page 23 of 25
property. In addition to the aforesaid, she might have executed the second Will to protect the interest of her husband Har Sarup Gupta so that he may not become shelterless, after her death. 31. The learned counsel of petitioner has argued that the Will dated 13.05.2002 is not natural as the petitioner has been excluded from inheritance of property bearing No.3-B, Banarsi Dass Estate. Deprivation of the natural heir by the testatrix should not normally raise any suspicion because the whole idea behind the execution of the Will is to interfere with the normal line of succession. But it is natural to expect the reasons for disinheritance of the natural heirs. At the outset, I may state that petitioner Gur Prasad Gupta has not been totally disinherited. He has been bequeathed a godown situated at Damodar Park, Dilshad Garden, which was fetching the rent of Rs.25,000/- per month. It is, therefore, not one of those cases where, one of the legal heirs have been disinherited completely. It has come in the recitals of the WiU that in the year 1970, objector Har Sarup Gupta had purchased 34000 sq. yards of Industrial Area at G.T. Kamal Road, Bahalgarh, Sonepat for Gur Prasad Gupta and had got allotted an industrial plot measuring 1200 sq. yards at S.M.A. Society, Azadpur, Delhi. In addition, he was given Rs.l6 lakhs by objector Har Sarup Gupta after the sale of Rajouri Garden flat. Thus, the petitioner had been suitably compensated by the testatrix and her husband during the lifetime of testatrix itself and therefore, this might have been the reason that testatrix who by her earlier Will, had given ground floor and Miani of the property to the petitioner, changed her mind and executed the second Will, thereby giving the property situated at 3-B. Banarsi Dass Estate to her husband. In my view, the Will dated 13.05.2002 is more natural and equitable if it is compared with the earlier Will dated 17.04.1987."
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Page 24 of 25
property, hence, the court below has rightly held that the Will dated 13.5.2002 is duly proved on account of valid contents of the same.
appeals are accordingly dismissed and, disposed of leaving the parties
to bear their own costs.
JULY 06,2017 ^/ib/srb
VALMIKIJ. MEHTA, J
Page 25 of 25
FAO No.462/2007 & FAO No.463/2007
3 issues framed by the court
Whether letters of administration could be granted of a copy of the Will dated 17.4.1987 when the original Will was neither produced nor proved, and Sections 70 and 237 of the Indian Succession Act we
Whether the Will dated 13.5.2002 was duly executed and attested despite one of the two attesting witnesses turning hostile?
Whether the alleged contradictions, lies and suspicious circumstances in the evidence justified setting aside the grant of letters of administration of the Will dated 13.5.2002?
4 provisions across 3 enactments
Gur Prasad Gupta
Har Swaroop Gupta
Ram Prasad Gupta
Inder Sen
Valmiki Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
