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Premchand Gupta Vs. Moolchand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 191 of 1972
Judge
Reported in22(1982)DLT3; 1983RLR522
ActsIndian Succession Act, 1925 - Sections 278
AppellantPremchand Gupta
RespondentMoolchand and ors.
Advocates: G.N. Aggarwal,; Keshav Dayal and; H.L. Kapoor, Advs
Cases Referred and Seth Beni Chand v. Smt. Kamla Kunwar and
Excerpt:
.....registration may take place without the executant really knowing what he was registering. - - parbati devi was not of sound disposing mind and was not capable of understanding the will as she was suffering from paralysis, was hard of hearing, was of very weak sight and was illiterate. a 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. on the proof of the signature of the decesased or his acknowledgement that he has signed the will, he will be presumed to have known the contents of the instrument, but the presumption is liable to be replaced by proof of suspicious circumstances, but what circumstances would be regarded suspicious cannot be precisely defined or enumerated. he was a..........their contention was that while parbati devi belonged to the caste of goldsmiths, the legatee prem chand is a bania a by caste and is a stranger to the family. parbati devi was not of sound disposing mind and was not capable of understanding the will as she was suffering from paralysis, was hard of hearing, was of very weak sight and was illiterate. she did not know english, the language in which the. will was written. it was also alleged that under the terms a compromise dated 22-12-1955 in a suit filed by babu ram and others, she could not bequeath the property to any one except mahant kanhai ram.(3) the learned district judge by his order dated 9-12-1963 allowed the prayer for grant of letters of administration to gupta. bal kishan and others did not file any appeal but instead.....
Judgment:

M.L. Jain, J.

(1) This appeal arises in connection with a Will (Ex. PI) alleged to have been executed on 12-6-1962 in favor of the appellant Prem Chand Gupta, by one Parbati Devi. The Will purports to bequeath the following properties : (1) half share inner portion in house No. 401, situated in Chitla Darwaza, Delhi, (2) one house double storey, bearing Municipal No. 33, Lal Kurti Chhota. Meerut Cantt., U.P. and (3) moveable properties. The Will is in English and is signed in Hindi and also bears her thumb marks. The testatrix stated in the Will that life is uncertain and she had become old and that her other legal heirs were her enemies and wanted to kill her. thereforee, she appointed the appellant Gupta as executor with the stipulation that after her death the said executor shall be the exclusive owner of the said properties entitled to sell, mortgage or transfer the said properties as legal heir of the testatrix and that all the ceremonies upon her death shall be performed by him.

(2) She died on 24-10-1962. Gupta applied for letters of administration on 29-1-1963 under section 278 of the Indian Succession Act, 1925. The Will was challenged by Bal Kishan Dass, Jai Kishan Dass, Radhey Sham and Shayam Sunder Lal, sons of one Kesho Ram, on the one hand by objections filed on 8-3-1963 and Mool Chand, on the other on 1-4-1963. Bal Kishan, etc. were the collaterals of the husband of the sister of Parbati Devi, while Mool Chand is the son of the brother of her husband and even claimed that he had been adopted by the deceased.. Their contention was that while Parbati Devi belonged to the caste of Goldsmiths, the legatee Prem Chand is a Bania A by caste and is a stranger to the family. Parbati Devi was not of sound disposing mind and was not capable of understanding the Will as she was suffering from paralysis, was hard of hearing, was of very weak sight and was illiterate. She did not know English, the language in which the. Will was written. It was also alleged that under the terms a compromise dated 22-12-1955 in a suit filed by Babu Ram and others, she could not bequeath the property to any one except Mahant Kanhai Ram.

(3) The learned District Judge by his order dated 9-12-1963 allowed the prayer for grant of letters of administration to Gupta. Bal Kishan and others did not file any appeal but instead opened another front and filed a civil suit No. 624164 for declaration that the Will was forged, fictitious, illegal and void. The trial court decreed the suit on 1-5-1965. But the learned Additional District Judge reversed the decree on 10-3-1966. He has observed that the execution of the Will and grant of prabte were not disputed but what was disputed was the competence of the deceased to make the Will in violation of the terms of the aforesaid compromise. That contention was rejected by the learned Additional District Judge. There they lost the battle.

(4) Mool Chand preferred an appeal in which the learned single Judge by his judgment dated 7-10-1971 set aside the judgment of the learned District Judge and dismissed the prayer for grant of letters of administration. Hence, this present Letters Patent Appeal by Prem Chand.

(5) Some facts are not disputed. The Will is in English and bears the signatures of Parbati Devi in Hindi. She was aged about 60 to 62 years at the time of her death and died nearly four months after the execution of the Will. The Will was written by one Sant Ram Arora (Public Witness 2), a professional petition writer and is attested by one Bhim Sain Rao (PW3), an Advocate and one Suraj Prashad (Public Witness 4). It was registered by K. K. Gupta (Public Witness 5) who was the Sub- Registrar at the relevant time. He stated that Parvati Devi was identified by Kanshi Ram. He is since them died. The execution of the Will was not disputed by one set of respondents led by Balkishandas in the civil suit. Yet the learned single Judge was of the view that the identification by Kanshi Ram before the Sub-Registrar is of doubtful nature because the Sub-Registrar deposed that Kanshi Ram often used to come to courts to identify persons. Suraj Prashad (Public Witness 4) claimed to have known Parvati Devi only for three years. He never had any occasion to talk to her prior to the execution of the Will. But he knew Prem Chand Gupta for the last 4 to 5 years. According to the learned single Judge, this witness came forward to give evidence on account of his friendship with Prem Chand Gupta and it is he alone who professes to have known the deceased previously and had identified her before the Sub-Registrar. Thus, the circumstances surrounding the execution of the Will are suspicious and have not been explained sufficiently. Prem Chand Gupta (Public Witness 6) being the sole beneficiary is an interested witness. The will or evidence does not give any satisfactory reason for making him the beneficiary to the exclusion of the relations. There is no doubt that there has been litigation between Bal Kishan and Parbati Devi but it had ended in a compromise decree on 21-2-1956 and the Explanationn given in the Will that all her relations were her enemies and wanted to kill her was not supported by any other evidence. Prem Chand did say that he was looking after the deceased for three years prior to her death and served her faithfully and even used to give whatever money she asked for, but in cross-examination he admitted that he got to know Parbati Devi as she used to come and sit with his wife, but he never went to the Mohalla where she lived in her own house. That is how the learned single' Judge discarded the evidence of the witnesses produced in proof of the Will.

(6) The sole question that was agitated before us by the appellant was whether the propounder has been able to prove the execution and validity of the Will and the findings of the learned single Judge are not justified. A 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. Ordinarily, 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, courts would be justified in giving a finding in favor of the propounder. On the proof of the signature of the decesased or his acknowledgement that he has signed the will, he will be presumed to have known the contents of the instrument, but the presumption is liable to be replaced by proof of suspicious circumstances, but what circumstances would be regarded suspicious cannot be precisely defined or enumerated. However, there may be circumstances which can be considered suspicious such as that the alleged signature of the testator may be very shaky and doubtful, the condition of the testator's mind may appear to be very feeble and debilitated, the dispositions made in the will may appear to be unnatural, improbable or unfair in the light or relevant circumstances, the will may otherwise indicate that the said dispositions may not be the result of testator's free will and mind, the propounder may have taken a prominent part in the execution of the will and has received substantial benefit under it. In such cases, the court would expect that all legitimate suspicions should be completely removed by deaf and satisfactory evidence before the document is accepted as the last will of the testator ; see H. Venkatachala Iyenger v. B. N. Thimmajamma, : AIR1959SC443 , Smt. Jaswant Kaur v. Smt. Amrit Kaur and others, 1977 H. L. R. 731, and Seth Beni Chand v. Smt. Kamla Kunwar and others, : [1977]1SCR578 . However, where a will has been registered, that is a circumstance which may, having regard to other circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not. read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. Registration may take place without the executent really knowing what he was registering, vide Rani Purnima Devi and another v. Kumar Bhagendra Narayan Deb and another, : [1962]3SCR195 .

(7) Mr. G. N. Aggarwal for the appellant urged that it is a case of a registered will. Parvati Devi was a litigous woman and used to frequent the courts. She knew all about what she was doing. thereforee, the presumption of sound disposition of her mind and consequent genuineness of the will arises in favor of the propounder. He further urged that the attesting witnesses, Bhimsen Rao (Public Witness 3) and Suraj Prashad (Public Witness 4) have proved that the will was signed in their presence by her. She was identified before the Sub- Registrar by an Advocate Mr. Kanshi Ram who is since then dead but his signatures have been proved by Gian Singh (PW 1).

(8) On the other hand, it is contended that the will is shrouded in mystery. The legal heir has been excluded totally. There is no relationship between the appellant and the deceased. It was pointed out that even the identify of the testatrix has not been established and the evidence in this regard is of highly doubtable nature. Sant Ram Arora (Public Witness 2) who is the scribe of the will deposed that Parvati Devi was not known to him. Bhim Sen Rao (Public Witness 3) an Advocate, deposed that Parbati Devi signed the will in his presence and so did the other attesting witness. Suraj Prashad (Public Witness 4). He further stated that the contents of the will were explained to the testator and she admitted them to be correct. But in cross-examination he stated that he himself was introduced to Parbati Devi by Prem Chand. But he did not even know Prem Chand beforehand. He did not make any enquiry from any friends regarding the identity of Parbati Devi or Prem Chand because he did not go to identify them. He did not know Suraj Prashad who later on signed as an attesting witness. Thus, it is urged that the evidence of attestation is far from being sufficient and satisfactory.

(9) We have given a careful consideration to this aspect of the case. Suraj Prashad (Public Witness 4) has stated that he was taken to the District Courts by Parbati Devi. Prem Chand's wife was also with them at that time. He was on visiting terms with Parbati Devi since the fast 21/2 years. She told him that she had grievance against her nephews as they never bothered about her. The will was explained in Hindi by the scribe to her. The will was executed in his presence. One lawyer and he had attested the will. He had identified the testator before the Sub-Registrar. Prem Chand had told the lawyer that the testatrix was Parbati Devi. We thus find that Suraj Prashad was the person who knew her beforehand and had not only attested the will but had identified her before the Sub-Registrar. We are unable to reject his evidence simply because he stated in cross-examination that he knew Prem Chand by reason of business dealings or because he had no occasion to talk to Parvati Devi or because she was not related to him or did not belong to his community. Now, let us turn to the evidence of K. K. Gupta (Public Witness 5), the Sub-Registrar. There is no doubt that the disputed will was presented before him and he did register it. His endorsement on the will shows that the deceased was identified by Suraj Prashad and Kanshi Ram, pleaders. He did not know Parbati Devi and depended upon the identification made by Kanshi Ram. About Kanshi Ram, he deposed that he knew Kanshi Ram he being a pleader. He often used to come to his court to identify persons. The learned single Judge has laid great stress upon the last sentence of his testimony and has observed that Kanshi Ram was a person who was in the habit of appearing before the Sub-Registrar for identification of persons most probably for some consideration. We are not impressed by his line of reasoning which is conjectural in nature. Whether Kanshi Ram was motivated by money or not, no question was put to the Sub-Registrar. The mere fact that he used to come to the court to identify persons cannot in itself cast doubt with regard to his activity and will rather only show that Kanshi Ram pleader, was not a stranger to the Sub-Registrar. He was a man familiar and the Sub-Registrar could well depend upon the identification made by him. Prem Chand (PW 6) the propounder is no doubt the sole beneficiary. He has deposed that he was not in any way related to the testatrix. He is a resident of Jogiwara Nai Sarak. Delhi, while Parbati Devi was a resident of Chitla Gate. Delhi. He never went to the Mohalla of the testatrix. She was brought by his wife and Suraj Prashad from her house to the court in Kashmere Gate when the will was executed. She could walk about with some support. Her vision was normal. He got to know her as she used to come and sit with his wife. He is not related to the testatrix but he had . looked after her for three years prior to her death and served her faithfully. She had told him that she had bad relations with Mool Chand who did not give her anything to support her. On the other hand. he took away everything from her. There was a civil litigation between her and Baley Pershad. She died of burns in Irvin Hospital. This is supported by the medical certificate Ex. P 3. He had taken her to the hospital. He performed her last rites. All this evidence shows and in the circumstances it is no wonder that the deceased was terribly annoyed with her so called relatives who had all along been challenging even her right in the property and had ignored her in her last days. This evidence cannot be discarded because the propounder stated that he did not visit the Mohalla where she lived. He got to know her as she used to come and sit with his wife which seems quite a possible happening. Mool Chand himself has admitted that he lived with her but later on, when he had children, he shifted from there, and his son and daughter continued to live with her and it was his father who went to see her frequently. But his cross-examination shows that the house was a big one out of which nine rooms were occupied by tenants. Where was then the want of space It is quite obvious that his relations with her were never good. The story of living with her and then leaving her only shows that he either never lived with her or left her when he was most needed. We find force in the observations of the learned District Judge that the deceased had got disgusted with her relations as they had dragged her into litigation for several years and was not inclined to give any part of her property to any of them. This observation stands supported even by the compromise in the litigation by which the property was to go to one Mahant Kanhai Ram but not to any of her relations. She was determined to give away the property to any one who displayed sympathy, but to her relations in no case. Balkishandas and others had no right of succession and we have already noticed that Moolchand must have angered the deponent as on his own admission he had left her house in her old age only to be looked after by the proponent. Mr, Aggarwal is right in contending that the deceased was familiar with the court proceedings and could not have agreed to sign anything with which she did not agree or fully understood or which was written by a person whom she could not trust. As to her incapacity Mool Chand ( Rw 5 ) deposed that she was paralysed ten years before her death. She was more or less blind and deaf. The story of paralysis is false on the face. She died in 1962. If she were paralysed in 1952, she could not have entered into the alleged compromise in 1954. The allegation that she was deaf and blind more of less is repeated by Lilawati (RW 1), Babu Ram (RW 2), Purandevi (RW 3) and Kishan Lal (RW4), but in fact this statement is neither here nor there. Deaf and blind more or less means almost nothing. The evidence of Puran Devi (RW 3) struck a truthful note when she admitted that the deceased used to go to courts to conduct her cases and that she died of burns and not of any disease. Thus, there is no reliable evidence to show that at the time she went to the Sub-Registrar, she was ill or hard of hearing or suffering from paralysis as alleged by the respondents. The alleged will, we hold, thereforee, was executed by her in full control of her senses and it was she who appeared before the Sub-Registrar. It was attested by two witnesses both of whom have entered the witness box to prove that the will was signed by the testatrix in their presence. The findings of the learned single Judge deserve to be reversed.

(10) We, thereforee, accept this appeal, set aside the impugned judgment and restore that of the learned District Judge. Costs here shall be essy.


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