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2004 DIGILAW 648 (DEL)

RAGHUNATH CHAND v. K. NARINDER

2004-08-18

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R. S. SODHI, J. ( 1 ) FAO 31 OF 1977 IS DIRECTED AGAINST THE JUDGMENT AND ORDER DATED 9. 11. 1976 PASSED BY THE DISTRICT JUDGE, DELHI, IN PROBATE CASE NO. 15/1969 GRANTING PROBATE IN RESPECT OF PROPERTY MENTIONED AT SERIAL NOS. 1 TO 5 IN SCHEDULE-B WHILE GIVING PROPERTIES MENTIONED AT SERIAL NOS. 6 AND 7 TO THE RESPONDENTS HEREIN. ( 2 ) BRIEF FACTS OF THE CASE, AS NOTED BY THE LEARNED DISTRICT JUDGE, ARE THAT - "a PETITION UNDER SECTION 276 OF THE INDIAN SUCCESSION ACT FOR GRANT OF PROBATE OF THE WILL DATED 29. 8. 66 OF SHRI MANMOHAN LAL LAKHANPAL ALIAS MANMOHAN LAL DIWANA WAS FILED. SHRI DIWANA DIED ON 7. 12. 68 LEAVING BEHIND A SISTER, LAJWANTI, AND HER SON RAGHUNATH CHAND. THE CASE OF THE PETITIONERS IS THAT LAKHANPAL HAD MADE A WILL AND APPOINTED THEM AS THE EXECUTORS OF HIS WILL. IN THE SCHEDULE OF THE PROPERTIES OF THE DECEASED, THE PETITIONERS HAD ALSO INCLUDED THE HOUSEHOLD EFFECTS AND AGRICULTURAL LAND OF THE DECEASED. IT IS ADMITTED BEFORE ME THAT THE DECEASED IN THE WILL HAD LEFT THE HOUSEHOLD EFFECTS AND HIS AGRICULTURAL LAND TO HIS SISTER AND NEPHEW. THE PROBATE IS SOUGHT ONLY IN REGARD TO THE REMAINING ESTATE OF THE DECEASED. THE PETITION IS CONTESTED BY THE SISTER AND THE NEPHEW. THEY HAVE PLEADED THAT LAKHANPAL HAD LEFT NO WILL. ON THE PLEADINGS OF THE PARTIES, THE FOLLOWING ISSUES WERE FRAMED : 1. WHETHER SHRI MANMOHAN LAL VALIDLY EXECUTED THE WILL IN DISPUTE WITH FULL AND SOUND DISPOSING MIND? 2. RELIEF. ( 3 ) IT WAS CONTENDED BEFORE ME BY COUNSEL FOR THE APPELLANT THAT THE WILL IN QUESTION WAS DOUBTFUL INASMUCH AS THE ATTESTING WITNESSES DID NOT SIGN IN PRESENCE OF EACH OTHER NOR DID THE TESTATOR SIGN BEFORE THEM. HE ALSO SUBMITTED THAT THE COURT BELOW WRONGLY HELD THE DOCUMENT TO BE A WILL WHEREAS IN FACT IT WAS A TRUST DEED. ( 4 ) HEARD COUNSEL FOR THE PARTIES AND PERUSED THE EVIDENCE ON RECORD. EX. P-1, THE ALLEGED WILL, BEARS THE SIGNATURE OF SHRI LAKHANPAL WHICH HAS BEEN DEPOSED TO BY PW-1, SH. KESO RAM SETHI, AS ALSO BY PW-2, SH. H. K. L. BHAGAT. THESE WITNESSES ARE INDEPENDENT AND DISINTERESTED WITNESSES AND HAVE CLEARLY STATED THAT LAKHANPAL BROUGHT THE DOCUMENT, EX. EX. P-1, THE ALLEGED WILL, BEARS THE SIGNATURE OF SHRI LAKHANPAL WHICH HAS BEEN DEPOSED TO BY PW-1, SH. KESO RAM SETHI, AS ALSO BY PW-2, SH. H. K. L. BHAGAT. THESE WITNESSES ARE INDEPENDENT AND DISINTERESTED WITNESSES AND HAVE CLEARLY STATED THAT LAKHANPAL BROUGHT THE DOCUMENT, EX. P-1, TO BE SIGNED BY THEM AND STATED THAT IT WAS HIS WILL WHICH WAS SIGNED BY HIM. THE WITNESSES ALSO STATED THAT THEY KNEW LAKHANPAL ALIAS MANMOHAN LAL DIWANAA AND THAT HE WAS POSSESSED OF SOUND DISPOSING MIND WHEN HE MADE THE WILL. PW-3, K. NARINDER, HAS ALSO DEPOSED TO THE SAME EFFECT. THEIR TESTIMONY HAS NOT BEEN CHALLENGED IN CROSS-EXAMINATION. THERE APPEARS TO BE NO REASON TO DISBELIEVE THE WITNESSES. THE TRIAL COURT ANALYSED THE EVIDENCE OF PW-1, PW-2 AND PW-3 AND CAME TO A FINDING THAT EX. P-1 IS A WILL OF SHRI LAKHANPAL WHICH WAS IN ACCORDANCE WITH SECTION 63 OF THE INDIAN SUCCESSION ACT. THE WILL WAS ATTESTED BY TWO WITNESSES WHO DEPOSED THAT THEY KNEW SHRI LAKHANPAL AND THAT EX. P-1 WAS SIGNED BY SHRI LAKHANPAL WHICH WAS THEN ATTESTED BY THE WITNESSES IN THE PRESENCE OF SHRI LAKHANPAL. THE TRIAL COURT HELD THAT THERE WAS NO INFIRMITY IN THE WILL OR ITS ATTESTATION. I FIND NO REASON TO DISAGREE WITH THE SAME. ( 5 ) COUNSEL NEXT CONTENDED THAT EX. P-1, WAS A TRUST DEED AND NOT A WILL. THE TRIAL COURT HAS HELD THAT THE DOCUMENT, EX. P-1, HAS ALL THE TRAPPINGS OF A WILL. ( 6 ) I HAVE GONE THROUGH THE DOCUMENT, EX. P-1, AND FIND THAT THE TESTATOR HAS PROVIDED THAT HIS HOUSE/quarter NO. 21, MALKA GANJ AND HIS FIXED DEPOSIT RECEIPT OF RS. 10,000/- IN THE PUNJAB NATIONAL BANK PLUS THE PROVIDENT FUND AND THE GRATUITY, WHICH HE WAS TO RECEIVE FROM HIS EMPLOYERS, DAILY PARTAP, WOULD BE THE PROPERTY OF ARYA ANATHALIA, DARYAGANJ, BUT THE SAID ANATHALIA WILL HAVE NO RIGHT TO ALIENATE OR DISPOSE OF THE SAID PROPERTY. IT ALSO MENTIONS THAT SH. K. NARINDER, SHRI RAM GOPAL SHALWALA, SHRI BALRAJ KHANNA AND SHRI DES RAJ WOULD BE THE TRUSTEES TO EXECUTE THE WILL. IT ALSO MENTIONS THAT WITH THE CASH AMOUNT OF RS. 25,000/- A HOUSE SHOULD BE PURCHASED TO FETCH RENTAL OF ABOUT RS. IT ALSO MENTIONS THAT SH. K. NARINDER, SHRI RAM GOPAL SHALWALA, SHRI BALRAJ KHANNA AND SHRI DES RAJ WOULD BE THE TRUSTEES TO EXECUTE THE WILL. IT ALSO MENTIONS THAT WITH THE CASH AMOUNT OF RS. 25,000/- A HOUSE SHOULD BE PURCHASED TO FETCH RENTAL OF ABOUT RS. 300/- TO 400/- PER MONTH WHICH AMOUNT SHOULD BE UTILISED TO SPONSOR THREE OR FOUR SCHOLARSHIP TO STUDENTS OF ARYA ANATHALIA FOR HIGHER EDUCATION AND THAT RS. 30/- PER MONTH SHOULD BE GIVEN TO HIS WIDOW SISTER, LAJWANTI. THE DOCUMENT FURTHER PROVIDES THAT ALL THE HOUSEHOLD EFFECTS AND LANDS IN THE VILLAGE SHOULD GO TO HIS SISTER, LAJWANTI, AND AFTER HER DEATH TO HIS NEPHEW, RAGHUNATH. THE DOCUMENT ALSO MAKES ARRANGEMENTS FOR TAKING CARE OF THE MORTAL REMAINS OF SHRI LAKHANPAL. ( 7 ) FROM A READING OF THIS DOCUMENT I HAVE NO HESITATION IN HOLDING THAT THE SAME IS A WILL PROPOUNDED BY SHRI LAKHANPAL AND IS NOT A TRUST DEED. NO OTHER POINT WAS RAISED BEFORE ME. ( 8 ) HAVING GIVEN MY CAREFUL CONSIDERATION TO THE MATERIAL IN HAND, I FIND THAT THE JUDGMENT UNDER CHALLENGE SUFFERS FROM NO INFIRMITY. FAO 31 OF 1977 IS DISMISSED. NO ORDER AS TO COSTS.