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IN THE GOODS OF LATE PREM MANOHAR

High Court of Judicature at Allahabad

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In The Goods Of Late Prem Manohar - TESTAMENTARY SUITS No. 1 of 1996 [2005] RD-AH 8079 (23 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment reserved on 24.11.2005                 Judgment delivered on 23.12.2005

Testamentary Suit No. 1 of 1996

In the matter of Goods of Shri Prem Manohar ..........Deceased

Smt. Saguna Prem Manohar Sharma      

........                 Petitioner

Vs.

Shri Chatar Sen Gupta & others  

....... Defendant- respondents

Hon. Sunil Ambwani, J.

Smt. Saguna Prem Manohar Sharma D/o Late Prem Manohar Sharma W/o Shri Jogesh Kumar Sharma filed Testamentary Case No.9/94 for grant of Letters of Administration with the will annexed, executed by her father Shri Prem Manohar Sharma (hereinafter called as the deceasd) dated 13.5.78, bequeathing all his properties except Farm House, Plot No.230 on the plaintiff.   The will provides that the Farm House and the entire movable properties shall devolve on Smt. Prem Lata, the wife of the deceased, and appointed Smt. Prem Lata as guardian of the plaintiff, to control and manage all immovable properties, which shall devolve upon her after his death.

Shri Prem Manohar died on 15.5.78 at his residence Prayag Agricultural Farm, Garh Road, Meerut.  Smt. Prem Lata Manohar, the wife of Shri Prem Manohar also died on 16.11.88.   The Testamentary Case was filed on 12.4.94 i.e. after 15 years and 11 months of the death of the testator.

It is alleged in para 2 of the plaint that the deceased had  earlier executed a `will' dated 9.1.76 in favour of the plaintiff and had appointed her mother as executor of the will.  This will, however, was cancelled by the will dated 13.5.78.   The petition encloses affidavit of Lt. Col. Guru Bux Singh Siddhu and Shri Siya Ram Singh, the attesting witnesses to the Will and a schedule of movable and immovable properties of the deceased, which include agricultural land (total area 17 bigha 19 biswa and 4 biswansis), old farm house situated in Khasra No.230M, new farm house, go downs, servant quarters, garage, swimming pool and other assets valued at Rs.5,30,508.50/-.

Shri Chater Sen Gupta, Shri Om Prakash Jain, Shri Neeraj Kumar Jain, Shri Prem Chand Jain, Shri Rakesh Kumar, Shri Mukesh Kumar, Shri Jai Prakash, Smt. Satyawati Gupta, Shri Dependra Kumar, Shri Suraj Bhan, Shri Mool Chand and Shri Satish Chand, opposite parties, made an application for impleadment on 11.1.95 on the ground that after the death of Shri Prem Manohar, his widow Smt. Prem Lata inherited the entire properties and after her death his nephew Shri Anil Kumar and others got their names mutated on the basis of a forged will.   Smt. Prem Lata filed objection and her name was ordered to be recorded in the revenue papers.  She wanted to sell the properties and that on 18.12.81 she entered into an agreement to sell the properties for Rs.4,82,000/- and received an advance of Rs.2,41,000/- after which she was also paid Rs.1,18,000/- by Bank Pay Order on 5.4.82.  She avoided to  execute the sale deed on which a suit for Specific Performance of Contract No.608/82 was filed by Shri Chatar Sen Gupta and others against Smt. Prem Lata  in which a compromise was filed in terms of which the Civil Judge, Meerut passed an order to execute the sale deed within 15 days after taking no objection from the Income Tax Department.  She, however, came under the influence of Madan Sharma, a partner of colonizing  firm M/s Ram & Co., Meerut and backed out from sale.  In Execution Case No.42/82 the Court executed the sale on 27.1.83 after getting the balance sale consideration.  

It is further alleged that Smt. Prem Lata challenged the compromise decree, in Misc. Case No.55/83 on the ground of farud, on which the delivery of possession was stayed. The objection of Smt. Prem Lata was dismissed on 10.8.84.  The Court found that the compromise in decree No.608/82 was not fraudulent. Smt. Prem Lata filed a writ petition in the High Court in which initially the delivery of possession was stayed.   The ex-parte order was, however, vacated in January, 1985 and the Court ordered delivery of possession through police.   It is at this stage that the plaintiff Smt. Saguna came in collusion with Smt. Prem Lata  and filed a Suit No.157/85 on 12.2.85 on the basis of  will dated 13.5.78.  The suit is still pending.   The defendants contend in paragraph 17 that Smt. Saguna having knowledge of the entire proceedings  did not implead the applicants nor brought on record these facts in her application.  She has filed this application with malafide intention.  

In the counter affidavit of the plaintiff filed to the inpleadment application it is alleged that the plaintiff is the sole heir of the deceased in pursuance of the will dated 13.5.78, which has superseded the earlier will dated 9.1.76.     Master Shivang Manohar, the son of the plaintiff is the adopted son of Late Smt. Prem Lata and has a  will duly executed by Smt. Prem Lata, in his favour.   In paragraph 7 it is stated that Original Suit No.395/92  in re, Anil Kumar son of Moti Manohar based on the Will dated 25.4.78 has been dismissed and the order has become final.  In paragraph 10 it is stated that the Original Suit No.322/85 for cancellation of exparte judgment and decree dated 8.11.82 is also pending.  The Civil Court refused the injunction on 11.9.86 on which the District Judge in appeal granted a temporary injunction against which writ petition No.30066/91 was filed and allowed on 7.4.92.    This order has been set aside by the Hon'ble Supreme Court on 27.11.92 and the matter was directed to be decided afresh along with writ petition No.11599/84.  Both the writ petitions are pending.   A perusal of the order of the Supreme Court dated 27.11.92 in Civil Appeal No.5135/92 shows that the High Court's order was quashed on the ground that the High Court should have first decided writ petition No.11599/84 filed against the order dated 10.8.84 against the order of the first appellate Court dated 6.9.91.

In para 11 of the counter affidavit to the impleadment application the plaintiff alleged that Shri Chatar Sen Gupta is a practicing Advocate and he abused professional capacity in obtaining agreement to sale from her mother Smt. Prem lata  and that disciplinary case No.135/83 was initiated against him, which resulted in judgment dated 12.1.84 debarring him for a period of five years.   When the plaintiff came to know about the will dated 13.5.78, she filed Original Suit No.157/85 in the Court of Civil Judge, Meerut for a declaration  that the judgment and decree dated 8.11.82  rendered by the Civil Court in Original Suit No.608/82 was incorrect, illegal, inoperative, ineffective and void ab initio.  A temporary injunction granted, was confirmed but no interim relief was granted and Misc. Appeal No.58/85 has since abated as Smt. Prem Lata has died on 16.11.88.

Shri Om Prakash Jain in his rejoinder affidavit reiterated the allegations made in the impleadment application.

The following issues were framed on 3.4.97:

"1. Whether the alleged Will dated 13.5.1978 was duly and validly executed by the deceased testator Prem Manohar?

2. Whether the alleged Will dated 13.5.78 has been forged as alleged in the written statement?

3. Whether the deceased testator had made out the draft of the Will in his own hand writing as alleged in paragraph No.3 of the petition?

4. Whether the deceased testator had executed a Will dated 9.1.76  and the same had been duly attested by Moti Manohar and Cl. Guru Bux Singh Siddhu?

5. Whether the Caveators have no locus standi to file any caveat with regard to the property which is the subject matter of the Will?

6. Whether the petition for grant of Letters of Administration was not maintainable as alleged in the written statement?

7. To what relief, if any, is the petitioner entitled?"

Both the parties have led documentary and oral evidence.   The plaintiff has filed certified copy of the Will dated 28.9.87 executed by Smt. Prem Lata (Paper No. A-38) in favour of Shivang Manohar, Saguna Sharma, Jagesh Sharma, Diwang Manohar and Km. Gunila witnessed by Shri Ashok Kumar Garg and Shri Nalin Kumar Jain, Advocate;  birth certificate of Km. Saguna Prem Manohar dated 18.9.78 (Paper No. A-39); High School certificate of Km. Saguna Prem Manohar, showing date of birth as 10.10.58 (Paper No. A-40); scholar register and transfer certificate of Km. Saguna Prem Manohar dated 15.9.78 (Paper No. A-41) and account of minor Km. Saguna Prem Manohar  to the Income Tax Authority for the assessment year 1976-77 (Paper No. A-42).

The defendants have filed certified copy of Khatauni Khata No.21, 1386 to 1391 Fasli village Raisna Pargana, Tehsil and District Meerut (Paper No. A-27); certified copy of registered Agreement between Smt. Prem Lata and Sri Om Prakash Jain and others dated 18.12.81 (Paper No. A-28); certified copy of decree of Suit No.608 of 1982 - Sri Chater Sen Gupta Vs. Smt. Prem Lata, of Court of Ist Civil Judge, Meerut (Paper No. A-29); Certified copy of Sale deed executed by Smt. Saroj Bala Ist Civil Judge, Meerut dated 27.1.83 on behalf of Srimati Prem Lata in Execution Case No.42 of 1982 (Paper No. A-30); certified copy of application U/s 151 C.P.C. in Smt. Prem Lata versus Sri Chater Sen Gupta and others in Misc. case No.55 of 1983 Court of Civil Judge, Meerut (Paper No. A-31);  certified copy of statement of Smt. Prem Lata in Misc. Case No.55/83- Smt. Prem Lata versus Sri Chater Sen Gupta and others Court of Ist Civil Judge, Meerut (Paper No. A-32);   certified  copy of order dated 10.8.84 in Misc. case No.55 of 1983- Smt. Prem Lata versus Chater Sen Gupta (Paper No. A-33);  certified copy of order dated 11.2.85 in Execution Case No.42 of 1982- Sri Chater Sen Gupta versus Smt. Prem Lata  (Paper No. A-34);  certified copy of plaint O.S. No.157 of 1985- Smt. Saguna versus Smt. Prem Lata and others    (Paper No. A.35);  certified copy of plaint of O.S. No.395/82- Sri Anil Kumar and others versus Smt. Prem Lata and others  (Paper No. A-36) and  certified copy of affidavits of Smt. Prem Lata in Suit No.395/82- Sri Anil Kumar versus Smt. Prem Lata and others  (Paper No. A-37).

The plaintiff has examined herself as PW-1 and Shri Siya Ram Singh, the witness of the Will as PW-2.  Shri Chatar Sen Gupta, the defendant has examined himself as DW-1.

Before proceeding to consider the submissions of either parties, on issues 1 & 2, it is necessary to set out the law on the  proof of will. In Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567.  The Supreme Court held in para 5 as follows:

"5.       Before we consider the facts of this case it is well to set out the principles which govern the proving of a will.  This was considered by this Court in H. Venkatachala Iyengar Vs. B. N. Thimmajamma, (1959) Supp (1) SCR 426: (AIR 1959 SC 443).  It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act.  The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity, and  signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious, circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine.  If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court.  Further, what are suspicious circumstances was also considered in this case.  The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature.  The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind.  In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator.  Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits.  If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence.  But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations."

In Smt. Jaswant Kaur Vs. Smt. Amrit Kaur, AIR 1977 SC 74, the Supreme Court held in paras 9 and 10 as follows:

"9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the defendant.  What, generally, is an adversary 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 led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by the testator.  It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.

10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will.  Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar Vs. B.N. Thimmajamma, (1959) Supp (1) SCR 426 = (AIR 1959SC 433).  The Court, speaking through Gajendragadkar J, laid down in that case  the following propositions:-

1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters.  As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.

3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.  This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator.  Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

4.  Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing.  A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will.  That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.  The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved.  That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence,coercion etc. In regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will.  And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."

Coming to the facts of the case, the deceased Shri Prem Manohar was Superintending Engineer in Public Works Department, U.P.  At the time of his death he was Chief Town Planner, Public Works Department, U.P.  He died at the age of 57 years before he attained the age of superannuation.  In his earlier will dated 9.1.76 (Paper No. A-3) he described the plaintiff as his daughter.  In this short will of two sentences only he described in few words that all his property in whatever condition it is, will go to his daughter Saguna.  Her mother will be her guardian.  He further wrote that on coming to Meerut he has realized that he has no other issue.  She is her soul and that she should carry out his desires.  In the next sentence he stated that he is in full senses at the time of signing the document.  

In the will dated 13.5.78, the deceased stated as follows; "I have brought up Kumari Saguna Manohar now aged about 19 years as my own daughter since she was two months old and who is dear to me as my real daughter."   In her examination in chief the plaintiff has answered that Shri Prem Manohar (deceased) was his father and her mother's name is Smt. Prem Lata.  In the cross-examination she stated that since she has opened her eyes she was brought up by Shri Prem Manohar and Smt. Prem Lata Manohar and they alone are her father and mother.  In the certificate issued by the Principal, Haward Plested Girls Intermediate College, Meerut dated 18.9.78 (Paper No. A-39); High School Certificate 1976 (Paper No. A-40) and Scholar Register and Transfer Certificate Form (Paper No. A-41),  the name of plaintiff's father is recorded as Shri Prem Manohar.

In her will dated 28.9.87 registered on 3.1.96 much after her death, Smt. Prem Lata while revoking her earlier will dated 27.6.81 by which she bequeathed her entire properties, she described, in the opening sentence that she and her husband has adopted and brought up Smt. Saguna Sharma as their daughter, who is married to Shri Jagesh Kumar  and has two minor sons namely Shivang Manohar and Divang Manohar and that she had adopted Shivang Manohar on 9.8.81 in accordance with law and has got an adoption deed registered.  

There is no pleading nor there is any adoption deed on record, to establish that Smt. Saguna, the plaintiff was adopted daughter  of the deceased Shri Prem Manohar.  She herself and her mother had admitted that she was not natural daughter and was not born out of the wedlock to Shri Prem Manohar and Smt. Prem Lata Manohar.  The High School certificate, the scholar register and the statement of witness, however, establish that she was declared by Shri Prem Manohar, the deceased and Smt. Prem Lata Manohar as their daughter.   She, as such could not have succeeded, to the estate of Shri Prem Manohar, in case they had died intestate.

Smt. Prem Lata Manohar, the widow of the deceased, took over properties of the deceased without any reservation and filed application for canceling the names of her brother's sons and succeeded in getting mutation over all the properties.   She entered into an agreement to sale as full owner and accepted the sale consideration and also balance of sale consideration and entered into a compromise in Suit No.608/82 to sell the entire properties.  She also executed a will dated 27.6.81, which was registered in the office of the Registrar, Meerut bequeathing her entire properties as full owner and thereafter, cancelled the said will on 28.9.87, which was registered nine years after her death.  She died on 16.11.88.   After her death, the plaintiff's  son Shivang Manohar (minor) got himself impleaded as her heir and is pursuing the matter.  In Civil Appeal No.5135/92 minor Shivang Manohar is the appellant/ petitioner.  Smt. Prem Lata died during the pendency of the appeal and that present appellant Shivang Manohar (minor) being her adopted son was substituted in her place as appellant.   The Supreme Court by order dated 27.11.92 has remanded the matter.  The suit filed by Smt. Prem Lata Manohar is still pending.

In this background the testamentary case was filed on 12.4.94, which has been converted into this suit.   The will in question dated 13.5.78, had not seen the light of the day until the testamentary case was filed.  In the plaint and her examination in chief  the plaintiff has not disclosed as to how  and in what manner the will, after such a long litigation in which her mother was contesting the suit for specific performance of contract and had thereafter, filed a suit for cancellation of compromise decree, was pending.   She does not state that she has no knowledge of the suit.  It is only when a question was put to her in her cross-examination asking her the place from where she found Ex.1, Ex.2 and Ex.3, she stated that she found in the almirah of her mother.   She does not remember the date on which it was found.    She, thereafter stated that she was asked to take out clothes and jewelry   and that it was found in locker.   In reply to the question whether her mother had knowledge of this paper, she stated that she cannot give answer to the question.  In reply to the next question whether she had informed her mother about these papers, she replied that when she got these papers, she read them and informed her mother and that her mother did not give any information about these papers.  In reply to the next question whether she has asked her mother as to why she did not disclose these papers when she had signed on them, the plaintiff replied that her mother told her that she had committed a  mistake in not telling her about these papers.

From the statement given by the plaintiff it is clear that Late Smt. Prem Lata  was fully aware of the will and its contents.  She had signed on these documents and had admitted her signatures.  She was engaged in a long drawn litigation in respect of the properties inherited by her from  husband and did not choose to set up the will in favour of her daughter.  Her daughter also did not make any mention of the subject will in the pending litigation after the death of her mother in 1988.  She allowed her son Shivang Manohar to defend himself.  He is still fighting the litigation as legatee of Late Smt. Prem Lata.  In these facts and circumstances, the Will, which was discovered by the plaintiff prior to death of mother in the year 1988, and where her own son was impleaded and was a party defending the suit for specific performance of the contract and compromise decree, filing of this testamentary case after one of the witness of the will namely Shri Hari Shankar Sharma had died, is shrouded in suspicious circumstance, which must be clarified by the plaintiff.

The onus probandi, in every case lies upon the party propounding a will.    He must satisfy the conscience of the Court that the instruments so propounded is the last will under which he takes the benefit,  (1) the genuineness of the testator's signatures; (2) his mental condition; (3) the nature of disposition being unnatural and improbable or unfair in the light of the relevant circumstances; (4)  such other indications inherent in the will as would show that testator's mind was not free and (5) propounder take a part in the execution of the Will revive substantial benefits for him.   The propounder must remove all legitimate suspicions to the entire satisfaction of the Court.

In this case Shri Siya Ram Singh, aged 64 years, one of the two attesting witness of the Will, who is still alive has examined himself to prove the Will.  He stated that the deceased Shri Prem Manohar was in good mental condition and was not suffering from any disease.  He had seen Prem Manohar reading and writing and identified that it was written by him and was signed by him before him.  At the time of signing of the will Shri Hari Shankar Verma and Smt. Prem Lata Manohar were also present.  The will was in the hand-writing of Prem Manohar and that typed copy was ready prepared and kept ready by him.  In the cross examination he states that he retired as Asstt. Engineer in PWD and lives at Prabhat Nagar, which is two kms. from the house of the deceased.    He knew the deceased since 1958-59 and met with Smt. Saguna Sharma in the year 1984.  He had not seen her prior to 1984.  The name of the daughter of Prem Manohar was Saguna.  Shri Prem Manohar died two or three days after the execution of his will.   He had not attended the funeral.  He went his house after about 3 to 4 days and met his wife where about 8 to 10 persons were present.    He had not informed her that Shri Prem Manohar had executed a will 4 to 6 days ago.  He also did not inform Saguna Sharma about the will.  He does not know whether Prem Lata had written any will.  He does not know Chatar Sen Gupta  and the fact that he was DGC (Civil) and also does not know if Smt. Prem Lata had executed any contract.  Shaguna's husband Jagesh is an architect and he knows him from 1984-85.  There is no evidence on record regarding physical condition of Shri Prem Manohar.  He held a very important position of Chief Town Planner in Public Works Department and died almost an year before attaining superannuation.  There is nothing to show as to who was nominated and was paid his service benefits.  The draft of the Will alleged to be written by him and proved by Shri Siya Ram Singh does not appear to have been written by a qualified Engineer  serving as Chief Town Planner.  His job required him to be meticulous and methodical in his approach to documents.  He has nowhere given his occupation and designation in the Will and has not given the date of the previous will, which were sought to be cancelled by him.

In para 4 of the Will it is stated that  he own a farm house in Plot No.230  in which he had carried out certain improvements  and was under occupation of his elder brother Shri Moti Manohar and his family, in which he had constructed a new block, which has been enlarged to serve as his residence and a garage and farm house, quarters were constructed  as a separate unit in Plot No.229. In para 5 he described the properties owned by his wife in her own right  purchased by her.   In para 6 he states that he has got  certain bank deposits, HUF account, maintained and accessed separately along with my wife as a member.    In para 7 he described Km. Saguna as his own daughter since she was two months old and she was as dear to him as his own daughter.   In para 8 he desires to bequeath his immovable property as stated in para 3 and 4, including the farm house  in Plot No.230 to devolve upon Km. Saguna Manohar.   The farm house and entire movable property was to devolve on his wife and on her death on Smt. Saguna Sharma.

The plaintiff has not properly explained the delay after which the will was brought into motion. Smt. Prem Lata Manohar died on 16.11.88.  The plaintiff is claiming to be adopted daughter of Smt. Prem Lata Manohar continued with the litigation on the properties bequeathed to the plaintiff.    If she had discovered  it before the death of her mother,  there was no reason as to why she would not have pleaded the existence of the will in the pending litigation, in the Court of Civil Judge as well as in the High Court and the Supreme Court.   The story that the will was found in an almirah and was accidentally discovered, when her mother gave her keys to take out some clothes, jewelry  is not worthy of belief.  The plea that her mother, who had signed on the will had pleaded guilty of not disclosing it to her daughter also cannot be believed.   Smt. Prem Lata had entered into an agreement to sale, accepted major part of the sale consideration and had entered into compromise with Shri Chatar Sen Gupta and others.  In case she had signed on the will dated 13.5.78, and had told about it to the plaintiff, who has discovered it before 1988, there was no reason as to why this Will was not mentioned and set up defence, to save the properties.

Further I find that late Smt. Prem Lata Manohar had adopted plaintiff's son Shivang Manohar on 9.8.81, after the death of her husband and thereafter, executed the will dated 27.6.81 treating him full owner of the entire property.  In the registered will dated 28.9.87 filed by the plaintiff (paper No. A-38) she had clearly stated that she came to know about her husband's Will dated 13.5.78 in the year 1984.  If that was so, why her daughter did not explain that her mother had discovered the will in the year 1984? Why did she not mentioned about the will in any of the suits filed before the Civil Judge, Meerut or in the High Court and the Supreme Court?

All the aforesaid circumstances clearly indicate and establish on record that the will dated 13.5.78 was got prepared by the plaintiff, to save the properties, which were inherited by her mother and were agreed to be soled by her.   The issue Nos.1, 2 and 3 are as such returned against the plaintiff with the finding that the Will dated 13.5.78 is a forged and fabricated document, prepared for the purposes of saving the properties, which were inherited by late Smt. Prem Lata Manohar and for which she had entered into an agreement to sale, thereafter entered into compromise suit.    

The will dated 9.1.76 is witnessed by Shri Moti Manohar and Col. Guru Bux Singh Siddhu.  There is an affidavit of Col. Guru Bux Singh Siddhu  aged about 73 years, son of Sri Arjan Singh stating that  Shri Prem Manohar, the deceased in the presence of the deponent and his elder brother Shri Moti Manohar had written his Will dated 9.1.76 and after reading the said Will had signed the same.  The plaintiff has also sought to prove the Will by stating that she had seen her father reading and writing and that father signed the Will dated 9.1.76.    The witnesses have not been produced to prove the Will and that Col. Guru Bux Singh Siddhu  has not appeared for cross-examination.

Further I find that the testator holding an important office of Chief Town Planner, Public Works Department, and occupation, which requires to be meticulous and precise, could not have executed a will with only few lines and words, which are quite vague. The will does not describe in the properties and does not give details of the property to be inherited by the daughter.  The language does not clearly specify the intention of the testator.  

I also find that this will also not disclosed by the plaintiff, as it was treated to have been cancelled by the later will dated 13.5.78 inspite of the fact that her mother was involved in a long drawn litigation.  In case the plaintiff had discovered these documents prior to 1988 as stated by her mother in her will, to have been discovered in 1984,  the reason as to why these documents were not brought on record has not been disclosed.  I, therefore, return this issue also against the plaintiff and hold that the Will dated 9.1.76 is also forged and fabricated document prepared only for the purposes of saving the properties for which an agreement to sale was executed by plaintiff's mother and thereafter she entered into a compromise in which she had agreed to sell the properties.   In view of the findings on issue Nos. 1, 2, 3 and 4, issue Nos. 5 and 6 need not be decided.  The plaintiff is not entitled to any relief.

For the findings given above, the suit stands dismissed with costs to the defendants against the plaintiff.

SP/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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