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IN THE GOODS OF LATE KARMENDRA NARAIN AGARWAL

High Court of Judicature at Allahabad

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In The Goods Of Late Karmendra Narain Agarwal - TESTAMENTARY SUITS No. 8 of 1999 [2006] RD-AH 14784 (30 August 2006)

 

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

Court No. 30.

Testamentary Suit No. 8 of 1999

Manoj Narain son of Late Karmendra Narain Agarwal

                                                       ...              Plaintiff

Connected with

Testamentary Suit No. 3 of 2000.

In the matter of the goods of

Late Karmendra Narain Agarwal.

Versus

Shashi Agarwal, widow of Late Karmendra Narain Agarwal

                                             ...                   Plaintiff

In the matter of the goods of

Late Karmendra Narain Agarwal.

Hon. Sunil Ambwani, J.

The Testamentary Suit No. 8 of 1999 is filed by Sri Manoj  Narain Agarwal for grant of Letters of Administration of the properties and credits of Late Sri Karmendra Narain Agarwal(the deceased), son of Late Babu Prag Narain, died on 19.12.1998 at New Delhi where he had temporary place of residence at 70  Asha Deep, 9, Harley Road, New Delhi. The deceased died leaving  behind him his widow Smt. Shashi Aggarwal, Shri Manoj Narain, as the only son, and three daughters namely Ms. Meenakshi Agarwal, Ms. Madhvi Agarwal and Ms. Manisha Agarwal, all residing at  Madhuban Marris Road, Aligarh. The schedule of properties include agricultural properties in about 12 villages, a factory, and some  houses at Aligarh valued at Rs.2,31,30,000/-

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The Testamentary Suit No. 3 of 2000 is  by Smt. Shashi Agarwal widow of the deceased for grant of probate for execution of the Will dated 16.12.1998 executed by the deceased.  It is claimed to be the last Will in testament of the deceased.  The  Will is attested by Sri  Ravi Meattle and Sri Subhash Chandra Lakhotia.  She has undertaken to administer the property and credits by paying first his debts and then the legacies therein bequeathed as the assets will extend and to make a full and true inventory thereof and exhibit the same within six months from the date of grant of probate and to render true account of the said property and credits within one year from the said date.

The following issues were framed between the parties on 13.4.2006:

"1 .Whether the Will dated 16.12.1998 was duly executed

     by Late Karmendra Narain Agarwal?

2. Whether the said alleged Will dated 16.12.1998 is the last       testamentary deposition made by Late   Karmendra Narain Agarwal voluntarily and in a fit and disposable state of mind?

3. To what relief is the petitioner entitled to?

4. Whether in the event of the Will relied upon by the

   petitioner being found to be forged and fictitious.  The  

   caveator/objector is entitled to grant of letter of

  administration in respect of the estate of the deceased  by

  virtue of being one of the beneficiary?"

Sri Navin Sinha, learned Senior Counsel, assisted by Sri Vipin Sinha appearing for Sri Manoj Narain Agarwal, the

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plaintiff in Suit No. 8 of 1999, made a  statement on 24.7.2006 that he is not getting instruction from his client and did not choose to cross-examine the attesting witnesses of the Will.

Today, when the case is listed for hearing, Sri Navin Sinha, Senior Advocate or briefing Counsel Sri Vipin Sinha  are not present.  The matter as such proceeds exparte against them.

Sri Subhash Chandra Lakhotia, a leading practitioner and Tax Consultant has filed his affidavit as examination-in-chief stating that he is one of the attesting witnesses of the Will dated 16.12.1998 executed by the deceased, who was in hospital for quite some time prior to his death on 19.12.1998.  The deceased had got prepared a Will in which he had expressed th  manner in which his property/estate will devolve upon his death.  On 16.12.1998, the will was read out once again in presence of his wife and three daughters and the attesting witnesses, amongst others after fully understanding and comprehending the contents of the Will and affixed his thumb impression and then the witnesses signed on his request as attesting witnesses.  The Will was also witnessed by Dr. Vineet Suri Neurologist, Apollo Hospital and Dr. Umesh Gupta Cardiologist, M.P. Heart Centre, New Delhi.   The second witness of the Will was Ravi Meattle of New Delhi.  The deceased was fully aware of what he was doing and was in a sound mental state.  He could not sign the Will  for the reasons that his signature on account of his illness could neither have been legible nor tallied with his signatures as he normally made.  To obviate any legal complication he himself decided to affix thumb impression.

Sri Subhash Chandra Lakhotia PW-1  was administered oath and proved the original Will (paper No.4 ) which was shown to him.  He further stated that the testator insisted that he

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knows and understands the contents of the Will which was written on his instruction.  The witness had insisted on reading out the will and  had actually read out the Will to the testator, and says that the deceased understood the contents very well.  The witness signed in presence of the testator as well as the wife and daughters of the testator.  

Sri Ravi Meattle, P.W.2 , made almost the same  statement about the execution of the Will.  He stated in his affidavit that the deceased was his mother's younger brother (Mama) and as nephew the witness was closely associated with him.  The last rites of the deceased were performed by him and that he had lit the funeral pyre.  The witness proved the Will executed in his presence, and  stated that the deceased had got prepared a Will in which he had expressed the manner in which his property/estate was to devolve upon his death. The Will was read out in presence of wife and three daughters and the attesting witnesses.   The deceased fully understood the contents of the Will and affixed his thumb impression.  The Will was also attested by Dr. Vineet Suri Neurologist, Apollo Hospital and Dr. Umesh Gupta, Cardiologist, M.P. Heart Centre, New Delhi.   The deceased did not sign for the reasons that his signatures on account of his illness could neither have been legible nor tallied with his signatures as he normally made. To obviate any legal complication he himself decided to affix thumb impression.  The witness was administered oath. He further stated that when the Will was read out, he agreed with the contents of the same and stated that " Yah Bilkul Theek Hai".  He also reiterated that he cremated the deceased as his son has not come forward to perform the last rites.

Ms. Meenakshi, Ms. Madhvi  and Ms. Manisha Agarwal  

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deposed as PW-3, PW- and PW-5.  They stated that they are daughters of the deceased.    The deceased was in perfectly sound state of mind when he executed the Will which was read out to him before the deceased had affixed his thumb impression.  Dr. Vineet Suri, and Dr. Umesh Gupta had signed apart from the witnesses, after the deceased has put his thumb impression on the document.  The Will was signed in presence and knowledge of the deceased after he had put his thumb impression.  Ms. Meenakshi Agarwal stated on oath that the Will was executed in her presence; that her father was mentally alert and fully conscious at the time of execution of the Will.  Sri Subhash Lakhotia had read out the Will to her father in her presence.  He could not sign very clearly and thus he has put his thumb impression which was witnessed by Neurologist and the Cardiologist present at that time.  The other two daughters gave almost the similar statement.

The Will has been proved by the attesting witnesses to be executed by the deceased in his sound and disposing state of mind  and attested as provided under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act 1925.  The issues  1 and 2  are as such decided in favour of  Smt. Shashi Agarwal, plaintiff in Testamentary Suit No. 3 of 2000.      

The testator has appointed his wife Smt. Shashi Agarwal as sole executrix of the Will and if she is unable to act as an executrix then Sri M.H. Singhal as the executor and in the event he is not willing to act as such,  Sri Ravi Meattle to act as executor of the Will.  The power of the executrix including the  power of appointment is given in the Will which is a five page comprehensive document  describing  specific bequeath in part IV and residuary bequeath in part V.

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The  Will dated 16.12.1998  bears the thumb impression of the deceased   certified by Dr. Vineet Suri, resident of  D-343 Defence Colony, New Delhi.  Dr. Vineet Suri  made a record on the last page of the Will as follows:

" Mr. K.N. Aggarwal has intact higher mental  functious with residual hemiporesis ( 3 yrs) and residua of a posterior circulation stroke.  His LTI may be used since he cannot sign his name on  account of  motor deficiency."

Dr. Umesh Gupta, Cardiologist son of Sri P.D. Gupta, resident of W-33 Greater Kailash Part II, New Delhi has also certified on the last page of the Will as follows:

"Mr. K.N. Aggarwal has been examined by me. He has  intact higher mental functions with residual  hemiporesis ( 3 yrs) and  residua of a posterior circulation stroke, hence cannot sign.    His mental  faculties are sharp and clear."

The Will also bears the signatures of both the witnesses. In view of the decision  on issues  1 and 2 the issues no. 4 need not be decided, and issue no. 3, is decided in favour of plaintiff Smt. Shashi Agarwal, widow of the deceased and the plaintiff in testamentary suit no. 3 of 2000.

Testamentary Suit No. 8 of 1999 is dismissed and Testamenary Suit No. 3 of 2000 is decreed with direction that Smt. Shashi Agarwal, widow of the deceased shall be granted probate of the Will of the deceased dated 16.12.1998 attached to the probate.   She will be entitled to administer the assets and credits of the  deceased in accordance with the desire of the testator.  She will pay the  court fee  to be determined  by the office  within two weeks and to the satisfactions of the Registrar General, High Court, Allahabad after execution of the Administration Bond,  to operate the bank account and submit  

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true and correct account to the Court as provided under Rules of the Court.

The costs of the petition are quantified at Rs. 25,000/- to be paid by the defendant to the plaintiff Smt. Shashi Agarwal.

Dt. 30.8.2006.

BM/-                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          


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