FAO (OS) No. 237 of 2009 Page 1 of 67 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI FAO (OS) No.237 OF 2009 & CM No.8309/2009 Reserved On: 29th April, 2010. % Date of Decision: 14th July, 2010. DESH RAJ GUPTA . . . Appellant through : Mr. Anoop G. Chaudhary, Sr. Advocate and Mrs. June Chaudhary, Sr. Advocate with Mr. Manish Vashisht, Mr. Sameer Vashisht and Ms. Aashita Yadav, Advocates. VERSUS STATE AND OTHERS . . .Respondents through: Mr. A.S. Chandhiok, Senior Advocate with Mr. Vikas Dhawan, Mr. Abhimanyu and Ms. Anita Lal, Advocates for the Respondent No.2. Mr. Manish Kumar, Advocate for the respondent Nos. 5 & 6. CORAM :- HON’BLE MR. JUSTICE A.K. SIKRI HON’BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. The genuineness and validity of purported Will dated 28.02.1985 got registered on 29.05.1985 of Lala Hansraj Gupta, Ex. Mayor of Delhi is the subject matter of the present appeal. After the death of Lala Hansraj Gupta (hereinafter referred to as „the testator‟) on 03.07.1985, the appellant (one of his sons) filed the probate case No.62/1985 in October, 1985, propounding that Will. Some other legal heirs had challenged the veracity thereof. The FAO (OS) No. 237 of 2009 Page 2 of 67 learned Single Judge has returned his findings holding that the purported Will, in his opinion, is not a genuine Will which has resulted in the dismissal of the probate petition. Assailing that judgment, present appeal is preferred by the appellant. 2. The testator had a family consisting of wife, four married sons and two married daughters. Names of his children and few grand children are mentioned in the opening part of the Will. Family chart is as under: “Family Chart Lala Hans Raj Gupta (died on 3rd July, 1985) Des Raj Gupta Shiv Raj Gupta Rajendra Kumar Gupta Mahendra Kr. Gupta Angira Gupta (Son)S1 (Son)s2 (Son)S3 (Son)S4 (Wife) Ravi Raj Uday Raj Jayant Sanjay Arti Avanti Geeta Kirti (Grandson) (Grandson) (Grandson) (Grand-daughters) Daughters of Lala Hans Raj Pratibha Shashi (Gopal, Sarita, Amita, Nalini) (Karuna & Vikram) Great Granddaughters (Amita, Sarita, Arti)” 3. The testator has given Rs.15,000/- each of his grandsons and daughters and great grand children (children of his sons) and Rs.5,000/- each to grand children of his daughters as a token remembrance. Main bequeath, insofar as interests are concerned, relates to his interest and share in M/s. H. G. Gupta and Sons as well as M/s. Mridul Enterprises Partnership, two partnership firms and his shares and other interest in M/s. Hansraj Gupta and Company Private Limited. He also had a share in two properties, viz., No.20, Barakhamba Road, New Delhi and residential property, i.e., 3, Amrita Shergil Marg, New Delhi. As per this Will, his interest and shares in these properties devolved are as under: “4. My interest and share in H.G. Gupta & Sons and M/s Mridul Enterprises Partnership and their respective FAO (OS) No. 237 of 2009 Page 3 of 67 goodwill be transferred to my grandsons Ravi Raj Gupta and Uday Gupta in the proportion of 3 to 1 and it is my fervent desire that this partnership may continue as a link between the family far as long as possible. 8. All my shares and other interests that I have in M/s. Hans Raj Gupta & Co. Pvt. Ltd. with that after my death the same may devolve on my son Shri Desh Raj Gupta and grandson Shri Ravi Raj Gupta equally. I wish that the said company be managed and controlled by my son Shri Ravi Raj Gupta as is being done today and none of my other legal heirs should raise any objection thereto. 10. That my share in property No.20, Barakhamba Road, New Delhi and 3, Amrita Shergil Marg, New Delhi shall after my death devolve upon my 4 sons in equal shares.” One trust, viz., Hansraj Gupta Charity Trust was also created in respect of which Will provides as under: “9. After clearing all the aforesaid liabilities the executors shall make over all my movable assets or shares to Hans Raj Gupta Charity Trust of which I am also a trustee. 11. That the value of my interest in all other immovable properties shall devolve upon the aforesaid Hans Raj Gupta Charity Trust. 12. Whatever other immovable property or share of immovable properties owned by me shall be made over to Hans Raj Gupta Charity Trust together with an obligation thereon to use them in pursuance of objective of that trust.” The testator had some unascertained contingent liabilities in the form of personal guarantees given by him for some limited company. He made provision in respect of these liabilities as well as by declaring as to who would own such liabilities. The gist of the Will, thus, is as under:  Rs. 15,000 to each grandson, granddaughters, great- grandson & great granddaughters;  Rs.5,000 to children of daughters; FAO (OS) No. 237 of 2009 Page 4 of 67  The firm named H.G. Gupta & M/s. Mridul Enterprises to Raviraj & Uday (sons of Des Raj Gupta) in proportion of 3:1;  Central Distillery and Breweries to Shivraj Gupta;  Rampur Engineering Co. Ltd. to Rajendra Gupta;  Property No.20 at Barakhamba Road and 3, Amrita Shergil Marg, New Delhi respectively to four sons (S1, S2, S3, S4) equally. 4. The Will is stated to be drafted by one Mr. S.K. Tiwari, Advocate. There are three witnesses to this Will, viz., Ms. Angira Gupta (wife of the testator), Mr. M.P. Tiwari and Mr. S.K. Tewari. Mr. S.K. Tewari signed the Will in dual capacity i.e., both as a witness and as a drafting counsel. Three sons of the testator, viz., Desraj Gupta (the appellant), Shiv Raj Gupta and Rajendra Kumar Gupta (Objectors) were appointed as the executors. Re: The Petition: 5. In the petition filed by the appellant, it was stated by the appellant that the Will was executed on or around 28.05.1985 and registered on 29.05.1985. It was described as the last will and testament of the departed testator. The petitioner also alleged that since other two executors had renounced their positions as executors by taking stand in legal proceedings in a case pending before sub-judge, Delhi, to the effect that the said Will was not a genuine Will, the petitioner was the only executor left, who could file the petition. The petition at its bottom bears endorsements of 3 witnesses namely Smt. Angira Gupta, Sh. M.P.Tiwari and Sh.S.K.Tiwari, Advocate. Smt. Angira Gupta, wife FAO (OS) No. 237 of 2009 Page 5 of 67 of the deceased, appended an endorsement that she was present at the time of execution of the “Will” dated 28th May, 1985 by late Lala Hansraj Gupta and saw him reading and affixing signatures to the “Will” and she signed the “Will” as an attesting witness in presence of the testator and in presence of other 2 witnesses. The endorsement by other 2 witnesses was also to the same effect. However, the endorsement is signed by Smt. Angira Gupta on 8th October, 1985 while by Sh.M.P.Tiwari and Sh.S.K.Tiwari signed it on 30th September, 1985. Re: The Objections: 6. After receipt of the notice of the petition, two brothers, viz., Shiv Raj Gupta and Rajendra Kumar Gupta as well as two sisters, viz., Shashi Jai Kishan and Pratibha Khandelwal (all of whom were arrayed as respondent Nos. 3, 4, 6 and 7 respectively) filed their objections. The objections were primarily of two types; (i) the testator was seriously ill on the alleged date of the execution of the Will and was not in a sound disposing mind and therefore this Will was invalid and (ii) There was no valid and proper execution and registration of the Will. In fact, the objectors went to the extent of denying the execution of the Will as is clear from the following: “i) In the reply filed by Mr. Shivraj Gupta, in paragraph 3 of the Preliminary Objections, it has been stated as under:- “3. …In fact the deceased never read, understood or was told or executed the said Will and the petition is liable for dismissal. In para-wise reply, it has been stated as under:- “2. …Paragraph 5 of the Petition is substantially correct. However, it is denied that any Will was executed and as such the question of answering respondent having been named as an Executor or his having renounced his position in the Will does not arise…” FAO (OS) No. 237 of 2009 Page 6 of 67 7. …Para 7 of the Will is wrong and denied. It is stated that Lala Hans Raj Gupta never executed any Will at all…” 7. The widow of the testator, viz., Ms. Angira Gupta was impleaded as respondent No.1, who had also verified the petition. She filed her reply supporting the petition by taking the position that it was a genuine Will. Fourth brother, Mahinder Kumar Gupta, who was impleaded as the respondent No.5 also went along with the appellant by supporting the petition. Re: The Issues: 8. On the basis of pleadings, following three issues were framed: 1) Whether the Will dated 28th May, 1985 was duly executed and attested and is the last Will and testament of the deceased? OPP. 2) Whether the two executors of late Shri H.R. Gupta have renounced their position as such? If so, to what effect? OPP. 3) Relief. Re: The Evidence: 9. In order to prove the Will, the appellant examined only three witnesses. The star witness of the appellant was Mr. S.K. Tiwari, Advocate (PW-1), who is stated to have drafted the Will. The second witness was D.N. Gupta, who was Sub-Registrar at the time when Will was executed. We may point out at this stage itself that because of illness of the testator, he could not go to the office of the Sub-Registrar for the registration of the Will. The case set up by the appellant was that request was made to the Sub-Registrar for registering the Will by visiting the residence FAO (OS) No. 237 of 2009 Page 7 of 67 of the testator. D.N. Gupta, Sub-Registrar had deputed one Satish Kwatra, reader in his office, for this purpose, who had allegedly completed the formalities of the registration. Satish Kwatra was, however, not produced as a witness and instead D.N. Gupta appeared as PW-2, who stated in his examination-in- chief, in the form of a sworn affidavit, that his reader was directed by him to visit testator‟s residence and confirmed that he had executed the Will. Third witness produced by the appellant was Dr. S.M. Singh, who had attended the testator when he was admitted to AIIMS for his treatment. We may also point out at this stage itself that the testator was admitted to AIIMS for prostrate operation on 13.04.1985. At this time, he was 82 years of age and was suffering from various elements including diabetes. Prostrate operation was conducted on 17.04.1985. The testator was discharged on 24.05.1985 “on his own request”. From 24.05.1985 onwards, he was at home, but still suffering from certain ailments. He was attended to by one Dr. Madan Lal at his residence. The Will in question is alleged to have been executed on 28.05.1985 and registered on 29.05.1985. Dr. Singh (PW-3) has thus deposed about his condition when he was in AIIMS. Dr. Madan Lal was not produced as witness by the appellant. On the contrary, Dr. Madan Lal was cited as a witness by the objector. However, he also did not produce Dr. Madan Lal as a witness. Much controversy is raised as to who was supposed to produce this witness and consequence of non-production, which shall be dealt at a later stage. FAO (OS) No. 237 of 2009 Page 8 of 67 10. We may also point out at this stage itself that Ms. Angira Gupta though named as witness of the appellant, was/could not be produced, as she had passed away in the meantime. A passionate plea was made by the learned counsel for the appellant that verification of Ms. Angira Gupta on the probate petition as well as her reply affirming the execution of the Will be treated as relevant statement under Section 32 of the Indian Evidence Act. 11. On behalf of the objectors, evidence was led only by Shiv Raj Gupta. He appeared himself as RW-1. Other witness produced by him was one Dr. Rakesh Gupta as RW-2. Though Dr. Rakesh Gupta never examined the testator, his deposition is in the form of expert opinion on the medical condition of the testator based on the medical record of the testator produced by the appellant. Re: Judgment of the Learned Single Judge: 12. The learned Single Judge decided the issue No.1 against the appellant thereby accepting the objections and holding the that Will in question was not the genuine Will of the testator. Learned Single Judge has disbelieved the testimony of PW-1. His finding in this behalf are summarized as under: (i) As per PW-1, the testator had called him sometime in the second week of May 1985 through Mrs. Angira Gupta (when the testator was in AIIMS), as he wanted to see him to get his Will drafted. When he visited AIIMS the next day, he was instructed by the testator to draft out a Will. Two-three days thereafter, PW-1 FAO (OS) No. 237 of 2009 Page 9 of 67 took the draft Will to the testator. The testator did not approve that Will and suggested certain alteration and modifications. After carrying out those alteration and modifications, he again took the Will to the testator, who asked him to leave the same in the custody of his wife, Angira Devi. He also said him that he would get in touch with PW-1 when he would be in a position to get the same registered. After the testator was shifted from hospital to his residence, PW-1 again received a call from the wife of testator. The testator told him to go to adjoining TV Room where the Will was lying in a drawer. PW-1 went to the TV Room and brought the Will, which he found to be another Will which was already drafted by the testator. The same was lying in the drawer along with a typed copy. According to the learned Single Judge, this part of testimony puts a question mark on his deposition that the testator had asked him to draft a Will inasmuch as if the testator had already drafted the Will which was lying in his room and he wanted to finalize that Will only, there was no question of requesting PW-1 to draft another Will. (ii) According to PW-1, the testator wanted his opinion on the Will, which the testator had already prepared. At the request of the testator, PW-1 read out the Will. The testator suggested certain alterations, which he carried out and took the Will again to the testator. PW-1 was, however, asked to draft another Will by FAO (OS) No. 237 of 2009 Page 10 of 67 carrying out some alterations as suggested by the testator. He got another Will retyped after taking care of those suggestions and went with that draft Will to the testator. The testator approved it and signed the same. Mr. M.P. Tiwari, father of PW-1 had also gone with him at the request of the testator. He also signed as attesting witness. As per this witness, final draft of the Will was approved by the testator either on 24th, 25th or 26th May, 1985 and the Will was to be registered on 29.05.1985. However, when the witness was asked about the date on which it was actually signed, his answer was that thought the date mentioned in the Will of its execution was 28.05.1985, but the Will was not signed by the testator on that date. He had kept the Will with himself and signed the same on 28.05.1985 in the morning whereafter it was gone for registration. The date on which the testator or witnesses signed the Will was thus not clear (even the petition filed by the appellant is not categorical about it and states that Will was signed on or around 28.05.1985). (iii) PW-1 was not a reliable witness as he had been associated with the appellant for long. According to the learned Single Judge, it has come on record that PW-1 had worked as Junior of L.R. Gupta from 1965 to 1970- 71. He also admitted that he has worked as apprentice with Rampur Engineering Company Ltd. to which the testator was the Chairman and the appellant was the FAO (OS) No. 237 of 2009 Page 11 of 67 Technical Director/Managing Director. He was an Advocate/Legal Advisor as well. Even his father was working with Lala Hansraj Gupta since 1940-42. PW-1 who is the only attesting witness examined to prove the “Will”, in his attestation of the Probate Petition at the foot had verified that he was present at the time of the execution of the “Will” dated 28th May, 1985. He was one of the witnesses of the “Will” dated 28th May, 1985. However, when he appeared in the court he stated that the „Will‟ was not executed on 28th May, 1985 but was actually executed on 29th May, 1985. Further, he put attestation to the Probate Petition even before the petitioner himself had signed the Petition. The petitioner signed and verified the Petition on 8th October, 1985, whereas PW-1 and his father Sh.M.P.Tiwari attested the Petition on 30th September, 1985. Not much could have been inferred from this, but the very fact that Sh.S.K.Tiwari, PW-1 attested the Petition as an attesting witness of the “Will” even before signatures of the petitioner on the petition were appended, shows that Sh.S.K.Tiwari was out to oblige the petitioner and had signed the petition even before signing of it by the petitioner, who signed it after 8 days of the signing by Sh.S.K.Tiwari. This tendency of obliging is reflected in his evidence when in his examination-in-chief he testified about physical and mental health of the deceased. His testimony seems to be of a person who was out to repay FAO (OS) No. 237 of 2009 Page 12 of 67 the debts of obligations than the testimony of a truthful witness. (iv) The medical record of the testator during the period he was admitted in AIIMS Hospital as well as thereafter revealed that the testator was diagnosed as a case of Benign Hyperplasia Prostate with NIDDM with Emphysema Chest. He was not even fully recovered even on 24.05.1985 when he was discharged on his request and not because of his stability in the condition or on medical advice. The medical report further shows that the testator was suffering from uncontrolled diabetes and recurrent troublesome hyponatremia. His urinary tract infection was under control and for hyponatremia, blood plasma and human albumin transfusion was being done. Even on the date of discharge, he had been bleeding from the rectum and two units of blood were transfused into his body. Even at the time of discharge, it was stated to the hospital authorities that the appellant was taking the testator home for three days with doctor‟s permission, i.e., from 24.05.1985 to 27.05.1985 and he would be brought back to the Hospital on Sunday night, i.e., on 28.05.1985. The learned Single Judge, thus, concluded that the testator, health-wise, was in a bad condition. He could not walk himself; he could not sit of his own and needed help to make him sit in bed. With such physical condition of the testator, the learned Single Judge disbelieved the testimony of PW-1 to the effect that when he went to the FAO (OS) No. 237 of 2009 Page 13 of 67 testator in his house on 28.05.1985, the testator was playing with his grand children. He also disbelieved the version of PW-1 that the grandchild was in the lap of testator, which according to the Trial Court, was not possible keeping in view the serious health condition of the testator, who was bleeding from piles; whose hemoglobin was very less; who was having sugar, urinary tract infection and blood and saline solution were infused in his body. (v) The learned Single Judge also commented upon the testimony of Dr. S.M. Singh (PW-3) by observing that his statement in the Court is contrary to the hospital record. In this behalf, the Trial Court has observed that the hospital record shows that the testator was discharged from hospital against medical advice. Explanation given by the PW-3 that it was because of the reason that the testator was adamant and insisted on being discharged and he would not eat till discharged was not the reason mentioned in the discharge slip. On the contrary, it was the petitioner and his son who got the testator discharged from the hospital against the medical advice with an assurance that the testator would be brought back within three days. It is also commented by the Trial Court that PW-3 had admitted that the room in which the testator was admitted was kept reserved for a couple of days so that when he is brought back, the testator is admitted in the same room, which shows that when the testator was discharged from the hospital, there was FAO (OS) No. 237 of 2009 Page 14 of 67 every chance that his condition may become precarious and for this reason room was kept reserved. The view of the learned Single Judge, therefore, that the testimony of the PW-3 regarding mental state of the testator that “his will power was strong and he was mentally alert” was not acceptable. In this behalf, the learned Single Judge has also made following remarks: “Although, this witness remembered about the patient having stopped taking food 20 years back, when the was asked whether payment had been made at the time of discharge, the witness failed to remember this. His attention was drawn to the medical record where he had written that the payment would be made by the family on next date and the responsibility was of his (the witness). The witness was asked if he had personal relationship with Lala Hansraj Gupta, the witness denied this and stated that he knew him only as a patient. He was asked why did he give this undertaking that he would be responsible for making payment. The witness stated that a relationship got created because the patient remained admitted for 41 days in the hospital under his supervision.” (vi) On the basis of medical records, and particularly the fact that the testator was suffering from hyponatremia, the learned Single Judge concluded that sodium level of the testator was less than the normal range. When confronted with literature contained in Harrison‟s „Principal of Internal Medicines‟ and Merck‟s „Manual of Medical‟ describing the consequence of hyponatremia, PW-3 had concurred with the observations contained in the aforementioned books. The learned Single Judge noted that in such cases sodium level goes down. It results in neurology dysfunction, leading to swelling of brain cells. The severity of symptoms is related both the degree of hyponatremia and to the rapidity with which it develops. As a result, patients may be lethargic, confused, stuporous, or comatose. If hyponatremia FAO (OS) No. 237 of 2009 Page 15 of 67 develops rapidly the signs of hyperexcitability such as muscular twitches, irritability, and convulsions may occur. In view of this medical history of the aforesaid medical literature, the learned Single Judge concluded that the testator was not in a sound disposing mind to execute the will. For this purpose, testimony of Dr. Rakesh Gupta (RW-2) was also relied upon and the discussion contained in the judgment goes as under: “Although, this witness remembered about the patient having stopped taking food 20