Ashval Vaderaa v. Amitabh Narayan Ors. Signature Not Verified Digitally Signed By

Judgment

1. Question posed herein is two-fold. (i) Firstly, whether Testatrix was in sound disposing mind at the time of execution of her „Will”. (ii) Secondly and more importantly, what should be the approach of court in granting probate where Will is executed by the maker, while admitted in a hospital.

2. Appellant takes exception to order dated 08.03.2018 passed by learned Additional District Judge (West), Tis Hazari Courts whereby while discarding the objections taken by the appellant herein, probate has been granted to respondent No.1.

3. For the sake of convenience, I would refer to the parties as per their nomenclature before the learned Probate Court. ______________________________________________________________________________________ FAO 283/2018 Page 1 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52

4. The probate petition was filed by respondent No.1-Mr. Amitabh Narayan and, therefore, he would be referred to as „Petitioner‟ in the present judgment. It was appellant Mr. Ashval Wadhera, who had filed objection in the abovesaid Probate Petition and, therefore, he would be referred to as „Objector‟. The Will is of Ms. Karuna Raj Vadheraa and she would be referred to as‟ Testatrix‟ herein.

5. The averments made in the probate petition are very concise. These can be summarized as under: - a) Karuna Raj Vadheraa (Testatrix) was residing at E-24, E-25, NDSE-II, New Delhi-110049. She had three sons and details of her such sons and daughters-in-law are as under:- S. No. 1

2. 3. 4.

5. Description Shri Ashwal Vaderaa (Objector) Shri Asheesh Vaderaa Shri Kanishka Vaderaa Smt. Monica Vaderaa (Wife of Shri Asheesh Vaderaa) Smt. Meetinder Vaderaa Wife of Shri Kanishka Vaderaa Relationship with Deceased (son) (son) (son) (daughter-in-law) (daughter-in-law) b) c) The parents and the husband of Testatrix had pre-deceased her. Testatrix executed her last Will on 05.02.2003 which was registered with the Sub Registrar-III New, Delhi. d) e) Such Will was stated to be her last Will and Testament. Testatrix made reference of immovable and movable properties ______________________________________________________________________________________ FAO 283/2018 Page 2 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 left by her and these are as under: - LIST OF IMMOVEABLE PROPERTY LEFT BEHINDBY TESTATRIX S.No. Description 1. 2. E-24, N.D.S.E., Part – 11, New Delhi - 49 Co-ownership rights in lands at Lado Sarai at 5-A Mehrauli Road, New Delhi: (a) Khasra No.679/672/48/ 1, measuring 4 Bighas and 16 Biswas (b) Khasra No.679/ 6721 48 / 2 measuring 15 Biswas Property situated at Vaderaa Farms, Station Road, Garhi, Haryana Gurgaon, Haryana LIST OF MOVEABLE PROPERTY S.No. Description 1. F.D.R. in the Bank of Rajasthan Ltd. E-17, 1st Floor, South Extension 11, New Delhi F.D.R. in the Central Bank of India M-2, South Extension 11, New Delhi Bank Account in the Bank of Rajasthan Ltd. E-17, 1st Floor, South Extension 11, New Delhi

3. f) The Testatrix had appointed petitioner Mr. Amitabh Narayan as Executor of the Will. g) h) She expired on 24.04.2007. The probate petition was filed which accompanied verification of Mukul Bhatnagar and Dr. Vinod Rai who claimed that they were the witnesses of the abovesaid Will and were present when the Testatrix had affixed her signatures on said Will. ______________________________________________________________________________________ FAO 283/2018 Page 3 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52

6. Learned Trial Court directed issuance of citation to be published in Hindustan Times besides the same to be affixed on the Notice Board of Court and Collectorate concerned, where such immovable properties were situated.

8. Notice was also issued to state through Chief Secretary. Pursuant to such publications and citations, Objector Ashval Vaderaa appeared and submitted his objections.

9. Asheesh Vaderaa and his wife Monica Vaderaa (respondents No.3 and 5 in probate petition) submitted written statements contending that they had no objection to the grant of probate.

10. As far as Mr. Kanishka Vaderaa (respondent No.4 in probate petition) was concerned, he, though, contended that he did not have any objection for grant of probate but supplemented that they resided in E-24 and E-25, NDSE part-II New Delhi which were adjoining and interconnected properties, having a common staircase and such fact was not specified appropriately in the petition. His wife Meetinder Vaderaa did not file any response.

11. As per Objector Mr. Ashval Vaderaa (appellant herein), the Will in question was a forged and fabricated document. He asserted that at the relevant time, when the abovesaid Will was allegedly executed on

05.02.2003, his mother i.e. Testatrix was rather in a hospital and was unconscious and under the influence of drugs and medicines, administered to her during her such hospitalization and, therefore, she was never in sound disposing state of mind. Objector also wondered as to why his mother would

bequeath property to her other son i.e. Mr. Asheesh Vaderaa, with whom she had civil and criminal litigation. It was claimed that Mr. Asheesh Vaderaa ______________________________________________________________________________________ FAO 283/2018 Page 4 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 had been pursuing such litigation through Mr. Kamal Narayan, Advocate and it was not believable that his son (petitioner Amitabh Narayan) would be appointed by her as administrator or Executor of the Will.

12. It was also contended that no reason had been assigned in the Will for unequal and unfair distribution and moreover, it was impossible to imagine that Testatrix would execute Will for the benefit of one who had rather humiliated her and entangled her in litigation.

13. Based on the pleadings, the learned Probate Court framed following issues: - “1. Whether late Smt. Karuna Raj Vadera duly executed Will dated 05.02.2003 in her sound disposing mind? OPP. 2. Whether petitioner being Executor of Will dated 05.02.2003 of Smt. Karuna Raj Vadera is entitled for grant of Probate as claimed? OPP 3. Relief”

14. In order to prove his case, the petitioner examined PW-1-Dr. Vinod Rai (attesting witness) and PW-2 Mr. Mukul Bhatnagar (attesting witness).

15. Indeed, such Will had been executed by the Testatrix, while being admitted in Mool Chand Hospital. It looks perplexing and baffling to comprehend, as to why such a vital fact, had not been divulged in the probate petition.

16. Though there is no mandate of law that any such Will has to be compulsorily registered but fact remains that Will in question was a registered Will and as per the case of the petitioner, the concerned Sub- Registrar, on a request made in this regard, had come to the abovesaid hospital and registered the Will after due examination of the Testatrix.

17. Unfortunately, even such important aspect that the Sub Registrar had ______________________________________________________________________________________ FAO 283/2018 Page 5 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 come to the Hospital has not been revealed in the probate petition.

18. Dr. S K Thakur was examined as CW1. He was, reportedly, working as Consultant Gastroenterologist at Mool Chand Hospital in the year 2003 and Ms. Karuna Raj Vaderaa was stated to be under his care. When he entered into witness box on 20.03.2017, he was shown one certificate dated

03.02.2003 (Ex-CW-1/1) which he admitted issuing.

19. It will also be important to mention that the petitioner did not examine anyone from the office of Sub-Registrar.

20. The concerned Sub-Registrar was also not examined.

21. Mrs. Monika Vaderaa, then, sought permission to examine the concerned official from the office of Sub-Registrar. Such request was though opposed on the ground that it was an attempt to fill up lacuna in evidence which was not permissible as the petitioner himself never expressed any such wish, fact remains that such application was allowed on

01.11.2013 and, accordingly, R5W1 Mr. S K Sharma (LDC, Office of Sub Registrar-III Asaf Ali Road, New Delhi) entered into witness box.

22. The Objector i.e. Mr. Ashval Vaderaa examined 5 witnesses.

23. These are OW-1 Ashval Vaderaa (Objector himself), OW-2 Anil Dhawan (Nephew of Testatrix, who has been examined in order to demonstrate that Testatrix was very serious and was not in her senses and that she was not even able to speak as she was under the influence of medication on 05.02.2003), OW-3 Virender Singh (for proving ITR of Testatrix). OW-4 Mr. Sushil Kumar Kala (the official who has brought the record pertaining to OMP No. 110/1987) and OW- 5 Mr. Digambar Singh (official from Mool Chand Hospital, Lajpat Nagar). ______________________________________________________________________________________ FAO 283/2018 Page 6 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52

24. Learned Probate Court allowed the Probate Petition and rejected the contentions of the Objector holding that there was nothing to show that there was any gross illegality or irregularity with respect to execution and registration of Will at the hospital. It held that merely because there was no document to show as to when and how the application was made to the sub- Registrar and how such official came at the hospital would be mere procedural irregularity and would not affect the basic essence of the legality of the registration of the Will at the hospital.

25. It also went on to hold that Testatrix, while being admitted in hospital on 05.02.2003, was in sound disposing state of mind and physically stable. It also held that merely because no reason had been assigned in the Will for unequal distribution would not mean anything substantial. Thus, it rejected the contentions of the Objector that the Will was forged and fabricated. Relying upon the testimony of the concerned attesting witnesses and Dr. Thakur, it returned findings with respect to the above said issues in favor of the petitioner and held him entitled for probate to the above said Will, while directing him to obtain requisite court fee and to submit administration bond.

26. Such order dated 08.03.2018 is under challenge in the present appeal.

27. Mr. Ramesh Kumar, learned counsel for Objector submits that there are inexplicable and mysterious circumstances surrounding execution of the Will and that these have not been appreciated by learned Probate Court in the desired manner. His prime contentions can be summarised as under: - i. Testatrix remained admitted in two different hospitals. Her initial admission was in Mool Chand Hospital from 31.01.2003 ______________________________________________________________________________________ FAO 283/2018 Page 7 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 to 07.02.2003. Since her condition did not improve and some surgical intervention was required, she was, reportedly, shifted to Ganga Ram Hospital where she remained admitted from

07.02.2003 to 14.02.2003. Such vital fact that Testatrix was in hospital when the Will was executed has not even been whispered in the entire petition. Nobody knows as to who got her admitted. Nobody knows as to who bore her medical expenses. Moreover, no such family member who remained with her during her such hospitalization, has even graced the witness box. ii. Mr. Kumar, learned counsel for the Objector does admit that even the Objector is her son but since she seems to have been admitted by the other son, it was obligatory and mandatory for such other son to have entered into witness box. Such other son could have provided much needed clarity about medical condition and sound disposing mind of the Testatrix. iii. Nobody ever knew as to who had drafted the Will. It surfaced only during the appeal that it was petitioner only who had drafted the same. Being petitioner, there was no one who could have prevented him to disclose the same during trial. iv. There is nothing which may indicate that the Testatrix was in sound disposing mind when the Will was allegedly executed by her. The date of execution of such Will is 05.02.2003, but there is no certificate of any doctor of Mool Chand Hospital certifying that on said date i.e. on 05.02.2003 she was ______________________________________________________________________________________ FAO 283/2018 Page 8 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 physically and mentally fit to execute a Will. Such Will is a complicated one running into 12 pages and, therefore, keeping in mind the fact that the Testatrix was admitted in the hospital, suspicious circumstances should have been appropriately clarified but nothing has been done to elucidate those. v. Neither the Executor of the Will nor the beneficiary of the Will have entered into witness box. They must have been in the Hospital with the Testatrix during the period of her hospitalization and, therefore, it should have been apprised by them as to why there was a sudden need of executing a Will, when she rather required a surgical intervention. vi. It is a case where the Sub-Registrar had rather, as projected, come to Mool Chand Hospital for effecting registration of the Will. For any such execution, happening at a place other than the office of Sub-Registrar, there are certain compulsory pre- requisites and there is nothing on record which may indicate that any such pre-requisites were ever complied with. vii. In any such situation when somebody executes a Will in a Hospital and the maker of the Will is an aged and infirm person, Sub Registrar has to record his complete satisfaction about the mental and physical health of such person. In the case in hand, there is nothing which may show whether such Sub- Registrar had even tried to contact the Medical Superintendent or any attending Doctor under whose supervision, the Testatrix ______________________________________________________________________________________ FAO 283/2018 Page 9 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 remained admitted. There is nothing which may indicate that any such Doctor had assured the Sub-Registrar that the Testatrix was in sound disposing mind. viii. It was also imperative for the petitioner to have examined such Sub-Registrar but it was never even contemplated. ix. There is also no record which may indicate that any request in advance was sent to such Sub-Registrar for registering the Will at the Hospital. It is also not clear as to who kept the Will, after its execution. x. As per the Will, the Testatrix wanted to create a trust with the name of “Karuna Raj Vaderaa Charitable Trust”. Since she remained alive for around four years after the execution of Will and since nothing was done by her for the purposes of creating such Trust, perhaps, she was not even aware about creation of any such Trust. xi. The alleged previously registered Will dated 07.10.2002 has neither been pleaded nor proved. xii. It was Mr. Asheesh Vaderaa who was calling the shots and got the Will in question prepared, while knowing fully-well that his mother was not in sound deposing mind. xiii. Since neither the Executor nor Mr. Asheesh Vaderaa himself graced the witness box, the initial onus does not stand discharged.

28. Appellant has relied upon several judgments. These have been categorized as under: - ______________________________________________________________________________________ FAO 283/2018 Page 10 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 On the point of Suspicious Circumstance to prove Onus the Will always Propounder Sr. no. Title

1. i) Leela and Others. Vs. Muruganantham and Others.; 2025 SCC OnLine SC 16 ii) Meena Pradhan and Others Vs. Kamla Pradhan and Another; 2023 SCC OnLine SC 1198 iii) Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and Others; (2006) 13 SCC 433 iv) Bharpur Singh and Others Vs. Shamsher Singh; 2008 SCC OnLine SC 1867 v) H. Venkatachala lyengar Vs. B.N. Thimmajamma and Others; 1958 SCC OnLine SC 31 vi) Smt Jaswant Kaur Vs. Smt Amrit Kaur and Others; 1976 SCC OnLine SC 368 vii) Shashi Kumar Banerjee and Others Vs. Subodli Kumar Banerjee since deceased and after him his representatives and Others; 1963 SCC OnLine SC 114 viii) Uma Devi Nambiar and Others Vs. T.C. Sidhan (Dead); 2003 SCC OnLine SC 1371 ix) Harish Chander Kawatra Vs. State & Others; 2009 SCC OnLine Del 1480 x) Sita Kashyap Thru LRs Vs. Harbans Kashyap &Ors.; 2013 SCC OnLine Del 1971 xi) Yashoda Gupta Vs. Suniti Goyal and others; 2001 SCC OnLine Del 383

2. i) Benga Behera and Another Vs. Braja Kishore Nanda and Others; 2007 SCC OnLine SC 699 ii) Vijay Kumar Tiwari Vs. State and Anr.; 2008 SCC OnLine Del 682 iii) Raja Ram Singh Vs. Arjun Singh &Anr.; 2002 SCC OnLine Del 281 iv) Ajit Singh vs Nand Singh and Others; 1982 SCC OnLine Del 154 v) Desh Raj Gupta Vs. State and Others; 2010 SCC OnLine Del 2356 vi) Vijay Kumar Banerjee Vs. Arun Kumar Chakravarty and others; 2003 SCC OnLine All 1106 vii) Vidhyadhar Vs. Manikrao and Another; 1999 SCC OnLine SC 294 ______________________________________________________________________________________ FAO 283/2018 Page 11 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52

4. i) Oil and Natural Gas Corporation Limited, Dehradun Through Managing Director Vs. Commissioner of Income Tax, Dehradun; 2010 SCC OnLine SC 363 ii) Desh Raj Gupta Vs. State and Others; 2010 SCC OnLine Del 2356 Conduct Executor i) Rani Pnrnima Debi and Another Vs. Kumar Khagendra Narayan Deb and Another; 1961 SCC OnLine SC 89 ii) Rani Vs Kaliammal, M. Murugan and Smt. Pasurat; MANU/TN/0337/2008 iii) Iswar Bhai C. Patel alias Bachu Bhai Patel Vs. Harihar Behera and Another; 1999 SCC OnLine SC 286 iv) Ramesh DuttSalwan Vs. State Of Delhi; AIR 1989 (DEL) 47 Mere registration Will does not dispel suspicion.

5. i) Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao and Others; 2006 SCC OnLine SC 1420

6. i) Benga Behera and Another Vs. Braja Kishore Nanda and Others; 2007 SCC OnLine SC 699 ii) H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others; 1958 SCC OnLine SC 31 iii) Desh Raj Gupta Vs. State and Others; 2010 SCC OnLine Del 2356 iv) Saradindunath Ray Chowdhury Vs. Sudhir Chandra Das; 1922 SCC OnLine Cal 278 Appreciation of evidence when attesting witness visits in hospital during non- visiting hours Sound Disposing mind

29. All such contentions have been refuted by Mr. Asheesh Vaderaa and his wife.

30. Mr. Dayan Krishnan, learned Senior Counsel represents them and submits that there is no merit or substance in the present appeal and, thus, it is liable to dismissed. His contentions are as under: - ______________________________________________________________________________________ FAO 283/2018 Page 12 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 i. The nature of inquiry to be conducted by any probate Court is a summary one and its scope and ambit is very limited, as such Court is, merely, to ascertain whether there is requisite compliance of the relevant provisions of Indian Succession Act, 1925 or not. The prime duty of the Court is to find out whether the Will has been executed in the presence of two or more witnesses, and whether, at least one such attesting witness has entered into the witness box and has proved the execution of the Will. ii. There is no suspicious circumstance of any nature whatsoever and, the Testatrix was, though, admitted in Mool Chand Hospital but was of sound disposing mind. iii. Reliance has been placed upon the testimony of Dr. S.K. Thakur who has, in no uncertain terms, deposed that Testatrix was of sound disposing mind at the relevant time. Such testimony coupled with the testimony of the two attesting witnesses, clearly, suggests that the Will is unblemished. iv. The sound medical condition of the Testatrix also stands corroborated from the fact that she died approximately four years after the execution of the above said Will dated

05.02.2003. v. Mere fact that there was unequal distribution amongst the natural heirs cannot, in itself, be taken as a suspicious circumstance. vi. There is also nothing on record which may indicate that there ______________________________________________________________________________________ FAO 283/2018 Page 13 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 was any conflict of interest between the Testatrix on one side and the propounder on the other. vii. The Objector has pointed out certain discrepancies between the two Wills submitted during trial i.e. Will produced by the Executor (Ex-PW1/A) and the Will produced by the official from the office of Sub Registrar Office (ExRW-1/A) and these are, merely, in the nature of typographical discrepancies and do not, even otherwise, materially alter the bequest and these might have happened because of the fact that the execution of Will had taken place at a Hospital and, therefore, no significance can be attached to such discrepancies. viii. Mr. Amitabh Narayan, Mr. Asheesh Vaderaa and Mrs. Monica Vaderaa were never involved either with respect to execution or with the registration of the Will. ix. The assertion that execution and registration was at behest of Mr. Asheesh Vaderaa is totally false. Testatrix and her son- Mr. Asheesh Vaderaa, were on good terms and, in fact, she completely relied on him and trusted him extensively. There was never any acrimony between them, at any point of time. Moreover, there is nothing which may indicate that Mr. Asheesh Vaderaa has got a lion‟s share under the Will, supplementing that the contentions in this regard have been made, simply, to prejudice the mind of the Court.

31. Mr. Krishnan, learned Senior Counsel also relies upon the following precedents: - ______________________________________________________________________________________ FAO 283/2018 Page 14 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 On the point of Suspicious Circumstances inference Adverse cannot be drawn relation to an aspect, without having given witness an opportunity to explain that aspect. Impact of no cross- examination of witness on a particular aspect. Person, not coming with clean hands, is not entitled to any relief. Person close to maker of Will cannot be suspected merely because he Executor. voluntary, has to be accepted. Will, Appreciation of evidence Onus to prove the Will is always on Propounder Title Sr. no.

1. i) Meena Pradhan and Others Vs. Kamla Pradhan and Another; 2023 SCC OnLine SC 1198 ii) Uma Devi Nambiar and Others Vs. T.C. Sidhan; (2004) 2 SCC 321

2. i) Gian Chand and Others Vs. State of Haryana; (2013) 14 SCC 420

3. i) State of U.P. Vs. Nahar Singh (Dead) and Others; (1998) 3 SCC 561

4. i) Kishore Samrite Vs. State of Uttar Pradesh and Others.; (2013) 2 SCC 398

5. i) Ravindra Nath Mukherjee and Another Vs. Panchanan Banerjee and Others; (1995) 4 SCC 459

6. i) P.S. Sairam and Another Vs. P.S. Rama Rao Pissey and Others; (2004) 11 SCC 320

7. i) Sridevi and Others Vs. Jayaraja Shetty and