the high court of delhi at new delhi sharma ahluwalia...for the plaintiff: mr. raman kapoor, mr....

Test Case No. 38/2001 of 37

THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 25.11.2010 Judgment Pronounced on: 29.11.2010

+ TEST CASE NO. 38/2001

Madhwi Sharma Ahluwalia ..…Plaintiff

- versus -

State .....Defendant

Advocates who appeared in this case: For the Plaintiff: Mr. Raman Kapoor, Mr. Dheeraj Sachdeva

and Mr. Hunni Taneja For the Defendant: Mr. Sudhir Nandrajog, Sr. Advocate with

Mr. Sudheer Pandey

CORAM:- HON’BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may

be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported Yes in Digest?

V.K. JAIN, J

1. This is a petition under Section 276 of the Indian

Succession Act for grant of Probate/Letter of Administration

with respect to the estate of Late Sh. Ram Chander Sharma,

who expired on 2.5.2001. It has been alleged in the petition

that late Sh. Ram Chander Sharma had executed his last

will on 30.10.2000 which was registered with Sub Registrar,


Delhi on the same date. The particulars of his estate are

given in Annexure „C‟ to the petition.

2. The petitioner is the daughter of Late Sh. Ram

Chander Sharma, born from his first wife. Mrs. Asha R.

Sharma, third wife of the deceased is his other class one

legal heir. No other legal heir was left by the deceased.

3. Objections have been filed by Smt. Asha R. Sharma

primarily on the grounds that the Will set up by the

petitioner was not executed by Late Sh. Ram Chandere

Sharma and that he was not in a sound disposing mind at

the time this will is alleged to have been executed.

4. The following issues were framed on the pleadings

of the parties:-

(i) Whether Shri Ram Chander Sharma

executed Will and Testament dated 30.10.2000? OPP.

If issue No.1 is decided in the affirmative—

(ii) Whether Shri Ram Chander Sharma

was not in sound disposing mind to execute such a Will? OPD.

5. Issue No.1 and 2:-

Both these issues are inter connected and can be

conveniently decided together. The petitioner has produced


five witnesses including herself in support of her case. The

objector has produced two witnesses including herself.

6. The will set up by the petitioner is Ex. PW 2/1 and

purports to have been executed in the presence of two

witnesses, namely, Amrit Lal Ahluwalia and Rajni Bhatia.

Mr. Amrit Lal Ahluwalia died on 6.11.2002 whereas Smt.

Rajni Bhatia has come in the witnessbox as PW 2. In her

affidavit Ms. Rajni Bhatia stated that late Sh. Ram Chander

Sharma being the father of her friend petitioner Madhwi

Sharma, was known to her and had requested him to be an

attesting witness to his last Will and testament on

30.10.2000. She went to the office of Sub Registrar at Vikas

Sadan, INA , New Delhi where the deceased was present

along with Sh. Amrit Lal Ahluwalia, father-in-law of the

petitioner and his son Sh. Anoop Ahluwalia. On the request

of the deceased testator, she signed as one of the attesting

witnesses of the Will. She also saw Mr. Ram Chander

Sharma appending his signature on each page of this Will.

Sh. Amrit Lal Ahluwalia, resident of 2181/62 Karol Bagh,

New Delhi who is the other attesting witness of the Will was

present at that time. She further stated that she and Amrit


Lal Ahluwalia had also signed the Will in the presence of

each other and in the presence of the testator, on that date.

7. PW 3 Anup Ahluwalia is the son of late Shri Amrit

Lal Ahluwalia and brother-in-law of the petitioner. He has

stated that on 30.10.2000 he also had accompanied his

father to the office of Sub-Registrar at Vikas Sadan, INA,

New Delhi. He has identified the signature of his father Sh.

Amrit Lal Ahluwalia on the Will Ex. PW 2/1.

8. PW 4 Dr. Vinod Sharma has stated that late Sh.

Ram Chander used to consult him and the certificate Ex.

PW 4/1 was given by him on 23.10.2000. According to him,

the deceased had consulted him in the year 1995-96 when

he was admitted in National Heart Institute East of Kailash,

New Delhi. He stated that Mr. Ram Chander Sharma was

in perfect mental condition when he examined him in

October, 1996 and gave this certificate. He also stated that

to his knowledge, the deceased was not suffering from liver

cirrhosis. He has also proved the certificate Ex. PW 4/2

issued by him on 20.11.2000. According to him the

certificate Ex. PW 4/2 was given on the request of Mr. Ram

Chander Sharma, who wanted him to certify recovery from

his initial illness, so that he could resume his business


responsibilities. Since his condition was not such as to

permit him to attend his responsibility, this certificate was

issued by him.

9. PW 5 Mr. S. Seshadri is an official from the office

of Sub Registrar and he has proved the registration of the

Will Ex. PW 2/1. He , however, was not involved in the

Registration of this document. The petitioner who came in

the witnessbox as PW 1 stated in her affidavit that the

objector had deserted the deceased Ram Chander in the

year 1984 and was constantly pressurising him over money

and his estate. She also stated that she was residing with

the deceased at the time of his death .

10. The Objector who came in the witness box as OW

1 stated in her affidavit that till the year 1984 Late Sh. Ram

Chander Sharma used to reside with her in Mumbai in the

year 1984. One of his companies went bankrupt and,

therefore, he came to Delhi so as to shield himself from the

creditors. She, however, continued to have cordial relations

with him even while living in Mumbai. She also stated that

since late Sh. Ram Chander Sharma was a serious alcoholic

for a long time and was suffering from a number of

problems such as blood pressure, heart problem and loss of


memory, he was not in a perfect state of mind and was not

able to recollect and answer the questions. She also stated

that her husband had never executed any will and there

was no occasion for him to oust her from his huge estate.

She also claimed that the will set up by the petitioner was a

fabricated document obtained by playing fraud upon the

deceased.

11. OW 2 Smt. Chandrika Vasudeva stated that she

was a family friend of Late Sh. Ram Chander Sharma and

whenever he visited Delhi he used to come and meet her.

She further stated that he was a severe alcoholic and had

developed several diseases. She claimed that the

alcoholism of late Sh. Ram Chander Sharma had affected

his rationality and he was suffering from a number of

problems such as blood pressure, heart problem and other

diseases.

12. The Will dated 30th October, 2000 was registered

with the Sub-Registrar on the same date and bears a

photograph of the executant. This is not the case of the

Objector that the photograph, affixed on the Will, is not of

late Shri Ram Chander Sharma and is of some other

person. This is also not the case of the Objector that some


other person had impersonated as Shri Ram Chander

Sharma before the Sub-Registrar on 30th October, 2000.

This is also not her case that the signatures of the Testator

on the Will are not the genuine signature of late Shri Ram

Chander Sharma and have been forged. In her deposition,

the Objector did not dispute either the photograph or the

signature of the executant of the Will. It, therefore, cannot

be disputed that the Will bears the photographs as well as

the signature of late Shri Ram Chander Sharma. It is true

that there is no difference between a registered will and an

unregistered will so far as their genuineness and

authenticity are concerned but it is equally true that a

registered will stands on a better footing than an

unregistered will inasmuch as about a registered will it is

taken that it was the act of a testator of a sound disposing

mind. About an unregistered will, it is not taken that it was

the act of a testator of sound disposing mind.

13. The burden of proving that the Will was validly

executed and is a genuine document is no doubt on the

propounder of the Will. He is required to prove that the

Testator had signed the Will and had put his signature out

of his own free Will. He is also required to prove that the


Testator, at the time of execution of the Will, had a sound

disposition of mind and was in a position to understand the

nature and effect of what he was doing. If sufficient

evidence in this behalf is produced by the propounder of the

Will, the onus cast on him stands duly discharged.

14. The execution of an unprivileged Will is

government by Section 63 of Indian Succession Act which,

to the extent it is relevant, provides that the Will shall be

attested by two or more witnesses, each of whom has seen

the testator sign or affix his mark to the Will or has seen

some other person sign the Will, in the presence and by the

direction of the testator, or has received from the testator a

personal acknowledgment of his signature or mark, or of

the signature of such other person; and each of the

witnesses shall sign the Will in the presence of the testator,

but it shall not be necessary that more than one witness be

present at the same time, and no particular form of

attestation shall be necessary.

Section 68 of Evidence Act, to the extent, it is relevant,

provides that if a document is required by law to be

attested, it shall not be used as evidence until at least one

attesting witness 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. Since the Will is a document required by law to

be attested by at least two witnesses, the petitioner could

have proved it by producing one of the attesting witnesses

of the Will.

15. In the present case, the petitioner has discharged

the onus place upon her by examining one of the attesting

witnesses Smt. Rajni Bhatia. The testimony of this witness

could not be impeached during her cross-examination. She

was well-known to the Testator she being a friend of the

petitioner. But, her friendship with the petitioner that by

itself and without anything more, does not affect her

credibility as a witness. During her cross-examination, no

suggestion was given to her that she had not accompanied

late Shri Ram Chander Sharma to the office of Sub-

Registrar on 30th October, 2000. In fact, no suggestion was

given to her that late Shri Ram Chander Sharma was

disoriented or was not in a disposing state of mind on that

date. Moreover, the signatures of this witness were also

obtained by the Sub-Registrar at the time of registration of

the Will as per the standard practice adopted by such


offices. The execution of the Will thus has been duly proved

by the petitioner.

16. The second attesting witness Shri Amrit Lal

Ahluwalia having died, it was not possible for the petitioner

to produce her in the witness box. His signature, however,

have been identified by his son Shri Anup Ahluwalia who

also had accompanied him and the Testator to the office of

Sub-Registrar on that date. It is true that both late Shri

Amrit Lal Ahluwalia as well as his son Shri Anup Ahluwalia

are related to the petitioner. But, neither attestation by Shri

Amrit Lal Ahluwalia nor the deposition of Shri Anup

Ahluwalia can be rejected merely on account of their

relationship with the petitioner. It is not unusual for a

person executing a Will to request his friends and/or

relatives to be attesting witnesses to his Will. Normally, one

does not ask an outsider to be an attesting witness to his

Will, execution of the Will being a family matter, which one

normally would not like to share with the outsiders. He

looks for the relatives and/or friends who are readily

available and are willing to spend time to witness the

execution of his Will and in case he proposes to get the Will


registered, also to spare time to accompany him to the office

of the concerned Sub-Registrar.

17. Another requirement of law is that if there are

suspicious circumstances surrounding the execution of a

Will, the onus is on the propounder to explain those

circumstances to the satisfaction of the Court, before the

Will is accepted as a genuine document. The suspicious

circumstances may be many such as (i) the signature of the

Testator may be shaky and doubtful or different from his

usual signatures; (ii) the mental condition of the Testator

may be feeble and debilitated at the time of the execution of

the Will; (iii) the disposition may be such as is found to be

unnatural, improbable or unfair in the light of relevant

circumstances, such as exclusion of natural heirs without

any reason (iv) the propounder may take a prominent part

in the execution of the Will; (v) the Will may not see the light

of the day for long time; (vi) the Will may contain incorrect

recital of essential facts. Of course, the suspicious

circumstances, alleged by a person who disputes the

genuineness of the Will, ought to be real and germane and

not the imagination of a doubting mind amounting to

conjecture or mistrust.


18. It is also a settled proposition of law, fraud,

coercion or undue influence is alleged in execution of a Will,

the burden of proving the same would be on the person by

whom such a plea is set up. (Madhukar D. Shende v.

Tarabai Aba Shedage (2002) 2 SCC 85, Sridevi and Ors. v.

Jayaraja Shetty and Ors., (2005) 2 SCC 784.)

19. It was observed by Supreme Court in Bharpur

Singh and Ors. v. Shamsher Singh, (2009) 3 SCC 687, that

though deprivation of due share to the natural heirs by

itself may not be a suspicious circumstance, it is one of the

factors which is taken into consideration by the Courts

before granting probate of a Will.

20. In the case before this Court, the Objector being

the wife of late Shri Ram Chander Sharma was one of his

natural heirs and, therefore her complete exclusion from

the estate of the deceased may be a suspicious

circumstance surrounding the Will unless it is shown that

there were reasons for the late Testator of the Will to

exclude her from his estate. The Courts need to appreciate

that the purpose behind execution of a Will is to alter the

ordinary mode of succession and, therefore normally it does

result in either reducing the share of one or more natural


heirs or depriving them of any share in the estate of the

deceased. If a person wants to give his property to his legal

heirs in equal shares, there is no necessity for him to

execute a Will, since in the absence of a Will, the property

would be equally divided amongst all his legal heirs.

21. It was observed by Supreme Court in Rabindra

Nath Mukherjee & Anr v. Panchanan Banerjee (dead) by

L.Rs. & others, (1995) 4 SCC 459, that circumstances of

deprivation of natural heirs should not raise any suspicion

because the whole idea behind execution of the Will is to

interfere with the normal line of succession and, therefore,

the natural heirs would be debarred in every case of Will.

Of course, in some cases, they may be fully debarred,

whereas in some cases, debarring may be partial.

In Uma Devi Nambiar and Ors. v. T.C. Sidhan

(Dead) (2004) 2 SCC 321, Supreme Court was of the view

that mere depriving the natural heirs should not raise any

suspicion because the whole idea behind execution of the

Will is to interfere with the normal line of succession.

22. Once it is found that the propounder of the Will

has succeeded in removing the suspicious circumstances,

the Court is required to give full effect to the Will even if it


appears to be unnatural in the sense that it either excludes

one or more legal heirs from the estate of the deceased or

reduces the share which they would otherwise have got in

the absence of a Will.

23. An endorsement made at point „H‟ on the Will

Ex.PW 2/1, in the office of Sub-Registrar, indicates

presence of the petitioner at the time of registration, though

it has been denied by the attesting witness. It was observed

by Supreme Court in Pentakota Satyanarayana and Ors.

v. Pentakota Seetharatnam and Ors. (2005) 8 SCC 67 that

even active participation by the propounder/beneficiary in

the execution of the Will by itself is not sufficient to create

doubt either about the testamentary capacity or the

genuineness of the Will. Mere presence of beneficiary at the

time of execution would not prove that he had taken a

prominent part in execution of the Will. (Sridevi and Ors. v.

Jayaraja Shetty and Ors., (2005) 2 SCC 784).

24. The first question which comes up for

consideration in this case is as to whether the facts and

circumstances of the case disclose a good reason for late

Sh. Ram Chander Sharma to exclude his third wife, the

objector Smt. Asha Sharma, from his estate. It is an


admitted case that 1984 onwards late Sh. Ram Chander

Sharma was residing in Delhi whereas the objector was

residing was residing at Bombay in the flat in Usha Kiran.

The reason given by the objector for late Sh. Ram Chander

Sharma shifting to Delhi is that since one of his companies

had become insolvent, he had fled from Bombay and shifted

to Delhi in order to shield himself from the creditors.

Nevertheless, the fact remains that 1984 onwards late Sh.

Ram Chander Sharma was living in Delhi whereas the

objector continued to reside in the flat where they were

living before the deceased shifted to Delhi. The case of the

petitioner is that the relations between the deceased Ram

Chander Sharma and the objector were far from cordial.

25. Ex.OW1/P1 is the copy of the complaint made

before family Court at Bombay on 23rd April 2001, in the

lifetime of late Sh. Ram Chander Sharma, who was

impleaded as respondent No.1 in this petition. The

petitioner Madhavi Ahluwalia was impleaded as respondent

No.2 in this petition. The document has been admitted by

the objector in her cross-examination and, therefore, its

authenticity is not in dispute. The objector inter alia

alleged as under in the petition filed by her:


“6(e) The relationship between the petitioner and the respondent No.1 was

estranged from 1982. The respondent then handed over the suit flat to the

petitioner for her exclusive use and occupation and left the suit premises and

the petitioner forever.

(d) The respondent No.1 after leaving the suit premises in 1983/84, has never

visited the suit premises.

(e) The petitioner has continued to reside in the suit premises exclusively

since 1982. The petitioner was in hostile possession of the suit premises. The

petitioner alone was in occupation, possession, control and charge of the suit

premises. The petitioner alone has looked after all the affairs and management of the suit premises. The petitioner alone

has only paid all society outgoings, society charges, repair charges and all

other expenses relating to the suit premises since 1983/84.

The anger of difficult business conditions

and paucity of funds, the respondent No.1 poured out on the petitioner. This

caused an extreme harassment and mental cruelty to the petitioner in his

frustration. The respondent No.1 made extremely sarcastic remarks and stated

that the petitioner had brought him bad luck and she was a cause of his downfall.

The respondent No.1 exhibited a complete hostile and adverse attitude against the

petitioner. In the meantime, petitioner‟s relationship

with the respondent No.1 deteriorated very fast and respondent No.1 left

Bombay in the year 1984. The


respondent No.1 abandoned the petitioner totally leaving her in the suit

flat without any financial support or means.

Since 1984, i.e. 17 years ago, the

respondent has not provided any type of financial support or maintenance leave

alone whether petitioner was alive or dead. The respondent No.1 showed a

total neglect and callous attitude towards the petitioner. All these years, the

petitioner had to look after herself and maintain the suit flat and pay large sums

towards flat outgoings and society charges and repair and maintain charges

and all ailed expenses related to the suit flat.

The respondent No.1 continued deserting the petitioner and the petitioner having

no other option had to continue living abandoned and deserted life in the suit

flat. In all these years of loneliness, the petitioner has carved a niche for herself,

accepting the separation and has molded her life accordingly.

On 17/03/2001, the petitioner‟s

returning home at night, she was informed by her servant that the

respondent No.1 had come to Bombay with his daughter respondent No.2

The petitioner solely has maintained the

suit premises for all these years and his entering into suit premises with

respondent No.2 without her permission and consent amounts to trespassing in the suit premises which is a criminal

offence.

The petitioner submits that the


respondents have made petitioner‟s life totally miserable. The respondents are

harassing and torturing the petitioner in every manner to make petitioner walk out

of the suit premises.

The respondents are therefore liable to vacate/remove themselves with their

family members, relatives and servants and agents from entering into an

remaining upon the suit premises. The petitioner is entitled to interim order to

that effect.

Prayer clause

(a) that this Hon‟ble Court may be pleased to restrain the respondents their

family members, relatives and servants and agents by a mandatory and perpetual injunction from entering into and

remaining upon the suit premises viz. Flat No.34, in Usha Kiran Building, Car

Micheal Road, Bombay 400 036.

(e) Pending the hearing and final disposal of the petition, this Hon‟ble

Court may be pleased to restrain the respondents, their family members,

relatives and agents by an order of mandatory and permanent injunction

from entering into and remaining upon the suit premises.

26. Ex.OW1/P2 is the complaint made by the objector

Smt. Asha Sharma to Gamdevi Police Station, Mumbai

against late Sh. Ram Chander Sharma and the petitioner

Madhavi Ahluwalia on 9th April 2001. This document has


been admitted by the objector in her cross-examination. In

this complaint, Smt. Asha Sharma inter alia alleged as

under:-

“The complainant states that opponent No.1 is the husband of complainant who has deserted the complainant for past

about 18 years. Opponent No.2 happens to be the daughter of opponent No.1

through his first marriage.

On 8/4/2001, at about 11.00 hrs. or so opponent No.1, brought his daughter,

i.e., opponent No.2 along with three children and servants who had arrived

from Delhi by Rajdhani Express, forcibly entered the premises despite the

complainant objecting to them. Further, during the course of stay, these were

arguments between complainant and the opponents.”

27. Ex.OW-1/P3 is the copy of the complaint made by

the objector to N.C. Gamdevi Police Station on 7th April

2001. This document has also been admitted by the

objector in her cross-examination. In this complaint, she

inter alias alleged as under:-

“The opponent No.1 left the complainant

in 1984 and deserved her without any reasonable cause since then the

complainant has been living separately. The complainant‟s only support was

sheltered in Mumbai at 34, Usha Kiran, Carmihale Road, Mumbai, which


happens to be a matrimonial home and where she has been residing alone for the

past 18 years without any interruption with here belonging furniture fixtures and

fittings. She alone is paying the outgoing for the above mentioned flat which is

maintained by her.

On 17.03.2001 at 17.30 hrs. or so both the opponents came from Delhi and

pounced upon her at her flat in Mumbai, they further threatened that opponent

No.2 with her husband Mr. Atul Ahluwalia and her three children would

come permanently to reside at the said flat.

Ever since a device has been resorted to

by opponent No.1 in collusion with opponent No.l2 to harass in cause the complainant untold mental torture

pinpricks and needling to the complainant in every conceivable way so

that the complainant is compelled to leave the home for opponent No.1&2.

Both the opponents has got mala fide intentions towards the complainants and

with their tactics complaint is likely to lose mental balance health.

The complainant apprehends danger to

her life at the hands of opponents.”

28. Ex.OW-1/P4 is the letter which the petitioner

admittedly had written to all partners of Sharma Group. In

this letter she inter alia alleged as under:-

“For 17 years, I have been supporting

myself and continued to do so till date. I alone, have been maintain myself and


all bills relating to 34 Usha Kiran which include structural repairs, maintenance,

monthly outgoings, electricity and telephones bills which have been all paid

by me from 1984.

He and his daughter harassed me mentally and filed police complaints

against me.”

29. The aforesaid documentary evidence authored by

none other than the objector Smt. Asha Sharm leaves no

doubt that late Sh. Ram Chander Sharma and the objector

Smt. Asha Sharma were living separately for about 17 years

before late Sh. Ram Chander Sharma decided to shift back

to Bombay, along with the petitioner who was his daughter.

These documents also show that the relations between the

objector and late Sh. Ram Chander Sharma were far from

cordial and were in fact extremely poor. These documents

also indicate that the objector Smt. Asha Sharma was

aggrieved that late Sh. Ram Chander Sharma was not

meeting her expenses and that it was she who was

incurring all the expenditure in relation to her boarding and

lodging including the maintenance of flat in Usha Kiran.

The deterioration in the relationship had gone to such an

extent that the objector went not only to Police Station and


lodged written complaint not only against the petitioner as

well as against her husband, she also approached the

family Court complaining trespass by them in Usha Kiran

flat, despite that fact that the flat in Usha Kiran was

provided to her by none other than late Sh. Ram Chander

Sharma and she had no right, title or interest in that flat.

The extent of strain in the relationship of the objector with

late Sh. Ram Chander Sharma is evident from the fact that

she did not hesitate to go public with her differences with

the deceased and publically disclosed them to all the

partners of Sharma Group, with which the deceased was

associated. In the face of extreme hostility between the

objector and deceased, as exhibited in the petition in family

Court Ex.OW-1/P1 complaints to police Ex.OW-1/P1 and

P3 and the letter Ex.OW-/1P1, it is extremely difficult to

dispute that there was no love lost between the objector and

the deceased. Though the documents Ex.OW1/P1 to

OW1/P5 were written after execution of the Will on 30th

November 2000, it is difficult to dispute that they exhibit

the strained relations and hostilities between the objector

and the deceased, since 1984, when the deceased shifted to

Delhi, and allegedly deserted the objector. This is not the


case of the objector that her relations with the deceased got

strained on account of the Will executed by her. Her case is

that the Will Ex.PW2/1 was not executed by him at all.

30. The unhappiness of the deceased with the objector

is also evident from a Will Ex.OW1/P5, which late Sh. Ram

Chander Sharma prepared when he was 55 years old, i.e.

about 20 years before his death. In para 3 of this

document, he recorded that he was not satisfied with the

way of living of his wife Mrs. Asha Sharma, totally

disapproved her way of living and was not desirous of giving

her anything by way of Will. In the backdrop of the strained

relationship and open hostility between the objector and

late Sh. Ram Chander Sharma, it was quite natural on his

part to exclude the objector from his estate, particularly

when he had not only a child, but also three grandchildren.

It would be unrealistic to expect the husband to bequeath

even a part of his estate to his third wife, who had chosen to

live separately from her husband for as many as 16 years

instead of joining him to Delhi. Assuming that late Sh. Ram

Chander Sharma was running away from his creditors on

account of one of his companies having gone bankrupt, a

loyal wife is not expected to leave her husband alone in


such a time of distress and difficulty. She would rather

prefer to live with her husband, wherever he decides to live

and share all his difficulties and worries. The company of

the wife is extremely important to the husband particularly

when he is in difficulty and is going through a rough phase

in his life. There can be no substitute for the emotional

support, which the wife can give to him in such times. It is

not as if there was some compulsion for the objector to

continue living in Bombay at the cost of leaving her

husband in Delhi. The documentary evidence in the form of

the petition filed before Family Court and the complaints

made by the objector to the police leave no doubt that it was

on account of strained relationship between husband and

wife and not on account of some compulsion of the objector,

that she was living in Mumbai.

31. The admissions made by the objector in her cross-

examination also show that she was financially well of and,

therefore, could have managed very well without any

financial support from the estate of her husband. In her

cross-examination, the objector has admitted that she owns

half share in a commercial property at Mittal Court in

Mumbai and 1/5th share in Worli, Mumbai. She also


admitted that she has half share in a property measuring

more than 1,000 sq. yds. in Vasant Vihar, New Delhi. She

has also admitted that she was getting rental income from

the aforesaid property. Though she declined to disclose her

rental income from Vasant Vihar property, she claimed that

she was earning a fair rental income from that house and

that by fair amount, she meant about Rs.2Lacs per month.

She also admitted that she was realizing about 40-50,000/-

rental income from other properties. Thus, it can hardly be

disputed that the objector owned substantial immovable

property and was financially very well of. This, to my mind

was another reason which would have compelled late Sh.

Ram Chander Sharma to exclude her all together from his

estate. If, the relationship between the husband and wife is

extremely poor, inasmuch as that they are living separately

for as many as 16-17 years and the deterioration in the

relationship is to such as an extent that the wife does not

hesitate in going to police as well as to the Court against

her husband and she is otherwise very well off of having

very large immovable properties and is getting substantial

income by way of rent, the husband is not likely to leave

any part of his estate to her. Such a person in the ordinary


course of human conduct is definitely likely to give away all

his properties to his child, to the complete exclusion of his

wife. Therefore, there was nothing unusual in the

deceased-testator excluding the objector from his estate.

32. Coming to the mental disposition of the deceased,

a perusal of the certificate Ex.PW4/1 which PW-4 Dr. Vinod

Sharma had issued on 23rd October 2000 would show that

late Sh. Ram Chander Sharma was in perfect mental

condition at the time this certificate was issued. Dr. Vinod

Sharma has come in the witness box as PW-4 and has

stated that when he examined late Sh. Ram Sharma in

October 2000, he was in perfect mental condition and was

not mentally disoriented. He also stated that the deceased

was not suffering from cirrhosis of liver. This is not the

case of the objector that late Sh. Ram Chander Sharma was

not under treatment of Dr. Vinod Sharma and was not

examined by him in October 2000 when the certificate was

issued. In fact, the objector herself has referred to another

certificate issued by this very Doctor on 23rd October 2000

in para 12 of the objections filed by her. She herself has

stated in the objections that the Dr. Vinod Sharma of

National Heart Institute, New Delhi had given certificate on


23rd November 2000, that the deceased had developed

depressive illness and memory defect and was not able to

recollect and answer the question. Therefore, there is no

dispute as regard examination of late Sh. Ram Chander

Sharma by this witness and the genuineness of the

certificate issued by him.

33. As regards the certificate Ex.PW4/2 relied upon by

the objector, Dr. Vinod Sharma stated that Sh. Ram

Chander Sharma, who had recovered from his initial illness

had come to him for a follow up. He was in a depressed

state of mind due to chronic illness and some of his

business stresses. He wanted him to issue certificate so

that he could reassume his business responsibility in full

fledged way. However, since in his assessment, the general

condition of Sh. Ram Chander Sharma was not such as to

permit him to attend his responsibilities, he issued the

certificate Ex.P4/D2 to him. Explaining the certificate, he

stated that it meant that Sh. Ram Chander Sharma was not

in perfect frame of mind due to underlying chronic illness

and depressive psychosis. He also clarified that by

emotionally labile, he meant the varying decree of emotional

outburst or expressions. When he was asked as to whether


it meant that the person was otherwise in proper frame of

mind except this temporary or emotional outburst, he

stated that this was just the emotional aspect which was

very labile and exaggerated expression. However, the

cognitive and analytical function of the brain remains

intact. According to him, this emotional outburst and

depressive psychosis was a temporary phase due to chronic

illness. Later, when Sh. Ram Chander Sharma was

admitted in the hospital in Mumbai the doctor wanted to

perform brain surgery, this witness allowed them to go for

high risk brain surgery, opining that it was worthwhile

taking the risk.

34. In view of the deposition of Dr. Vinod Sharma, it

cannot be disputed that at the time of Will was executed

and got registered by late Sh. Ram Chander Sharma on 30th

October 2000, he possessed requisite mental disposition

and was in a position to understand and decide what he

wanted to do with his estate. There is nothing on record to

indicate that between 23rd October 2000 when late Sh. Ram

Chander Sharma was examined by PW-4 Dr. Vinod Sharma

and was found to be in perfect mental condition and 30th

October 2000 when the Will Ex.PW2/1 was executed and


got registered by him, the physical and/or mental condition

of the deceased had deteriorated to such an extent that he

was not possessed of the requisite disposition of mind at the

time the Will was executed by him. Assuming that at the

time of execution of the Will on 30th October 2000, he

continued to suffer from mental outburst or expressions,

that by itself could not have prevented him or

understanding the nature of what he was doing and making

a rational decision with respect to bequest of the properties

which were owned by him. The Will Ex.PW2/1 was

executed and got registered on 30th October 2000, whereas

late Sh. Ram Chander Sharma expired on 2nd May 2001.

He, therefore, lived for more than six months after execution

of the Will. It is an admitted case that late Sh. Ram

Chander Sharma died on account of fall while walking and

not on account of the chronic ailments from which he was

suffering. A perusal of the death summary of the deceased

Ex.PW1/O3 prepared by Jaslok Hospital & Research

Centre, Mumbail shows that he was taken to hospital at

about 5:20 PM on 11th April 2001 with history of fall. On

admission, he was found to be conscious. In her cross-

examination, the objector Smt. Asha Sharma has stated


that she was informed by the Marshal of the building that

Mr. Ram Chander Sharma, while having an evening walk

after drinking in the afternoon, had missed a step because

the road was very uneven and had to be rushed to Jaslok

Hospital, Mumbai. The very fact that Sh. Ram Chander

Sharma decided to go for an evening walk in the afternoon

indicates that he was mentally and physically stable at that

time. Had he not been stable, he would not have gone on a

walk. It is not as if he fell down on account of some ailment

from which he was suffering. He fell down since he missed

a step on account of the road being uneven. Therefore, it is

difficult to say that at the time he fell down on 11th April

2001, he was disoriented or was mentally or physically

unstable.

35. In her petition before family Court Ex.PW1/P1, the

objector herself claimed that late Sh. Ram Chander

Sharma, when he returned to Bombay on 17th March 2001,

told her that he had come to live in Mumbai an asked her to

make her arrangement to live in. She further alleged that

late Sh. Ram Chander Sharma asked her to get out of the

premises and that they were harassing and torturing her in

every manner and had made her life totally miserable. Had


late Sh. Ram Chander Sharma not been in a fit state of

health or mind, there could have been no question of his

harassing and torturing the objector and making her life

miserable. In the complaint Ex.PW1/P2 made to the police

on 9th April 2001, she alleged that there was argument

between her and on one hand and Sh. Ram Chander

Shamra and Madhavi Ahluwalia on the other hand. This

allegation indicates that the mental faculties of late Sh.

Ram Chander Sharma were normal at the time of the

alleged arguments on 8th April 2001. In the complaint made

to the police on 7th April 2001, the objector alleged that on

17th March 2001 at about 5:30 PM late Sh. Ram Chander

Sharma and Ms. Madhavi Ahluwalia pounced upon her and

threatened her. She also alleged that by mental torture and

pinpricks and needling they had brought untold mental

torture to her and she apprehended danger to her life at

their hands. Obviously such allegations are not made

against a person, who is disoriented or his not in a fit state

of health and/or mind.

36. The learned counsel for the objector has drawn my

attention to the discharge summary Edx.PW4/O3 prepared

at the time late Sh. Ram Chander Sharma was discharged


from hospital on 18th October 2000. It is recorded in the

discharge summary that Ram Chander Sharma was a case

of ASMI, CABG in 1983, ventricular arrhythimia, chronic

smoker and ethanolic. It further shows that he was

admitted with complaint of progressively loss of appetite for

1 to 2 week followed by diarrhea 2 to 3 times and for last 24

hours. He had become unaware of surroundings and

became confused. The discharge summary further shows

that disorientation of Mr. Ram Chander Sharma was

attributed to hepatic encephalopathy. As explained by PW-

4 Dr. Vinod Sharma, hepatic encephalopathy is a liver

disorder of the brain in layman‟s term. Discharge summary

also shows that electrolyte of the patient was corrected and

his billirubin level came down during the course in hospital.

At the time of discharge the patient‟s condition was good

dysetectnemia. Therefore, it cannot be said that at the time

of his discharge from the hospital on 18th October 2010 late

Sh. Ram Chander Sharma was disoriented or was in a

confused state of mind. It cannot be said that his physical

and mental condition at the time of discharge from the

hospital, was such, as could have prevented from

understanding what he was doing while executing the Will


Ex.PW2/1 and was taking a rational and well considered

decision with respect to his estate. I, therefore, hold that

late Sh. Ram Chander Sharma possessed requisite

disposition of mind at the time he executed and got the Will

Ex.PW2/1 registered on 30th October 2010.

37. It was contended by the learned counsel for the

objector that the Will Ex.PW2/1 contained incorrect facts

with respect to properties, subject matter of the Will, which

indicates that late Sh. Ram Chander Sharma was not in a

healthy state of mind while executing this Will. However,

when asked to point out the alleged inaccuracy, the learned

counsel for the objector stated that the properties

mentioned in Para 3 of the Will were not owned by late Sh.

Ram Chander Sharma. I, however, find that the deceased

did not claim that these properties were owned by him. He

merely stated that he had share/interest in the business

concern mentioned in the Will, which was under litigation

in Civil Appeal No. 2809 and 2810 of 1979 and which had

been referred for settlement between the various contesting

parties including himself for the mediation by Hon‟ble Mr.

Justice M.K. Mukherjee and that he had a substantial

vested right in all the properties of various firms and private


limited company, which were subject matter of the said

case. He then proceeded to bequeath his entire rights and

interests in the money and properties mentioned in the said

civil appeal to his daughter Madhavi Ahluwalia. As regards

Flat No. 34, Usha Kiran at Mumbai, he did not claim that

he was its owner. He claimed that he was in possession of

the aforesaid flat which he had bequeathed to his daughter

Madhavi Ahluwalia. Since the objector was residing in

Usha Kiran flat under the authority of the deceased and not

by virtue of some independent right vesting in her, the

equal possession of the flat continued to vest in the

deceased. Hence, there was no factual inaccuracy in the

Will. He claimed a right in House No.3, Alipur road,

Calcutta and also bequeathed the property at 145 A

Shahpur Road, New Delhi to the petitioner. There is

nothing to show that the deceased had no interest in the

aforesaid property. He also claimed interests and rights

with certain factory properties in Kanpur, Siliguri Jaipur,

Calcutta and Cochin which were subject matter of Civil Suit

No. 2809 and 2910 of 1979. There is nothing to show that

these properties were not subject matter of the aforesaid

appeals. Another important circumstance in this regard is


that when PW-5 who is the official in the office of Sub

Registrar, Mumbai was examined, it transpired that another

Will was executed by late Sh. Ram Chander Sharma on the

very same day on which Will Ex.PW2/1 was executed by

him. Vide this Will, he bequeathed agricultural land in two

villages in District Alwar of Rajasthan to his grandchildren

Vedant, Eesha and Sidhant. These agricultural lands were

not made subject matter of the Will Ex.PW2/1. This clearly

indicates that late Sh. Ram Chander Sharma was in a fit

state of mind on 30th October 2000 and that is why he

decided to bequeath the agricultural land to his grandsons

while bequeathing rest of his estate to the petitioner.

Neither did he refer to agricultural land in District Alwar in

the Will Ex.PW2/1 nor did he refer to the properties

mentioned in the Will Ex. PW2/1, in the Will which he

executed in favour of his grandchildren. Admittedly, the

grandchildren of the deceased had not applied for probate of

the Will executed in their favour nor had this Will been

setup by them in any proceedings before it came to light

during examination of PW-5 in this case. This, in turn,

indicates that the petitioner Madhavi Ahluwalia was not

present in the office of Sub Registrar on 30th October 2000,


though it is recorded in the Will Ex.PW2/1 that execution of

the Will was admitted by her. The objector Smt. Asha

Sharma has admitted that part of the agricultural land in

Village Alwar has been sold by her after death of late Sh.

Ram Chander Sharma. Had the petitioner been aware of

the Will Ex.PW5/1 executed on the very same day on which

the Will in her favour Ex.PW2/1 was executed, she would

have sought probate of this Will on behalf of her children

and would not have allowed the objector to sell part of the

aforesaid agricultural land.

38. For the reasons given in the preceding paragraphs,

I hold that Will Ex.PW10/1 was duly executed and got

registered by late Sh. Ram Chander Sharma on 30th October

2001 and that he was in a sound disposing mind to execute

the aforesaid Will. The issues are decided in favour of the

petitioner and against the objector.

ORDER

In view of my findings on the issues, a probate of

the Will Ex.PW2/1 executed by late Sh. Ram Chander

Sharma in favour of the petitioner Madhavi Ahluwalia on

30th October 2000 is granted to the petitioner with the copy


of the Will annexed to it. There shall be no order as to

costs.

(V.K. JAIN) JUDGE

NOVEMBER 00, 2010

BG/Ag

the high court of delhi at new delhi sharma ahluwalia...for the plaintiff: mr. raman kapoor, mr....

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