DES RAJ GUPTA Vs. STATE

JUDGEMENT

(1.) LALA Hansraj Gupta, ex Mayor of Delhi died on 3rd July, 1985. The present Petition was filed in October, 1985 by his son Sh.Des Raj Gupta alleging therein that Lala Hansraj Gupta had left behind a "Will " executed by him on or around 28th May, 1985 in sound mind, out of his own free will and desire. The "Will " was registered by sub-Registrar on 29th May, 1985. The sub-Registrar registered the document at the residence of Lala Hansraj Gupta. It is averred that the "Will " was drafted by Sh. S.K. Tiwari, Advocate who is also one of the attesting witnesses to the "Will " and the Probate Petition. Late Lala Hansraj Gupta named 3 executors in the "Will ". One of the executors named is the petitioner and the other 2 executors named in the "Will " are Sh.Shiv Raj Gupta and Sh.Rajender Kumar Gupta, the two other sons of the deceased. Petitioner, who is elder son of the deceased, submitted that other 2 executors failed/neglected to act or to take any step towards discharge of their responsibilities in accordance with the "Will ". Rather they renounced their position in the "Will " in proceedings before the Court of Sh. Rajesh Kumar, sub-Judge by alleging in the WS filed by them that the aforesaid "Will " was not a genuine "Will ", as Lala Hansraj Gupta was seriously ill during that period and was not in a sound disposing mind and was physically and mentally incompetent to take decisions. The petitioner claimed, in view of the denial of the "Will " by other 2 executors, he was the only executor left who could file the Petition. He therefore filed this Petition for grant of probate of the "Will " dated 28th May, 1985 executed by late Lala Hansraj Gupta. This Petition is verified by the petitioner, Sh. Des Raj Gupta on 8th October, 1985. 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 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 the 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.

(2.) NOTICE of the Petition was served upon the legal heirs as mentioned in para 3 of the Petition. Objections were filed by Smt. Shashi Jai Kishan (Respondent no. 6), Smt. Pratibha Khandelwal (Respondent no. 7), Sh. Shiv Raj Gupta (Respondent no. 3), Sh. Rajender Kumar Gupta (Respondent no. 4) and all these objectors pleaded that Lala Hansraj Gupta was seriously ill on the alleged date of execution of "Will ". He was not in a sound disposing mind and the "Will " was invalid. However, respondent no. 1, Smt. Angira Gupta and respondent no. 5, Sh. Mahinder Kumar Gupta supported the Petition and in their reply took the stand that the "Will " was a genuine "Will ". In view of the objections raised by the above respondents, following 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. " Issue No.1.

(3.) IN order to prove the due execution of the "Will " and in order to prove the mental condition of the deceased, the petitioner examined Sh. S.K. Tiwari, Advocate (PW-1) who was the attesting witness of the "Will " and also the Advocate who drafted the "Will ". This witness testified that sometime in second week of May, 1985, probably on 13th or 14th May, 1985 he received a telephone call from Smt. Angira Gupta, wife of late Lala Hansraj Gupta informing him that Lala Hansraj Gupta was admitted in AIIMS for a prostate operation and he wanted to see him as he wanted to get his "Will " drafted. So on next date, he (PW-1) went to Lala Hansraj Gupta during visiting hours at AIIMS. Lala Hansraj Gupta made enquiries from him about his family and welfare and instructed him to draft out a "Will ". He drafted a "Will " and took the draft "Will " after 2-3 days to Lala Hansraj Gupta. However, after hearing the same, he did not approve the draft "Will " and suggested certain alterations and modifications which were noted by this witness and after making these alterations and modifications he again took the draft "Will " after 2-3 days to Lala Hansraj Gupta. Lala Hansraj Gupta asked him to leave the "Will " in the custody of his wife and told him that he would inform him (PW-1) after he was in a position to get the same registered. After few days Lala Hansraj Gupta was shifted from hospital to his residence and he again received a call from the wife of Lala Hansraj Gupta telling him that he was required to see Lala Hansraj Gupta. He again went to see Lala Hansraj Gupta at 3, Amrita Shergil Marg. He was told by Lala Hansraj Gupta that he should go to adjoining T.V. room where the "Will " was lying in a drawer. He went to the T.V. room, brought the "Will " and found that it was another "Will " which was already drafted by Lala Hansraj Gupta himself lying in the drawer along with a typed copy.