NEENA BANSAL KRISHNA, J.

1. A petition under Section 278 read with Section 232 of Indian Succession Act, 1925 has been filed on behalf of the petitioner seeking grant of Letter of Administration in respect of the last Will dated 27.10.2013 of Late Shri Man Mohan Kohli.

2. The petition was originally filed by Shri J.B. Kohli and Shri Rajive Sawhney Sr. Advocate, who were the named Executors in the Will but they both died during the pendency of the petition. Consequently the Petition was amended and Shri Bharat Mohan Kohli who is the beneficiary, was substituted who has sought Letter of Administration in respect of the Will of Late Shri Man Mohan Kohli.

3. It is submitted that the deceased Testator, Late Shri Man Mohan Kohli never got married and had no children of his own. He died on 23.03.2015 and left no Class I heirs, since his parents had pre deceased him. He was survived by five sisters and two brothers, who have all been arrayed as respondents. The Testator treated Bharat Mohan Kohli/ the petitioner, the son of his younger brother Shri J.B. Kohli/the erstwhile petitioner like his own son and he and his father, Shri J.B. Kohli, had been residing with the testator at his house in Friends Colony East, New Delhi, for the last about 20 years i.e. since 1993. The petitioner also performed the last rites of the Testator. The Testator left behind the following estate:

“(i) House No. C-27, Friends Colony (East), New Delhi -110065.

(ii) 1/8th Share in property bearing No. 31, Golf Links, New Delhi-110003 ("Golf Links Property").

(iii) 1/8th Share in property bearing No.7 & 7A, Cross Road, Dehradun, Uttarakhand.

(iv) 50% undivided share in the property, The Grange, Below Hampton Court School, Mussoorie, Uttarakhand ("Mussoorie Property").

(v) Movable assets including furniture, paintings, artifacts/objects in the Friends Colony Property and the Mussoorie Property.

(vi) Equity Shares, Mutual Funds, Bonds, Fixed Deposit Receipts (FDRs) and Bank Accounts. Details of the Bank Accounts and Deposits are as follows:

a) Savings Bank Account in Punjab National Bank, Khan Market, New Delhi-110003 (S.B. Ale No. 0149000100142123).

b) Saving Fund (Pension Account) deposit in State Bank of India, New Friends Colony Branch, M52,53, Ishwar Nagar, New Delhi - 110065 (S. B. A/c No. 10479319619).

c) Savings Bank Account in Yes Bank, D-12 South Extension, Part-II, New Delhi -110049 (Yes Bank AIC No. 001690700008657) (Opened in August, 2014).

d) Savings Bank Account in Kotak Mahindra Bank Limited, Defence Colony, New Delhi (S.B. A/c No. 5911286765).”

4. It is asserted that the Testator, prior to his demise, executed his last testament dated 27.10.2013 which was duly registered in the office of Sub-Registrar on 28.10.2013. Under this Will, he named Shri Bharat Mohan Kohli, his nephew, as the sole beneficiary and bequeathed his entire estate in his favour. He also named Mr. J.B. Kohli and Mr. Rajive Sawhney as the two Executors of his Will who had initially presented the petition, but had died during the pendency of the petition.

5. The petitioner has stated that prior to his death, the Testator was suffering from lung cancer and was under the treatment for over 17 months. He, however, was leading a normal life otherwise and attended to all his personal matters. He was of sound, deposing and proper state of mind at the time when he executed the Will. He discussed the contents of the Will with Mr. Rajive Sawhney Sr. Advocate, who was also named as the Executor in the Will, on number of occasions till the Will in question was executed. The Testator made drafts written in his own hand writing of the Will and had shown them to Mr. Rajive Sawhney for approval. The Will was signed by the Testator in the presence of the witnesses namely Mr. Vineet Jain and Mr. Sandeep Sayal, each of whom had signed the Will in the presence of each other and under the directions of the Testator.

6. It is further explained that about less than two months prior to this registered Will, the Testator had executed an earlier Will dated 02.09.2013 on the same terms as the present Will. Shri Sandeep Sayal and Shri Yakesh Anand, Advocate were the witnesses to the earlier Will, but because it was not registered, the Testator had executed the present Will dated 27.10.2013 which was duly registered on 28.10.2013.

7. It is further submitted that all the respondents had not objected to the Will except respondent No.12 Shri Ramesh Kohli and Respondent No.13 Dr. Mrs. Indira Kohli Bhatia. However, the petitioner has explained that both R-12 and R-13 had no relationship with the Testator for the last many years which fact is also mentioned in the Will. The petitioner has thus, sought Letter of Administration of the Will dated 27.10.2013 of Late Shri Man Mohan Kohli.

8. The respondent No.13 Dr. Mrs. Indira Kohli Bhatia died on 17th February 2018 during the pendency of the Suit. Further, vide Order dated 27.04.2018, this Court observed that "The respondent No. 13 is found to have appeared through advocate on November, 2017" after which "no reply/objections are found to have been filed by respondent No. 13 till 17 th February, 2018, when she is reported to have died" despite her being granted time to do so. Thus, the application bearing No. IA 5425/2018 of the LRs of Respondent No 13 to be substituted, was dismissed.

9. Respondent No.8 and 10 failed to contest the petition and were proceeded ex-parte on 09.08.2019.

10. The respondent No.12 Shri Ramesh Kohli filed his objections to the Will on the ground that only one nephew to the exclusion of all other nieces, nephew and Class II heirs are the beneficiary under the Will. It was claimed that House C-27, Friends Colony (East), New Delhi belonged to B.C. Kohli & Sons (HUF) in respect of which no Will could have been executed. It is further submitted that the properties to which the Will pertains, is subject matter of several other legal proceedings inter se the parties, which are pending before the learned Arbitrator. Moreover, the Order of the learned Arbitrator did not vest any right in any of the properties, in favour of the deceased. It was further asserted that in the ongoing arbitration proceedings between the parties before the learned Sole Arbitrator, Shri J.B.Kohli the petitioner No.1 herein is claiming 1/8th share in 31, Golf Links property and 7, Cross Road, Dehradun property. Smt. Krishna Sawhney, mother of original petitioner No.2 i.e. Shri Rajive Sawhney(since deceased) is also claiming 1/8th share in the Golf Link property and Dehradun property. Hence, there is no locus for grant of Will in respect of the properties in which the Testator had no right, title or interest.

11. It is further asserted that the petition is collusive in so much as the petitioners have colluded with the other respondents except respondent No.12 and 13 and false and fabricated admissions have been obtained from the remaining respondents that the Will is a genuine document. It is an apparent and manifest quid pro quo arrangement amongst the petitioners and respondents No.1 to 11 in order to defeat the bonafide claims of respondent No.12 and 13.

12. The Will has been challenged on the following grounds:

(a) The deceased was suffering from various ailments including lung cancer and dementia and used to remain under heavy sedatives because of the terminal illness and was not of a sound disposing mind to execute the Will;

(b) Mr. Bharat Kohli who is the sole beneficiary, used force and coercion against the Testator who was in their custody to get the Will executed;

(c) There is exclusion of all the Class II Legal Heirs except Mr. Bharat Kohli; and.

(d) Mr. J.B. Kohli and his Mr. Bharat Kohli were permanent resident of 31,Golf Links, First Floor, but with in intent to force and coerce the Testator they shifted to property C-27, New Friends Colony, which is in fact an HUF property, where they used their undue influence to get the Will executed. In doing so, Shri J.B. Kohli even abandoned his ailing wife Aruna Kohli with the sole purpose to usurp the assets of Late M.M. Kohli.

13. It is further asserted that Late M.M. Kohli was in relationship with one Ms. Devyani for the last more than 30 years and had married her secretly, at the fag end of his life. She had been residing in the same house with Mr. M.M. Kohli but was forcibly thrown out by petitioner No.1 and his son Bharat Kohli, just after the demise of the Testator. It is claimed that it is uncomprehendable as to why Mr. M.M. Kohli would leave nothing for Ms. Devyani and this peculiar fact also reflects that the Will is a manipulated, forged and fabricated document.

14. It is further asserted that Mr. Rajive Sawhney who was the Executor under the Will, had been indulging in fabrication and falsification of document and had misused the signatures of his real Mausi in legal proceedings. The letter written by late Vidyawati Sawhney which was also witnessed by her son Sunil Sawhney, is already on record in the arbitration proceedings.

15. It is further asserted that their father Late Shri B.C. Kohli was having a revolver of make Webley Scott in the year 1978 which subsequently came into the possession of Late M.M. Kohli along with the ammunitions. Late M.M. Kohli was also in possession of 22 Savage double barrelled gun but there is no mention of arms and ammunitions in the alleged Will. Further, there are various cases pending in Delhi, Dehradun and Mussoorie Courts and despite this knowledge, the Will states facts contrary to the real truth and the covenants about those cases in the Will, is incorrect which shows that it is a fabricated document. Furthermore, the Testator was in confinement and the witnesses to the alleged Will could not have possibly signed in his presence.

16. It is also claimed that the Will of Late B.C. Kohli, father of the Testator and the respondent had been lying in the locker in Punjab National Bank, Dehradun and till the Will of the father is brought out and its contents are made known, the Will which is the subject matter of the present petition, cannot be looked into or acted upon or probated. The shares in the properties in question will have an impact once the locker is opened. The Executors and beneficiaries to the present Will in question, are not permitting the locker to be opened despite the directions of the learned Arbitrator. The present petition is, therefore, not maintainable.

17. It is further asserted that all the properties which are the subject matter of the present petition, were either HUF properties or owned by their father B.C. Kohli. Some of the properties have been in joint possession. There were properties acquired in Goa of which there is no mention in the Will. It is therefore, submitted that the Will is a forged and fabricated document in regard to which the probate cannot be granted.

18. The petitioner in his Rejoinder has denied all the allegations made in the petitioner. It is asserted that the objection that the age of the witnesses was not mentioned in the Will, is baseless.

19. It is explained that Ms. Devyani was only a friend of the Testator and she never resided with him in his house. It is also claimed that the testator, was unmarried and remained a bachelor throughout his life.

20. The issues on the pleadings were framed on 09.08.2019 as under :

"(1) Whether Will dated 27.10.2013 registered before the Sub-Registrar-V as Document No.1152 in Additional Book No.3, Volume No.2030 on pages 30 to 35 on 28.10.2013 is the last Will and Testament of Late Mr. Man Mohan Kohli OPP.

(2) Whether Will dated 27.10.2013 said to have been executed by Late Sh. Man Mohan Kohli is a legal and valid Will OPP.

(3) Whether the Testator Mr. Man Mohan Kohli at the time of execution of the said Will was not in sound disposing mind OPR12.

(4) Whether the last Will and Testament dated 27.10.2013 registered on 28.10.2013 is a manipulated, fabricated and forged document OPR12.

(5) Relief."

21. Mr. J.B. Kohli the Executor who during his life time, had appeared as PW1 and deposed about the validity of the Will. He further deposed about the health of the Testator and that he was in fit and disposing mind to execute the Will.

22. PW2 Shri Vineet Jain and PW2 Shri Sandeep Sayal are the attesting witnesses who have corroborated the testimony of PW1 in regard to the valid execution of the Will and about attestation of the Will by them as the attesting witnesses.

23. PW4 Mr. Yakesh Anand, Advocate was the attesting witness to the earlier Will dated 02.09.2013 of the Testator, which is proved by him as Ex.PW4/1. He has deposed that identical Will got executed on 27.10.2023 which was duly registered on 28.10.2023.

24. PW5, Mr. Giriraj Sharma, Sr. Passport Assistant brought the scanned copies of application for issuance of passport in 2014 and the relevant documents which are Mark A.

25. PW 6, Mr. Dheeraj Kumar, Record Keeper Office of Sub-Registrar-V, brought, the record of the Will of Mr. Manmohan Kohli.

26. PW7, Mr. Ganesh Jha, Assistant Manager, IL&FS Securities Services Ltd., brought the Client Master Report providing the details of Demat Account No. 10342764, held in the name of Mr. Man Mohan Kohli; nomination form and transmission form.

27. PW-8 Mr. Krishan Singh, Deputy Director, UIDAI stated that he could not bring the information regarding Aadhar Card as the same cannot be disclosed without an order of a Judge of High Court.

28. PW9, Mr. G.P. Gandhi, DGM Secretarial, brought the Minutes dated 13.08.2013, 11.11.2013, 26.05.2014, 11.08.2014 and 14.11.2014 of the Audit Committee and also identified the signatures of Mr. Man Mohan Kohli on the Minutes of the meeting.

29. PW-10 Mr. Shailesh Garg, Branch Manager, Yes Bank Ltd, brought the copies of the summoned record including the account opening form of Bank Account No. 001690700008657 in the name of Mr. Man Mohan Kohli, KYC documents, the Mandate Letter dated 21.08.2014 and the nominee updation Form dated 14.08.2014.

30. PW11 Dr. Lalit Kumar deposed about the mental health of the Testator. PW23 Dr. Ritu Setiya, brought the original summoned record being the Discharge Summary dated 04.10.2013 of Mr. Man Mohan Kohli which is Mark PW23/1. PW28 Cham Narain also brought the original Discharge Summary dated 15.01.2014, 09.01.2014, 04.03.2014, and 13.02.2014 of Mr. Man Mohan Kohli.

31. PW12 to PW18, PW 20 to PW 22, PW24- PW27 brought various documents such as the bank Account opening forms and Nomination Forms in various bank accounts and accounts statement of Mutual Funds.

32. PW19 brought the summoned record in respect of Aadhar Card of Man Mohan Kohli, son of Mr. B.C. Kohli.

33. Respondent No.12 Shri Ramesh Kohli appeared as R12/W1 in support of his challenge to the Will and tendered his affidavit of evidence as R12W1/A1. He has deposed about all the circumstances on which he has challenged the genuineness of the Will.

34. R12/W2 is Shri Sushil Kumar Kala from the office of High Court of Delhi, who has produced who has produced the summoned record which are R12W2/1 to R12W2/3 collectively.

35. The detailed testimony of all the witnesses shall be considered subsequently.

36. Submissions Heard and the evidence and record perused.

37. It is not in dispute that Late Sh. B.C. Kohli, father of the respondents and grandfather of the present petitioner was the owner of various properties. Late Sh. B.C. Kohli is survived by five daughters and three sons including M.M. Kohli. Late Sh. B.C. Kohli had executed a Will dated 04.04.1978, which is lying the locker and the parties are already in arbitration pertaining to his Will.

38. The short controversy to be determined on this Probate Petition is whether the Will executed by the Testator is the last expression of his intention and is a genuine document.

39. It is admitted that Late Shri M.M. Kohli was unmarried and died issueless and under this purported Will he had bequeathed all his assets to Shri Bharat Kohli son of his younger brother Shri J.B. Kohli.

40. The Will has not been challenged by any of his siblings except his younger brother Shri Ramesh Kohli/respondent No.12. The grounds on which the Will has been challenged may thus, be considered.

Issue No.3: Whether the Testator Mr. Man Mohan Kohli at the time of execution of the said Will was not in sound disposing mind OPR12.

41. The respondent No.12 has taken a plea that deceased Shri M.M. Kohli was suffering from lung cancer and dementia for about two years prior to his demise on 23.03.2015. The alleged Will has been executed on 27.10.2013. During his period of ailment, he was under heavy sedation and medication and was not in a sound disposing mind at the time of execution of his Will.

42. The petitioner has examined PW11 Dr. Lalit Kumar who was a Consultant Doctor at various hospital including National Heart Institute, East of Kailash, New Delhi. He has deposed that he knew Mr. Man Mohan Kohli since August, 2013 as the wife of Mr. J.B. Kohli had been his patient since 2010. On 23.09.2013 Shri Bharat Mohan Kohli, the nephew of the Testator had informed him that Shri Manmohan Kohli was bleeding from one side of his nostril and he had advised him to get him admitted at National Heart Institute, where he was a Consultant Doctor. He got some tests done and after seeing the Reports, he suspected lung cancer and advised him to get admitted at Medanta Hospital, Gurugram for further investigations and confirmation of his suspected lung cancer. Shri M.M. Kohli, thereafter was admitted in Medanta Hospital on the next day i.e. 24.09.2013.

43. He has further deposed that Shri M.M. Kohli used to visit his hospital/clinic almost once every 2-3 weeks for his check-ups as it was necessary to ensure that he does not have any side effects of Tarceva or any other problems that could come up because of Cancer and also to ensure that it did not spread to other organs and for timely treatment of any such complications. He also at times used to visit the residence for the check-ups. Dr. Nitesh Rohtagi Oncologist, Max Hospital, Saket was also being consulted and he and Dr. Nitesh Rohtagi were working in tandem for treatment of Late Shri Manmohan Kohli.

44. PW11 Dr. Lalit has further deposed that during his visits, the Testator used to discuss the course of his treatment with him and also keep note of various queries and medicines about which he wanted to discuss. He has deposed that illness/cancer did not affect the mental health and he was of sound mind and mentally alert.

45. The witness was duly cross-examined on behalf of the respondents and various questions were put to him about his being a treating Doctor for the other family members namely Mr. J.B. Kohli, Mr. Bharat Kohli and Mrs. Aruna Kohli. He was also asked various general questions about Cancer, its symptoms, its treatment to which he had replied that all Cancers can produce pain, if they invade the nerves of bones and weight loss and loss of appetite. Difficulty of breathing can happen not only in Cancer of lung but in other Cancers as well. He also admitted that due to unbearable pain, lots of sedatives and pain killers are given and administered to the cancer patients. He further explained the symptoms of Adenocarcinoma of Lung and further admitted that he had recommended the shifting of the Testator from National Heart Institute to Medanta Hospital for the reason that the facilities for extensive investigations, were not available in the hospital.

46. While PW11 Dr. Lalit had been cross-examined on various aspects, not a single question has been put nor any suggestion given that the Testator was heavily sedated throughout or was not in fit mental state at the time of execution of the Will. Rather, he has categorically deposed that the Testator used to regularly have his queries and discussed his line of medical treatment. No suggestion whatsoever has been given that the Testator was not in sound and disposing mind.

47. Along the similar lines, it the testimony of PW1 Sh. J.B. Kohli who had deposed that late in the evening on 23.09.2013, Testator had bleeding from one side of his nostril and was admitted in National Heart Institute, East of Kailash. On the next day, i.e. 24.09.2023 he was shifted to Medanta Hospital Gurgaon where various tests were conducted and he was diagnosed with "Adenocarcinoma Lung" (Stage IV Lung Cancer). He was discharged from the hospital after about ten days, on 04.10.2013. His medical record is collectively Ex.PW1/8.

48. From the medical record, it emerges that PET CT was done on 26.07.2013 which revealed large hypodese mass in right lung lower lobe with heterogenous FDG uptake and a focal area of hypermetablosm in its antero-inferior part with multiple calcific foci within and pleural effusion. At the time of discharge, he was recommended nebulisation with Budecort thrice daily, aside from various medicines that were recommended to be taken. While from his discharge summary it is established that the Testator was diagnosed with stage IV lung cancer, but there is nothing to indicate that he had lost his mental faculties or had been rendered incapable of logical thinking.

49. In fact, his diagnoses of Stage IV Cancer would have prompted him to write his Will especially because he had no Class-I Legal heirs. Even if it is accepted that he may have been in tremendous physical pain on account of lung cancer of Stage-IV, but there is not a single document to show that he was not of a sound disposing mind.

50. In the case of Benedicta Monterio and others Vs. Thomas Monteiro and Others 2015 SCC OnLine Kar 9451, a similar situation came up for the consideration when the Will of a 90-year-old testator who was hospitalized on account of paralysis at the time of the execution of the Will, was contested. The Apex Court observed that the capacity to make a Will which is a mental exercise, is quite different from physical state of health. It was held that the mental incapacity is required to be proved by positive evidence.

51. Thus, mere suffering from a terminal decease cannot be a ground to hold that he was not of a sound disposing mind or was incapacitated in getting his Will prepared.

52. PW1 Sh. J.B. Kohli has further deposed that the Testator had attended various meetings of the Audit Committee members and Board of Directors of M/s Pashupati Acrylon Ltd. in which he was a Director since 1989 and Chairman of the Audit Committee. He attended the meetings from 13.08.2013 till 14.11.2014 which is borne out from the Minutes of the Meeting which are collectively Ex.PW1/11. Thus, the mental soundness of the Testator, despite suffering from Lung Cancer, is established from the fact that he was attending the meetings.

53. The claim of RW12 Shri Ramesh Kohli who appeared as R12W1 that Late M.M. Kohli was not of sound disposing mind has emanated from the fact that he was suffering from various ailments including Lung Cancer and Dementia and that he used to remain under heavy sedatives due to pain because of terminal disease of Lung Cancer. However, in his crossexamination, he has admitted that he did enquire once about the medical condition of Late Manmohan Kohli, but was given a cold shoulder. ‘Normally, on other occasion he got information from Dr. Indira Kohli who managed to get some information through her own connections and friends. He concluded that M.M. Kohli suffered from Lung Cancer as he was a heavy smoker.’ When specifically asked if he was aware of the medicines that Mr. M.M. Kohli was taking after being diagnosed of Cancer, he responded that through ‘common sense" and from information available on the internet which he could not recollect, he can say that he must have been taking heavy doses of pain killers and other medicines and steroids. He was not aware of the exact medicines that were being administered or changed from time to time. He further clarified that he could only analyse from the information that was going around which was initiated by reliable sources close to Mr. J.B. Kohli and M.M. Kohli. The claim of R12 Shri Ramesh Kohli about the mental unfitess of the testator, is therefore not based on any cogent evidence but is in the realm of conjectures and surmises. His testimony fails to prove that the Testator was not in fit mental state of mind to write his Will.

54. Another pertinent factor is that even after being diagnosed with Cancer, Shri Man Mohan Kohli filed pleadings and regularly attended arbitral proceedings before the learned Arbitrator. It is respondent No.12 who himself has explained that Mr. M.M. Kohli used to be escorted for these meetings in Rajive Sawhney’s car and brought down the stairs leading to the chamber of the learned Sole Arbitrator by being lifted and protected by Mr. J.B. Kohli and Mr. Rajive Sawhney. His own energy was not sufficient for him to commute independently. He also admitted that no objection was ever taken during the arbitration proceedings that Sh. Man Mohan Kohli was not of a sound disposing mind. The arbitral proceedings which record the presence of Mr. M.M. Kohli before the learned Sole Arbitrator are dated 14.05.2014, are Ex. PW-11.

55. The overwhelming evidence led by the petitioner J.B Kohli which is duly corroborated and supported by the testimony of PW11 Dr. Lalit and the admissions of respondent No.12 in his cross examination, about Shri M.M. Kohli attending the arbitration proceedings despite his frail health proves that even though the deceased was suffering from Cancer, he was in fit mental state and was of disposing mind to execute his Will Ex.PW1/1.

56. Issue No.3 is decided in favour of the petitioner.

Issue No.1 : Whether Will dated 27.10.2013 registered before the Sub-Registrar-V as Document No.1152 in Additional Book No.3, Volume No.2030 on pages 30 to 35 on 28.10.2013 is the last Will and Testament of Late Mr. Man Mohan Kohli OPP.

AND

Issue No.2: Whether Will dated 27.10.2013 said to have been executed by Late Sh. Man Mohan Kohli is a legal and valid Will OPP.

57. At the outset, it is pertinent to note that the present petition was earlier filed by the two names Executors in the Will i.e. Shri J.B. Kohli and Shri Rajive Sawhney Sr. Advocate, but unfortunately during the pendency of this petition both died and were substituted by Mr. Bharat Kohli who is the named beneficiary under the Will.

58. Section 63 of Indian Succession Act, 1925 provides for the substantive law and the requisites of Execution of Unprivileged Wills. Clause (a) & (b) of Section 63 of the Indian Succession Act, 1925 provide that the testator must affix his signature on the Will and it shall appear that it was intended thereby to give effect to the writing as a will. Further, Section 63(c) of the Indian Succession Act, 1925 provides that a Will must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.

59. Thus, to prove the valid execution of unprivileged wills, it is apposite to establish that - firstly, the Will was duly singed by the testator or bears the affixation of his Mark; secondly, the Mark so affixed or the signatures of the testator was so placed that it appears that it was indented to be executed by the Testator in the manner as specified and with a dispensing mind free from all extraneous influences; thirdly, it must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.

60. To prove the execution of the Will, Late Shri J.B. Kohli in his testimony as PW1, deposed that the Testator was very fond of his son Bharat Kohli, respondent No.2 and loved and treated him like his own son. After he came back to Delhi from his Boarding School in Mussoorie (the same school in which Shri J.B. Kohli and the Testator had studied), the Testator insisted that Bharat Kohli comes to stay with him at his residence at C-27, Friends Colony, East, New Delhi. Bharat Kohli had been residing there in his house with the Testator since 1993 and continues to reside there. The Testator nominated Bharat as his nominee in his Mutual Fund investments, shares, bank accounts from 2003 to 2014 i.e. before and after the execution of the Will. This is corroborated by the various documents including statements of mutual funds and bank accounts which are collectively Ex.PW1/2, Ex.PW1/3 and Ex.PW1/4 collectively.

61. PW1 Shri J.B. Kohli has further deposed that prior to his demise, the Testator duly executed the Will at his residence in the presence of the two witnesses namely Vineet Jain and Sandeep Sayal. Both these witnesses attested the Will in the presence of each other and under the direction of the Testator who also affixed his signature on the Will after going through its contents. Thereafter, the Will was presented on the next day i.e. 28.10.2013 by the Testator himself in the office of Sub-Registrar in the presence of the two attesting witnesses and PW1 J.B. Kohli was also present at that time.

62. PW1 Shri J.B. Kohli in his cross-examination explained that Late M.M. Kohli coordinated with Late Mr. Rajive Sawhney in regard to the Will and gave him the instructions and asked him to get the Will typed at his office. The typed Will was sent to him a day or two prior to its finalization on around 25/26.10.2013. PW1 has clarified in his cross-examination that when the gentleman who brought the Will from Mr. Rajive Sawhney’s office, he was also present in his office down stairs in their house. He sent him upstairs to M.M. Kohli’s television room where he was present, as per the instructions of M.M. Kohli, who had told him to send the documents upstairs, when brought from the office of Mr. Rajive Sawhney.

63. The Will was signed on 27.10.2013 by the testator at his residence in his dining room in the presence of PW1 J.B. Kohli and his son. It is been further explained that Shri M.M. Kohli first read the Will and then signed on each page. He then asked the witnesses to also read the Will which was then signed by the two witnesses in the presence of each other. There were two copies of the Will which were signed by Late M.M. Kohli on which both the attesting witnesses had signed one after the another.

64. It was further explained by PW-1 Shri J.B. Kohli that the attesting Witness Shri Vineet Jain is the Managing Director of M/s Pashupati Acrylon Ltd. who was known to Mr. M.M. Kohli as he was also the Director in the Company and Chairman of the Company’s Audit Committee. The other attesting witness Sandeep Sayal was the elder son-in-law of Mr. J.B. Kohli.

65. The testimony of PW1 Shri J.B. Kohli thus, proves the execution of the Will by Late M.M. Kohli and it further establishes that the Will had been prepared at his instance and was an expression of his intention about devolution of his properties.

66. The Will Ex.PW1/1 is further proved in accordance with Section 68 of Indian Evidence Act by PW2 Sh. Vineet Jain, the attesting witness, who has corroborated that he had signed the Will which was got duly registered on 28.10.2013. He further explained that he knew the Testator since 1990 as he was a friend of his father Shri Vinod Jain. Also, the Testator was a Director in Pashupati Acrylon Ltd. since 1989 in his Company in which he was the Managing Director and had the majority shareholding. It is on account of their long standing relationship that he had been asked by the Testator to be a witness to his Will. He has further explained that Shri Sandeep Sayal, the other witness was also present at the same time and they all had affixed their signature on the Will in the presence of each other.

67. This attesting witness was cross-examined in extenso about the time at which he went to the house of the Testator for putting his signatures and about the presence of the other attesting witness namely Sandeep Sayal. He was consistent in his testimony and has clarified that he had also signed in the presence of the Sub Registrar at the back of the original Will which was duly registered by the Sub Registrar.

68. PW3 Sandeep Sayal is the second attesting witness to the Will who has fully corroborated the testimony of PW1 Shri J.B. Kohli and PW2, the other attesting witness. Mr. Sandeep Sayal is the son-in-law of Mr. J.B. Kohli and brother-in-law (husband of sister of Bharat Kohli) and was thus, known to the family. He has corroborated that Mr. M.M. Kohli was diagnosed of Cancer in September, 2013 and died in March, 2015 and that he was in and out of the hospital during his period of ailment. No material contradiction could be brought forth from the cross-examination of PW3.

69. In this context, it may be pertinent to refer to the testimony of PW1, Shri J.B. Kohli who had explained that prior to this Will of 27.10.2013 Ex.PW1/2 which was got duly registered in the office of Sub Registrar, Shri M.M. Kohli had also executed another earlier Will dated 02.09.2013 which was identical to the present Will. However, the second Will of 27.10.2013 was again executed for the simple reason that the earlier Will was not registered and the Testator wanted to avoid any kind of challenge or complication after his demise.

70. PW4 Shri Yakesh Anand, Advocate was the attesting witness to the earlier Will of 02.09.2013 who has deposed that the second attesting Witness along with him to the earlier Will, was Shri Sandeep Sayal. He corroborated the testimony of PW1 Shri J.B. Kohli about the reason for execution of the subsequent registered Will. The witness was again crossexamined in extenso on behalf of respondents, but nothing material could be elicited from his cross-examination.

71. From the testimony of PW1 Shri J.B. Kohli which is fully corroborated by the testimony of two attesting witnesses PW2 Shri Vineet Jain and PW3 Shri Sandeep Sayal and also by PW4 Yaksh Anand, establishes that Will Ex.PW1/2 is the validly executed last and final testamentary Will of Late M.M. Kohli which was executed by him in sound disposing mind.

72. Issue No.1 and 2 are thus decided in favour of the petitioner.

Issue No.4: Whether the last Will and Testament dated 27.10.2013 registered on 28.10.2013 is a manipulated, fabricated and forged document OPR12.

73. The respondents have challenged the Will and claimed it to be a manipulated, forged and fabricated document on several grounds which are considered below:

Force and Coercion:

74. The respondent No.12 has asserted that despite the residence of Mr. Bharat Kohli and his father being 31, Golf Links, New Delhi, they shifted to the house of the Testator Mr. M.M. Kohli only with an intent to force and coerce him into executing the Will in favour of Mr. Bharat Kohli, to the exclusion of all other Class-II heirs including other nieces and nephews.

75. This has already been explained by J.B. Kohli in his testimony that since beginning, the deceased was very fond of Bharat Kohli his son and immediately after he returned from his Boarding School after completing the schooling, he shifted to the residence of the Testator and since then has always resided at the house of the Testator at New Friends Colony. There is no challenge to this aspect of the testimony which clearly establishes that Mr. Bharat Kohli and his father had started to reside with Mr. M.M. Kohli who was unmarried, only out of love and affection.

76. There is not an element of force and coercion proved to have been exercised by them in execution of the Will.

Exclusion of other class II heirs:

77. The respondent No.12 has raised an objection that the Will excludes all other nieces and nephews of the testator, for whom also he had love and affection.

78. Pertinently, in the case of Uma Devi Nambiar vs T.C. Sidhan, (2004) 2 SCC 321, Hon’ble Supreme Court has held that:

“16. A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring.”

79. While considering several suspicious circumstances such as old age of the testator and his death 15 days after the execution of the Will in the case of Sridevi and Others vs Jayaraja Shetty and Others (2005) 2 SCC 784, the Supreme Court observed that when reasons for unequal distribution have given in the Will itself, the same cannot be treated as a suspicious circumstance when the testamentary capacity of the testator has been established.

80. In the present case, the testator in the Will has explained in detail the reason for excluding the other Class II legal heirs, by observing that he had no relationship with his younger brother Ramesh Kohli or Indira Bhatia or Usha Chatrath who had not spoken to him for the last many years. He further recorded that Shri Ramesh Kohli fully supported by Indira and Usha had raised various issues against him about which less said was better. He did not treat these three as his relatives as they had shown no regard to him and had created lot of bitterness. Likewise, he had no relationship with Mrs. Ved Sawhney for past many years, but she had shown no bitterness towards him. He was in touch with his eldest two sisters Mrs. Vidyawati Sawhney and Krishna Sawhney and had mutual love and affection for each other. However, the disputes created by Mr. Ramesh, Indira and Usha consumed the entire family since the demise of their parents way back in 1978. These three persons were stated to have made totally false and malicious statements against him not only in the Court proceedings, but elsewhere. Despite his repeated attempts to resolve the matters in a just and fair manner in conformity with the wishes of their parents, his proposals were not accepted by them but they ridiculed his efforts out of sheer insatiable greed. He, therefore, totally disowned his relationship with Ramesh Kohli, Indira Bhatia and Usha Chatrath and further stated that he did not wish to give them or any of their children or their legal heirs any part of his estate and assets.

81. He had further explained that Mr. J.B. Kohli and his wife Mrs. Aruna Kohli and their children had always been like a family to him. He had special affection for Bharat Mohan Kohli whom he treated as his own son and he wanted him to perform his last rites in conformity with family customs and religion. For this reason, he bequeathed all his assets to Bharat Mohan Kohli.

82. The Will itself in detail, explains the reason for excluding the other legal heirs and for bequeathing the entire properties to Bharat Kohli. It cannot be therefore, said that there is any manipulated exclusion of the other family members or this is the manipulated Will.

Exclusion of Ms. Devyani:

83. The third circumstance which has been agitated by the respondent No.12 is that one Ms. Devyani had been residing with Shri Manmohan Kohli for last more than 30 years and in the last days Mr. Manmohan Kohli had even got married to her in secrecy. However, Mr. J.B. Kohli and his son Mr. Bharat Mohan Kohli forcibly dispossessed her in the last days only with an intent to manipulate the present Will.

84. However, PW1 has explained in his Rejoinder/ Reply to the Objections that Ms. Devyani never resided in the suit property. She was only a friend of Late M.M. Kohli and there is no question of she being illegally dispossessed from the suit property.

85. The onus was on the respondent Ramesh Kohli to prove the relationship and the alleged marriage of the testator with Ms. Devyani. No date of alleged marriage or its proof has been produced by R12W1 who when asked in his cross-examination if he had attended the wedding of Ms. Devyani, denied and was also was not able to give the date, month or year of this alleged marriage. He responded by claiming that he had only heard rumours. The assertions of the respondent in this regard, rest purely on rumours and has no concrete proof.

86. R12W1 had further deposed that he had seen her for the first time at the cremation of Manmohan Kohli from a distance but did not meet her. He thereafter, asserted that he had met her 2-3 times but when asked about the date, month or the year, he was unable to give any details. He was also unable to tell when he had seen Mr. M.M. Kohli and Ms. Devyani together.

87. He further responded that it was confirmed by a neighbour that when the bag and baggage of Ms. Devyani was thrown out of the house, she had created lot of commotion. Unfortunately, the young lady Ms. Simer Duggal D/o Rita Sawhney, the neighbour who was a witness to the dispossession, had passed away with bone cancer and all other neighbours are well aware of this incidence. Significantly, the respondent has failed to examine any person from the neighbourhood to support his assertions, which remain totally uncorroborated.

88. From the testimony and the admissions of respondent No.12, it is evident that Ms. Devyani may or may not have been a friend, but merely because M.M. Kohli chose not to give anything to her, cannot be termed as a suspicious circumstance especially when she herself has never come forth to challenge the Will or to claim a share in the properties of M.M. Kohli and her proximity to the Testator has not been proved.

89. Pertinently, Ms. Devyani to whom Late M.M. Kohli had allegedly got married secretly in the later years of his life, has neither been produced as a witness nor has she sought any intervention to claim any right, title of any kind in the properties of Late M.M. Kohli. The respondents though have taken an objection, but have not been able to substantiate it in any manner.

Errors in the Will:

90. In the end, the respondent has sought to challenge the authenticity of the Will by claiming that there are many errors in mentioning the details of various litigations in the Will. This is of little consequence because no person can remember the exact details of the litigation, which were mentioned only to indicate the kind of disputes, litigation inter-se the family members. It, in no manner, creates a doubt about the Will. Rather, the alleged imperfections in the Will further corroborate that the Will had been prepared at the instance of Late Sh. Manmohan Kohli or else in every likelihood the Will would have contained the exact details, had it been a manipulated document.

91. The respondent No.12 had further taken an objection that M.M. Kohli owned revolvers, double barrelled guns and other arms and ammunitions which do not find a mention in the Will. It is also asserted that he was owner of various other properties, businesses in Dehradun and other places, which also do not form part of the Will. The Testator may have chosen to execute his Will in respect of his named assets and properties and there may be other assets which do not find mention in the Will, but this cannot be termed as a suspicious circumstance. In so far as the arms, ammunition and guns are concerned, there is not even any evidence to show that they continued to be in possession of deceased at the time of execution of the Will.

Ownership of testator in properties under the Will:

92. The respondent in the end has taken objection in detail about the ownership of the Testator in various properties. His share in the suit properties has been challenged and it is claimed that some of the properties were HUF in respect of which he could not have executed a Will unless his own share got determined. The Will of his father Mr. B.C Kohli was still under litigation. Respondent No.12 has contended that unless the contents of the said Will are established, Sh. M.M. Kohli his son (whose Will dated 27.10.2013 is under consideration in the present Probate Petition) cannot claim a title to the suit properties or execute a Will in regard to such properties.

93. Though, the respondents have challenged the title of the deceased Testator in the various properties which form the subject matter of the Will, but the Probate proceedings are confined to the valid execution of the Will and it does not concern itself with the entitlements/ ownership of the Testator in respect of the properties in respect of which the Will is executed.

94. In the case of Mt. Laso Devi Vs. Mt. Jagtambha Devi, AIR 1936 Lah 378, the Lahore High Court that a Probate Court is only concerned with the proof of valid execution of a Will.

95. The Apex Court in the case of Chiranjilal Shrilal Goanka v. Jasjit Singh (1993) 2 SCC 507 held that the “question of right, title, share and ownership is not to be decided in the probate proceedings".

96. Similarly, in the case of Sameer Kapoor vs State, (2020) 12 SCC 480, it was observed that a Probate Court can only determine the legal character of a Will.

97. Thus, any challenge to the ownership of the properties which are subject matter of the Will, cannot be decided in the Probate petition and the aggrieved person can seek the declaration or his entitlement to the properties by initiating the appropriate legal proceedings.

98. It is, therefore, held that the respondents have failed to prove that the Will was a forged or a fabricated document.

99. The Issue No.4 is decided against the respondents.

RELIEF:

100. In view of the findings above, the Letter of Administration with Will dated 27.10.2013 annexed, is granted in favour of the plaintiff.

101. Petitioner shall furnish Administrative Bond with one Surety to the satisfaction of the learned Joint Registrar General of this court.

102. On payment of the requisite court fee and other formalities noted above, the Letter of Administration in respect of the Will dated 27.10.2013 shall be issued by the Registry.

103. The petition stands allowed and accordingly disposed of in the above terms. The pending application stands disposed of.

104. ist before the Joint Registrar on 30.07.2024, for depositing of the bond.