Delhi High Court
Raghbir Singh vs State (Nct Of Delhi) & Ors on 26 September, 2019
Equivalent citations: AIRONLINE 2019 DEL 1644, (2019) 204 ALLINDCAS 585
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 26th September, 2019
+ TEST.CAS.51/2013
RAGHBIR SINGH ..... Petitioner
Through: Mr. Joginder Tuli and Ms. Joshini
Tuli, Advs. with petitioner in person.
Versus
STATE (NCT OF DELHI) & ORS ..... Respondents
Through: Mr. Phool Kumar, Adv. for R-5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition was filed seeking Letters of Administration on the basis
of registered document dated 30th April, 2009, claimed to be the validly
executed last Will of Chaudhary Ved Pal Singh son of Munshi Ram resident
of 3345/222, Vishram Nagar, Tri Nagar, Delhi, in favour of the petitioner.
2. Besides Govt. of NCT of Delhi, two sons of the deceased Chaudhary
Ved Pal Singh namely P.K. Chaudary and Shiv Kumar were impleaded as
respondents No.2&3 and Delhi Development Authority (DDA) as
respondent No.4.
3. The petition was entertained and notice thereof ordered to be issued
and citation ordered to be published.
4. The two natural heirs of the deceased namely P.K. Chaudary and Shiv
Kumar could not be served by ordinary process at the addresses furnished by
the petitioner and finally vide order dated 9 th September, 2015, were ordered
to be served by publication and which was effected. None appeared for
TEST.CAS.51/2013 Page 1 of 9
them. However, there is no formal order proceeding ex-parte against the
said respondents No.2&3.
5. The said respondents No.2&3 namely P.K. Chaudary and Shiv Kumar
are now proceeded against ex-parte.
6. One Kalawati filed objections to the petition and is found to have
been impleaded as respondent No.5 in the amended Memorandum of Parties
dated 21st May, 2019 on record.
7. The petitioner filed IA No.977/2017 under Order X Rule 2 of the
Code of Civil Procedure, 1908 (CPC) for examination of the said Kalawati
and which application was allowed and Kalawati is found to have been
examined on oath on 26th May, 2017, 19th August, 2017 and 25th October,
2017.
8. Before proceeding further, I may record that Will on the basis of
which Letters of Administration is claimed, is only with respect to land
measuring 430 acres being part of Khasra No.1608 to 1672 situated in
Village Mehrauli, New Delhi and also records that the deceased Chaudhary
Ved Pal Singh, besides the said Will, had for consideration also executed
other documents of sale of the said land in favour of the petitioner. The
petitioner, in this respect in his evidence has also filed an unregistered
Agreement to Sell dated 30th April, 2009 and an unregistered Money Receipt
dated 10th May, 2009 purportedly executed by Chaudhary Ved Pal Singh in
his favour.
9. The respondent No.5 Kalawati, in her objections claims to be the wife
of Moolchand son of Bhuramal Seth who is stated to be the recorded owner
of the land aforesaid. It is her contention that Moolchand executed a Will
and Power of Attorney in her name with respect to the property. On the
TEST.CAS.51/2013 Page 2 of 9
contrary, the petitioner claims that Moolchand bequeathed the land
aforesaid to Chaudhary Ved Pal Singh under a registered Will dated 29th
February, 1996.
10. I have enquired from the counsel for the petitioner, whether the Will
of Moolchand in favour of the deceased Chaudhary Ved Pal Singh has been
proved in any proceeding.
11. The answer is in the negative.
12. The respondent No.5 Kalawati, thus does not claim to be an heir of
the deceased Chaudhary Ved Pal Singh and only disputes the title of
Chaudhary Ved Pal Singh to the land aforesaid, by claiming to be the widow
of Moolchand, original owner of the land from whom the deceased
Chaudhary Ved Pal Singh claimed a Will in his favour with respect to the
land.
13. The aforesaid would show that the dispute raised by the only
contesting respondent No.5 Kalawati is a title dispute and the respondent
No.5 Kalawati did not have any caveatable interest. Objections to a Will
can be filed only by legal heirs or others who inherit the property of the
deceased under the applicable law of succession. It has been held in
Krishna Kumar Birla Vs. Rajendra Singh Lodha (2008) 4 SCC 300, that
any person questioning the existence of title in respect of the estate or
capacity of the testator to dispose of the property by Will in a ground outside
the law of succession would be a stranger to the probate proceedings
inasmuch as none of such rights can be effectively adjudicated therein.
Mention in this regard may also of Arjun Som Dutt Vs. Madhvi Bery 2014
SCC OnLine Del 1365, Prof. B.R. Grover Vs. The State 2012 SCC OnLine
Del 3838 and Pankaj Shah Vs. Rafat 2018 SCC OnLine Del 8943.
TEST.CAS.51/2013 Page 3 of 9
14. I must however mention that the Supreme Court in G.Gopal Vs. C.
Baskar (2008) 10 SCC 489 has held that a person who has even a slight
interest in the estate of the testator is entitled to file a caveat. This conflict
between Krishna Kumar Birla supra and G. Gopal supra was noted by the
Supreme Court in Jagjit Singh Vs. Pamela Manmohan Singh (2010) 5
SCC 157 and the question referred to a larger Bench. However, the facts in
this case are entirely distinguishable from G.Gopal supra inasmuch as
respondents/caveators in that case were grandchildren of the testator.
Supreme Court, in Saroj Agarwalla Vs. Yasheel Jain 2016 SCC OnLine SC
1165 has held that in cases of determination of caveatable interest, the test to
be applied is whether the claim of grant of probate prejudices the
respondents rights because it defeats another line of succession in terms
whereof the respondent/caveator asserted his/her rights. In my opinion,
what thus emerges is that 'interest' in the estate would not involve an
interest of title claimed in a property owned by the testator, as it is well
settled that a Probate Court cannot go into questions of title. Caveatable
interest would thus mean that the caveator can claim a right, title or interest
in the property under any Personal Law of succession as applicable to the
parties, in the event of intestacy of the testator. I am supported in my view
by Kusum Bharat Asarpota Vs. Jagdish Asarpota 2014 SCC OnLine Bom.
680 and Ashok Kumar Shukla Vs. Mohammed Rafiq Haji Usman Momin
2013 SCC OnLine Bom. 1167 holding that any person questioning the
existence of title in respect of the estate or the capacity of the testator to
dispose of the property by Will on a ground outside the law of succession
cannot be said to have a caveatable interest.
15. The objections, even though filed by the said respondent No.5
TEST.CAS.51/2013 Page 4 of 9
Kalawati, thus ought not to have thus been entertained and she ought not to
have been impleaded as respondent No.5 and the said error in procedure has
resulted in this proceeding remaining pending in this Court for over six
years and extensive statement on oath of the said respondent No.5 in
exercise of powers under Order X Rule 2 having been recorded, when title
dispute could not have been adjudicated in testamentary proceedings.
16. The Joint Registrar is not found to be authorised under Chapter II
Rule 3 of the Delhi High Court (Original Side) Rules, 2018 to be
empowered to decide applications under Order X of the CPC or to record
statements of the parties in pursuance thereto. Unfortunately, neither the
Joint Registrar then seized of the matter nor any of the counsels ever looked
into the said aspect and mechanically allowed the proceedings to go on,
when considering the nature of these proceedings, the enquiry sought to be
done under Order X was not within the adjudicative scope of the
proceedings in which it was being undertaken.
17. The proceedings came up before this Court on 14th May, 2019, when
the following issues were framed:
"(i) Whether the document dated 30th April, 2009 is the
validly executed last Will of the deceased Chaudhary Ved Pal
Singh? OPP
(ii) Relief."
and the parties relegated to evidence and the title of 430 acres of land
aforesaid was also enquired from the counsel for the defendant No.4 DDA.
18. The counsel for the respondent No.4 DDA, on 14th August, 2019
informed that out of land admeasuring 430 acres, only about 5 acres of land
had not been acquired and the remaining entire land had been acquired and
TEST.CAS.51/2013 Page 5 of 9
is part of colonies already developed and inhabited by DDA. It was also
informed that DDA was unable to comment on possession and ownership or
status of unacquired land.
19. The counsel for the petitioner, on 14th August, 2019 admitted that he
was not aware of the aforesaid position.
20. It appears that the entire proceedings were being pursued, without any
spade work.
21. Be that as it may, the petitioner in his evidence, besides filing
affidavit by way of examination-in-chief of himself has filed affidavit by
way of examination-in-chief of one Ram Kishan as PW-2 and which
affidavit by way of examination-in-chief has been proved as Ex.PW-2/1.
The said affidavit is as under:
"1. I say that I am one of the witnesses to the last Will and
Testament of late Sh. Chaudhary Ved Pal Singh, the
Testator/deceased, dated 30.04.2009 and in that capacity I am
competent to depose this affidavit.
The Registered will dated 30.04.2009 executed by Sh.
Chaudhary Ved Pal Singh in favour of the Petitioner is already
exhibited as EX PW1/A.
2. I say I am also a witness to the Agreement to Sale dated
30.04.2009 duly executed between the Petitioner and the
Deceased/Executor with respect to Suit Property, which was
also notarized in my presence by the Notary.
The Agreement to Sell and Payment Receipt are already
exhibited as EX PW1/E(COLLY).
3. I say that I was present on 30.04.2009 and I saw and
heard the contents of this Will being read over and explained to
Sh. Chaudhary Ved Pal Singh.
4. I say that having heard and understood the contents of
the Will, Sh. Chaudhary Ved Pal Singh out of his own free Will
and volition acknowledged before us that the Will had been
TEST.CAS.51/2013 Page 6 of 9
correctly drafted as per his instructions and correctly recorded
his last desires.
5. I say that in my presence, the testator signed and
executed the Will.
6. I further say that the Testator requested the deponent to
sign the same as attesting witness.
7. I say that I having personally seen the Testator sign and
execute the Will, as also having received a personal
acknowledgement from him of him having executed his will.
8. I, at the Testator‟s request, affixed my signatures
thereupon on the Will dated 30.04.2009 as an attesting witness.
9. I say that the executor got the will dated 30.04.2009 in
favour of the Petitioner registered with the Sub Registrar Office
(North District) on 15.05.2009 in my presence.
I depose accordingly."
22. The petitioner, appearing as PW-1 and Ram Kishan appearing as
PW-2 appeared before the Commissioner appointed for recording evidence
on 31st July, 2019.
23. Since the petitioner, appearing as PW-1 does not claim to be an
attesting witness to the document claimed to be the validly executed last
Will on the basis of which Letters of Administration is sought, need to refer
to his testimony is not felt.
24. PW-2 Ram Kishan, in his examination-in-chief on oath before the
Commissioner, stated as under:
"I have filed my affidavit Exhibit PW-2/1 which bears my
signatures at Points „A & B‟ alongwith document Exhibit PW-
1/A which bears my signatures at Point „A‟ and Exhibit PW-1/E
which bears my signatures at Point „A‟."
25. As would immediately be evident from above, PW-2, claiming to be
TEST.CAS.51/2013 Page 7 of 9
the attesting witness to the document claimed to be the Will sought to be
proved, has neither in his affidavit by way of examination-in-chief nor when
appearing for tendering the said affidavit into evidence identified the
signatures of the deceased Chaudhary Ved Pal Singh on the document nor
has deposed about the other witness, if any present at the time of execution.
All that PW-2 has identified is, his own signatures at point 'A' on the
document claimed to be the Will.
26. Though in most cases the counsel for the objector in a Test.Cas. in
cross-examination is found to prove the Will by excessive, un-required
cross-examination, in this case did not cross-examine PW-2. Thus, the
document on which Ex.PW-1/A has been put, claimed to be the validly
executed last Will of the deceased Chaudhary Ved Pal Singh, has not been
proved, neither in examination-in-chief nor in cross-examination.
27. The Will having not been proved in accordance with Section 68 of the
Evidence Act, 1872 read with Section 63 of the Indian Succession Act,
1925, ought not to have been admitted into evidence and Ex.PW-1/A put
thereon is ordered to be struck off.
28. The document, on the basis of which Letters of Administration was
claimed, having not been proved to be the validly executed last Will of the
deceased Chaudhary Ved Pal Singh and the petitioner otherwise not
claiming to be a natural heir of the deceased Chaudhary Ved Pal Singh, the
petition is dismissed.
29. Mr. Phool Kumar, Advocate, who throughout the aforesaid
proceedings has been only requesting for the matter to be passed over to
enable Mr. Rajeev Lochan, Advocate stated to be the Advocate for the
objector Kalawati to appear, has not been called upon to address.
TEST.CAS.51/2013 Page 8 of 9
30. The original documents dated 30th April, 2009 and 10th May, 2009
and the original Death Certificate of Chaudhary Ved Pal Singh taken out
from the sealed cover during the aforesaid dictation are returned to the cover
but the need to seal the same again is not felt.
31. The respondent No.5 Kalawati having chosen not to argue, no costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 26, 2019 'bs' TEST.CAS.51/2013 Page 9 of 9