Delhi High Court
Balbir Sher Gill vs State Of Delhi & Ors on 5 July, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th July, 2019.
+ TEST.CAS. 94/2008 & CCP(O)No. 22/2010
BALBIR SHER GILL ..... Petitioner
Through: Mr. Rana Ranjit Singh, Mr. Vivek
Kumar Singh, Ms. Akanksha Singh
and Mr. Keshav Chaturvedi, Advs.
Versus
STATE OF DELHI & ORS ..... Respondents
Through: Mr. Deepak K. Vijay, Ms. Neeru
Sharma and Mr. Mandip Singh,
Advs. for R-2 to 5.
Mr. Kamal Mohan Gupta, Adv. for
R-7.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition has been filed seeking probate of the document dated
15th October, 1976 as the validly executed last Will of the deceased Teja
Singh son of S. Hakim Singh, last resident of 27, Model Town, Delhi, who
died on 30th December, 1976.
2. This petition was instituted on 25th September, 2008 i.e. after 32
years of the demise of the deceased.
3. The petitioner is one of the five sons of the deceased. The other sons
namely Dalbir Singh, Satnam Singh, Prithvipal Singh and Kartar Singh
have been impleaded as respondents No.2 and 4 to 6 to the petition. The
deceased, besides the five sons also left a widow namely Ishwar Kaur, who
Test.Cas.94/2008 Page 1 of 22
died intestate on 5th February, 1984 i.e. much prior to the filing of the
petition, leaving the parties hereto as her only natural heirs. The deceased
also had two daughters namely Shammi and Surjeet Kaur. Shammi also
died prior to the institution of the petition and her legal heirs are impleaded
as respondents No.3A to 3C. The other daughter Surjeet Kaur is impleaded
as respondent No.7.
4. The recording of evidence in the petition stands concluded and
counsels were heard yesterday, when part judgment was also dictated in
open Court and matter adjourned to today.
5. The counsel for the petitioner, on enquiry, states that respondent
No.7 Surjeet Kaur did not appear inspite of service of notice of the petition.
With respect to the legal heirs respondents No.3A to 3C of Shammi, it is
stated that Shammi in her lifetime, in or about the year 1992-1993 executed
a Relinquishment Deed with respect to her share in the property in favour
of the petitioner. On enquiry as to the need for the Relinquishment Deed in
the face of the Will of which probate is sought in this petition, it is stated
that the subject Will was discovered by the petitioner only in the year 1996-
1997 i.e. after more than 20 years of the demise of the deceased and thus
the need for Relinquishment Deed.
6. On yet further enquiry, it is informed that the estate of the deceased
comprises of House No.27, Rishabh Nagar, Model Town, Delhi constructed
on land admeasuring 205.5 sq. yds. and House No.1386, Jawahar Colony,
Punjabi Colony, N.I.T. Faridabad, Haryana constructed on land
admeasuring 350 sq. yds.
Test.Cas.94/2008 Page 2 of 22
7. On yet further enquiry, it is informed by the counsel for the petitioner
that while respondents no.2,4&6 Dalbir Singh, Satnam Singh and Kartar
Singh are in occupation of the Faridabad house, the petitioner Balbir Singh
and respondent no.5 Prithvipal Singh are in possession of the Model Town
house.
8. The petition has been opposed by respondents no.2,4,5&7 Dalbir
Singh, Satnam Singh, Prithvipal Singh and Surjeet Kaur as well as the legal
heirs of Shammi, respondent no.3A to 3C by filing objections to the
petition.
9. The counsel for the petitioner informs that while respondent no.6
Kartar Singh, at the time of filing of the petition supported the petitioner,
but subsequently filed objections and is now also opposing the petition.
10. On the pleadings of the parties, the following issues were framed in
this petition on 18th February, 2010:
"1. Whether the alleged Will is a genuine document. OPP
2. Whether the testator signed the alleged Will. OPP
3. Did the testator understand the nature and effect of
depositions in the alleged Will and did he put his alleged
signatures, knowing what the Will contained? OPP
4. Whether the dispositions in the alleged Will are
unnatural, improbable and unfair in facts and
circumstances of the present case. OPR
5. Whether the plaintiff has taken a prominent part in the
execution of the alleged Will, which confers on him
substantial benefit. OPR
6. Whether the testator was ill for the last 25 years and was
of feeble mind at the age of seventy when the alleged Will
was executed. OPR
Test.Cas.94/2008 Page 3 of 22
7. Whether the alleged Will was registered in back date by
the plaintiff in connivance with the Sub-Registrar-III,
New Delhi and/or his officers/agents. OPR
8. Whether the relief sought by the plaintiff is barred by
limitation. OPR
9. Relief."
11. Though the claim, of discovery of the document claimed to be the
Will, after more than 20 years of demise of testator itself is a suspicious
circumstance, I have asked the counsel for the petitioner to show how the
document has been proved in accordance with law as the validly executed
last Will of the deceased.
12. The counsel for the petitioner states that the document claimed to be
the Will bears the signatures of two attesting witnesses and the petitioner
has examined both the attesting witnesses i.e. Raj Singh as PW-2 and
Subhash Chander as PW-4.
13. PW-2 Raj Singh, in his affidavit by way of examination-in-chief
claimed (i) that he was working as a private security guard in Azadpur
Sabzi Mandi in the year 1974 and came in contact with the deceased in the
year 1975; (ii) that he used to visit the deceased in his house in Naniwala
Bagh, Azadpur, Delhi in the year 1975 and had also visited the house of the
deceased at Model Town, Delhi; (iii) that in the month of October, 1976, he
was residing in Naniwala Bagh, Azadpur, Delhi and the deceased had
informed him that he was executing a Will pertaining to his house in Model
Town and asked Raj Singh to put his signatures on the document as an
attesting witness; (iv) that the document dated 15th October, 1976 was
signed by the deceased in his presence and he had put his own signatures on
Test.Cas.94/2008 Page 4 of 22
the said Will in the house of the deceased at Naniwala Bagh, Azadpur,
Delhi; (v) that the contents of the document dated 15 th October, 1976 were
in English language and were explained by the deceased Teja Singh to him
in Hindi and he had put his signatures thereafter only; (vi) that "there was
another person present at the time of signing and he had also put his
signature on the said Will"; (vii) that "contents of the Will dated 15-10-
1976 are true and correct and the contents of the Will was read over and
made understood in Gurmukhi/Hindi and after understanding the contents
of the same it was duly signed by the testator in my presence"; (viii) that
the original Will was got registered by the petitioner in the office of the
Sub-Registrar, Delhi on 26th July, 1999 and there also he had put his
signatures as witness to the said document; (ix) that he had also signed an
affidavit dated 23rd July, 1999 "which is Ex.PW-2/A"; and, (x) that he had
also signed an affidavit dated 25th September, 2008 "which is Ex.PW-2/B".
14. PW-2 Raj Singh, when appeared before the Court on 14th January,
2011, tendered his affidavit by way of examination-in-chief and referred to
the document dated 15th October, 1976 as the Will of the deceased and
purported to put points „A‟ and „B‟ against his signatures on the original
document dated 15th October, 1976, on which Ex.PW-2/A was put. In his
cross-examination, he deposed (a) that he could not read English; (b) that
he signed the Will Ex.PW-2/A on 15th October, 1976; (c) that he knew the
deceased since 1974 when he had joined a security service firm in Azadpur,
Naniwala Bagh and often used to go to a tea shop which was near the house
of the deceased; (d) that he was at that time 18-19 years old and the
deceased at that time was 68-70 years old; (e) that he had initially told the
Test.Cas.94/2008 Page 5 of 22
deceased that they had come to know each other recently only and why was
the deceased insisting on his signature as attesting witness but the deceased
had insisted; (f) that the petitioner had called him to the office of the Sub-
Registrar on 26th July, 1999; and, (g) he otherwise denied the suggestions of
the counsel for the objectors.
15. The counsel for the petitioner states that the other attesting witness
Subhash Chander under pressure from the respondents, failed to give any
affidavit by way of examination-in-chief and a commission was issued for
recording his evidence as PW-4.
16. PW-4 Subhash Chander, in his examination-in-chief deposed (I) that
he had been residing in Model Town, Delhi; (II) that he knew the petitioner
since childhood and used to go on and off to the residence of the petitioner;
(III) that he also knew the father of the petitioner "a little" as he used to
visit the petitioner‟s residence; (IV) that he did not remember whether he
used to sign as depicted at point A to A on the document claimed to be the
Will Ex.PW-2/A, (I may however record that on Ex.PW-2/A, no point A to
A are found); (V) that he did not know any Raj Singh; (VI) that he had
studied till class 10 and used to sign in English; (VII) that on being shown
the document Ex.PW-2/A claimed to be the Will, again he stated that he
used to sign like this (probably referring to the signatures shown to him) but
his signatures were different then; (VIII) that he could not say whether he
signed on the document Ex.PW-2/A or not; (IX) that he could read English
and also understood English to some extent; and, (X) that the document
shown to him contained his signatures at points „B‟ and „C‟ (however it is
not recorded on which document points „B‟ and „C‟ were so put; points „B‟
Test.Cas.94/2008 Page 6 of 22
and „C‟ however are found on affidavit dated 23 rd July, 1999 of Subhash
Chander filed as Annexure P-3 to the petition being the affidavit filed
before the Sub-Registrar (however the said affidavit is in original before
this Court and could not have been filed before the Sub-Registrar)).
17. PW-4 Subhash Chander, in his cross-examination deposed (A) that
the petitioner had been coming to him for the last 3-4 years stating, that
Subhash Chander had to depose in Court but he did not know to what
document was the petitioner referring to; (B) that it was only the petitioner
who told him about Raj Singh and he otherwise did not know any Raj
Singh; (C) that he came to Model Town in the year 1971-1973 and must
have been 15-16 years at that time and was studying in class IX; (D) that he
also used to know other family members of the petitioner but was on
talking terms only with the mother of the petitioner and „used to meet‟ the
father of the petitioner but did not speak to him much; (E) that he was not
aware of any document which bears his signatures; (F) that he had not gone
any place at the instance of the petitioner and had not signed any document
at the instance of the petitioner; (G) that he did not know when the father of
the petitioner died; (H) that he did not remember whether he had signed any
Will of any person ("then said that I have not signed"); (I) that he could not
tell what the petitioner does but knew that he used to deal in properties; (J)
that he had sold his Model Town house in the year 1996 and the deal was
done through the petitioner; (K) that he could not tell when the mother of
the petitioner died; (L) that the address of the deceased was Metal Box
Company, Faridabad; (M) that he could not tell whether the deceased was
not keeping well for 25 years prior to his death, though it was mentioned in
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the Death Certificate shown to him that the deceased was ill for last 25
years; (N) that in the year 1976 he had a small General Store in Model
Town at his residence and he could not tell what the petitioner was doing in
1976; (O) that at point X to X on the true copy of the Will annexed with the
petition as Annexure-I, the name/signature of Subhash Chandra is affixed
"but it is not so in the original Will at the said portion"; (P) that he could
not tell the age of the deceased in 1976; (Q) that he could not tell the age of
Raj Singh as he did not know any Raj Singh at all; (R) that he did not
remember whether he had got the document, being his affidavit filed along
with the petition, notarised; (S) that "I do not know any Raj Singh"; (T) that
in 1976, the deceased used to reside at Naniwala Bagh as well as at Model
Town and was working at some Metal factory in Naniwala Bagh; (U) that
he did not know whether the deceased knew English but the deceased never
talked in English to him; (V) that the petitioner had 3-4 younger siblings;
(W) that he did not know if the deceased was residing in Faridabad in 1976
along with his son Dalbir Singh; (X) that he had never seen the deceased
writing any application or FIR or any other document; (Y) that he did not
remember whether he had visited any Sub-Registrar office for getting the
document registered; (Z) that he did not remember whether he visited the
Sub-Registrars office with the affidavit Annexure P-3 to the petition; (AA)
"Q. It is suggested that only your name and address is mentioned in Ex.PW-
2/A and it does not bear your signatures?"; (BB) "A. Yes it mentions my
name. (Vol. I used to sign like this). The document Ex.PW-2/A does not
bear my signature on pages 1 & 2. (Vol. : However, my signature is there
on back side of page 1). The back side of page 1 is again shown to him.
The witness admits his signature"; (CC) that the petitioner had taken his
Test.Cas.94/2008 Page 8 of 22
signatures on various documents when he had sold his house; (DD) that he
did not remember if the deceased had signed any document or any Will in
his presence; (EE) that he did not know any Raj Singh so he could not say
whether any Raj Singh has put any signatures; (FF) that he did not
remember if the deceased had prepared any Will in 1972; (GG) that he was
never called by the deceased to sign any Will at his residence in 1972; (HH)
that he did not remember that he was ever called by the deceased to sign
any document; (II) that the petitioner had got his signatures on certain
documents when he had sold his house through him in 1996 but he had
never given his photographs to the petitioner; (JJ) that he did not know
whether the house at Naniwala Bagh was demolished in 1976; (KK) that he
did not remember when he last met with the deceased before his death;
(LL) that the deceased never mentioned to him about any Will prepared by
him and he did not remember whether he signed any Will prepared by the
deceased; (MM) that he did not know how many properties the deceased
had; (NN) that the petitioner had discussed with him about the properties of
the deceased only in the previous 3-4 years; and, (OO) that the deceased
had not signed Ex.PW2/A in front of him.
18. The counsel for the petitioner, during the hearing yesterday, on
enquiry as to where was the Will for twenty years, stated that the Will was
lying in a box containing the belongings of the father and which remained
with the mother of the petitioner and was submerged in water in the
flooding of the Model Town area in the year 1978. However on seeing the
original document claimed to be the Will, it was observed during the
Test.Cas.94/2008 Page 9 of 22
hearing yesterday that the document did not appear to have been submerged
in water at any point of time.
19. The counsel for the petitioner during the hearing on 4 th July, 2019
was also asked to produce before this Court the Relinquishment Deed
claimed to have been executed by the respondent no.3 Shammi of her share
in the property in favour of the petitioner. The counsel for the petitioner has
today in Court shown the original Relinquishment Deed and a copy thereof
is taken on record and a perusal whereof shows (i) the same to have been
executed by the respondent no.7 Surjeet Kaur not only for herself but also
as a power of attorney holder of the respondent no.3 Shammi; (ii) the
Relinquishment Deed to have been executed on the premise of the deceased
Teja Singh having died intestate and the petitioner and each of the
respondents no.2 to 7 having 1/7th undivided share in the property; and, (iii)
the respondents no.3 & 7 having relinquished their 1/7th share each in the
property in favour of the petitioner. Thus, on a perusal of the
Relinquishment Deed it is evident that even according to the petitioner, as
on the date of execution of the Relinquishment Deed i.e. 26th April, 2000,
neither the petitioner nor the respondent no.3 Shammi nor respondent no.7
Surjeet Kaur were aware of any Will of the deceased Teja Singh.
20. The counsel for the petitioner, during the hearing today, has also
sought to withdraw the argument made yesterday, that the Will was
discovered after the Relinquishment Deed and after twenty years of the date
of demise of Teja Singh. He has in this regard purported to take me through
the petition and the rejoinder filed to the objections of the respondents
no.2,3,4,5&7. However in the petition, there is not even a whisper of a
Test.Cas.94/2008 Page 10 of 22
pleading that the Will was not known to the petitioner for a period of
twenty years as was argued yesterday and thus the question of pleading
circumstances in which the Will remained hidden did not arise. However in
the rejoinder, the petitioner, in reply to preliminary submissions, has
pleaded as under:-
"II. The contents of para II of the preliminary
submissions are wrong and hence denied. The said
will was executed on15-10-76 and about the
execution of the said will has been in the knowledge
of all the respondents since the death of the father of
the petitioner and the respondents. That as per
family settlement and the desire of the father of the
petitioner, all the respondents kept the property of
the Faridabad and the property of Delhi mentioned
in Will in question was left with the petitioner. The
registration of the will has been got registered on
26-7-1999 is a matter of fact. It is specifically denied
that the will has been got registered in back date."
21. It is thus quite clear that what was stated during the hearing
yesterday, that the Will remained hidden for twenty years or was
submerged during the flooding of Model Town area in 1978, was contrary
to pleadings. On enquiry from the counsel for the petitioner as to on what
basis he has argued so, he states that he had yesterday, come to the Court
straight from out of Delhi and the petitioner, present in Court, while
briefing him had told him so.
22. As per the pleadings in the rejoinder aforesaid, the petitioner as well
as the respondents no.3&7, since the death of their father had knowledge of
the Will and all the heirs had accepted the said Will. If that was so, there
was no question of respondents no.3 & 7 or for that matter any of the
Test.Cas.94/2008 Page 11 of 22
respondents, on the demise of their father, inheriting any share in the
subject property and no need for the petitioner, on 26th April, 2000, while
executing the Relinquishment Deed as Beneficiary, obtain relinquishment
of 1/7th share of each of the respondents no.3&7. It is significant that the
Relinquishment Deed expressly mentions the deceased to have died
intestate and respondents no.3 and 7 inheriting 1/7th share each. If the
purport in executing the Relinquishment Deed was only to remove any
ambiguity and / or to perfect the exclusive title of petitioner on the basis of
Will, the language of the Relinquishment Deed would have been different
and respondents no.3 and 7 only declared having no share in accordance
with Will and desire of the father.
23. The counsel for the petitioner of course today, while withdrawing his
statement made yesterday of the Will having remained hidden for twenty
years and/or having been submerged, has drawn attention to para 18 of the
petition where the petitioner has pleaded the factum of execution of the
Relinquishment Deed by the respondents no.3&7 by pleading "Moreover in
order to make it more clear they have executed relinquishment deed in
favour of the petitioner". The said plea however is contrary to the
document. As per the document i.e. the Relinquishment Deed, the same is
not to ensure a better title to the petitioner in the 2/7th share of the
respondents no.3&7 but to thereunder convey the said 2/7th share. If a
registered document had been desired inspite of the Will, the language
thereof would have been different and the document would have been in the
form of a Deed of Declaration of acceptance of the Will. In terms of
Sections 91 and 92 of the Indian Evidence Act, 1872, no plea in
Test.Cas.94/2008 Page 12 of 22
contradiction of the terms of a registered document can be taken or proved.
The petitioner has in any case not proved that the Relinquishment Deed was
executed for the reasons pleaded.
24. From the aforesaid scenario, it is quite evident that the petitioner, in
the matter of filing this petition seeking probate of a document claimed to
be the Will of his father, has indulged in forgery and fabrication of a Will.
During the hearing yesterday I had also asked the counsel for the petitioner
to also address on as to why prosecution of the petitioner of the offences
committed by him, under Section 340 of the Code of Criminal Procedure,
1973 (Cr.PC) be not ordered.
25. The counsel for the petitioner only states that the petitioner has not
indulged in forgery.
26. However the said would be a defence in the prosecution and is no
argument to the show cause against Section 340 of the Cr.PC. I am of the
view that if even in gross cases, the Court at the cost of burdening another
Court, does not invoke the provision of Section 340 of the Cr.PC, persons
like the petitioner will walk away from the Court with an impression that
the maximum consequence of forgery and fabrication indulged in by them
is of losing in the civil suit / petition and which will not in my opinion
prevent them in future from indulging in similar offence.
27. To say the least, the two attesting witnesses examined by the
petitioner in proof of the document claimed to be the Will have been unable
to prove the same. Section 63 of the Indian Succession Act, 1925, while
prescribing the mode of execution of unprivileged Wills, prescribes:
Test.Cas.94/2008 Page 13 of 22
(i) that the testator shall sign or shall affix his mark to the Will;
(ii) that the signature or mark of the testator shall be so placed that
it shall appear that it was intended thereby to give effect to the
writing as a Will.
(iii) 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, in the presence of and by the direction of the testator;
(iv) that each of the witnesses shall sign the Will in the presence of
the testator;
(v) that it shall however not be necessary that more than one
witness be present at the same time, and no particular form of
attestation shall be necessary.
28. If we test the testimony of the two purported attesting witnesses to
the Will, it emerges (i) that PW-2 Raj Singh in his affidavit by way of
examination-in-chief stated that at the time of signing, there was another
person present and he had also put his signatures on the said Will; however
he did not name the said other person; (ii) however since it is not the case of
the petitioner or of any other witnesses, that any other person was present
besides PW-2 Raj Singh and the deceased, the said only other person can be
the other purported attesting witness i.e. PW-4 Subhash Chander; (iii) PW-4
Subhash Chander in his evidence repeatedly denied any knowledge of PW-
2 Raj Singh; (iv) PW-4 Subhash Chander in his examination-in-chief, when
shown the document claimed to be the Will i.e. Ex.PW-2/A and when asked
whether he used to sign in the manner shown in that document, first stated
Test.Cas.94/2008 Page 14 of 22
that he did not remember but upon being again asked the same question
(and which was recorded subject to objection of the objectors since the
evidence was being recorded on commission), stated that he used to sign
like that; (v) the said objection is also for decision today; (vi) the petitioner,
in examination-in-chief, having already asked PW-4 Subhash Chander
about his signatures and PW-4 Subhash Chander having denied the same,
was not entitled to again ask the same question and in response to which
PW-4 Subhash Chander gave a contradictory answer; the same alone leads
to inference that no weight or value can be given to the testimony of PW-4
Subhash Chander; (vii) however PW-4 Subhash Chander, while the second
time admitting that he used to sign in the manner as on Ex.PW-2/A, stated
that he could not say whether he had signed on Ex.PW-2/A or not; (viii)
even otherwise, from the testimony of PW-4 Subhash Chander it is quite
evident that his connect was with the petitioner only and not with the
deceased Teja Singh; (ix) PW-4 Subhash Chander, in his entire testimony,
has not proved that he was attesting witness to the document Ex.PW-2/A
and has also falsified the statement of PW-2 Raj Singh, of both PW-2 Raj
Singh and PW-4 Subhash Chander being present at the same time; and, (x)
there is thus also a contradiction between the testimonies of the two
attesting witnesses.
29. The counsel for the petitioner of course contends that PW-4 Subhash
Chander came under pressure of the objectors. However the fact remains
that the petitioner, though entitled to in law to have PW-4 Subhash Chander
declared hostile and cross-examine him, did not chose to do so and without
Test.Cas.94/2008 Page 15 of 22
laying any foundation for such an argument, the argument cannot be
permitted to be raised.
30. I may say that even otherwise, the alleged Will is shrouded in
suspicious circumstances;-
A. The deceased was the owner besides of the Model Town
house, also of the house in Faridabad; however the alleged
Will is only with respect to the house in Model Town;
ordinarily when a person makes a Will with respect to his
estate, the Will is so made with respect to the entire estate and
not just with respect to one of the properties only; there is no
reason pleaded in affidavit on the record, for the deceased to
make a Will only with respect to one of the properties.
B. It has also come on record that the deceased, at the time of
execution of the alleged Will, besides the properties at Model
Town and Faridabad, was also possessed of property at
Naniwala Bagh, Azadpur, Delhi; even if the said house was in
an unauthorised colony, the fact remains that the deceased was
in possession of the same; there is no Will with respect to the
same also.
C. At the time of making of the alleged Will, the petitioner
Balbir Singh and respondents no.4,5,6&7, Satnam Singh,
Prithvipal Singh, Kartar Singh as well as youngest daughter
Surjeet Kaur were unmarried and only respondent no.2 Dalbir
Singh and respondent no.3 Shammi were married;
Test.Cas.94/2008 Page 16 of 22
D. The only reason given in the alleged Will for the deceased to
will one of his two/three properties exclusively to one of his
unmarried sons to the exclusion of his widow, two daughters
and four other sons is, that the petitioner was serving the
deceased and his wife and also looking after his younger
brothers and sisters.
E. The petitioner, in his affidavit by way of examination-in-chief
has however not so much as whispered at all as to what he had
been doing for, say five or ten years prior to the date of alleged
Will, for his siblings; the petitioner has not even deposed as to
what was his income at that time or what he was doing; today
on enquiry it is stated that the petitioner is a property agent; all
that the petitioner has stated in his affidavit by way of
examination-in-chief is that he "has been always helping his
brothers & sisters as and when demand arose gave also money
to Dalbir Singh/respondent no.2 to settle in his business when
he became unemployed when the Metal Box Ltd. Factory at
Faridabad was closed" without specifying whether it was
before the date of the alleged Will or after; even if the
petitioner, after the date of the alleged Will has helped any of
his siblings, the same would not justify the reason given in the
alleged Will for the deceased to discriminate between his
children;
F. It was incumbent upon the petitioner to, when he has been
given a disproportionately larger part of the estate inspite of
Test.Cas.94/2008 Page 17 of 22
being one of the eight heirs, to justify the reasons mentioned in
the alleged Will for such discrimination; when the
dispossession in the alleged Will is unnatural, improbable or
unfair in the light of relevant circumstances like the exclusion
or of absence of adequate provisions for other natural heirs
without any reason, it is a suspicious circumstance and it is
incumbent upon the propounder of the Will to satisfy the
Courts conscience and remove all suspicious circumstances to
satisfy that the Will was duly executed by the testator by
giving cogent and convincing explanations. Reference in this
regard may be made to Bharpur Singh Vs. Shamsher Singh
(2009) 3 SCC 687, Babu Singh Vs. Ram Sahai (2008) 14
SCC 754, Gurdial Kaur Vs. Kartar Kaur AIR 1998 SC 2861,
H. Venkatachala Iyenger Vs. B.N. Thimmajamma AIR 1959
SC 443, Shashi Kumar Banerjee Vs. Subodh Kumar
Banerjee AIR 1964 SC 529, P.P.K. Gopalan Nambiar Vs.
P.P.K. Balakrishnan Nambiar AIR 1995 SC 1852, Jaswant
Kaur Vs. Amrit Kaur (1977) 1 SCC 369 and Purnima Devi
Vs. Kumar Khagendra Narayan Dev AIR 1962 SC 567.
G. It is not as if in terms of the alleged Will, while giving the
Model Town house exclusively to the petitioner, Faridabad
house has been given to the others; in the absence of any Will
with respect to the Faridabad house, the petitioner, if the Will
were to be proved, though having exclusively one of the two /
three properties to himself, would also have a share in the
Test.Cas.94/2008 Page 18 of 22
other properties and which is also against the grain of what
was expected of the deceased, seating oneself in the armchair
of the deceased.
31. The counsel for the respondents no.2 to 5 has argued, (i) that the
deceased was an illiterate person but the alleged Will is in legal language
and there is no proof as to who drafted the same; though the petitioner has
examined PW-3 Rajesh Kumar Gupta, Advocate but he posthumously got
the Will registered and in cross-examination stated that he was not involved
in drafting of the Will; and, (ii) that conflicting versions have been given by
the petitioner of the date of knowledge/discovery of the alleged Will; while
in the rejoinder aforesaid it is pleaded that the Will was known since the
demise; in Civil Suit No.697/2014 of the Court of Ms. Sonam Singh, Civil
Judge-05, Delhi, certified copy of which is on record, it was pleaded "That
Raj Singh the witness of the will had disclosed about the execution of the
will in the year 1978 to the Late mother of the plaintiff and also to the
plaintiff. Therefore the Box of father was searched and the said will was
found in the year 1978; That at that time Dalbir Singh, Satnam Singh and
Prithvipal Singh were residing at Faridabad House at that time Smt.
Shammi was already married. The fact of the will was already disclosed by
Late Smt. Ishwar Kaur to all the family members since then"; a third
version was taken during the arguments yesterday, when it was argued that
the Will was discovered in the year 1996-97 and the story of the Will
having remained submerged in the flooding of Model Town in the year
1978 was propounded.
Test.Cas.94/2008 Page 19 of 22
32. The counsel for the respondent no.7 has argued (i) that the deceased
died within 1½ months of his alleged Will and which itself is a suspicious
circumstance; and, (ii) that the respondent no.7 Surjeet Kaur, at the time of
demise of the father, was merely 11 years old and the deceased, in the
normal course of human conduct, would have made a provision for her.
33. The counsel for the petitioner though has sought to contend that there
is some evidence of the petitioner having helped his siblings but admittedly
the said evidence is of post 1976 and which according to me is not relevant.
The evidence if any, to justify the unequal unfair preference of the
petitioner from amongst his other siblings, was to be of the reason stated in
the alleged Will of the petitioner prior to the execution thereof helping his
siblings and qua which there is no evidence.
34. The counsel for the petitioner at the close of this dictation in open
Court has handed over copies of Rajesh Sharma Vs. Krishan Kumar
Sharma 2014 (142) DRJ 660, Sridevi Vs. Jayaraja Shetty 2005 (2) SCC
784, M.B. Ramesh Vs. K.M. Veeraje Urs (2013) 7 SCC 490, Kunvarjeet
Singh Khandpur Vs. Kirandeep Kaur (2008) 8 SCC 463, order dated 12th
October, 2017 in FAO No.402/2015 titled Amit Vs. State of NCT of Delhi,
Surender Rana Vs. State 2017 (243) DLT 181, Ashok Kumar Dua Vs.
Ranbir Kumar Dua 2008 (104) DRJ 662, Jaswant Kaur supra, Naveen
Bhatia Vs. Raj Kumari Bhatia 2017 (165) DRJ 511 and Krishan Lal
Dilawari Vs. State 210 (2014) DLT 439.
35. Such handing over of a bunch of judgments after dictation in open
Court serves no purpose. Be that as it may, I have perused each of the
Test.Cas.94/2008 Page 20 of 22
aforesaid judgments and suffice it is to state that the same were decided on
their own facts and which have no relevance to the findings hereinabove.
36. The counsel for the respondents no.2 to 5 in retaliation has also
handed over a bunch of copies of Kavita Kanwar Vs. State (NCT Delhi)
2011 (2014) DLT 448, Jaswant Kaur supra, Rani Purnima Devi supra,
Dinesh Kumar Vs. Khazan Singh 31 (1987) DLT 388, Yumnam Ongbi
Tampha Ibema Devi Vs. Yumnam Joykumar Singh (2009) 4 SCC 780,
Lalita Sharma Vs. Sumitra Sharma 178 (2011) DLT 358 and Yogesh
Duggal Vs. State 179 (2011) DLT 557.
37. Having already decided in favour of the respondents, need to discuss
the said judgments is not felt.
38. Resultantly the petition fails and is dismissed.
39. The petitioner is burdened with costs of the petition of Rs.1,00,000/-
payable to the contesting objectors in equal share within two months of this
judgment.
40. A complaint be also made by the Registrar General of this Court
under Section 340 of the Cr.PC, of the offence committed by the petitioner
in the course of this proceeding, of forgery and fabrication of a Will and of
giving false evidence in the present proceedings.
41. The parties to appear before the worthy Registrar General of this
Court for the said purpose on 6th August, 2019.
42. The petition is disposed of.
Test.Cas.94/2008 Page 21 of 22
43. CCP(O) No.22/2010 under Sections 11 & 12 of the Contempt of
Courts Act, 1971 filed by the petitioner and directed against the respondent
no.5 Prithvipal Singh is also pending before this Court.
44. The counsel for the petitioner states that the said CCP(O) was filed
because the respondent no.5 Prithvipal Singh, in violation of the interim
order was raising construction in the suit property at Model Town.
45. In the facts and circumstances aforesaid, it is not deemed appropriate
to proceed with the CCP(O) which is closed.
RAJIV SAHAI ENDLAW, J.
JULY 05, 2019 „bs‟/pp/gsr (Corrected & released on 29th July, 2019) Test.Cas.94/2008 Page 22 of 22