Delhi District Court
Thakur Dass vs State Ors on 30 March, 2024
Thakur Dass Vs. State (NCT of Delhi) & Ors.
DLST010005022012
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02,
SOUTH, SAKET COURTS COMPLEX, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC No. 5962/2016
Filing No. 30639/2012
CNR No. DLST01-000502-2012
In the matter of:
Shri Thakur Dass
S/o Late Shri Khadak Singh
R/o B-40, Sanwal Nagar,
New Delhi - 110049
................Petitioner
Versus
1. State (NCT of Delhi)
2. Shri Des Raj (Now deceased)
Represented through his LR's i.e.
(a) Smt. Ram Pyari (Wife)
(b) Sh. Bhagwan Dass (son)
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(c) Sh. Rakesh Kumar (son)
All R/o B-40, Sanwal Nagar (G.F)
Kotla Mubarak Pura,
New Delhi - 110049.
(d) Smt. Suman @ Shakuntala (Married Daughter)
W/o Sh. Om Prakash
(e) Smt. Nandani (Married Daughter)
W/o Shri. Suresh Kumar
(f) Smt. Janki (Married Daughter)
W/o Shri. Anil Gupta
Service Effected Through
the Legal Heirs (a) to (c)
R/o B-40, Sanwal Nagar (G.F)
Kotla Mubarak Pura,
New Delhi - 110049.
(the address of married daughter are not known)
3. Shri. Kanhaiya Lal
S/o Late Sh. Khadak Singh
R/o 7/212, Dakshin Puri Extn.,
Delhi - 110032.
4. Smt. Rukmani Devi
W/o Shri Keshav Dass
R/o B-16, Bal Nagar,
Kartar Pura, Jaipur (Rajasthan)
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5. Smt. Shanti Devi (Puran Chand)
W/o Shri Puran Chand
Through LR's
(1) Shri Krishan Kumar
S/o Late Sh. Puran Chand
R/o C-16, Sawal Nagar,
New Delhi - 110049.
(2) Smt. Lalita Devi
W/o Late Shri Rajesh Kumar
R/o 21, Joshi Colony,
Raja Malka Park, Brahm Puri,
Jaipur, Rajasthan.
(3) Shri Yogender Kumar
S/o Late Shri Puran Chand
R/o C-197, Kotla Mubarakpur,
Subhash Gali, Nank Chand Basti,
New Delhi - 110003.
(4) Smt. Hardei
W/o Shri Hoti Lal
R/o C-10, Third Floor,
Sanwal Nagar, New Delhi - 110049.
(5) Smt. Sunita
W/o Shri Satish Kumar
R/o 206A, Q Block,
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Pitam Pura, New Delhi.
(6) Smt. Saroj
W/o Shri Ramesh Kumar
R/o Ward No. 22, Aagra Line,
Behind Vishwakarma Mandir,
Kaushal Nagar, Bandiqui,
Rajasthan - 303313
(7) Smt. Yogita
W/o Shri Babu Lal
R/o RZF-756/3, Raj Nagar,
Part-II, Gali No. 1, Palam Colony,
Delhi - 110077.
.............Respondents
Date of Institution : 11.12.2012
Date of reserving the judgment : 15.02.2024
Date of pronouncement : 30.03.2024
Decision : Dismissed
PETITION UNDER SECTION 221 OF THE INDIAN
SUCCESSION ACT 1925 IN RESPECT OF WILL DATED
08.04.1987 OF THE DECEASED SMT. PANCHI DEVI W/O
LATE SH. KHADAK SINGH (ALSO SPELLED AS
KHARAK SINGH)
JUDGMENT
1. The present petition has been filed by the petitioner Under PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 4 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
Section 221 of the Indian Succession Act 1925 for grant of probate of the registered Will dated 08.04.1987 in respect of property no. 48A, Sanwal Nagar, New Delhi of which new no. B-40, Sanwal Nagar, New Delhi - 110049 (hereinafter referred to as 'suit property') which is executed by Smt. Panchi Devi W/o Late Sh. Kharak Singh (now deceased) in favour of the petitioner. The case of the petitioner, as per the petition, is as under:-
1.1. Smt. Panchi Devi w/o Late Khadak Singh R/o 48A of which New No. B-40, Sanwal Nagar, New Delhi who was a Hindu Governed by the Hindu Succession Act (Act XXX of 1956) and died on 07.06.1987 at Delhi in the suit property and the deceased left the said immovable property in which she was residing within the jurisdiction of Court.
1.2. The deceased was the sole and absolute owner and in possession of the suit property. The suit property was owned and in possession of the deceased. The said property was also assessed in the MCD record in the name of Smt. Panchi Devi and at present the same is mutated in the name of petitioner. The deceased had every every right, title, interest, claim whatsoever vested over the said property in all manner. The husband of the deceased was expired during her lifetime.
1.3. Smt. Panchi Devi was having 3 sons and two PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 5 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
daughters at the time of her death being her legal heirs. The petitioner and respondent no.(s) 2 and 3 were/are the three sons of the deceased Smt. Panchi Devi. The deceased was having two daughters namely Smt. Shanti Devi and Smt. Rukmani Devi. However, Smt. Shanti Devi has been expired. Only one daughter of Smt. Panchi Devi is alive i.e. the respondent no. 4. The deceased had no other legal heirs at the time of her death except her three sons and two daughters. The deceased had no other legal heirs at the time of her death except her three sons and two daughters.
1.4. The deceased had the deep love and affection towards her son Thakur Dass i.e. petitioner. The deceased was residing with the petitioner. During her lifetime, the deceased executed a registered Will dated 06.04.1987 in favour of the petitioner in respect of the suit property.
1.5. As per the registered Will dated 06.04.1987 of which registration no. 1465, page no. 134-136, dated 08.04.1987 in respect of property no. 48A, comprising of two rooms, one shop, one kitchen, one bath room, one stair case and open court yard on G.F. and three rooms, one latrine, one kitchen one bath room on first floor measuring about 30' x 25' total area 83.33 sq. yards. Part of Khasra no. 4, situated at Sanwal Nagar, New Delhi
- 110003 of which New No. B-40, Sanwal Nagar, New Delhi-
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110049. The said Will was executed in the presence of two witnesses i.e. Shri Nathu Lal, who has expired. It is stated that Sh. Dalip Kumar, who is son of Sh. Nathu Lal, can identify the witnesses in all manners. Apart from the said Will the deceased had executed others documents i.e. GPA., SPA, Affidavit, Deed of Agreement, Indemnity Bond, all dated 06.04.1987 in favour of the petitioner.
1.6. As per the registered Will dated 06.04.1987, the petitioner has become the sole beneficiary of the said registered Will. The registered Will is the last Will of the deceased.
1.7. The value of the assets does not exceed the aggregate of Rs.20,00,000/- and the net amount after deduction of all items is under the value of Rs.20,00,000/-. No other application has been filed before any Court for grant of probate of the Will or Letters of Administration to the petitioner. This Court has territorial jurisdiction to try and entertain the present petition.
Hence, the present petition was filed with the following prayer:-
"It is, therefore, most respectfully prayed that the probate of the Registered Will dated 6-4-1987 in respect of Property No. 48A, Sanwal Nagar, New Delhi of which New No. B-40, Sanwal Nagar, New Delhi-110049, which PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 7 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
is executed by Smt. Panchi Devi W/o Late Shri Kharak Singh (Now Deceased) in favour of Petitioner may be granted of the beneficiary of the said Registered Will i.e. Petitioner under the abovementioned circumstances of the case and also in the interest of justice.".
2. The citation was directed to be published in the newspaper and notice of the petition was also directed to be issued to the respondents. Citation was published in the newspaper "The Statesman" dated 15.01.2013.
3. The respondent no. 3 and 4 have appeared in the Court. They filed their no objection to the probate petition. Their statements have been recorded wherein they stated that they had no objection if the probate/letters of administration is granted in favour of the petitioner.
Objections / Written Statement
4. Respondent No.2 appeared and filed his objections/written statement.
5. Respondent No.2 filed his objections/written statement. The respondent No. 2 has stated as under :
5.1. The petition is highly belated and the same is barred by the limitation, the alleged Will dated 06.04.1987 was not shown the light of day till December 2012 1.e. more than 26 PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 8 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
years. The petition is not maintainable as the petitioner has not made any averment in the petition as to now and when cause of action accrued in favour of the petitioner against the respondent for seeking probate of false and fabricated Will. The petition is also not maintainable as there are several discrepancies in the alleged Will. The alleged Will is regarding property bearing No. 48-A part of Khasra No. 4 situated at Sanwal Nagar, Kotla Mubarak Pur, New Delhi-110003 whereas the probate has been sought for property No. 48-A, Sanwal Nagar, New Delhi-49 of which New No. 8-40 Sanwal Nagar. However, there is no Khasra No. 4, оr Sanwal Nagar in locality known as Kotla Mubarak Pur. Sanwal Nagar and Kotla Mubarak Pur are two different localities situated at a distance of 3 Kms from each other. It is further stated that the alleged Will is therefore not specific about the identity of property and this shows that the maker/testator of Will was not having sound disposing mind or the same had been manipulated by the petitioner.
5.2. It is stated that the probate has been sought on forged and fabricated Will. The deceased Smt. Panchi Devi was suffering with "Small Cell Carcinoma" (Cancer) and was under
the treatment of AIIMS and was subjected to chemotherapy. The influence of medicated drugs made her incapable of understanding and her limps was crippled and was completely PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 9 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
bed-ridden. She was unable to speak even. In April 1987, she was on death bed and doctors have informed the legal heirs that she does not have any chances of survival. It is further submitted that it is matter of fact that she died on 07.06.1987 exactly after two months of the alleged Will.
5.3. During her last days, the deceased was living with the respondent No. 2 and at no stretch of time the deceased Smt. Panchi Devi was taken or went out of her bed. The alleged Will does not bear any photograph of Smt. Panchi Devi nor her thumb-impression had been identified by any responsible person who could have identified before the Sub- Registrar. The petitioner Thakur Dass is a person who manipulated and fabricated the alleged Will of Smt. Panchi Devi and to usurp the property under the Will by manufacturing, General Power of Attorney, Special Power of Attorney, Affidavit and Agreement etc. 5.4. The property bearing No. 48-A was self acquired property of Shri Kharak Singh who died intestate and after his death the property devolved upon all the legal heirs. In such circumstances, Smt. Panchi Devi had only 1/6th share and was not legally authorized to execute the Will as being the absolute owner of the property. The documents annexed with petition state that Smt. Panchi Devi purchased the property from Shri PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 10 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
Babu Lal is a concocted fact as no sale deed has been ever executed by Shri Babu Lal in favour of Smt. Panchi Devi and Smt. Panchi Devi was never been a absolute owner of the property.
5.5. In parawise reply, respondent no.2 has not denied the fact that Smt. Panchi Devi was Hindu by religion and expired on 07.06.1987. However, it is denied that she owned any immovable property of her own. It is also denied that she left any Will. It is state that the Will propounded is forged and fabricated, which was manipulated by the petitioner. It is denied that the deceased Smt. Panchi Devi was the sole and absolute owner of property bearing No. 48-A or B-40, Sanwal Nagar, New Delhi. It is also not denied that Smt. Panchi Devi was having three sons and two daughters and her one daughter Smt. Shanti Devi has expired after the death of Smt. Panchi Devi. It is also not denied that presently, Smt. Panchi Devi has left three sons and one daughter. It is also denied that the deceased Smt. Panchi Devi was living with the petitioner. Smt. Panchi Devi had never executed a registered Will dated 06.04.1987 in favour of the petitioner.
Replication:
6. Petitioner has not filed any replication to the written statement of respondent no.2.
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7. On the basis of the record, following issues were framed vide order dated 15.04.2013:-
"1. Whether Will dated 08.04.1987 executed by Late Smt. Panchi Devi, W/o Late Sh. Kharak Singh, is validly and legally executed in favour of the petitioner? OPP
2. Whether the petitioner is entitled for grant of probate in respect of Will dated 08.04.1987? OPP
3. Whether objections filed on behalf of respondent no.2 are valid and maintainable? OPR
4. Relief."
8. On 15.03.2014, additional issue no.3A was framed as follows:
"Issue No.3A: Whether the petition for grant of probate is within limitation? Onus on parties"
9. The petitioner was asked to lead evidence. The petitioner examined himself as PW1. He tendered his affidavit in evidence as A-1. He reiterated the facts stated in the petition and relied upon the following documents:
a) Will dated 08.04.1987 as Mark A/PW-1 (Also exhibited in examination-in-chief of PW-3 as Ex.PW3/A).
b) Original GPA as Ex.PW-1/2.
c) Original SPA as Ex.PW-1/3
d) Affidavit dated 06.04.1987 as Ex. PW-1/4 PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 12 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
e) Indemnity Bond dated 06.04.1987 as Ex.PW-1/5
f) Deed of Agreement dated 06.04.1987 as Ex. PW- 1/6.
g) Original Electricity Bills in the name of Smt. Panchi Devi as Ex.PW1/7 and Ex. PW-1/8.
h) Death Certificate of Smt. Panchi Devi as Ex.PW- 1/9.
i) Two original receipts of MCD in the name of Smt. Panchi Devi as Ex.PW-1/10 and Ex.PW-1/11.
j) The water bills of premises in the name of Smt. Panchi Devi as Ex.PW-1/12 and Ex.PW-1/13
k) Receipt of DDA as Ex. PW1/14.
l) Original House Tax Receipt of property as Ex.PW- 1/15.
m) House Tax Bills as Mark-A and Mark-B.
10. PW1 deposed on the lines of his petition. During his cross examination he deposed as under:-
10.1. On showing certain document relied upon by PW1 i.e. Ex.PW-1/2, Ex. PW-1/6, he also shown page 2 of Deed of Agreement Ex. PW-1/6, PW1 stated that he does not know where is the sale deed referred by Smt. Panchi Devi in her agreement. He do not know whether Smt. Panchi Devi had PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 13 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
handed over the sale deed dated 01.08.1970 referred in the agreement to sell Ex. PW-1/6, all documents have already filed by him in the present file. He stated that he cannot produce the said sale deed dated 01.08.1970. On being questioned 'can you explain on what basis Smt. Panchi Devi, your mother, was owner of the property', he answered that on the basis of house tax record of house tax receipts. He denied the suggestion that the said property was in the name of his father Sh. Khadag Singh. He disclosed about the Will in his favour to his brothers and sisters about 3-4 months after demise of Smt. Panchi Devi. He volunteered that he had also given them copies of Will. All of them, after coming to know about the Will in his favour, accepted him owner of the property without any protest to the Will. He asked the respondents after about 3-4 years of demise of his mother, to vacate the property, but respondent no.2/Deshraj refused to vacate it. Smt. Panchi Devi was under
treatment of private doctor in colony, she might have been taking the treatment at AIIMS. She was taking medication of fever etc. He deposed that it is not in his knowledge that his mother was cancer patient or she was undergoing treatment at AIIMS. He denied the suggestion that Smt. Panchi Devi used to live with Deshraj. He deposed tha she (Smt. Panchi Devi) was illiterate. The Will Mark-A/PW-1 was prepared by a lawyer, whose name PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 14 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
is not known to him. On being questioned 'please tell whether all papers were prepared in a single day', he answered that first of all stamp papers were purchased and then it took about 2-3 days to make all paper complete. He admitted that on the day lastly papers were prepared, Smt. Panchi Devi was not present. He have not purchased the non judicial stamp papers. On being questioned that 'the papers were prepared by the lawyer and the same were given to you, since your mother Smt. Panchi Devi was not present when lastly papers were prepared' he answered that on the last day when papers were prepared Smt. Panchi Devi was not present, however earlier she was instructed the lawyer and then papers were prepared.
10.2. He further deposed that they went to the office of Sub-Registrar after 2 days from preparing the papers. No photograph of his mother was affixed on those papers. One of the witness was Sh. Nathi Ram and the other witness was an Advocate, whose name is not known to him. His mother was not knowing the said advocate. He volunteered that she went to him through his bua Smt. Varji Devi. The documents were signed (he mean thumb impression was put) on the day we went to the office of Sub-Registrar). The date, month and year written manuscript at portion X (on Mark A-/PW-1) was not written by the Sub-Registrar but it was already written before presenting PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 15 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
the Will before Sub-Registrar. He does not know who had filled in the date, month and year at portion X, it might have been filled in by the lawyer. It was also not filled- in his presence. He was telling in his own estimate that portion X might have been filled in by the lawyer. He denied that suggestion that portion X could or might have been filled in by the office of Sub-Registrar. Affidavit Ex. PW-1/4 is of Smt. Panchi Devi, it bears dated 09.04.1987 at point A and at point B it bears 08.04.1987 of attestation by Notary Public. The date of 09.04.1987 could be because of typographical mistake of typist since it was attested on 08.04.1987. Similar was his reply in respect of GPA Ex. PW- 1/2.
10.3. On being questioned that 'Sanwal Nagar and Kotla Mubarak Pur are two different localities, what you would say', he answered that earlier both are the same localities are known by name Kotla Mubarak Pur and later on, as on today both are being known as Sanwal Nagar and Kotla Mubarak Pur.
10.4. He further deposed that there is a distance of about 1½ kilometer between Sanwal Nagar and Kotla Mubarak Pur. He does not know when this property was constructed. He do not know that whether his father Invested money in construction of the property or not. He does not know when the same was purchased. He denied the suggestion that he had deposing PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 16 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
falsely. He had no knowledge whether his mother executed Gift Deed or not in his favour. Indemnity Bond Ex. PW-1/5 bears the thumb impression of his mother.
11. The petitioner also examined Sh. Dalip Kumar as PW-2. He tendered his affidavit in evidence as A-2. He reiterated the facts stated in the petition and relied upon the documents already Mark A/PW-1 and Ex. PW1/2 to Ex. PW1/6. He deposed on the lines of his affidavit. During his cross examination, he deposed as under:-
11.1. His date of birth is 24.12.1968. He was 8th pass. His affidavit A-2 was read over to him. Smt. Panchi Devi was his Maamiji. He accompanied his father to the office of Sub-
Registrar. It was 08.04.1987 when he accompanied his father there. He deposed that at that time, he was around 14-15 years of age. He deposed that the writing and stamping were in the office of Sub-Registrar was done on the same very day when he accompanied his father. He again repeated that all writing and stamping including overleaf of first page and last was done on 08.04.1987 itself. He deposed that he did not remember about pasting of photographs on the said document. Smt. Panchi Devi used to put her thumb impression, she put the thumb impression on said document and then his father wrote his signature followed by him thumb impression; there was another person PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 17 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
who he had not knowing and his name and particulars were not remembered.
11.2. He further deposed that the Registrar asked for ID proof of attesting witness Sh. Nathi Lal and the executant Smt. Panchi Devi. He did not remember what ID proof was handed over to the Registrar. The documents Ex.PW-1/2 to Ex. PW-1/6 were typed before 08.04.1987. He was not present when the aforesaid documents were typed. He deposed that since he was not present he could not say the aforesaid documents were typed and executed on 08.04.1987. He did not know who purchased the stamp papers for aforesaid documents. He denied the suggestion that in the year 1987 Smt. Panchi Devi was having illness. He further deposed that she was not having any treatment. He did not know how Smt. Panchi Devi become owner of this property. The documents Ex. PW-1/2 to Ex. PW- 1/6 were notarized in his presence. He also denied the suggestion that aforesaid documents were not executed in 08.04.1987. He further denied the suggestion that he deposed falsely because the petitioner is his relative. He deposed that the documents were notarized at the campus of Registrar office. The petitioner was also present on 08.04.1987 in the office of Registrar. He could not say whether petitioner also signed the aforesaid document.
12. The petitioner also examined one summoned witness i.e. PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 18 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
Sh. S.K. Sharma, LDC from Office Liberation Serifof Sub- Registrar III, Asaf Ali Road, New Delhi as PW-3. He brought the Will dated 08.04.1987, which was registered in his office vide registration no. 1465, additional book No.3, volume No. 394, page No. 134 to 136 dated 08.04.1987 of the Original Will, which was exhibited as Ex.PW3/A. During his cross- examination, he deposed that he is posted in the office of Sub- Registrar-OOO since 2014. He did not have any knowledge that the testator had to fix photograph for her identification. He also did not have knowledge regarding the identification of the testator.
13. Thereafter, petitioner did not examine any other witness. Vide order dated 22.12.2016 PE was closed by the statement of Ld. counsel for the petitioner.
14. Vide order dated 22.12.2016, the matter was fixed for RE.
15. In respondent's evidence, respondent no.2 examined Sh. Des Raj as R2W1. R2W1 tendered his affidavit of evidence as Ex.R2W1/A and relied upon the following documents:-
a) Notice of MCD dated 23.06.1989 as Mark-A.
b) Payment receipts as Ex.R2W1/2 and Ex.R2W1/3.
16. During his cross-examination, R2W1 deposed that Smt. Panchi Devi was his mother. He admitted that Smt. Panchi Devi PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 19 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
was residing in premises no.48A of its new number B-40 Sanwal Nagar. He volunteered that she was residing with him. He denied the suggestion that Panchi Devi was never resided with him or that he had very strange relation with Smt. Panchi Devi. He also denied the suggestion that Smt. Panchi Devi was the sole and absolute owner of property no.48A of which new number is B-
40. He admitted that Panchi Devi was having 3 sons and 2 daughters. He deposed that out of two daughters one daughter had expired. He did not know whether Smt. Panchi Devi executed a registered Will dated 6.4 1987 in respect of the property in question in favour of the petitioner. He did not know whether the property in question is in the total area of about 83.33 sq. yds. He volunteered that he did not know the width of the property. He did not know whether Smt. Panchi Devi executed other documents which is apart from the registered Will i.e. GPA, SPA, affidavit, Deed of Agreement, indemnity bond in respect of the property in question, in favour of the petitioner. He admitted that the property in question was mutated in the name of Smt. Panchi Devi. He did not know whether the property in question was mutated in the name of the petitioner after the death of Panchi Devi. He did not know whether the petitioner was paying house tax of the property in question since beginning and upto 2017 itself. He denied the suggestion that PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 20 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
that property no.A-30, Sanwal Nagar, Delhi-49 was in the total area of about 200 sq. yds. He volunteered that it was in the total area of 180 sq. yds. He admitted that the said property was owned by his father. He admitted that no partition of the said property had been effected. He also admitted that that his sons and daughter-in-laws and their family members are residing in the said property. He volunteered that he is occupying only one room in the said property measuring about 8x15 and remaining portion in the said property is occupied by the tenants of petitioner who were inducted by his father. He did not know whether Mark A was issued by the MCD only for the purpose of House Tax and the same was issued to the occupier of the same. He denied the suggestion that he had intentionally paid the property tax by virtue of R2W1/2 & R2W1/3 while the petitioner had already paid the same continuously without committing any default till date. He volunteered that he was not aware whether he paid the house tax or not. He did not know about the execution of the Will in question in favour of the petitioner. He admitted that after gaining knowledge about the Will in question he had not initiated any separate legal proceedings against the petitioner in respect of the Will. He could not recognize the thumb impression of Panchi Devi. He knew Nathi Lal. However, Nathi Lal had expired. He admitted PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 21 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
that Nathi Lal was his Fufaji. He admitted that Dalip was the son of Nathi Lal. He did not know whether Nathi Lal signed as witness on the Will. He did not know whether Nathi Lal also signed on other above said documents as witness or not. The electricity connection was taken by the Panchi Devi for the premises in question in 1986-87. He did not know whether the electricity connection was installed in the name of Panchi Devi in the year 1983. It is wrong to suggest that the dispute arose in respect to the Will when the petitioner asked for possession of H. No. B-40 before filing the present petition. He volunteered that the petitioner never asked him for taking possession from him. He was not ready to vacate the same due to the reason as the said property was owned by his father. He denied the suggestion that he was fully aware about the execution of the Will by Smt. Panchi Devi in favour of the petitioner since the date of execution of Will. He also denied the suggestion that inspite of the knowledge of execution of the Will he never raised any objection or that he had filed the false affidavit in the Court in his evidence.
17. Thereafter, RE was closed on 02.11.2017 and matter was fixed for final arguments.
18. During the proceedings, application under Order I Rule 10 (2) read with Section 151 CPC was filed on behalf of the LRs of PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 22 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
Smt. Shanti Devi, D/o Late Smt. Panchi Devi for their impleadment as party, which was allowed vide order dated 15.09.2022.
19. I have heard the arguments on behalf of the respondent no.2. However, the opportunity to lead arguments by petitioner was closed on 15.02.2024 after giving adequate opportunities to lead arguments. I have also gone through material available on record.
20. Time now to deal with the issues. My issue-wise findings are as under:
Issue No.1: Whether Will dated 08.04.1987 executed by Late Smt. Panchi Devi, W/o Late Sh. Kharak Singh, is validly and legally executed in favour of the petitioner? OPP
21. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
PC No. 5962/2016CNR No. DLST01-000502-2012 Page 23 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
"Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
"Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
"Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
"Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
22. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that if the person "does not know what he is doing" for any reason (such as intoxiation, illness or any other such cause) he is PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 24 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
23. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
"(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person;
and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
24. As per the mandate of clause (c), a Will is required to be PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 25 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 26 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
testator at the time was in a sound and disposing state of mind;
(iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
25. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 27 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
wills, one cannot insist on proof with mathematical certainty.
"2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. "3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
"This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
"4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 28 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. "5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
"6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
26. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 29 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
27. Similarly in Navneet Lal Alias Rangi vs Gokul and PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 30 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v. Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)]. "(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative.
The court will look at the circumstances under which the PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 31 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
28. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 32 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
29. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as Cheeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
30. The petitioner's narrative is that the testatrix Late Smt. Panchi Devi was residing with him and during her lifetime, she executed a registered Will dated 06.04.1987 in his favour. The PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 33 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
testatrix executed a Will in the presence of two witnesses. One of which was Sh. Nathu Lal, who expired. Sh. Dalip Kumar, s/o Late Sh. Nathu Lal was examined by petitioner to prove valid attestation and execution of the Will in question. Apart from the said Will, Late Smt. Panchi Devi also executed other documents alongwith the Will i.e. GPA, SPA, Affidavit, Deed of Agreement, Indemnity Bond, all dated 06.04.1987 in favour of the petitioner. The testatrix had every right, title, interest over the bequeathed property in all manner. The husband of the testatrix predeceased her. The property was owned and in possession of Late Smt. Panchi Devi. She died on 07.06.1987 as a Hindu. The petition was verified by Sh. Dalip Kumar, s/o Late Sh. Nathu Lal as a mandatory compliance under Indian Succession Act regarding declaration of witness while filing a petition for probate.
31. It is the duty of the propounder of the Will to prove the Will in question in accordance with law. In the present case, the petitioner has examined three witnesses i.e. PW1, PW2 and PW3 to prove the Will. The petitioner examined himself as PW1. He examined PW2 Sh. Dalip Kumar in order to prove the valid attestation of the Will. PW2 himself was not an attesting witness rather he was allegedly present at the time of attestation. PW3 is an official witness from Sub-Registrar Office, who brought the summoned record i.e. copy of the Will dated 08.04.1987.
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On Identification Of Thumb Impression Of Testatrix And Signatures/Attestation Of Attesting Witnesses On The Will
32. PW1 deposed in his affidavit Ex.A1 that he was present in the office of Sub-Registrar when the testatrix Smt. Panchi Devi executed the Will and he could identify the signature of Smt. Panchi Devi on the Will. However, examination-in-chief of PW1 as recorded on 11.08.2014 shows that no identification of thumb impression of the testatrix on the Will was made by PW1. He only tendered his affiavit as Ex.A1 and identified his signatures at Point S on the affidavit. However, perusal of the affidavit Ex.A1 also shows that there are point A which bear the signature of deponent and not point S. He also tendered the documents as Mark A/PW1 (original Will), Ex.PW1/2 to Ex.PW1/15. Thereafter, cross-examination of PW1 was conducted wherein also no identification of thumb impression of the testatrix on the Will was tried to be made.
33. PW2 is the son of one of the attesting witness. It was stated that attesting witness Sh. Nathu Lal had expired, therefore, his son was examined as PW2 in order to prove the valid attestation on the Will. He tendered his affidaivt Ex.A2 in his examination-in-chief. One unmarked affidavit of witness namely Dalip Kumar is found on the file. It is deposed by the witness that Will was already typed on 06.04.1987 and the same PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 35 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
was registered on 08.04.1987 and at first testatrix/Smt. Panchi Devi put her thumb impression on the Will on each pages of the Will in his presence. He further deposed that his father signed and put his thumb impression on the last page of the Will as well as back side of the Will before the Sub-Registrar. He further deposed that he could identify the signature and thumb impression of his father on the Will as attesting witness and he could identify the thumb impression of Smt. Panchi Devi on each pages of the Will. During his examination-in-chief on 11.08.2014 after tendering his affidavit as Ex.A-2, he merely relied upon the documents already exhibited by PW1. Neither in the affidavit nor in the examination-in-chief as well as also in the cross-examination of PW2, he nowhere identified the signatures/thumb impressions of the testatrix as well as of any of the attesting witnesses on the Will in question.
34. PW3 was an official witness who brought the summoned record i.e. the copy of Will dated 08.04.1987 and during his deposition the Original Will was exhibited as Ex.PW3/A. During his cross-examination, he deposed that he did not have any knowledge regarding the identification of the testatrix and he also did not have any knowledge that the testatrix had to fix photograph for her identification.
35. The another attesting witness was neither examined by the PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 36 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
petitioner nor he was tried to be traced by the petitioner. It is not the stand of the petitioner that another attesting witness is no more available. Moreover, signatures/thumb impressions of attesting witnesses were also not tried to be proved by comparison with another admitted signatures/thumb impressions in absence of attesting witness.
36. In view of the abovesaid discussion of examination of PW1, PW2 and PW3, it becomes clear that identification of thumb impression of testatrix and signature/attestation of any of the attesting witness on the Will was not established or proved by the petitioner.
On Sound And Disposing Mind And Free Will Of The Testatrix
37. In H. Venkatachala Iyengar case (supra), Hon'ble Supreme Court of India has observed that the the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind;
(iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will.
It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 37 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
38. In the present case, it is not even mentioned about the sound and disposing state of mind of the testatrix in the examination of any of the petitioner's witness. It has also not been deposed by any of the witnesses if the testatrix understood the nature and effect of the dispositions or that the testatrix had put her thumb impression on the Will in question of her own free will.
39. In Pratap Singh & Anr. Vs. State & Anr. decided on 12.08.2010 by the Hon'ble Double Bench of Delhi High Court in FAO (OS) No. 181 of 2009, it was observed that when the Will was in English language whereas signatures of the testator were in Urdu language and there was no evidence on record to show that the Will was prepared on the dictation of the testator and that contents of the Will signed by the testator were read over and explained to him in Urdu or any language known to him, then such circumstance castigates the genuineness of the PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 38 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
Will. These facts observed in this case on the point whether Will was prepared on the dictation of the testator or not.
40. In the present case, perusal of the Will Ex.PW3/A shows that there is only alleged thumb impression of the testatrix on the Will and no signature is there of the testatrix. The Will is typed in English language. The evidence is with regard to the registration of the Will and not the preparation thereof. PW1 answered during his cross-examination on 24.08.2015 that Smt. Panchi Devi was illiterate and the Will in question was prepared by a lawyer, whose name was not known to him. He also admitted that on the day lastly when papers were prepared, Smt. Panchi Devi was not present. He admitted that no photograph of Smt. Panchi Devi was affixed on the Will. During his cross- examination, he also admitted that Smt. Panchi Devi was under
treatment of private doctor in colony. He answered that she might have been taking the treatment at AIIMS and she was taking medication for fever, etc. He further answered that it was not in his knowledge that Smt. Panchi Devi was cancer patient and was undergoing treatment at AIIMS.
However, PW2 answered in his cross-examination dated 28.03.2016 that writing and stamping were done in the office of Sub-Registrar on the very same day when he accompanied his father. He answered that it was 08.04.1987 when he PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 39 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
accompanied his father Late Sh. Nathu Lal to the office of Sub- Registrar. He again repeated that all writing and stamping including overleaf of first page and last was done on 08.04.1987 itself. Contrary to PW1, he also denied that in the year 1987 Smt. Panchi Devi was having illness and he further answered that she was not having any treatment. PW3, who was a summoned witness, from Registrar office answered that he did not have any knowledge regarding the identification of the testator.
These depositions as well as the petition nowhere mentions/shows that Will was prepared on the dictation of the testatrix and that testatrix affixed her thumb impression on the Will after contents of the Will were read over and explained to her in a language known to her. The Will is in English language and as per the petitioner himself she was illiterate.
Yet another circumstance castigates the genuineness of the Will is the medical condition of the testatrix. None of the witness stated that Will was prepared on the dictation of the testatrix. The evidence is with regard to the registration of the Will and not the preparation thereof. It is an admitted deposition by the petitioner while appearing as PW1 that testatrix was under
treatment and she was taking medication and she might have taking treatment at AIIMS. However, he was ignorant if testatrix PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 40 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
was cancer patient or not. On the one hand, petitioner claims that testatrix was residing with him and not with respondent no.2, Des Raj and on the other hand, he was not having any knowledge if the testatrix was taking cancer treatment or not. It is highly suspicious to rely upon the claim of the petitioner. Cancer is not such a small disease that members of a family remain ignorant about the fact of cancer treatment of another family member. If he was ignorant then there is a possibility that testatrix was not residing with her. It creates doubt regarding residence of testatrix with the petitioner at relevant point of time.
The Will got registered on 08.04.1987 and the testatrix died on 07.06.1987 i.e. within two months after the execution of the Will. Once this is the situation a suspicion is further caused on the soundness of disposition of mind of the testatrix and the onus was on the petitioner to prove that the testatrix was in a sound disposing mind and the Will was prepared on her direction/dictation. No cogent evidence was brought on record. The petitioner was even not aware of the lawyer who prepared the Will. The onus to prove that the Will was validly propounded was on the petitioner, which had to be discharged by leading cogent and convincing evidence, in view of the medical condition of the testatrix to remove all suspicion from the alleged Will.PC No. 5962/2016
CNR No. DLST01-000502-2012 Page 41 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
41. The petitioner claimed in his petition as well as in his affidavit of evidence A-1 while appearing as PW1 that Will Ex.PW3/A was executed on 06.04.1987. However, the date of 06.04.1987 is nowhere mentioned on the Will. This is a registered Will. The registration date on the Will is 08.04.1987. The first sentence of the Will also bears the date of execution as 8th day of April, 1987. However, during cross-examination of PW1, he deposed that first of all, stamp papers were purchased and then it took about 2-3 days to make all paper complete. He answered that on the last date when papers were prepared Smt. Panchi Devi was not present, however, earlier she instructed the laywer and then papers were prepared. He answered that they went to office of Sub-Registrar after 2 days from preparing the papers. He answered that he did not know who filled in date, month and year at portion X on the Will. He answered that it was not filled in his presence.
42. Certain other documents were also relied upon by the petitioner i.e. documents Ex.PW1/2 to Ex.PW1/6 being the GPA, SPA, Affidavit, Indemnity Bond and Deed of Agreement respectively. These documents were allegedly executed by Late Smt. Panchi Devi in favour of the petitioner alongwith the Will in question. However, documents Ex.PW1/4 i.e. Affidavit bears the date of 09.04.1987 at Point A and the attestation at Point B PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 42 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
by Notary Public is of 08.04.1987. At one place on the affidavit, there is overwriting/correction over the date already typed by further placing the date of 6th day of April, 1987. The over writing/correction does not bear any identity verification/initials. Indemnity Bond Ex.PW1/5 also have the similar overwriting/ correction while mentioning 6th day of April, 1987. Document Ex.PW1/2 i.e. GPA bears the date of signature on 9th day of April, 1987 and it bears attestation of 8 April 1987. During his cross-examination, petitioner/PW1 explained that this mistake at Point A on the affidavit Ex.PW1/4 could be because of typographical mistake of the typist. He gave similar reply in respect of GPA Ex.PW1/2. These explanations are not mentioned by the petitioner neither in the petition nor in his affidavit of evidence.
43. Son of one of the attesting witness, who was examined by the petitioner as PW2 answered during his cross-examination on 28.03.2016 that all writing and stamping including overleaf of first page and last was done on 08.04.1987. He answered that the writing and stamping in the office of Sub-Registrar was done on the same day when he accompanied his father i.e. on 08.04.1987. However, he differentiate the preparation of the Will and other documents Ex.PW1/2 to Ex.PW1/6 by answering that the documents Ex.PW1/2 to Exc.PW1/6 were typed before PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 43 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
08.04.1987. This stand of petitioner's witness is quite contrary to the petitioner himself where he claimed that the registration was done on 08.04.1987 i.e. after two days from preparing the papers. These discrepancies mentioned above creates further circumstance, which castigates the genuineness of the Will.
44. Much emphasis has been laid by the petitioner that the alleged Will is a registered Will but registration of Will is not mandatory. Hon'ble Delhi High Court in Pratap Singh & Anr. (cited supra) observed "It is well settled, merely because the Will is a registered Will, it is no assurance that the same is genuine and validly executed document with a sound disposition of mind and free will.".
45. In view of the abovestated discussion, I am of the considered opinion that petitioner could not prove the sound and disposing state of mind and free will of the testatrix. In view of the abovesaid discussion, evidences and material on record, it cannot be said that Will dated 08.04.1987 executed by Late Smt. Panchi Devi, W/o Late Sh. Kharak Singh, is validly and legally executed in favour of the petitioner. Accordingly, the issue no.1 is decided against the petitioner.
Issue No.3A: Whether the petition for grant of probate is within limitation? Onus on parties PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 44 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
46. The issue of limitation period was framed as an additional issue No.3A on 15.03.2014. The present petition for grant of probate was filed on 11.12.2012. On framing of additional issue vide order dated 15.03.2014, the petitioner was given liberty to file additional affidavit in view of the additional issued framed. However, no additional affidavit was ever filed by the petitioner on the additional issue. The onus to prove the additional issue was on the parties.
47. During his cross-examination as PW1 on 24.08.2015, the petitioner categorically answered that he asked the respondents after about 3-4 years of demise of his mother/testatrix, to vacate the property but respondent no.2/Deshraj refused to vacate it.
48. In Pratap Singh & Anr. (supra), it was observed that as per Article 137 of the Limitation Act, 1963, the period of limitation is three years, which begins to run when the right to apply accrues. Article 137 of the Limitation Act, 1963 would apply to any petition or application filed in a court where no limitation period has been prescribed. The period of three years would surely commence atleast from the date on which a legatee under a Will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by other persons especially the natural heirs of the testatrix. By way of adumbration, hypothetically, a Will may PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 45 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
have been executed in Delhi in 1950. The bequests made and dealt with therein may not have come into any dispute for several decades. It could be that some legatees were in possession of the properties with the tacit permission or approval of the other legatees, which approval was subsequently withdrawn. So long as the rights of any particular legatee are to emanate and flow from the Will, probate proceedings ought to be filed atleast within three years from this conjectured withdrawal of permission. That would then be the latest date on which "the right to apply accrues". This would be the most appropriate and meaningful interpretation given to the words "when the right to apply occurs".
49. In the present case, this probate petition was filed on 11.12.2012. However, as per the deposition of PW1 himself during his cross-examination, he disclosed about the Will in his favour to his siblings about 3-4 months of demise of Smt. Panchi Devi and he has also given them copy of Will and thereafter when he asked the respondents after about 3-4 years of demise of his mother to vacate the property, the respondent no.2/Desraj refused to vacate it. The mother died on 07.06.1987. As per the own statement of the petitioner, it can be assumed that at the maximum he asked respondent no.2 to vacate the property on the basis of Will in his favour by the testatrix in the year 1991. On PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 46 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
his refusal to vacate, the further possession by respondent no.2 was not permissive. So the day of refusal to vacate the property by respondent no.2 is the latest date on which the right to apply accrues. As per Article 137 of Limitation Act, 1963, the petition for grant of probate and letters of administration would have been filed by the year 1994. However, the present petition was filed after a delay of atleast 18 years if latest date on which the right to apply accrues is considered as during the year 1991 in view of abovesaid discussion.
50. Respondent no.2 examined himself as R2W1 and he tendered his evidence by way of affidavit as Ex.R2W1/A. He also relied upon certain documents i.e. notice to MCD dated 23.06.1989 in his name marked as Mark-A and MCD payment receipts for property exhibited as Ex.R2W1/2 and Ex.R2W1/3. These property tax payment receipt are dated 31.03.2006 for the year 2004-2006 and dated 28.10.2009 for the period 2006-07 and 2009-10 respectively in order to prove that the property allegedly bequeathed by the testatrix in favour of the petitioner was in possession of respondent no.2. The petitioner also relied upon MCD payment receipt Ex.PW1/15 in his name dated 11.01.2012 for arrear upto 31.03.2004 and for years 2004-05 to 2011-12.
51. However, the documents tendered by respondent no.2 PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 47 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
during his evidence as R2W1, were objected by the petitioner regarding mode of proof. The respondents thereafter did not prove the documents independently. However, document Ex.PW1/15 tendered by PW1 was not objected by respondent no.2.
52. Hon'ble Madras High Court in case titled 'Karupanna Gounder vs Vijayalakshmi decided on 03.02.2015 in Second Appeal No.1141 of 2001 has observed in para 16 that "...... In the absence of any proof regarding the oral sale, the transfer of assessment, which is subsequently cancelled and the payment of house tax receipts cannot be a ground to uphold the claim of the plaintiff.".
It further observed in para 18 that, "When the suit is filed for the relief of permanent injunction, the property tax receipt and receipt for payment of electricity consumption charges would not by itself go to prove the actual possession and enjoyment of the plaintiff. The trial court found the possession aspect in favour of the plaintiff only by upholding the oral sale and there seems to be no independent discussion regarding actual possession and enjoyment of the property. The trial court also cast the burden on the defendants to disprove the case of the plaintiff. It is the well laid down principle that the plaintiff has to succeed or fail on the basis of her own case and the PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 48 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
plaintiff in this case failed to prove her claim.".
53. In the present case also, the permissive possession and enjoyment of the property in question cannot be solely decided merely while relying upon at the abovesaid MCD payment receipts either by the petitioner or by the respondent no.2. These MCD payment receipts were also not independently proved by both the parties.
54. In view of the abovesaid discussion, I am of the considered view that present petition for grant of probate is not within limitation period. Accordingly, the issue no.3A is decided against the petitioner.
Issue no.2: Whether the petitioner is entitled for grant of probate in respect of Will dated 08.04.1987? OPP
55. As issue no.1 and Issue no.3A have already been decided against the petitioner, so I am of the opinion that petitioner is not entitled for grant of probate in respect of Will dated 08.04.1987. Accordingly, issue no.2 is decided against the petitioner.
Issue no.3: Whether objections filed on behalf of respondent no.2 are valid and maintainable? OPR
56. In my view, this issue is liable to be struck off in exercise of power under Order XIV Rule 5 of CPC, 1908 because at first it is the propounder of the Will who needs to prove the Will in PC No. 5962/2016 CNR No. DLST01-000502-2012 Page 49 of 50 Dr. Yadvender Singh/ADJ-02/South/Saket/30.03.2024 Thakur Dass Vs. State (NCT of Delhi) & Ors.
question in accordance with the law. Onus to prove issue No.1 and 2 was on the petitioner and for issue no.3A, it was on the parties. Issue No.1, Issue No.2 and additional Issue no.3A have already been decided against the petitioner.
57. In view of the aforesaid, this issue is struck off in exercise of power under Order XIV Rule 5 of CPC, 1908.
Issue no.4: Relief.
58. In view of the findings given qua issues no.1, 2, 3 and additional issue no.3A, this petition is dismissed, leaving the parties to bear their own cost.
59. The original Will shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925.
Pronounced in the open Court on this 30th Day of March 2024 (DR. YADVENDER SINGH) ADDL. DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
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