Delhi District Court
Dharamvir Singh vs State on 7 January, 2025
IN THE COURT OF SHIV KUMAR :
DISTRICT JUDGE, (WEST)-02,
TIS HAZARI COURTS: DELHI.
Probate Case No.- 71/16
New No. P.C. 16155/16
CNR No. DLWT01-005998-2016
DLWT010059982016
Sh. Dharmvir Singh
Son of late Sh. Pyare Lal Badgoojar,
R/o Khasra No. 5, House no. 31,
Village Kamruddin Nagar,
Nangloi, New Delhi-110041
Petitioner
Versus
1. The State
2. Sh. Tanvir Singh
Son of late Sh. Pyare Lal Badgoojar,
R/o Flat No. 90, First floor,
Pocket-25, Sector-3, Rohini
New Delhi-110085
3. Sh. Ranvir Singh
Son of late Sh. Pyare Lal Badgoojar,
R/o House no. 53A, Yusuf Sarai,
New Delhi- 110016
4. Sh. Dalvir Singh
Son of late Sh. Pyare Lal Badgoojar
R/o Flate No. 26/B, first floor,
Block A1/B, Paschim Vihar,
New Delhi-110063
PC No 16155-2016 Dharamvir Vs State & Ors Page 1 of 67
5. Sh. Balbir Singh
Son of late Sh. Pyare Lal Badoojar
House no. 31, Village Kamruddin Nagar
Nangloi, New Delhi-110041
6. Sh. Satvir Singh
Son of late Sh. Pyare Lal Badgoojar
House No. 31, Village Kamruddin Nagar
Nangloi, New Delhi-110041
7. Smt. Sushila Devi
Daughter of late Sh. Pyare Lal Badgoojar
R/o Flat no. 25/B, First floor,
Janyug Apartments,
Sector-14, Rohini
New Delhi-110085
8. Smt. Indira Devi
Daughter of late Sh. Pyare Lal Badgoojar,
R/o Flat no. 26/B, First floor,
Block-A1/B, Paschim Vihar,
New Delhi-110063
9. Late Smt. Krishna Devi ( Since Deceased)
through her legal heirs:-
i. Smt. Parveen (Daughter of late Smt. Krishna Devi)
Flat no. 248, Block A, Chaudhary Dilkush Marg, Sarojni
Nagar, New Delhi-110023.
ii Smt. Yogita ((Daughter of late Smt. Krishna Devi)
RZ-88C, Manas Kuunj Road, Uttam Nagar, Gali no. 7,
Near Nirankari Bhawan, New Delhi-110059
iii Sh. Chitrankan (Son of late Smt. Krishna Devi)
R/o House No. B2/337, Tara Nagar, Dugal Farm
Colony, Kakrola old Palm Road, New Delhi-110078
......Respondents
Date of institution of the case : 26.08.2016
Date reserved for judgment on : 06.12.2024
Date of pronouncement of judgment : 07.01.2025
PC No 16155-2016 Dharamvir Vs State & Ors Page 2 of 67
JUDGMENT:
1. Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 of the Indian Succession Act, 1925 whereby the petitioner has sought grant of Probate of the will dated 05.06.2016, executed by late Shri Pyare Lal Badgoojar S/o Late Shri Mehu Ram.
CASE OF THE PETITIONER AS PER HIS PETITION.
2. According to the petition, the case of the petitioner in nutshall is that late Shri Pyare Lal Badgoojar S/o Late Shri Mehu Ram ( hereinafter referred to as ' the deceased') was the father of petitioner and respondent no. 2 to 8 and he died on 21.06.2016. The deceased was residing at House no. 31, Village Kamruddin Nagar, Nangloi, New Delhi-110041. The deceased at the time of his death has left behind two self acquired immovable and one movable property i.e.
(i) House no. 31, measuring 225 sq. yds. Of Village Kamruddin Nagar, Nangloi, New Delhi-110041.
(ii) Plot measuring 451 sq. yds, out of 910 sq. yds, situated at Khasra no. 5 of Village Kamruddin Nagar, Nangloi, New Delhi-110041 and
(iii) Bank account no. 10167049475, State Bank of India, Kishanganj (Delhi), Old Rohtak Road, New Delhi.
3. It is further averred in the petition that the deceased during his life-time has duly executed his Will dated 05.06.2016 and he bequeathed the above said immovable properties. ( hereinafter referred to as 'properties in question') in favour of the petitioner and respondents no. 2 to 6 in shares and PC No 16155-2016 Dharamvir Vs State & Ors Page 3 of 67 proportions under various conditions as mentioned in the said Will. It is further averred that as per the said Will the petitioner is the duly authorized Executioner of the said Will.
4. It is further averred that the close relations of the deceased are as under:
i) Sh. Dharamvir Singh Son ii) Sh. Tanvir Singh Son iii) Sh. Ranvir Singh Son iv) Sh. Dalvir Singh Son v) Sh. Balbir Singh Son vi) Sh. Satvir Singh Son vii) Smt. Sushila Devi Daughter viii) Smt. Indira Devi Daughter
5. Upon filing the present petition, notice of the same was issued to all respondents. Citation for general public was published in the daily newspaper " Asian Age " dated 21.09.2016. Notice was also served to State through Chief Secretary.
6. No one from general public appeared in this case and has not filed any objections despite such publication.
7. The Collector of Stamps, Punjabi Bagh has filed a valuation report in respect of the property bearing H. No. 31, Village Kamaruddin Nagar, Old Lal Dora (1908-09) valuing the same to be of Rs. 50,61,196/- (Rupees Fifty lakh Sixty one thousand One hundred Ninety Six only).
PC No 16155-2016 Dharamvir Vs State & Ors Page 4 of 678. The Collector of Stamps, Punjabi Bagh has also filed a valuation report in respect of the property bearing plot in Khasra No. 5, Village Kamaruddin Nagar, Old Lal Dora (1908-
09), Delhi,valuing the same to be of Rs. 87,57,936/- (Rupees Eighty Seven lakh Fifty Seven thousand Nine hundred Thirty Six only).
CASE OF RESPONDENT NO. 2 AS PER HIS OBJECTIONS
9. The respondent no. 2 has filed his objections cum reply to the present petition by taking preliminary objections that the deceased had never executed any alleged Will dated 05.06.2016 in regard to his movable and immovable properties. It is contended that the Will dated 05.06.2016 is a forged and fabricated document and has been manufactured just to usurp the legal inheritance rights of respondent no. 2, over the immovable and movable properties of his father.
10. It is further contended in the reply that in fact the deceased, prior to his death was completely bed ridden and was not in position to move anywhere or do anything at his own as he was suffering with brain stroke and was not having sound state of mind and even, due to the said ailment, he was not in a position even to speak any word properly and his body was completely paralyzed and he was not in a position to sign anywhere. It is further contended by respondent no. 2 that from the date of execution of the alleged Will i.e. 05.06.2016, the deceased testator died on 21.06.2016, which is just after fifteen days from the date of execution of the Will, which clearly proves that the said Will dated 05.06.2016 is a false and forged document.
PC No 16155-2016 Dharamvir Vs State & Ors Page 5 of 6711. It is further contended in the reply that the deceased during his life time executed a registered Will dated 11.02.2010, thereby he bequeathed his movable and immovable properties amongst his children as well as charitable trust as such the properties of the deceased shall be liable to be partitioned by metes and bounds amongst all the legal heirs of the deceased according to his actual last Will/Testament dated 11.02.2010, duly registered with the office of Sub-Registrar, Delhi.
12. On merit, the contents mentioned in para no. 5, 6 & 11 of the petition, are denied by the respondent no. 2 and he reiterated the objections taken by him hereinabove, and has prayed that the petition filed by the petitioner may be dismissed with exemplary costs.
CASE OF RESPONDENT NO. 3 AS PER HIS WRITTEN STATEMENT
13. Respondent no. 3/Sh. Ranvir Singh has also filed separate written statement/objection by taking the preliminary objections that the present petition is based on concealment of material facts, therefore it is liable to be dismissed on this ground alone. It is further contended that the deceased had a pre- deceased daughter namely Smt. Krishna Devi, who is survived by her husband/Mr. Jai Pal Singh and three children and petitioner has not impleaded them as respondents herein and concealed their names from this Hon'ble Court.
14. It is further contended that the petitioner has further concealed from this Hon'ble Court that deceased Pyare Lal PC No 16155-2016 Dharamvir Vs State & Ors Page 6 of 67 Badgoojar has left behind a duly registered Will dated 11.02.2010, which is his last Will and Testament. It is contented that the alleged Will dated 05.06.2016 propounded by the petitioner is a forged and fabricated document and it does not bear the real and actual signatures of the deceased.
15. It is further contended that the deceased was not in a sound state of mind for around six to eight months prior to his death i.e. 21.06.2016. It is further contended that the market value of the properties/assets left behind by the deceased is more than 2 Crores and petitioner has under valued the said assets.
16. It is further contended that the respondent no. 3 has come to know for the first time about the alleged Sale Deed dated 31.03.2004 and the alleged Gift Deed dated 11.5.2010, from the alleged Will dated 05.06.2016, therefore, he reserves his right to challenge the said alleged Sale Deed dated 31.03.2004 and the alleged Gift Deed dated 11.05.2010 in appropriate proceedings before the appropriate court of law.
17. On merit, respondent no. 3 has denied most of the paras of the petition and contended that the deceased had other various properties and assets which the petitioner had already usurped and grabbed from the deceased during his life time. Respondent no. 3 further contended that the deceased had a 1 acre plot of agricultural land and another 200 sq. yards plot and both these properties were sold by the deceased under influence from petitioner and proceeds thereof were usurped and grabbed by the petitioner alongwith all the retirement benefits of the deceased. It is further contended by respondent no. 3 that the PC No 16155-2016 Dharamvir Vs State & Ors Page 7 of 67 pension of over 35 years of the deceased alongiwth jewellery belonging to the deceased's wife was also usurped and grabbed by the petitioner and he has manipulated things in such a manner that are against all the legal heirs of the deceased. Respondent no. 3 also reiterated the objections taken by him and respondent no. 2 hereinabove.
18. Replication has been filed on behalf of the petitioner to the Reply/objections filed on behalf of respondent/objector no. 2 & 3 and he denied all the objections taken by respondent no. 2 & respondent no. 3 and he reiterated the contents mentioned in the petition.
NO OBJECTIONS ON BEHALF OF RESPONDENT NO. 4, 5&6
19. It is pertinent to mention here that respondent no. 4, 5 & 6 have filed their no objection/affidavit in favour of the petitioner on 6.10.2016 and stated that they have no objection if the last and original Will dated 5.6.2016 of late Sh. Pyare Lal Badgoojar may be probated as prayed in the present petition.
20. Vide order dated 19.11.2016, the right of respondent no. 7 & 8 to file reply/objections was closed as none appeared on their behalf despite service.
21. On the basis of the pleadings, the following issues were framed vide order dated 07.12.2016:
1. Whether the Will dated 05.06.2016 executed by late Shri Pyare Lal Badgoojar S/o late Shri PC No 16155-2016 Dharamvir Vs State & Ors Page 8 of 67 Mehu Ram , is his last genuine, legal, valid Will and duly executed in his sound disposing mind?
OPP
2. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 & 3 in the written statement/objections? OPR
3. Relief
22. It is pertinent to mention here that since inadvertently, one formal issue left to be framed, therefore, by exercising the power under order 14 of the CPC, the above said issues framed on 7.12.2016 were amended and the following issues were framed again on 06.03.2017.
1. Whether the Will dated 05.06.2016 executed by late Shri Pyare Lal Badgoojar S/o late Shri Mehu Ram , is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP
2. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 & 3 in the written statement/objections? OPR
3. Whether petitioner is entitled for letter of administration/Probate in respect of Will dated 05.06.2016 of the deceased testator late Pyare Lal Badgoojar? OPP
4. Relief.
23. It is pertinent to mention here that on the same date i.e. 6.03.2017, after framing of issues, two applications i.e. one under order 1 rule 10 (4) CPC for addition of L.Rs of Smt. Krishna Devi, respondent no. 9 and another application under PC No 16155-2016 Dharamvir Vs State & Ors Page 9 of 67 order 6 rule 17 CPC for amendment of petition, in consequences to impleadment of L.Rs of Smt. Krishna Devi, were allowed and L.Rs of late Smt. Krishna Devi, pre-deceased, daughter of deceased, were impleaded as respondent no. 9 in this case.
CASE OF LRs OF RESPONDENT NO. 9 AS PER THEIR OBJECTIONS.
24. The L.Rs of respondent no. 9 have filed their written statement and contended that the deceased has left only two immovable properties as mentioned in para 4 (I) and (ii). It is further contended that the deceased was owned some other properties and the particulars of which are in the exclusive knowledge of the petitioner but he has not disclosed the same. It is further contended that the deceased was an old man of 93 years and had been residing with the petitioner and his family members. It is further contended that the petitioner was in position of confidence qua the deceased and he had been abusing his fiduciary position of active confidence induced the deceased to transfer his other properties in favour of the family members of the petitioner.
25. It is further contended that the deceased got, made or executed Will dated 05.06.2016 in favour of the petitioner and respondent no. 2 to 6, as alleged. It is further contended that the Will dated 05.06.2016 is a fabricated and manipulated Will, hence it is unenforceable due to reason that deceased was an old man of 93 years of age and was suffering from various age related medication conditions like dementia, hard of hearing, extremely weak eyesight, physically impaired condition and was PC No 16155-2016 Dharamvir Vs State & Ors Page 10 of 67 unable to move and due to his physical infirmities, he was not in a position to comprehend import or purport of any legal document nor he was in a position to take conscious and rational decisions about his own affairs. It is further contended that the deceased was not in a fit state of mind or body to make the alleged Will.
26. It is further contended that the petitioner being the eldest sone of deceased, had been living with him and had been reposing confidence in the petitioner who had been managing the personal affairs of the deceased. It is contended that the Will dated 05.06.2016 being fraudulently and manipulatively procured document from a mentally and physical infirm person is not enforceable. The witnesses who purported to have witnessed the Will, were neither present nor deceased had signed the alleged Will in their presence.
27. Petitioner has also filed replication to the written statement of L.Rs of respondent no. 9 on the same line as of the respondent no. 2 & 3 and denied all the objections and reiterated the contents mentioned in the petition.
28. In view of written statement filed on behalf of L.Rs of respondent no.9, vide order dated 05.07.2017 again issues were amended and following issues were framed:
1. Whether the Will dated 05.06.2016 executed by late Shri Pyare Lal Badgoojar S/o late Shri Mehu Ram , is his last genuine, legal, valid Will and duly executed in his sound disposing mind?
OPP PC No 16155-2016 Dharamvir Vs State & Ors Page 11 of 67
2. Whether petitioner is entitled for Probate/letter of administration on the basis of the aforesaid Will, as claimed OPP
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 & 3 and L.Rs of respondent no. 9 in the written statement/objections? OPR
4. Relief.
EVIDENCE ON BEHALF OF PETITIONER
29. Parties were directed to adduce evidence.
30. Sh. Dharamvir, petitioner appeared in the witness box as PW-1 and tendered his affidavit in evidence as Ex PW-1/A. PW-1 has reiterated & reaffirmed the contents of his petition as well as replications and relied upon the following documents:
1. Ex. PW-1/1: Death certificate of late Sh. Pyare Lal Badgoojar
2. Ex. PW-1/3 : Will of the deceased.
3. Ex.PW-1/5: Valuation report filed by the Collector's
4. Ex. PW-1/6 ( Colly) (OSR): Medical record of the deceased.
5. Ex. PW-1/7 & 8 (Colly): Photographs
6. Ex. PW-1/9 (OSR): Copy of Aadhar Card of the deceased.
31. During cross-examination by counsel for L.Rs of respondent no. 9, PW-1 deposed that his father i.e deceased did not execute any Will prior to the Will in question. PW-1 further PC No 16155-2016 Dharamvir Vs State & Ors Page 12 of 67 deposed that late Sh. Payare Lal Badgoojar was not suffering from any disease in February, 2010. PW-1 denied the suggestion that the deceased was suffering from dementia, paralysis and his mental condition was not fit to execute Will in dispute. PW-1 further denied all the suggestion regarding withdrawal of money from the account of the deceased.
32. PW-1 in further cross-examination deposed that he knows the attesting witness Sh. Jasbir Singh Bajaj who is an IAS Officer and posted in Tamil Nadu Bhawan. PW-1 denied the suggestion that he has copied the earlier Will and prepared the Will in dispute and obtained signatures of the deceased by making material variations. PW-1 denied the suggestion that he abused the fiduciary relationship with his father.
33. During cross-examination on behalf of respondent no. 2, PW-1 admitted that it is correct that his father was living separately in house no. 31, Khasra No. 5, Village Kamrudding Nagar, Delhi at the distance of 500 metres from his house. PW-1 further admitted that he is employed with Indian Railway in the year 1966 and was posted in Delhi from 1972 to 1974 and again from 1976 to 1982. PW-1 further deposed that respondent no. 2 had contributed for the marriage of his two sisters, however, again said his elder sister Sushila Devi married in the year 1960 and his father had made all the arrangements. He denied the suggestion that his sister Sushila Devi married in the year 1962.
34. In further cross-examination, PW-1 deposed that he had seen the Will Ex. PW-1/3 of his father for the first time after his death in a trunk. Again said small trunk which he used to PC No 16155-2016 Dharamvir Vs State & Ors Page 13 of 67 keep with him. PW-1 further deposed that he has not mentioned this fact that he had discovered two Wills from the said small trunk. PW-1 denied the suggestion that he stated about two Will because of counsel for L.Rs of respondent no. 9 shown him the second Will during his earlier cross-examination. PW-1 further admitted that he did not mention any fact that he had discovered two Will as he had no knowledge and he did not discuss this fact with his advocate. PW-1 further deposed that his father had told him about the second Will during his lifetime. He had no knowledge that his father had actually executed the second Will prior to discovery from the small trunk. PW-1 further deposed that after seeing the second Will, he came to know that it was executed on 29.04.2010. Today he does not remember that he was present before the Sub-Registrar on 29.04.2010 when the said Will was executed by his father.
35. PW-1 further deposed in cross-examination that he know the attesting witness of the Will dated 29.04.2010 namely Sh. Mai Chand and Sh. Shiv Raj, they belong to their village. He further deposed that he know Jasbir Singh Bajaj and Sh. Jagbir Singh and it is correct that there was age difference of his father and abovsaid two person is about 30 years. PW-1 denied the suggestion that Sh. Jasbir Singh Bajaj and Sh. Jagbir Singh are his friends. PW-1 further deposed that he did not know whether his father had executed any other Will prior to Will dated 29.04.2010. PW-1 denied the suggestion that his father had also executed third Will dated 11.02.2010 and he was also present before the Sub-Registrar on that day. PW-1 denied the suggestion that the Will Ex. PW-1/3 is manufactured by him by putting signatures of his father on the Will Ex. PW-1/3 and obtained the PC No 16155-2016 Dharamvir Vs State & Ors Page 14 of 67 signatures of attesting witnesses on the Will Ex. PW-1/3 after the death of his father.
36. In further cross-examination, PW-1 admitted that his father had executed a General Power of Attorney in his favour on 11.05.2010 regarding a plot of 309 Sq. Yards in part of house no.
31. PW-1 further deposed that he had gifted the said plot to Charitable Trust namely Salra Devi Charitable Trust in the name of his mother as created by his father. He did not deposit Rs. 17,85,000/- in the said trust. PW-1 admitted that one Savitri Devi had purchased plot of 150 sq. yards sold by his mother during his lifetime on 31.03.2004 for consideration of Rs. 80,000/- to his father. PW-1 further deposed that he did not make any payment of Rs. 80,000/- to his father. PW-1 denied the suggestion that his late father was not mentally and physically fit on the date of execution of alleged Will Ex. PW-1/3.
37. In further cross-examination, PW-1 deposed that he does now know advocate by the name of Sh. Rishabh Maheshwari. PW-1 submits that his deceased father never suffered from brain stroke and paralysis and denied the suggestion that his deceased father prior to his death was bed ridden and not mentally sound.
38. PW-1 further deposed that he never told to respondent no. 3 about execution of Sale Deed dated 31.04.2004 and Gift Deed dated 11.05.2010. PW-1 denied the suggestion that he got prepared the Trust Deed, however he voluntarily deposed that his father got prepared the Trust Deed and he was mentally fit. PW-1 admitted that he is the only trustee of the abovesaid trust.
PC No 16155-2016 Dharamvir Vs State & Ors Page 15 of 6739. PW-1 deposed that his deceased father had also one acre agricultural land at Kamrudding Nagar, Delhi and one plot measuring 200 sq. yards and the same was sold by his father. However, he denied the suggestion that he received the sale proceeds thereof. PW-1 denied that he kept all retirement benefits of his deceased father or that he used to utilize pension after his retirement or that he was actively involved in execution of Will dated 05.06.2016 and he had called his known two attesting witness to the said Will.
40. PW-2 Sh. Jasbir Singh Bajaj S/o late Sh. Kartar Singh, who is one of attesting witnesses of the will dated 05.06.2015 has appeared in the witness box and tendered his evidence by way of affidavit Ex. PW-2/A and relied upon the Will already exhibited as Ex. PW-1/3. PW-2 stated in his affidavit in evidence that the Sh. Pyare Lal Badgoojar was known to him since 2012, who during his life time executed a Will in respect of his estate. He is one of the attesting witness to the Will dated 05.06.2016 and the other attesting witness is Sh. Jagbir Singh.
41. PW-2 further deposed that the Will was prepared by Shri Rishabh Maheshwari, Advocate at the asking of the deceased, who accepted the same to be as per his wish and instructions and then he put his signature on the said will in his presence, on all the twenty pages at Mark -A. PW-2 further deposed that the deceased signed in his presence and in the presence of Sh. Jagbir Singh and Sh. Rishabh Maheswari, Advocate. He further deposed that he and Sh. Jagbir Singh, on the request of deceased, signed and attested the said Will as PC No 16155-2016 Dharamvir Vs State & Ors Page 16 of 67 attesting witness and then the Will was signed by Sh. Rishabh Maheshwari, Advocate. PW-2 further deposed that the deceased, at the time of execution of the Will Ex. PW-1/3, was in good health and sound disposing mind and the deceased executed the Will without any pressure or coercion, of his own volition.
42. In the cross-examination conducted on behalf of respondent no. 2, PW-2 admitted that there is difference of about 40 years between his age and the age of the deceased/testator Payare Lal. PW-2 further deposed that his father was employed in Northern Railway as conductor and deceased was in accounts department and grand daughter of the deceased Mrs Sunita Suman was his class fellow at Law Centre II, Delhi University.
43. PW-2 further deposed that it is wrong to suggest that he knew the deceased Paryare lal since 2012. PW-2 further deposed that he cannot tell about the schooling, village of his wife, and when the deceased Payare Lal joined Railway service but he deposed that the deceased retired in the year 1982. PW-2 admitted that deceased never came to see him at his office. PW-2 further deposed that the deceased was blessed with 6 sons and 3 daughters but he cannot tell the name of all the children of the deceased.
44. PW-2 further submit that Sh. Dharamvir- petitioner blessed with three children i.e. one son and two daughters. PW-2 further submits that he had attested the Will Ex. PW-1/3 in his personal capacity. PW-2 denied the suggestion that petitioner is working in his office.
PC No 16155-2016 Dharamvir Vs State & Ors Page 17 of 6745. PW-2 further deposed that he do not know where the Will Ex. PW-1/3 was drafted. He does not know Sh. Rishab Maheshwari, Advocate. He did not ask deceased whether he had executed any Will prior to Will Ex. PW-1/3. PW-2 further deposed that when he had signed the Will Ex. PW-1/3 as attesting witness, only deceased Payare Lal was present. PW-2 further deposed that prior to day of execution of the Will, deceased Payare Lal did not use to talk to him on phone. He does not have any documentary evidence to show that his father was colleague of deceased Payare Lal. PW-2 denied the suggestion that Dharambir-petitioner had approached to him for execution of the Will Ex. PW-1/3. He further deposed that as per his knowledge, deceased Pyare Lal was not suffering from any physical decease. PW-2 admitted that at the time of signing of the Will as attesting witness, no doctor was present.
46. In response to a specific question as to how he is sure that deceased was of sound mental health on the day of execution of Will Ex. PW-1/3, PW-2 deposed that because he had seen him in full senses. PW-2 further denied all the suggestion given to him about the mental condition or got preparation of the Will by the petitioner with his collusion.
47. During the cross-examination on behalf of respondent no. 3, PW-2 deposed that he does not know whether petitioner was actively involved in preparation of the Will Ex. PW-1/3. PW-2 further deposed that he does not know whether deceased had suffered from brain stroke and paralysis or deceased was bed ridden for six months prior to his death. He denied the suggestion that Will Ex. PW-1/3 is forged and PC No 16155-2016 Dharamvir Vs State & Ors Page 18 of 67 fabricated. PW-2 admitted that he know daughter of petitioner and petitioner. PW-2 further deposed that he used to see deceased at this house prior to 05.06.2016. PW-2 further deposed that he met Jagbir Singh, other attesting witness on the same day i.e. 05.06.2016. PW-2 denied the suggestion that on page 1 and 19 the signatures of deceased were on blank papers and later on the alleged Will was got printed on them.
48. During the cross-examination by L.Rs of respondent no. 9, PW-2 admitted that his official stamp can be used only when he has to perform his official duty and attestation of the Will Ex. PW-1/3 was not his official duty. PW-2 further deposed that Sh. Rishabh Maheshwari, Advocate was present when Will was executed.
49. In further cross-examination PW-2 in response to a specific question regarding para no. 3 of the Will Ex. PW-1/3, he deposed that deceased testator did not write anywhere that he is having any serious ailment and he has mentioned his age related ailment in the Will Ex. PW-1/3 in Para 3. PW-2 denied the suggestion that petitioner stood in the capacity of active confidence qua the testator. PW-2 further deposed that it is written in the Will as read over to him today in the court that petitioner was attorney of alleged testator. PW-2 further deposed that it is correct that he came to know the fact that petitioner was the attorney of the testator before signing the Will Ex. PW-1/3 and as per Will petitioner is beneficiary of Rs. 17,88,300/-. PW-2 further deposed that the Will was read over to the deceased by Sh. Rishabh Maheshwari, Advocate in his presence. PW-2 denied the suggestion that he had full knowledge of earlier PC No 16155-2016 Dharamvir Vs State & Ors Page 19 of 67 alleged will alleged testator. PW-2 denied the suggestion that petitioner has manipulated the Will in question just to usurp the suit property. PW-2 denied the suggestion that in his presence Jagbir Singh was neither present nor signed the Will in his presence.
50. Vide separate statement of petitioner, the evidence on behalf of petitioner stands closed on 07.08.2018.
EVIDENCE ON BEHALF OF RESPONDENT NO. 251. Respondent no. 2, Sh. Tanvir Singh appeared in the witness box as R2W-1 and he tendered his affidavit in evidence as Ex R2W-1/A and reiterated the contents of his objections. He has relied upon the certified copy of the Will dated 11.02.2010, executed by his father late Sh. Pyare Lal Bagoojar as Ex. R2W1/1.
52. RW2W1 has been duly cross-examined by ld. Counsel for petitioner and ld. Counsel for L.Rs of respondent no. 9.
53. In the cross-examination conducted on behalf of petitioner, R2W1 deposed that he came to know about the Will dated 11.02.2010 after filing of the present case and the Will dated 11.02.2010 was not executed in his presence. R2W1 further deposed that his father used to stay in his house and family members of his brothers, namely Balbir Singh and Satbir Singh and Balbir Singh and his family members used to provide food etc. R2W1 further deposed that he used to say in Rohini about 8 kms away from his father's house and used to visit his PC No 16155-2016 Dharamvir Vs State & Ors Page 20 of 67 father at least three-four days in a week.
54. R2W1 in further cross-examination deposed that after, 2008, his brother Dharamvir retired from the Railways and after that he said that he would look after the father. R2W1 denied the suggestion that his father was in a sound state of mind around six-eight months before his death. R2W1 further deposed that he does not have any documentary proof regarding the medical of the deceased to show that he was in a sound mind. He denied the suggestion that the value of the properties of the deceased is not more than Rs. 2 crores.
55. R2W1 in further cross-examination deposed that he has not filed any case against the execution of the sale deed dated 31.03.2004 and gift deed dated 11.05.2010 and he has no knowledge if his father had filed any case regarding these documents. R2W1 further deposed that he cannot say whether his father rightly executed sale deed 31.03.2004 and Gift Deed dated 11.05.2010 of his own wish. He further deposed that his father sold his one acre plot of agriculture land and another 200 sq. yards plot somewhere in 1995 and at that time the petitioner was posted in Punjab. R2W1 deposed that he had sold the property and he invested amount in constructing his house in which our younger brother Balbir Singh is residing. R2W1 submits that he was well paid and his father used to help his other sons, namely, Balbir, Dharamvir, Satbir and Dalbir. He further deposed that he never stated that the petitioner has grabbed the pension of his father. He further deposed that the petitioner himself told him that he spent the money of the father on treatment of his father.
PC No 16155-2016 Dharamvir Vs State & Ors Page 21 of 6756. Sh. Daya Nand S/o late Shiv Saran, appeared in the witness box as R2W2 and he tendered his affidavit in evidence Ex. R2W2/A.
57. In his affidavit in evidence, R2W2 deposed that he is a resident of Village Kamrudding Nagar since his birth and was a neighbour of late Sh. Pyare lal Badgoojar and used to visit him almost daily. R2W2 further deposed that he know the family members of late Pyare Lal Badgoojar, the deceased and respondent no. 2/Sh. Tanvir Singh, who retired from UPSC class one officer, who is a reputed person of the village and used to help the Villagers in all possible manner.
58. R2W2 further deposed that the deceased was 10th class pass. The deceased was working as an officer in Indian Railways. At the time of death, the deceased was about 90-91 years old. R2W2 further deposed that he had never seen the medical documents of the deceased Piyare Lal prior to his death.
59. R2W2 denied the suggestion that he never accompanied late Shri Piyare Lal to the hospital or that late Piyare Lal visited the hospital as stated by him or that the deceased was hale and hearty and was of sound mind till his death or that he is deposing falsely on the asking of respondent nos. 2 & 3.
EVIDENCE ON BEHALF OF RESPONDENT NO. 3.
60. Respondent no. 3 Sh. Ranvir Singh appeared in the witness box as R3W1 and he tendered his affidavit in evidence as Ex. R3W1/A and he reiterated the contents of his objections.
PC No 16155-2016 Dharamvir Vs State & Ors Page 22 of 67Respondent no. 3 has relied upon the certified copy of the Will dated 11.02.2010, executed by his father late Sh. Pyare Lal Bagoojar already Ex. R2W1/1. Respondent no. 3 was duly cross-examined by the ld. Counsel for the petitioner.
61. Sh Manoj Shokeen, appeared in the witness box as R3W5 and he tendered his evidence by way of affidavit as Ex. R3W5/A. He was duly cross-examined by ld. Counsel for the petitioner.
62. In his affidavit in evidence, R3W5 deposed that he is a resident of Village Kamruddin Nagar since his birth. He further deposed that late Sh. Pyare lal Badgoojar was personally known to him being respectable elder of Village and he used to visit him once a week at his house. R2W5 further deposed that his father late Attar Singh, Pardhan was a very good friend of the deceased. He further deposed that his brother late Sh. Prem Shokeen was a very good friend of Sh. Balbir Singh, son of the deceased late Sh. Pyare Lal Badgoojar and he know the family members of late Pyare Lal Badgoojar.
63. R3W5 denied the suggestion that late Shri Piyare Lal was hale and hearty and was of sound mind till his death or that he is deposing on the asking of respondent nos. 2 & 3.
EVIDENCE ON BEHALF OF LRs OF RESPONDENT NO. 9.
64. Ms. Parveen, one of the LRs of respondent no. 9 appeared in the witness box as R9W1 and tendered his evidence by way of affidavit Ex. R9W1/A. PC No 16155-2016 Dharamvir Vs State & Ors Page 23 of 67
65. In the cross-examination conducted by ld. Counsel for the petitioner, R9W1 deposed that he is 51 years old and his mother died on 06.01.1981 and his father expired on 20.08.2016. He further deposed that he had relations with our Nanaji and Mamaji, he, lastly, visited Kamruddin Nagar Village in the year,2006 or 2007 before that he had visited the said village in 1984 or 1985. R9W1 further deposed that he also visited in 90's and probably, met his nanaji in the year, 2006 or 2007. He met Sh. Satbir Mamaji and Sh. Balbir Mamaji, when he visited Kamruddin Nagar Village.
66. R9W1 further deposed during her cross-examination that he also met Sh. Dharamvir Singh and his daughter, Ms Gogi at their house in Kamruddin Nagar Village though their house is at some distance. She further deposed that her Nanaji was residing separately in a separate house. R9W1 further deposed that she never saw any document regarding treatment of her nanaji. Her Nanaji retired in the year, 1981. He was having his bank account in Kishan Ganj. She never saw passbook or any statement of his account. Again said, she saw bank statement of her Nanji may be in the year, 2015 or 2016. R9W1 further deposed that she herself got issued the bank statement of her Nanaji from the bank for the period 2015-2016. The bank statement shows that payment was taken by Sh. Dharamvir Singh.
67. R9W1 further deposed during her cross-examination that she did not make any complaint to bank or any authority regarding taking off her nanaji' money by her mamaji, Sh. Dharamvir Singh. R9W1 further deposed that since 2003, she PC No 16155-2016 Dharamvir Vs State & Ors Page 24 of 67 was residing at Sarojini Nagar and from 2018, she is residing at R.K. Puram. R9W1 further deposed that her Nanaji used to visit her house, Kishan Ganj for taking pension and used to meet them. She further deposed that she has no idea about the quantum of pension of her nanaji. She did not trace out the details of properties except as mentioned in the Will, however, she heard from his Ranbir Mamaji that her nanaji had other properties also besides the property mentioned in the Will. She further deposed that she did not find necessary to trace out the properties mentioned by her Ranbir Mamaji. She said in Para no. 6 of the affidavit that her nanaji did not execute any Will in favour of her Mamajis because it is her firm belief that her nanaji could not have done injustice to other legal heirs, left in the Will. RW9/1 deposed in Para no. 6 of her affidavit that the Will in question is false and fabricated because her nanaji signed in the previous Will and all other documents as Pyare Lal, however, in the second Will/latest Will his signature has been affixed as Pyare Lal Badgujar which is not his correct signature.
68. In further cross-examination RW9/1 further deposed that both the Wills were not prepared in her presence. She never met her Nanaji after 2006.
69. It is pertinent to mention here that R9W1 Ms Parveen D/o late Smt. Krishna Devi was recalled for re- examination as per order 10.09.2024 and in her further examination in chief she deposed that she has brought the certified copy of bank statement of the testator late Sh. Pyare Lal Badgoojar in respect of account no. 10167049475 with State Bank of India, Kishanganj branch, Old Rohtak Road, Delhi for the period from 1.1.2015 to 12.05.2017 and the same is Ex PC No 16155-2016 Dharamvir Vs State & Ors Page 25 of 67 R9W1/1. ( objected to by ld. Counsel for the petitioner on the mode of proof).
70. In the cross-examination on behalf of petitioner, she admitted that neither the name of any officer nor the date is mentioned on the statement Ex. R9W1/1. However, she voluntarily stated that she had visited the branch with the copy of said bank statement and got it verified, stamped and certified by the concerned official of the branch which has code number of the branch.
71. In reply to a specific question put it to her that the statement is not certified as per Banker's Book Act and there is no marking in this regard on the statement? R9W1 deposed that she is not aware of the rules of the banks or the provisions of Banker's Book Act. R9W1 further deposed that she had given the copy to the concerned official for certification and he put the required stamping and signature and gave it back to her.
72. R9W1 further deposed that she had taken out the print out of the above said statement about in the year 2016- 2017. She denied the suggestion that the statement is false and fabricated or that the above said account statement cannot be verified by the bank officials as the bank officials has already been given statement regarding weeding out the record of the above said period of year 2015-16 of the above said bank account. R9W1 further denied the suggestion that she never visited the bank for getting the bank statement verifying or that said bank statement has not been verified by the bank officials.
73. Sh. Vishal Pawar, Associate from State Bank of India, Kishan Ganj branch appeared as RW9/W2 and deposed that he is a summoned witness and he has brought the statement of PC No 16155-2016 Dharamvir Vs State & Ors Page 26 of 67 account of Sh. Pyare Lal Badgoojar bearing account no. 10167049475 at Kishan Ganj, SBI, Delhi from 01.01.2016 to 30.06.2021 and copy of the same is Ex. RW9/2/A. He further deposed that he has not brought the record from January 2010 till December, 2015 as the same has been destroyed as per rules of the Bank.
74. In the cross-examination by ld. Counsel for the petitioner, RW9/2 admitted that the statement is not certified as per banker's book evidence Act and he has no personal knowledge regarding the said account.
75. In the cross-examination on behalf of R-2 & R-3, RW9W2 deposed that the last debit entry in the account of Pyare Lal Badgoojar is 04.08.2016 of Rs. 29,390/- However, he voluntarily deposed that this amount has been taken by the department as per pension recovery.
76. Evidence on behalf of L.Rs of respondent no. 9 stands closed vide separate statement of one of the L.Rs of respondent no. 9 on 13.09.2024.
FINAL ARGUMENTS
77. I have heard ld. Counsel for the petitioner, respondent no. 2 & 3 and L.Rs of respondent no. 9 and have perused the entire record including pleadings, documents, testimony of the witnesses examined in the court from both sides and judgments filed by the parties.
PC No 16155-2016 Dharamvir Vs State & Ors Page 27 of 67WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER
78. Ld. Counsel for the petitioner has stated in the written submissions that the petitioner has examined one of the attesting witness namely Sh. Jasbir Singh Bajaj/PW-2 and PW-2 has duly proved that the Will in question has been voluntarily executed by the deceased and the deceased was healthy and in sound mind at the time of execution of the Will. It is further stated in the written submissions that the Will was read over to the deceased by advocate Sh. Rishabh Meheshwari. It is further stated that the deceased had signed the Will after admitting the contents of the Will as correct.
79. It is further stated in the written submissions that the deceased had signed the each page of the Will in the presence of both attesting witnesses as well as in the presence of advocate, Sh. Rishabh Maheshwari. It is further stated that the Will was prepared by the advocate Sh. Rishabh Maheshwari as per the direction and instructions of the deceased.
80. It is further stated in the written submissions that the petitioner is not a beneficiary of any of the properties mentioned in the Will rather the other five sons of the deceased are the only beneficiary in the Will in question.
81. It is further stated in the written submissions that there are contradictions in the statement of witnesses examined on behalf of the respondents. It is further stated that R2W2 has deposed during cross-examination that the deceased used to live with his six children in the same house whereas R2W1 deposed PC No 16155-2016 Dharamvir Vs State & Ors Page 28 of 67 that he was living separately with his own family and R3W1, the another son of the deceased deposed that the deceased was staying with his brother namely Balbir Singh only and he was staying with his family separately at Yusf Sarai.
82. It is further stated in the written submissions that the L.Rs of respondent no. 9/RW91 deposed that she never met the deceased after 2006. So, it is not probable that she can make submissions about the mental and physical health of the deceased in 2016.
83. It is further stated in the written submissions that deceased had died a natural death peacefully at his form. It is further averred in the written submissions that petitioner has not played any role in preparation of the Will in question. It is further averred that the deceased never resided with any of the respondent and they never took care of the deceased.
84. It is further stated in the written submissions that the petitioner has taken care of his father and the respondent had absconded their duties. It is further averred that even after the death of his father, the petitioner performed his last rites and other rituals as per the traditions of the relation society and the family and the said rites and rituals was not even attended by the respondents.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT NO. 2 & 3
85. It is stated in the written submissions that the PC No 16155-2016 Dharamvir Vs State & Ors Page 29 of 67 present petition is preferred by the petitioner seeking probate of one alleged unregistered Will dated 05.06.2016 allegedly executed by late Sh. Pyare Lal Badgoojar, who on the alleged date 05.06.2016 was about 93 years of age and admittedly expired on 21.06.2016 after 16 days of making that alleged Will in question.
86. It is further stated in the written submissions that the present petition deserved to be dismissed being comes into the category of 'Suspicious' on the following grounds:
i) Petitioner being the major beneficiary under the alleged Will dated 05.06.2016.
ii) Petitioner played active role in execution of alleged Will dated 05.06.2016
iii) Exclusion of other well reputed obedient sons and legal heirs of real pre-deceased daughter.
iv) Manner of preparation of alleged Will dated 05.06.2016
v) No information of execution of Will to the legal heirs.
vi) Vague contents of Will dated 05.06.2016.
vii) Contradiction in the statement of witnesses.
viii) Non-comparison of the signatures of the deceased testator ( late Sh. Pyare Lal ).
ix) The bad and aged physical condition of testator
x) The deliberate attempt of petitioner, not disclosing names of necessary parties to the petition which makes the document highly suspicious and seriously doubtful against the genuineness of the documents propounded as Will dated 05.06.2016.PC No 16155-2016 Dharamvir Vs State & Ors Page 30 of 67
87. Ld. Counsel for respondent no. 2 & 3 mentioned about section 59, 61, 62, 67, 68 81 & 89 of the Indian Succession Act.
88. In the written submissions it is further averred that the evidence of the petitioner is unreliable on the following grounds:
1. Besides the non proving of the signatures of the testator on the Will in question, the statement, cross-examination of the petitioner raises a thick cloud of suspicion, those are unanswered and unreliable.
2. The petitioner has no where stated or claimed regarding the signatures of the testator on the Will in question, he did not state that he can identify the signature of the testator.
3. The petitioner has failed to explain the manner, he found the Will, rather when the specific question were asked to him, he deliberately admitted about non-disclosing of the situation in which, he came into the possession of the Will in question.
4. The petitioner deliberately denied the execution of any other Will, prior to the execution of Will in question by the testator however later on admit the existence of registered Will of testator and also admit the knowledge of the same.
5. The petitioner specifically denied about the exclusive withdrawal of all the saving of the testator, during cross-examination, however the Bank witness who brought the statement of account of testator shows that much prior to 2015 the entire funds/saving of late Sh. Pyare Lal were exclusively withdrawn/transferred by him only moreover, at that time of the death of late Sh. Pyare Lal, there was not even a single penny left by the petitioner in his saving account.
6. The petitioner at the time of filing of petition, deliberately chosen not to implead the L.Rs of respondent no. 9 and at the time of cross-examination on this point he admitted to visit the LRs of respondent no. 9 to give evidence in his favour, proves his shaken and unreliable evidence.PC No 16155-2016 Dharamvir Vs State & Ors Page 31 of 67
7. The petitioner has admitted during the cross-
examination the manufacturing of the chain of so many documents in his favour and non-disclosing of the fact to respondent no. 2 & 3 as well as to the other contesting respondents.
8. The petition as well as evidence on record is completely silent about any person who claims to read over the contents of Will in question to the testator, the witness namely Jasbir Singh Bajaj, PW-2 clearly admitted in his cross- examination that he has closed acquaintance with the petitioner only, he further admit that where the Will in question was drafted, he admit that he does not know any advocate namely Rishabh Maheshwari. He further admits that no one except the testator was present when he signed the Will in question as witness, he also admitted about the involvement of petitioner in making the Will in question. Ld. Counsel for respondent no. 2 relied upon the judgment of the Hon'ble High Court in ILR (1981) 2 Delhi 477 " Closeness of attesting witness of the Will with propounder is itself a suspicious circumstances."
9. It is further stated that the execution of Will in question is highly suspicious, if the petitioner claims that the will in question has been drafted by a person who may be an advocate and the document was legally prepared by him and the petitioner could have examined or at least summon him in the present case, to remove the major doubt.
10. It is further stated that there is no evidence on the record to explain the suspicious circumstance of excluding respondent no. 2 &3 from bequeath of the immovable property, there is no evidence that deceased had understand the contents of Will in question. It is further averred that both the respondents are not aware about the execution of the alleged will in question and respondents has produced witnesses who have clearly stated in evidence about the closeness, faithfulness and sincerity towards their father and no adverse suggestions were given to them.
11. Respondent no. 2 & 3 further relying upon the judgment passed by the Hon'ble Supreme Court in a case titled Kavita Kanwar Vs Mrs Pamela Mehta, AIR 2020 SC 2614, DB. It is further submitted that the Will in question is surrounded by various suspicious circumstances which has remained un- explained and the possibility of the Will in question is not duly PC No 16155-2016 Dharamvir Vs State & Ors Page 32 of 67 executed by the deceased Sh. Pyare Lal, the present petition may kindly be dismissed.
WRITTEN SUBMISSIONS ON BEHALF OF L.Rs OF RESPONDENT NO. 9.
89. The L.Rs of respondent no. 9 also filed written submissions and it is averred in the written submission that at the time of making of the alleged Will, the testator was 93 years old and admittedly, he was not of sound disposition and suffering from various ailments since long time prior to the execution of the said Will. ( page 8, 9, 10, 12 and 15 of the Will)
90. It is further averred that there are suspicious circumstances around the execution of the alleged Will and thus the said Will cannot be accepted as the last Will of the Testator.
91. It is further averred that there has been unfair and unjust disposition of the properties under the said Will and the petitioner himself took a lead part in the making of the Will under which he received substantial benefits. It is further averred that in para 10 of the alleged Will, the testator himself avers that his three sons namely Sh. Dharamvir Singh, Sh. Dalvir Singh, Sh. Balbir Singh alongwith their families have looked after him in his movements and in proper medical care.
92. It is further averred that petitioner has been appointed as an Executor of the Will and General Attorney of the testator appointed as the Chairman of Trust established by the testator and had to be managed entirely by the petitioner under the Will, an amount of Rs. 25 lakhs had to paid to the petitioner PC No 16155-2016 Dharamvir Vs State & Ors Page 33 of 67 by the other children of the testator, petitioner was given sole power to take decision with respect to the land devolving upon the said Trust, therefor there has been unfair and unjust disposition of the properties under the alleged Will.
93. It is further alleged that the petitioner himself took an active part in making the Will and got his acquaintance as one of the witnesses to the alleged Will, namely Shri Jasbir Singh Bajaj/PW-2, who is the classmate of petitioner's daughter and was very well known to the petitioner.
94. It is further averred that petitioner was in a position of active confidence qua the testator and while abusing his fiduciary position of active confidence, he induced the testator to transfer his other properties in favour of the family members of the petitioner. The petitioner, taking advantage of his fiduciary relationship with the testator and position of active confidence usurped and appropriated all pensionary benefits of his father which he received on his retirement and thereafter, under fraudulent inducement, had been regularly withdrawing the pension amount being credited to the bank account of the testator. It is further averred that there are suspicious circumstances around the execution of the alleged Will and this the said Will cannot be accepted as the last Will of the testator and as per the decision of the Hon'ble Supreme Court in the case of Meena Pradhan & Ors. V Kamla Pradhan & Anr. Civil appeal No. 3351 of 2014 decided on 21.09.2023.
PC No 16155-2016 Dharamvir Vs State & Ors Page 34 of 67STATUTORY PROVISIONS RELEVANT TO THE PRESENT CASE.
95. Before adjudicating the issues, I would like to discuss various statutory provisions relevant for deciding the present case.
96. 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".
97. Section 59 of Indian Succession Act, declares that every person ( not being a minor) "of sound mind" may dispose of his property by Will.
98. Section 61 of Indian Succession Act declares a Will as void and the section 61 reads as under:
Sec. 61. Will obtained by fraud, coercion or importunity- A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
99. 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 thus:-
Sec. "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 directions.PC No 16155-2016 Dharamvir Vs State & Ors Page 35 of 67
(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".
100. Section 276 of Indian Succession Act states as under;-
276. Petition for probate- (1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating-
a) the time of the testator's death
b) that the writing annexed in his last will and testament,
c) that it was duly executed,
d) the amount of assets which are likely to come to the
petitioner's hands, and
e) when the application is for probate, that the petitioner is
the executor named in the Will.
(2) In addition to these particulars, the petition shall further
state-
(a) when the application is to the District Judge, that the
deceased at the time of his death had a fixed place of abode, or had some property situate within the jurisdiction of the Judge, and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate;
(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another Sate, the petitioner shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.
PC No 16155-2016 Dharamvir Vs State & Ors Page 36 of 67101. The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
"Section 68 of Indian Evidence Act states that 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 Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied.
ISSUE WISE FINDINGS
102. Finding on issue no. 1 & 3.
1. Whether the Will dated 05.06.2016 executed by late Shri Pyare Lal Badgoojar S/o late Shri Mehu Ram , is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 & 3 and L.Rs of respondent no. 9 in the written statement/objections? OPR
103. Issues no. 1 & 3 are taken together as both are interconnected and have mutual bearing. Onus to prove issue no. 1 is upon the petitioner and onus to prove issues no. 3 is upon the respondent no. 2, 3 & L.Rs of respondent no. 9.
104. In order to prove his case the petitioner has examined total two witnesses i.e. PW-1/petitioner and PW-2 Sh.
PC No 16155-2016 Dharamvir Vs State & Ors Page 37 of 67Jasbir Singh Bajaj, one of the attesting witnesses to the Will dated 05.06.2016.
105. The respondent no. 2, in order to prove his defence has examined two witneses i.e. R2W1/respondent no. 2 and Sh. Daya Nand/R2W2.
106. The respondent no. 3, in order to prove his defence has examined two witneses i.e. R3W1/respondent no. 3 and Sh. Manoj Shokeen/R3W5.
107. The L.Rs of respondent no. 9, in order to prove their defence has examined two witneses i.e. R9W1/Ms Parveen, one of the Lrs of respondent no. 9 and Sh. Vishal Panwar from State Bank of India/R9W2.
108. The principles for proving the Will have been well settled, in catena of judgments by Hon'ble Supreme Court of India as well as by Hon'ble Delhi High Court. Some of the judgments have been mentioned below to appreicate the law, applicable on the facts of the present case.
109. In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down the following propositions:
(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 wills, one cannot insist on proof with mathematical certainty.PC No 16155-2016 Dharamvir Vs State & Ors Page 38 of 67
(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 68 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, 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 circumstances that the test of satisfaction of the judicial conscience has been evolved.
That test emphasizes 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.
PC No 16155-2016 Dharamvir Vs State & Ors Page 39 of 67(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."
110. In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles to prove the Will and the same are as under; -
i This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c) Each of the attesting witnesses must have 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 such signatures:(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
PC No 16155-2016 Dharamvir Vs State & Ors Page 40 of 67v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, 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, etc.
111. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Hon'ble Supreme Court of India had the occasion to rule on the PC No 16155-2016 Dharamvir Vs State & Ors Page 41 of 67 principles governing mode of proof of a Will before a probate court. Referring, inter alia, to its earlier decision of case titled H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors (Supra) the Hon'ble Supreme court has held as follows:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of 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 signatures 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 indications 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 suspicious 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 susbtantial 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..."
( emphasis supplied)
112. In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court of Delhi made reference to FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would PC No 16155-2016 Dharamvir Vs State & Ors Page 42 of 67 constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid testament of the testator. These are as under:
I. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.
IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw& Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances PC No 16155-2016 Dharamvir Vs State & Ors Page 43 of 67 which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
113. In a case titled Inder Bala Bose vs Maninder Chandra Bose AIR 1982 SC 133, the Hon'ble Supreme Court of India has held that "any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normal in a normal situation or is not expected from a normal person."
114. In a case titled Kavita Kanwar Vs Mrs Pamela Mehta decided on 19.05.2020 passed by Hon'ble Supreme Court of India has held as follows:
PC No 16155-2016 Dharamvir Vs State & Ors Page 44 of 6716. A Will is executed to alter the ordinary mode of succession and by bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his the very nature of things it is property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of an offspring. As held in P.P.Κ. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.:
[1995] 2 SCR 585, it is the duty of the propunder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
115. In the light of Legal principles as carved out in catena of Judgments by the Hon'ble Superior Courts and some of them as discussed above, it is obligatory for the petitioner to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the testator:
(ii) That the testator while executing the Will was in sound and disposing state of mind:
(iii) That the testator had executed the Will, of his own free will, meaning thereby that he was a free agent when he executed the Will:
(iv) The petitioner has to prove that the Will in question is the last Will of the testator:
(v) The petitioner has also to remove all the suspicious circumstances, surrounding the execution of the Will:
(vi) For proving the Will, one attesting witness of the Will, atleast, if alive, must be examined in the Court as per section 68 of the Indian Evidence Act.PC No 16155-2016 Dharamvir Vs State & Ors Page 45 of 67
116. PW-1/petitioner, in his examination in chief by way of affidavit has deposed that he looked after the deceased physically as well as emotionally hence bequest of the properties has to be done as per the last and original testament dated 05.06.2016, as left by late Sh. Pyare Lal Badoojar. PW-1 further deposed in his affidavit that the last and original Will of late Sh. Pyare Lal Badoojar is the present Will dated 05.06.2016, bearing the real and actual signatures of the deceased Sh. Pyare Lal Badoojar, in the presence of independent witnesses, in his complete and full senses and alert mental faculties and in good physical conditions.
117. PW-1 further deposed by way of his affidavit in evidence that late Sh. Pyare Lal Badoojar was in an extremely and good state of mind all along till the time of his demise on 21.06.2016 and more particularly at the time of executing the present Will on 05.06.2016. PW-1 further deposed that late Sh. Pyare Lal Badoojar used to go with him to the Sonia Hospital, which is about one kilometer from his residence for his regular medical checkups which were conducted by eminent doctors of the hospital and he was given necessary treatment and medical attention by Dr. Shuchin Bajaj M.D, Dr. Hari Kishan ( MBBS) and Dr. Naveen Nischal M.D and the medical record of his such treatment as an out patient are tendered in evidence as Ex. PW-1/6 (Colly).
118. PW-1, further deposed by way of his affidavit in evidence that late Sh. Pyare Lal Badoojar was in a hale and hearty physical condition and extremely good mental health as he had been actively participating in various family get-togethers PC No 16155-2016 Dharamvir Vs State & Ors Page 46 of 67 and functions not only at his residence but at community hall of the locality and the banquet halls far away from his residence. PW-1 further deposed that on 24.03.2016, just less than 2 months before his demise, to welcome his grand daughter Sanjeeta, her daughter and her family, who all had come from New Zealand after more than 7-8 year, he went all the way to a banquet by name 'Submarine' in Punjabi Bath, New Delhi and blessed them all.
119. PW-1/petitioner has deposed in his examination in chief by way of affidavit that late Sh. Pyare Lal Badgoojar in his last and original Will dated 05.06.2016, clearly stated on page 16 that " as far as my daughters are concerned, I have already spent money beyond my capacity in their respective marriages and also have performed all other social obligations after their marriages. All my daughters are well settled in their respective matrimonial houses and they are not in any manner dependent upon me. Hence, I do think not to include them as a part of my properties".
120. PW-1 further deposed in his affidavit in evidence that late Smt. Krishna Devi had met an unnatural death almost 30 years ago because of her family conditions and it was her last desire and wish conveyed to the petitioner and to their father late Sh. Pyare Lal Badoojar in clear words, not to have any relations with her husband Sh. Jaipal Singh and his family after her death. PW-1 further deposed in his affidavit in evidence that on her death bed, she had even refused to talk to her husband and told petitioner and his father late Sh. Pyare Lal Badoojar, the whole unfortunate tragedy and cause of her unnatural death. PW-1 further deposed in his affidavit that it was such a shock and PC No 16155-2016 Dharamvir Vs State & Ors Page 47 of 67 irreparable loss to the family which is till today has not been able to come out of it. PW-1 further deposed in his affidavit that after the death of Smt. Krishna Devi, it was decided by late Sh. Pyare Lal Badoojar, not to have any relations with Sh. Jaipal Singh and his family. PW-1 further deposed that keeping in view the last wish of late Smt. Krishna Devi, her legal heirs were not impleaded in the present petition. PW-1 further deposed that respondent no. 2 & 3 have the only sheer motive of just usurping the property of late Sh. Pyare Lal Badoojar and have no love either towards their own real sister late Smt. Krishna Devi or his father late Sh. Pyare Lal Badoojar.
121. PW-1 in his affidavit in evidence further deposed that the Adhar Card of the deceased was made on 11.04.2016 after duly taking his bio-metric details none other than by a team of Government of India Officials at his residence itself. PW-1 further averred that this is a very important government document, which has the universal recognition and acceptance as per law in force and is issued to a normal healthy person and not to an incapacitated person after due verifications by senior government officials who have expertise in doing so.
122. PW-2 Sh. Jasbir Singh ( one of the attesting witness) has further deposed that the Will was prepared by Shri Rishabh Maheshwari, Advocate at the asking of the deceased, who accepted the same to be as per his wish and instructions and then put his signature on the said will in his presence, on all the twenty pages at Mark -A. PW-2 further deposed that the deceased signed in his presence and in the presence of Sh. Jagbir Singh and Sh. Rishabh Maheswari, Advocate. He further PC No 16155-2016 Dharamvir Vs State & Ors Page 48 of 67 deposed that he and Sh. Jagbir Singh, on the request of deceased signed and attested the said Will as attesting witnesses, then the Will was signed by Sh. Rishabh Maheshwari, Advocate. PW-2 further deposed that Sh. Jagbir Singh and Sh. Rishabh Maheswari signed in his presence and in the presence of late Sh. Pyare Lal Badgoojar. PW-2 further deposed that his signatures at at point B and signatures of Sh. Jagbir Singh and Sh. Rishabh Maheshwari are at point C & E on the Will Ex. PW-1/3.
123. PW-2 further deposed that the deceased, at the time of execution of the Will Ex. PW-1/3 was in good health and sound disposing mind and the deceased executed the Will without any pressure or coercion, of his own volition.
124. As per section 68 of Indian Evidence Act, it is mandatory for the petitioner to examine one of the attesting witnesses to prove the Will in question. Sh. Jasbir Singh Bajaj, who is one of the attesting witness of the Will in question, has been examined as PW-2. He has deposed that the Will in question has been executed by the deceased voluntarily and it bears his signatures as well as signatures of deceased and second attesting witness Sh. Jagbir Singh. He also deposed that the deceased was healthy and in sound disposing mind at the time of execution of the Will in question. During cross-examination conducted by ld. Counsel for respondent no. 2, PW-1 has deposed that he was sure about sound mental health of the deceased, on the day of execution of the Will as he had seen the deceased in full senses.
PC No 16155-2016 Dharamvir Vs State & Ors Page 49 of 67125. During cross-examination conducted by ld. Counsel for respondent no. 3, PW-2 deposed that he had met advocate Mr. Rishabh Maheshwari, on the day of execution of the Will, Ex. PW-1/3. He further deposed during his cross-examination that he met Sh. Jagbir Singh, the other attesting witness on the same day i.e. 5.6.2016. PW-2 further deposed during cross- examination conducted by ld. Counsel for L.Rs of respondent no. 9 that Sh. Rishabh Maheshwari advocate was present when the Will was executed and he was already present when he reached in the evening at the house of the deceased. During cross-examination, PW-2 further deposed that the Will was read over to the deceased by Sh. Rishabh Maheshwari Advocate in his presence.
126. Ld. Counsels for respondent no. 2, 3 and L.Rs of respondent no. 9 have argued that there are several suspicious circumstances surrounding the execution of the Will the said suspicions have not been removed by the petitioner. The suspicious circumstances alleged by respondents have been considered as follows:
127. The petitioner is a major beneficiary in the Will in question and L.Rs of respondent no. 9 have been excluded from the inheritance in the Will in question without any valid and just ground. I have perused the Will in question. In the Will in question, the petitioner is not the direct beneficiary of immovable properties of the deceased. The deceased has given his movable properties to the petitioner. The deceased has devolved the property measuring 225 sq. yards in Khasra No. 5 of Lal Dora, of Village, Kamruddin Nagar, Nangloi, Delhi, PC No 16155-2016 Dharamvir Vs State & Ors Page 50 of 67 which is comprising of a building with construction portion on the ground floor and first floor, upon his three sons namely, Sh. Tanvir Singh ( respondent no. 2), Sh. Ranvir Singh ( respondent no. 3) and Sh. Satvir Singh ( respondent no. 6) with the condition that Sh. Tanvir Singh will collect Rs. 8 lakh each from above said his both brothers and he will also contribute Rs. 8 lakh and will hand over this amount of Rs. 24 lakhs to Sh. Dharamvir Singh for depositing the same into the trust account and in case, they do not meet the desire criteria of paying Rs. 24 lakh then the above said property shall devolve upon the trust, and Sh. Dharamvir Singh will take over the trust as Chairman and will take appropriate decisions to the said land in the best interest of the said trust.
128. In the said Will, the deceased has given property admeasuring 451 sq. yards out of original measured 910 sq. yards situated in Khasra No. 5 of Village Kamruddin Nagar, Nangloi, Delhi to Sh. Dalbir Singh/respondent no. 4 ( 150 sq. yards ) and Sh. Balbir Singh/respondent no. 5 (150 sq. yards) and to Smt. Sarla Devi Budgoojar Charitable Trust (151 sq. yards). Therefore , the contention of respondents that petitioner is major beneficiary in the Will is not valid. Respondent no. 2 to 6 have been given shares in the immovable properties by the deceased, in the Will in question. The deceased has given the reason for excluding his daughters from receiving share in his properties, in the Will in question. Moreover, it is settled law that the Will is usually executed to disturb the line of succession and it is the sweet will of the deceased to give his property to any person and he can even exclude all his legal heirs from the inheritance of his properties.
PC No 16155-2016 Dharamvir Vs State & Ors Page 51 of 67129. The respondent no. 2 & 3 have relied upon earlier Will dated 11.02.2010, executed by the deceased. As per R-2 & R-3, the properties of the deceased should be partitioned amongst all the legal heirs of the deceased, according to Will dated 11.02.2010.
130. The petitioner has not denied execution of Will dated 11.02.2010 by the deceased. Petitioner has averred in his replication of objections of R2 & R-3 that the bequest of the immovable properties left behind by the deceased is similar in Will dated 5.06.2016 and Will dated 11.02.2010. The petitioner has further submitted in replication that some conditions have been changed due to certain changed circumstances and as per the last wish & desire of the deceased as the answering respondent did not perform his duties & responsibilities towards the deceased as a son and the family as is the accepted norm in a joint Hindu Family.
131. I have perused the said Will dated 11.02.2010. In the said Will, the deceased had appointed the petitioner as an Executor and had also given his movable properties to the petitioner. In the said Will the immovable properties which are subject matter of the present petition were given to respondent no. 2 to 4 and wife of respondent no. 6. In the said Will, it is also mentioned that the above said persons alongwith petitioner will contribute Rs. 7 lakh each for running of the Smt. Sarla Devi Budgoojar Charitable Trust. In the present Will also the petitioner has been appointed as an Executor and the immovable properties have been given to respondent no. 2 to 6 and movable properties have been given to the petitioner. Instead of Rs. 7 PC No 16155-2016 Dharamvir Vs State & Ors Page 52 of 67 lakh and petitioner, the respondent no. 2, 3 & 5 are obliged to make payment of Rs. 8 lakh each for running the above said trust. The earlier Will also proves that the deceased had trust upon the petitioner. In the earlier Will also the daughters have been excluded from inheritance by the deceased. The earlier Will also proves the genuineness of the Will in question and trust and confidence of the deceased upon the petitioner.
132. The petitioner has played a prominent role in the execution of the Will in question. No evidence has been led by the respondents to prove any role played by the petitioner in preparation of the Will in question. Even no suggestion has been given by the respondents to the petitioner or to the attesting witness regarding presence of the petitioner at the time of execution of the Will in question.
133. The attesting witness Sh. Jasbir Singh is the classmate of the daughter of the petitioner. The mere fact that the attesting witness is the classmate of the daughter of the petitioner, it does not raise any doubt upon the execution of the Will in question by the deceased. Nothing has come on record as to what benefit Sh. Jasbir Singh has obtained by signing the Will in question as a witness. It is not probable that a person who is a gazetted officer will sign the Will in question falsely, after the death of the deceased, without getting any benefit, being only the classmate of daughter of the petitioner. The mere fac that there is age gap of 40 years between the age of the deceased and witness, it cannot be said that Sh. Jasbir Singh cannot become a witness in the Will. There is no requirement in law that the attesting witness should be of the same age of the PC No 16155-2016 Dharamvir Vs State & Ors Page 53 of 67 testator. The only requirement is that the attesting witness must be known to the testator and in this case, it is proved that the attesting witness Sh. Jasbir Singh was known to the deceased.
134. The contents of the Will are vague in nature. I have perused the Will in question, the Will in question is in detail and the distribution of property has been made clearly in express terms by the deceased. The respondents have not disclose as to what contents of the Will are vague in nature.
135. There are contradictions in the statement of the witnesses. Ld. Counsel for the respondents have argued that the petitioner has not disclosed about previous Will dated 29.04.2010 in the petition. He further argued that initially the petitioner has denied the execution of the previous Will but later on, he admitted the registered Will as the previous Will was shown to him by ld. Counsel for L.Rs of respondent no. 9, during his cross-examination.
136. It is settled law that only last Will of the deceased is effective and probate/letters of administration can be issued only of the last Will of the deceased. Therefore, there is no force in the contention of respondents that the Will in question is suspicious as the petitioner has not disclosed the previous will in his petition.
137. The deceased was bed ridden and was not in sound disposing mind, at the time of execution of the Will and the deceased expired just after 15 days of the execution of the Will in question.
PC No 16155-2016 Dharamvir Vs State & Ors Page 54 of 67138. In order to prove above said contention, the respondents have examined R2W2 & R3W5.
139. R2W2 deposed that Sh. Pyare Lal Badgoojar was not in his full sense, physically sound and disposing mind for about 6-8 months prior to his death i.e. 21.06.2016 and during his last days of life he was completely bed ridden for about 7-8 months. He further deposed that the deceased hardly recognized any one during his last days and he was not able to do anything i.e. taking water, food etc. and used to take food, change clothes, bath etc. with the help of others. R2W2 further deposed that Sh. Tanvir Sigh used to visit the house of late Sh. Pyare Lal Badgoojar mostly daily to look after him and also to provide medical aids to his father.
140. In the cross-examination on behalf of petitioner, R2W2 deposed that he was asked by Mr. Tanvir Singh to depose before this court whatever is in his knowledge. Sh. Piyare Lal used to live with his six children in the same house. All or any of the six children used to take him to the doctor whenever he fell ill. The deceased used to be taken to the nearby hospital Sonia, he had also accompanied him to Sonia hospital once in the year 2016 in the month of May/June. R2W2 further deposed that he was accompanied by Satbir at that time thereafter other sons of the deceased also came there and he came back. R2W2 further deposed that he stayed there in emergency department of the hospital and then he came back and he did not know when the deceased was discharged from the hospital.
PC No 16155-2016 Dharamvir Vs State & Ors Page 55 of 67141. R3W5 further deposed that Sh. Pyare Lal Badgoojar was not in his full sense, physically sound and disposing mind for about 6-8 months prior to his death i.e. 21.06.2016 and during his last days of life he was completely bed ridden for about 7-8 months. He further deposed that the deceased hardly recognized any one during his last days, he was not able to do anything i.e. taking water, food etc. and used to take food, change clothes, bath etc. with the help of others.
142. In the cross-examination on behalf of petitioner, R3W5 deposed that Mr. Ranbir Singh asked him to be witness in the present matter. Sh. Piyare Lal expired on 21.06.2016. The deceased was about 90 or 92 years old at the time of his death. R3W5 further deposed that his house is located at the distance of 60-70 meters from the house of the late Sh. Piyare Lal. The deceased was residing with all his three sons and their family members namely, Balbir Singh, Dalbir Singh and Satbir Singh, however, later on one son of the deceased shifted to Paschim Vihar, namely Dalbir Singh. Sh. Dalbir Singh had shifted about 10 years back from the death of Sh. Piyare lal.
143. R3W5 further deposed that Late Piyare Lal was suffering from many diseases for the last about three yeas prior to his death. All or any of his four sons used to take the deceased to the hospital for treatment. R3W5 further deposed that he do not know in which hospital they used to take him for the treatment. He never accompanied Sh. Piyare Lal to the hospital for his treatment. R3W5 further deposed that the deceased was well read and was working. Again said the he does not know as to up to what class the deceased had studied. R3W5 further PC No 16155-2016 Dharamvir Vs State & Ors Page 56 of 67 deposed that he never saw any document regarding medical treatment of deceased Piyare Lal at that time I.e prior to his death. As per his knowledge once prior to his death i.e. 4-5 months prior, the deceased was once hospitalized but he cannot tell the name of the hospital. R3W5 denied the suggestion that late Piyare Lal was not admitted in the hospital prior to his death as stated by him.
144. It is deposed by R2W2 Shri Daya Nand, during his cross-examination that Testator Shri Pyare Lal used to live with his six children in the same house, whereas R2W1 Shri Tanvir Singh has deposed that he was living separately and R3W1 Shri Ranvir Singh, another son of the Testator has deposed in his cross-examination that his father (the deceased) was staying with his brother namely Balbir Singh only and he was staying with his family separately at Yusuf Sarai, at a distance of about 28 Kms from the house of deceased at Village Kamruddin Nagar.
145. As per respondent no. 2, the deceased was living separately in house no. 31, Khasra no. 5, Village Kamruddin Nagar, Delhi. R2W2 and R3W5 do not know with whom deceased was residing & R2W2 deposed falsely regarding residing of deceased with all his six children. R3W5 has deposed falsely regarding residing of deceased with his 3 sons namely Sh. Balbir Singh, Sh. Dalbir Singh and Sh. Satbir Singh.
146. As per R2W2 all or any of six children used to take the deceased to hospital. As per R3W5, all or any of 4 sons of deceased used to take him to hospital for treatment. As per respondent no. 2/R2W1, after 2008, the petitioner said that he PC No 16155-2016 Dharamvir Vs State & Ors Page 57 of 67 would look after their father and after that they never took their father (the deceased) to any hospital for any medical check up. Respondent no. 3/R3W1 deposed that he never took his father for any treatment and never brought or called any doctor for treatment of the deceased.
147. There is material contradictions in the statement of R2W2 and R3W5. R2W2 & R3W5 do not know with whom the deceased was residing and who was looking after the deceased and who was taking the deceased to the hospital. They have not seen any medical document of the deceased. If they were on visiting terms with the deceased then they must have known about said facts. The testimony of R2W2 and R3W5 is not credible and not inspiring the confidence of the court and also not supported by any medical document regarding health condition of the deceased and therefore, their testimony is discarded being not reliable.
148. PW-1 in his affidavit in evidence has deposed that petitioner looked after the deceased physically as well as emotionally and late Sh. Pyare Lal Badgoojar was in an extremely good state of mind all along till the time of his demise on 21.06.2016 and more particularly at the time of executing the present Will on 05.06.2016. PW-1 further deposed in his affidavit in evidence that late Sh. Pyare Lal Badgoojar used to go with him to the Sonia Hospital, which is about one kilometer from his residence for his regular medical checkups which were conducted by eminent doctors of the hospital and he was given necessary treatment and medical attention by Dr. Shuchin Bajaj M.D, Dr. Hari Kishan ( MBBS) and Dr. Naveen Nischal M.D PC No 16155-2016 Dharamvir Vs State & Ors Page 58 of 67 and the medical record of his such treatment as an out patient are tendered in evidence as Ex. PW-1/6 (Colly).
149. PW-1 in his affidavit in evidence further deposed that late Sh. Pyare Lal Badoojar was in a hale and hearty physical condition and extremely good mental health as he had been actively participating in various family get-togethers and functions.
150 . PW-1 deposed in his examination in chief by way of affidavit that the deceased attended retirement function of his sone Sh. Dalbir Singh in community hall in July, 2015, in which he himself made a speech & blessed his retiring son and also filed photographs of that function which are Ex. PW-1/7. PW-1 further deposed that on 24.03.2016, the deceased attended family function in Submarine Banquet Hall, in Punjabi Bagh and filed photographs of that function as exhibited Ex. PW-1/8. The respondents have not denied the above facts of attending functions by the deceased. No suggestion in denial of above facts has been given to PW-1 by the respondents. The above facts has been remained unrebutted & unchallenged. The deceased had attended function on 24.03.2016, just three months before his death and in photographs, he is seen sitting on a chair and appears to be in senses. The deceased was well and in sound mind otherwise he would not attend above function on 24.03.2016.
151. PW-1 in his affidavit in evidence further deposed that the Adhar Card of the deceased was made on 11.04.2016, after duly taking his bio-metric details by a team of Government PC No 16155-2016 Dharamvir Vs State & Ors Page 59 of 67 of India Officials at his residence itself. PW-1 further deposed that this is a very important government document, which has the universal recognition and acceptance as per law in force is issued to a normal healthy person and not to an incapacitated person after due verifications by senior government officials who have expertise in doing so.
152. The respondents have not disputed above said facts during cross-examination of PW-1 and no suggestion in denial regarding above said facts has been given to PW-1 by the respondents. The above said facts remains unrebutted and unchallenged. In the photographs Ex. PW-1/7 & Ex. PW-1/8 the deceased is visible in full senses. The respondents have not led any evidence to prove that the deceased was not in sound mind, at the time of execution of the will or the deceased was bed ridden at the time of execution of the Will in question. No doctor has been summoned or examined by the respondents to prove the ill health of the deceased. No medical document has been filed on record on behalf of the respondents. The petitioner as well as PW-2 has clearly deposed that the deceased was healthy and in sound mind at the time of execution of the Will in question. During cross conducted on behalf of respondent no. 2, PW-2 deposed that " it is correct that deceased Pyare Lal was capable of walking on 5.6.2016. The preparation of Aadhar Card of the deceased by government official also shows that the deceased was not of unsound mind.
153. The mere fact that deceased died just after 15 days of execution of Will, it cannot be presumed that the deceased was not mentally fit at the time of execution of Will in question.
PC No 16155-2016 Dharamvir Vs State & Ors Page 60 of 67There is no evidence on record to the fact that the deceased was not in sound mind before his death. The respondents have failed to prove that the deceased was not in sound mind at the time of execution of the Will in question. In view of the above said facts, it is held that the petitioner is succeeding in proving that the deceased was in sound and disposing state of mind at the time of execution of Will.
154. The petitioner has not deliberately initially made the L.Rs of respondent no.9 as party in the present case.
155. PW-1 further in his affidavit in evidence deposed that late Smt. Krishna Devi had met an unnatural death almost 30 years ago because of her family conditions and it was her last desire and wish conveyed to the petitioner and their father late Sh. Pyare Lal Badoojar in clear words not to have any relations with her husband Sh. Jaipal Singh and his family after her death. PW-1 further deposed in his affidavit in evidence that on her death bed, she had even refused to talk to her husband and told petitioner and his father late Sh. Pyare Lal Badoojar the whole unfortunate tragedy and cause of her unnatural death. PW-1 further deposed in his affidavit that it was such a shock and irreparable loss to the family which is till today has not been able to come out of it. PW-1 further deposed in his affidavit that after the death of Smt. Krishna Devi, it was decided by late Sh. Pyare Lal Badoojar not to have any relations with Sh. Jaipal Singh and his family. PW-1 further deposed that keeping in view the last wish of late Smt. Krishna Devi her legal heirs were not impleaded in the present petition.
PC No 16155-2016 Dharamvir Vs State & Ors Page 61 of 67156. The respondents have not disputed above said facts during cross-examination of PW-1 and no suggestion in denial regarding above said facts has been given to PW-1 by the respondents. The above said facts remains un-rebutted and unchallenged. The mere fact that initially L.Rs of respondent no. 9 had not been made party in the present case does not raise any suspicion upon the execution of the Will in question.
157. Ld. Counsel for respondent no. 2 & 3 has argued that PW-2 is not a reliable witness. He further argued that PW-2 even did not know the schooling and other details of the deceased. He further argued that deceased never visited his office at Tamil Naidu and also never visited his house during his life time. PW-2 could not even tell the name of all the children of the deceased. PW-2 has deposed that grand daughter of the deceased was his class fellow at law Centre, Delhi University. PW-2 has admitted in his cross-examination that in Para no. 1 of his affidavit, he mentioned that he knew deceased Sh. Payare Lal since 2012. PW-2 also deposed that the deceased retired from his job in 1982 and deceased was having six sons and three daughters and out of which one daughter has died. PW-2 has denied the suggestion that he did not attend the cremation of deceased Payare Lal. Ld. Counsel for R-3 has given suggestion to PW-2 that, " it is wrong to suggest that I had visited the house of the deceased on the request of petitioner on 5.6.2016." "It is correct that on that day I had came in my official vehicle". PW-2 further deposed that he used to see deceased at his house prior to 5.6.2016. The above said facts proves that PW-2 knew the deceased. It does not create any doubt upon the testimony of PW-2 only also to the facts that PW-2 did not know minute PC No 16155-2016 Dharamvir Vs State & Ors Page 62 of 67 details about the education qualification of the deceased, about the profession of the father of the deceased, about the name of the Village of deceased's wife, names of all the children of the deceased and regarding date of joining of the deceased in Railway Services. For becoming an attesting witness in a Will, it is not required by law that the attesting witness should know complete details of the testator. PW-2 has disclosed the manner of execution of Will by the deceased and it is also proved that PW-2 was known to the deceased.
158. Ld. Counsel for respondent no. 2 & 3 further argued that the PW-2 does not know where the Will was drafted. He further argued that PW-2 has deposed that when he signed the Will, only deceased was present. He further argued that PW-2 has deposed that in his presence deceased did not instruct the advocate Mr. Rishabh Maheshwari for preparation of Will and he was not present when the Will was got drafted and typed. As per section 63 of Indian Succession Act, it is not mandatory that the Will should be drafted in the presence of the attesting witnesses. The only requirement is that the attesting witnesses must have either seen the testator signing the Will, after admitting its contents or got acknowledgment from the testator regarding his signature on the Will, after understanding the contents of the Will. The mere fact that the Will was not drafted in the presence of PW-2 and PW-2 does not know where the Will was drafted, it does not effect the legality and validity of the Will in question. Reliance is placed upon the judgment titled as Hari Singh & Anr. Vs State & Ors. decided on 3.10.2010, the Hon'ble High Court of Delhi. In para no. 62 of the above said judgment, has observed as follows:
PC No 16155-2016 Dharamvir Vs State & Ors Page 63 of 67"We have already held that the petitioner is not required in a probate case to lead evidence as regards preparation of Will. The factum of valid attestation is alone to be proved. The fact that Shri Dajit Singh was not consulted for preparation of the Will cannot be a ground for suspicion".
159. The Will in question does not bear the signatures of the deceased and is a forged and fabricated Will. Ld. Counsels for the respondents have argued that the deceased used to sign as Pyare Lal but the Will in question bears signatures of deceased as Pyare Lal Badgoojar. During cross-examination, the petitioner/PW-1 was asked to produce original Trust Deed & same was produced by PW-1 and exhibited as Ex. PW-1/R3. The respondents have not disputed the genuineness of Trust Deed Ex. PW-1/R3. In the Trust Deed Ex. PW-1/R3, the deceased has put his signatures as Pyare Lal Badgoojer. The respondents have not disputed signatures of deceased on Trust Deed Ex. PW-1/R3. So, there is no force in the contention of respondents that the deceased used to sign only as Pyare Lal and not as Pyare Lal Bodgoojer.
160. PW-2 has deposed that the deceased had signed the Will in question in his presence and he further deposed in his evidence by way of affidavit that he identified the signatures of late Sh. Pyare Lal Badoojar as the same has been put in his presence, on all pages of the Will. PW-2 also deposed that the other attesting witness Sh. Jagbir Singh also signed the Will in his presence and signatures of Sh. Jagbir Singh, are at point C on the Will. Petitioner/PW-1 has also deposed that the Will in question bears the real and actual signatures of the deceased. No evidence has been led on behalf of the respondents that the Will PC No 16155-2016 Dharamvir Vs State & Ors Page 64 of 67 in question does not bears the signatures of the deceased or that the signatures of the deceased on the Will are forged and fabricated. Moreover, ld. Counsel for L.Rs of respondent no. 9 has given suggestion to PW-1 that " it is wrong to suggest that I have copied the earlier Will and prepared the Will in dispute and obtained signatures of my father by making material variations". This suggestion shows that signatures of deceased on the Will in question are admitted by L.Rs of respondent no. 9. Respondent no. 4, 5 & 6 have already filed no objection for granting Probate of Will dated 5.6.2016 to the petitioner. Respondent no. 7 & 8 have not filed any objection in the present case. In view of the foregoing discussions, it is held that the petitioner is succeeded in proving that the Will in question bears the signatures of the deceased.
161. No other Will executed after 5.6.2016 by the deceased has been either alleged or brought on record by any of the parties. Therefore, it is held that the Will in question is the last Will of the deceased.
162. The L.Rs of respondent no. 9 has also alleged in their objections that the Will in question has been procured fraudulently by the petitioner from the deceased and it is manipulated Will and the petitioner was in position of confidence qua the deceased. The deceased was a literate person and was retired from Railway and he was Chairman of Trust and looking after the said trust. No evidence has been led by the L.Rs of respondent no. 9 to prove that the petitioner has put undue influence upon the deceased or procured Will in question fraudulently from the deceased or the Will in question is PC No 16155-2016 Dharamvir Vs State & Ors Page 65 of 67 manipulated Will. The L.Rs of respondent no. 9 has failed to prove their above said objection.
163. In view of the foregoing discussion, it is held that the deceased has executed the Will in question voluntarily with his free consent and he was in sound disposing state of mindand was aware about the contents of the Will at the time of its execution. It is held that the Will in question is legal, valid and last Will of the deceased. Accordingly issue no. 1 & 3 are decided in favour of the petitioner and against the respondents.
164. Finding on issue no. 2
2. Whether petitioner is entitled for Probate/letter of administration on the basis of the aforesaid Will, as claimed OPP
165. Issue no. 1 & 3 have already been decided in favour of the petitioner. It has already been held above that the Will in question is legal, valid and last Will of the deceased. The petitioner has been appointed as an Executor, in the Will in question by the deceased. As per Section 222 of the Indian Succession Act, the probate can be granted only to an Executor, appointed by the Will. In view of section 222 of the Indian Succession Act, the petitioner is entitled to obtain Probate of the Will in question. Accordingly, issue no. 2 is decided in favour of the petitioner and against the respondents.
166. Relief
167. In view of abovesaid discussions and findings, the present petition stands allowed and it is ordered that a certificate PC No 16155-2016 Dharamvir Vs State & Ors Page 66 of 67 of Probate of the Will dated 5.06.2016, executed by late Shri Pyare Lal Badgoojar be issued to the petitioner under the seal of this court, in the form set forth in Schedule VI of the Indian Succession Act, 1925 with copy of Will, subject to completion of the following formalities.
(i) furnishing of administration cum surety bond and requisite court fees on the value of the movable and immovable properties of the deceased, coming into the hand of the petitioner for administration, as per Will Ex. PW-1/3.
168. Further, the petitioner is also directed to file the inventory of movable and immovable properties within six months and final statement of account within one year from the date of receipt of formal certificate of Probate of the Will. The formalities of issuance of certificate of Probate of the Will be completed within six months from the date of the judgment, as per Section 290 & 291 read with Section 317 of Indian Succession Act.
169. File be consigned to the Record Room after due compliance.
SHIV Digitally signed by
SHIV KUMAR
KUMAR Date: 2025.01.07
17:11:08 +0530
Announced in the open court (Shiv Kumar )
on 7th January, 2025 DJ-02 (West)
Tis Hazari Courts
Delhi.
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