Delhi District Court
Smt Raj Kumari Batra vs Sh. Om Prakash Popli on 11 December, 2014
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
CS 46/11/08
Smt Raj Kumari Batra,
W/o Sh J.R Batra,
R/o 7/76 B, Purani Subzi Mandi,
Chipi Tola,
Agra (U.P). ....... Plaintiff
Versus
1. Sh. Om Prakash Popli,
S/o Late Sh Dayal Chand Ulfat,
2. Sh Rajender Popli,
S/o Late Sh Dayal Chand Ulfat,
3. Sh. Subhash Chand Popli,
S/o Late Sh Dayal Chand Ulfat,
All R/o IIC/5556, Lajpat Nagar,
New Delhi.
4. Sh Prem Nath Popli,
S/o Late Sh Dayal Chand Ulfat,
R/o 5030, HEATHERLEIGH Avenue,
Unit no. 227, MI9SSISSA2GA,
O.N.L.S.V. 2, G.7, Canada. ......Defendants
Result: Suit Decreed. Page 1 of 83
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08
Unique case I.D No. : 02401C1044662008
Date of Institution : 01.08.2008.
Date of Reserving Judgment : 02.12.2014.
Date of Judgment : 11.12.2014.
JUDGMENT
SUIT FOR PARTITION AND PERMANENT INJUNCTION
1. In this suit for Partition and Permanent Injunction, the plaintiff submits that she alongwith defendants no. 1 to 4 are the daughter and sons of late Sh Dayal Chand Ulfat and Smt Lakshmi Devi who had died in December, 1997 and 22.4.2008 respectively. Their deceased mother is said to be the owner of the property bearing no. IIC/5556, Lajpat Nagar, New Delhi. A Perpetual Lease Deed dated 12.9.1968 was executed in favour of mother of the parties which was registered with the office of Sub Registrar, Delhi on 8.1.1969. During her life time, the late Result: Suit Decreed. Page 2 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 mother of the parties applied to the Ministry of Urban Development, Land & Development Office, Govt of India, for conversation of the same from lease hold to free hold which was so converted vide letter dated 28.6.2004. Thus, a Conveyance Deed dated 28.6.2004 was executed in her favour by the Land & Development Office and the same was duly registered with the concerned Sub Registrar on 1.7.2004. 1.1. The suit property bearing no. IIC/5556, Lajpat Nagar, New Delhi, is stated to be comprising a basement, a ground floor, a first floor and the second floor (hereinafter referred as the 'suit property'). Smt. Lakshmi Devi had sold the basement floor during her life time as part of the consideration of the Builders Collaboration Agreement by virtue of which the entire property was constructed. Its ground floor was earlier let out to M/s Godrej which has been since vacated and it is averred that the defendants are since trying to relet the same even though the plaintiff has always been and still in the possession of the suit property being its coowner. It is claimed that property has devolved upon the parties to the suit in equal share i.e 1/5th undivided share except the basement floor which stood already sold. It is claimed that the plaintiff came to Delhi in the last week of June 2008 and was shocked to see the attitude of Result: Suit Decreed. Page 3 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 defendants no. 1 to 3 which was not cordial and affectionate. She used to stay in the suit property during her visits to Delhi but not treated well by defendants no. 1 to 3. During her such stay, she came to know that the previous tenant had vacated the property and the defendants were looking for a new tenant for the ground floor. She tried to intervene due to which the defendants no. 1 to 3 rudely and bluntly told her that she has no right in the property. She was shocked as she had 1/5th share in the property and as her mother had died intestate. On the basis of the aforestated facts, the plaintiff stated the cause of action and valued the suit for the purpose of jurisdiction and Court fee at Rs.19.50 lacs for the relief of partition and Rs.130/ for the relief of Permanent Injunction. She prays for a preliminary decree followed by a final decree of partition for declaring her to be the owner of 1/5th share in the suit property and for appointment of Local Commissioner in respect of partition aforestated. She also prays for a decree of Permanent Injunction thereby restraining the defendants, their employees, servants, agents etc from letting out or selling or creating any third party interest in the suit property. She also prays for costs.
2. The defendants no. 1 to 3 filed their joint Written Statement whereas Result: Suit Decreed. Page 4 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 the forth defendant also placed on record a separate Written Statement.
2.1. According to defendants no. 1 to 3, the deceased Smt. Lakshmi Devi had executed a duly registered Will dated 24.2.2005 during her life time which was registered on the same day whereby which she bequeathed the entire first floor of the suit property to the third defendant, the second floor portion of the suit property to the extent of the portions occupied by them, was bequeathed in favour of defendants no. 1 & 2. It is admitted that basement portion was already sold. Regarding the ground floor, Smt Lakshmi Devi in the aforesaid Will, made a provision that so long she was alive, she shall be entitled to receive the rental of the ground floor and after her demise and upon payment of a sum of Rs. 10 lacs each to the plaintiff and forth defendant (whether during her lifetime or thereafter), the defendants no. 1 to 3 would become the owner thereof to the extent of 1/4th share each and the remaining half of the share will vest with the third defendant. It is thus averred that on the date of death of their mother, defendants no. 1 to 3 have become the absolute owner of the ground, first and second floor portion of the suit property to the extent as desired by the deceased testatrix. It is further submitted that the Result: Suit Decreed. Page 5 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 plaintiff is well aware of the factum of execution and registration of Will. In this context, it is in the Written Statement that on 1.6.2008, the plaintiff alongwith her sons namely Sh Ramesh Batra and Sh Naresh Batra as well as certain other persons arrived at the suit property where the defendants no. 1 to 3 are residing alongwith their families and threatened them with dire consequences. The incident was reported to the local police with a complaint dated 1.6.2008, the annexure of which was the copy of the Will of the deceased Smt Lakshmi Devi. It is further pointed out that suit is misuse of process of Court and malafide intention of the plaintiff is manifest from the fact that she has deliberately not given correct address of the forth defendant to defeat his interest. Lastly, as one of the preliminary objection, it is submitted that the suit has not been valued properly and market value of the suit property is about Rs. 1.10 Crores.
2.2. On merits, the written statement is found to be an amplification of the facts submitted in the preliminary objection. It is denied that Smt. Lakshmi Devi died intestate and is reasserted that she got executed and got registered a Will dated 24.2.2005. It is not denied that the suit property comprises of basement, ground to second floor. It is also not Result: Suit Decreed. Page 6 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 denied that basement floor has been sold. It is however denied that ground floor was let out to M/s Godrej but to a tenant who was having agency of M/s Godrej. It is denied that the defendants are trying to relet the suit property. In this context, it is asserted that the ground floor of the suit property is being proposed to be let out on lease to M/s Primus Retail Pvt Ltd and in this respect a letter of intent have been already issued and that being the beneficiaries of the Will, they are legally empowered to do so. It is further denied that plaintiff is in deemed possession of the suit property or coowner of it. It is denied that she has 1/5th undivided share therein. It is further denied that plaintiff has ever stayed in the suit property as alleged. Consequently, it is denied that the defendants had become very rude and blunt as averred. It is therefore, prayed on the strength of the above, that the plaint may be dismissed. The written statement is supported with the affidavits of defendants no. 1 to 3.
3. In the replication to the above written statement which is primarily a re assertion of the facts constituted in the suit plaint and further is a denial of the averments made by the defendants no. 1 to 3 in their written statement; it is denied that Smt. Lakshmi Devi ever executed any Will. It Result: Suit Decreed. Page 7 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 is said to be forged and fabricated. The bequeath made therein in respect of the suit property and the arrangement of payment of Rs.10 lacs each to the plaintiff and defendant no. 4 is said to be an act of fabrication. It is further submitted that plaintiff being the only daughter of Smt Lakshmi Devi was very close to her and she used to discuss all the matters including confidential. It is set out thus that any Will made by her without disclosing the said fact to the plaintiff, is inconceivable. It is denied that the plaintiff and her sons etc had gone on 1.6.2008 or on any other date to the suit property. It is denied that alleged incident was reported to the police or the plaintiff is aware of the Will. It is said to be an attempt of the defendants to usurp the plaintiff's share. It is denied that correct address of defendant no. 4 is not provided by the plaintiff. It is denied that market value of the suit property is about Rs.1.10 crores or that the suit has been under valued. It is further submitted that there is no genuine Will and that even if the alleged Will was executed, then it was got executed by the defendants by using undue influence over the mother of the parties, who was not in sound disposing mind for execution of the Will. It is supported with the affidavit of the plaintiff.
4. In his written statement, the forth defendant submits that being a Result: Suit Decreed. Page 8 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 resident of Canada, he is not in a position to confirm the facts of the case. He however, asserts that on the face of it, the Will in question is false and fabricated. It is further pointed out that both the attesting witnesses of the Will are not known and never resided in the area as they are residing at Tuglakabad, Delhi. The signature on the Will are said to be not genuine and are forged. It is submitted that suit is not properly valued for the purpose of Court fee and jurisdiction. A vague reply to para 1 to para 5 of the plaint has been given. Para 6 is said to be partly correct. It is pointed out that plaintiff has not clarified as to how much amount was taken as rent from the tenant and also the amount of security as well as rent. The defendants no. 1 to 3 are said to be in collusion with each other. It is asserted that the defendants no. 1 to 3 have been trying to let out the first floor of the suit property without consulting the plaintiff or him. The written statement is supported with the affidavit of defendant no. 4.
5. No replication to the same was filed.
6. I may point out at this juncture that on 12.8.08, several directions were passed by the Ld. Predecessor Court. One of such direction that was passed on submission of ld. Counsel for defendants no. 1 to 3 was to the effect that without prejudice to their rights and defence raised in the Result: Suit Decreed. Page 9 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 written statement, they are willing to deposit a sum of Rs. 10 lacs as per the registered Will and 1/5th share in the rent so received subject to future adjustment of statutory dues of TDS as and when deducted and house tax as and when paid by them. The said proposition was acceptable to by the plaintiff without prejudice to her rights and thus necessary directions were passed. The original FDR was placed on record on 11.9.08. 6.1. On the same day, defendants no. 1 to 3, through counsel, stated that they have no intention to sell or create any third party interest in the first, second and terrace floor of the suit property. By that date, the forth defendant was yet to be served. The Court also dealt with question of valuation of the suit property and was pleased to leave it open to be considered at an appropriate stage. It is recorded in order dated 4.2.09 that the forth defendant had stood duly served. The directions with respect to depositing of 1/5th share of rent were modified on 25.5.09 whereby which the defendants no. 1 to 3 were directed to deposit the required amount through challan in the Court. As per report of the Court staff, the order was complied and copy of challan was also placed on record on 10.8.09. On 12.12.09, it was informed to the Court by defendants no. 1 to 3 that rate of rent of the ground floor has been Result: Suit Decreed. Page 10 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 reduced from Rs.2 lacs to Rs.1.75 lacs per month w.e.f 1.4.09. On 8.4.09, the Court had been pleased to direct that without touching on factual controversy regarding the averment that defendants no. 1 to 3 had not deposited the proportionate share of rent, the Court directed that defendants no. 1 to 3 shall ensure that proportionate share of the rent as received by them is duly deposited in the Court. The requisite compliance was made by 6.9.2010. On 11.1.2011, the plaintiff reported improper compliance and further directions for issuance of proper compliance.
6.2. On 21.9.2011, on application of defendant no. 4 under Section 151 CPC, Ld Predecessor Judge was pleased to order that there was no need to give any directions in respect of payment of Rs.10 lacs, the same being not in issue before this Court. On 4.11.11, the defendants no. 1 to 3 were permitted to withdraw the amount of rent deposited through treasury challans and resubmit the same in the form of FDR. On 26.11.11, while considering the application of defendants no. 1 to 3 under Order 7 Rule 10 read with Section 151 CPC, the Court observed that the aspect of valuation of the suit property requires evidence. 6.3. The plaintiff herein, filed CM (M) No. 154/14 in the Hon'ble Delhi Result: Suit Decreed. Page 11 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 High Court against the order of my predecessor dated 15.01.2014 and while disposing of the same, the Hon'ble High Court of Delhi was pleased to request this court to frame the issues and complete the evidence and trial in the matter expeditiously. The plaintiff undertook that she will not seek any adjournment and would complete her entire evidence in two weeks. The Hon'ble Delhi High Court thus directed this Court to take appropriate time in this matter for completion of DE. It was also directed that this court would endeavor to dispose off the case in 10 months from the date of order i.e. 11.02.2014. As a matter of fact, the plaintiff took several opportunities exceeding two weeks for completion of PE. The issues were settled by this court on 29.03.2014 and the evidence of the plaintiff concluded only on 10.07.2014. Thereafter, defendants concluded their evidence and in between miscellaneous applications were also filed by the parties. However, this court has adhered to the time framed as directed by the Hon'ble Delhi High Court.
7. On 29.3.2014, following issues were settled for determination on the basis of evidence of the parties viz;
1. Whether the plaintiff alongwith codefendants is owner of 1/5th undivided share in free hold Result: Suit Decreed. Page 12 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 property bearing no. IIC/5556, Lajpat Nagar, New Delhi comprising of ground, first and second floor except the basement floor ? OPP.
2. Whether the plaintiff's claim as aforestated stands belied in view of duly registered will dated 24.2.2005 executed by their mother Smt. Lakshmi Devi whereby she bequeathed the entire first floor of the suit property to defendant no. 3 and second floor of the suit property to the extent of the portion occupied by them, in favour of defendants no. 1 & 2 ? OPD 1 to 3.
3. Whether Smt. Lakshmi Devi agreed that after her demise and upon payment of Rs.10 lacs each to the petitioner and 4th defendant, the defendants no. 1, 2 & 3 were to become owners to the extent of 1/4th share each in favour of defendants no. 1 & 2 while the remaining half share in the ground floor portion would vest with defendant no. 3 and if so, whether the transaction was complete ? OPD 1 to 3.
4. Whether the plaintiff's suit has not been properly valued for the purposes of Court fee and jurisdiction being under value as alleged ? OPD 1, Result: Suit Decreed. Page 13 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 2, 3 & 4.
5. Whether the plaintiff is entitled to the preliminary decree of partition as prayed for ?
OPP.
6. Whether the plaintiff is entitled to the final decree of partition as prayed for ? OPP.
7. Whether the plaintiff is entitled to the decree of Permanent Injunction as prayed for ? OPP.
8. Relief.
8. Further on 5.4.2014, the forth defendant was proceeded against exparte and an additional issue to the following effect was also framed and renumbered as issue no. 8.
Whether the plaintiff would be entitled to withdraw the rent to the extent of 1/5th share as per order of the Court dt. 4.11.11 or whether in case of plaintiff's not succeeding, the defendants no. 1 to 3 are entitled to the same ? Onus on both parties.
9. The issue no. 4 in respect of valuation of the suit for the purpose of Result: Suit Decreed. Page 14 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Court fee and jurisdiction was given up being not pressed by Sh Aditya Madan, ld. Counsel for defendants no. 1 to 3 and a statement to that effect was recorded in the Court on 21.11.2014.
10. During evidence, the following witnesses were examined viz;
(i). Court Witness: 1 - Sh Tajinder, UDC, S.RV, Mehrauli. This witness was examined as a Court witness in pursuance of directions of this Court as recorded in order dated 17.5.2014 and was summoned at the instance of defendants no. 1 to 3 for proving the document ExPW1/D2 which is the copy of the Will dated 24.2.2005 registered on the said date itself at the instance of Smt. Lakshmi Devi. The witness brought the register no. 1334, Vol. III at serial no. 7478 which pertained to registration of aforesaid Will which was registered against Registration no.2272, Book no. 3, Vol. no. 1334, pages 70 to 71 which is ExPW1/D2. It bears endorsement of Sub Registrar V that the testator appeared before him and that her thumb impression was taken by the Sub Registrar. The plaintiff did not cross examine this witness but he was cross examined by ld. Counsel for defendant no. 4.
(ii). Smt. Raj Kumari Batra (PW1) - The plaintiff as PW 1 filed Result: Suit Decreed. Page 15 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 her affidavit in examination in chief which is ExPW1/1. She relied on copy of Perpetual Lease Deed Mark A, copy of Conveyance Deed dated 28.6.2004 Mark B and deposed that originals of both these documents are in possession of defendants no. 1 to 3. She also relied on the site plan already exhibited as ExPW3/1 which was proved by PW 3, official from Building Department, SDMC. She was duly cross examined by ld. Counsel for defendants no. 1 to 3 but not cross examined by the forth defendant. During her cross examination, she was confronted with the copy of the Conveyance Deed ExPW1/D1 and the copy of the Will ExPW1/D2.
(iii). Sh Babu Lal Nirwan (PW 2) - UDC, office of L & DO, Nirman Bhawan, New Delhi - The witness produced the complete file of L & DO in respect of the suit property containing the registered copy of Conveyance Deed dated 28.6.2004 which was relied as document Mark B and confronted with PW 1 as ExPW1/D1. The witness was cross examined by ld. Counsel for defendants no. 1 to 3 only.
(iv). Sh Krishan Kaushik (PW3) Record Keeper, office of Result: Suit Decreed. Page 16 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Building Department, SDMC, Lajpat Nagar, New Delhi - As said earlier, the witness produced the sanctioned plan of the subject property and after comparing the same with copy on judicial record, exhibited the same as ExPW3/1. He was not cross examined by the defendants.
(v). Sh Naveen Gandas (PW 4) Record Lifter, Department of Delhi Archives - Witness produced the record of registration in respect of due registration of Lease Deed dated 12.9.1968 which was registered on 8.1.1969 as document no. 121 in additional book no. 1, volume no. 2101 on pages 1 to 3 which is ExPW4/A. The witness was cross examined by defendants no. 1 to 3.
(vi). Sh Tejinder (PW 5) - UDC, office of Sub Registrar V, Mehrauli - This official was earlier examined as Court witness and was summoned again by the plaintiff with record of registration of Conveyance Deed dated 28.6.2004 registered vide registration no. 8127 in book no. 1, Vol. no. 4129 on pages 127 to 130 which was exhibited as ExPW5/B. Its copy which was confronted to PW 1 is already ExPW1/D1. He was cross examined by defendants no. 1 to Result: Suit Decreed. Page 17 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08
3.
11. Defendant no. 4 has not lead any evidence in this case.
12. On behalf of defendants no. 1 to 3, the third defendant Sh. Subhash Chand Popli examined himself as D13/W1. He had earlier filed his affidavit in evidence alongwith affidavit of attesting witness Sh. P.C Gautam and had subsequently moved an application seeking permission to file fresh affidavits on account of typographical error which application, was allowed. Fresh affidavits sworn on 17.9.14 were filed. The affidavit of third defendant is Ex D13/W1/A. He relied on following documents viz;
i. Copy of Will ExPW1/D2 (O.S.R).
ii. Copy of complaint dated 1.6.2008 as ExDW1/1 (O.S.R). iii. Copy of letter of intent dated 2.8.08, copy of email dated 19.7.08 and copy of cheques dated 1.8.08 as Mark A, B & C respectively. iv. Copy of Lease Deed dated 15.9.08 in respect of tenancy of M/s Primus Retail Pvt. Ltd as Mark D. v. Copy of challans regarding deposit of rent in the Court as ExDW1/2 (O.S.R).
vi. Copy of order of Hon'ble High Court of Delhi dated 9.9.2013 is Result: Suit Decreed. Page 18 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 ExDW1/3 (Certified copy seen and returned). The order is in respect of litigation between defendants no. 1 to 3 and their tenant M/s Primus Retail Pvt Ltd.
vii. Copy of lease agreement dated 4.4.12 in respect of lease of ground floor of suit property to Amalgamated Bean Coffee Trading Company Ltd as ExDW1/4 (O.S.R).
viii. Copy of lease agreement dated 28.9.12 in respect of remaining portion of ground floor of suit property between defendants no. 1 to 3 and Karim's Mughlai Zaiqa as ExDW1/5 (O.S.R).
ix. Copy of MCD conversation charges property tax etc as ExDW1/6 collectively (O.S.R).
The witness was duly cross examined by ld. Counsel for plaintiff. Ld. Counsel for defendant no. 4 was also permitted to cross examine this witness as well as the attesting witness as their testimonies consisted of deposition contrary to defence of defendant no. 4 on the aspect of execution/registration of Will ExPW1/D2. 12.1. The attesting witness Sh P.C Gautam was examined as D13/W2. His affidavit in evidence is ExD13/W2/A. As said earlier, he was cross examined by ld. Counsel for defendant no. 4. Result: Suit Decreed. Page 19 of 83
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 He was also cross examined by ld counsel for plaintiff. No other witnesses were examined in this case.
13. I have heard arguments on behalf of the plaintiff presented by her counsel Sh. B.P Singh Dhakrey and also gone through the written submissions filed by him in addition to the following case law viz;
(i). H. Venkatachala Iyengar v B.N Thimmajamma & Ors. AIR 1959 SC 443. This judgment is relied on the mode of proving of a Will and also to the effect that the onus of removal of suspicious circumstance is on the propounder.
(ii). Bharpur Singh & Ors v Shamsher Singh. AIR 2009 SC 1766. This judgment is again on the proof of registration of Will as well as on suspicious circumstances.
13.1. On behalf of defendants no. 1 to 3, Sh Aditya Madan, Advocate presented his submissions in respect of due proof of execution and registration of Will ExPW1/D2. He placed reliance on following judgments viz;
(i). Saroja v Santhilkumar & Ors AIR 2011 SC 642. The judgment is to the effect that registration of the Will and proof of its execution by the attesting witness is sufficient to hold that Will is Result: Suit Decreed. Page 20 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 proved.
(ii). Om Prakash v Man Singh. 2007 Law Suit (P & H) 1049. The judgment was cited in order to assert that even the notarized Wills are regarded as genuine Will as was in this case.
(iii). L.C Lal & Ors v The State AIR 2003 Delhi 63. It is on the aspect of requirement of due registration and execution of Will.
(iv). Celestine Silva Bai & Ors v Josephine Noronha Bai & Anr. AIR 1956 Madras 566 to the effect that burden of proving due execution is on the propounder and he must satisfy the conscience of the Court. The issue before the Hon'ble Court was whether the Will in question was result of fabrication or not. The judgment is based on its factual aspect different to the one before me.
(v). V.E DeSouza & Anr. V R.P. DeSouza & Ors AIR 1956 Madhya Bharat 246 to the effect that once it is proved that Will has been executed by a person of competent understanding, the burden of proving that it was executed under undue influence is on the party who alleges.
(vi). Leela Rajagopal & Ors v Kamala Menon Cocharan & Ors which is a judgment of Hon'ble Apex Court dated 8.9.2014 passed in Result: Suit Decreed. Page 21 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Civil appeal no. 9286 of 2010 alongwith other civil appeals. The question involved was with regard to validity and legality of the Will executed by the mother of the appellant and the first respondent. The probate proceedings were dismissed by the trial Court holding that the execution of Will was surrounded by suspicious circumstances. The question with respect to lack of knowledge of English on the part of the testator was also considered alongwith the question that mere exclusion of other heirs will not vitiate the disposition. It was held that lack of knowledge of English would not fundamentally alter the situation as before registration of the Will, its contents can be understood to have been explained to the testator or ascertained from her by the Registrar. PW 4 who had deposed that such a practice is normally adhered to. It was also observed that conduct of the propounder in summoning her friend to be an attesting witness and in taking the testator to the office of Sub Registrar should not warrant any adverse conclusion. The judgment is again fact specific. I must state at this point of time itself that the observations are made in context of the distinct facts of the case.
13.2. On behalf of forth defendant, Sh S.K Gupta, Advocate has Result: Suit Decreed. Page 22 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 argued. The said defendant had rejoined the proceedings immediately after framing of issues. Needless to say that the defence of forth defendant was never struck off. He has argued against the case of defendants no. 1 to 3 submitting that the execution and registration of the Will ExPW1/D2 is surrounded by many suspicious circumstances. In this respect, he has relied on following judgments viz;
(i). Ragni Chopra v Rajesh & Ors. 2013 (1) RLR 586.
(ii). Kavita Kanwar v State & Ors 2014 (2) RLR 636.
(iii). Ramesh Dutt Salwan v State Etc. 1938 RLR 387. This Court has carefully considered all the material available before it.
14. Before returning findings on issues, I shall observe here that said findings will not be possible to be returned in chronological order in which the issues were settled. This is so as the parties have not lead issue specific evidence and the Court shall have to accordingly gather requisite material before it in accordance of the above observations. The issue no. 1, in view of the evidence adduced, is dependent on the findings of issue no. 2. So far as the issue no. 3 is Result: Suit Decreed. Page 23 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 concerned, the same pertains to intention of the deceased testator vizaviz clause 2 of Will ExPW1/D2 and the finding on it has to be affected by the Courts ruling on due execution and registration of the aforesaid Will which is subject matter of issue no. 2. Thus, the second issue is of paramount importance and depending on the findings on the same, findings on issue no. 3 and 1 are to be returned. Thus, this Court takes issues no. 1 to 3 together and in following order and henceforth return findings on them in accordance of the observations made in this paragraph.
Issue no. 2. Whether the plaintiff's claim as aforestated stands belied in view of duly registered will dated 24.2.2005 executed by their mother Smt. Lakshmi Devi whereby she bequeathed the entire first floor of the suit property to defendant no. 3 and second floor of the suit property to the extent of the portion occupied by them, in favour of defendants no. 1 & 2 ? OPD 1 to 3.
Issue No. 3. Whether Smt. Lakshmi Devi agreed that after her Result: Suit Decreed. Page 24 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 demise and upon payment of Rs.10 lacs each to the petitioner and 4th defendant, the defendants no. 1, 2 & 3 were to become owners to the extent of 1/4th share each in favour of defendants no. 1 & 2 while the remaining half share in the ground floor portion would vest with defendant no. 3 and if so, whether the transaction was complete ? OPD 1 to 3.
Issue no. 1. Whether the plaintiff alongwith codefendants is owner of 1/5th undivided share in free hold property bearing no. IIC/5556, Lajpat Nagar, New Delhi comprising of ground, first and second floor except the basement floor? OPP.
15. The onus of issues no. 2 & 3 remained on defendants no. 1 to 3 while the onus of issue no. 1 is on the plaintiff.
15.1. The claim of the plaintiff in respect of partition of the suit property is resisted on the sole ground that the deceased testatrix not only executed the Will dated 24.2.2005 but that she also got it duly registered on 24.2.2005 and regarding which the plaintiff had Result: Suit Decreed. Page 25 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 knowledge w.e.f 1.6.08 which is the date when a complaint dated 1.6.08 ExDW1/1 was made over to SHO, P.S Lajpat Nagar by Sh Om Prakash Popli/defendant no. 1. The plaintiff denies any such knowledge and challenges the Will on the ground of forgery and in alternate on the ground of lack of understanding of deceased testatrix regarding its execution and registration as well as its contents. The arguments have been accordingly addressed and the same has been the line of the cross examination offered to the relevant witnesses produced by the respective parties.
15.2. Before adverting to the same, I shall make a note here itself that I will be guided by the law in following judgments apart from the reliance of respective parties, as set out in following judgments viz;
A. Niranjan Umeshchandra Joshi v Mrudula Jyoti Rao & Ors decided by the Hon'ble Supreme Court of India on 15.12.06 in civil appeal no. 5060 of 2005 wherein the Hon'ble Apex Court had discussed the "suspicious circumstances attending to execution of a Will". In this case, the deceased was found to be suffering from Malignancy Liposercoma (sic). There was also some evidence to Result: Suit Decreed. Page 26 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 show that he was suffering from left ventricular failure with Ischemia heart disease. He had also developed some respiratory problem and was being investigated by one Dr. Panikar, student of appellant and son of deceased Umesh Chandra Joshi. He executed a Will at Breach Candy Hospital, Mumbai in the cubicle of ICCU. After cremation of dead body pursuant to death of deceased, the factum of execution of Will was disclosed. Other LRs of deceased give their consent letter in the office of Advocate of deceased but no steps were taken for obtaining a probate soon thereafter. Subsequently, one of the LRs of the deceased withdrew her no objections. One more LR also filed a caveat and thus the dispute arose. During pendency of the appeal, one more sister of appellant revoked her consent to the probate petition. The judgment of Hon'ble Apex Court makes note of the distinctive aspects noted by the Hon'ble single judge of the Hon'ble High Court as well as its Division Bench which had affirmed the judgment and order of Ld. Single Judge thereby arrived at a concurrent finding regarding the Will being executed under suspicious circumstances. The Hon'ble Apex Court also noted the stand that had been held to be described Result: Suit Decreed. Page 27 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 by the Apex Court as 'suspicious circumstances', viz;
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit. Noting all the points noted by the Single Bench and Division Bench of Hon'ble High Court of Delhi, the Hon'ble Apex Court arrived at a finding that the decision was not to be disturbed and thus the appeal was dismissed. The Hon'ble Apex Court had also noted that onus would be on the propounder to remove the suspicion by leading sufficient and cogent evidence if there exists any. It was also noted that in the case of proof of Will, the signature of testator alone would not prove the execution thereof if his mind may appear to be very feeble and debilitated. It was also noted that if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator.
B. Rani Purnima Debi & Anr v Kumar Khagendra Narayan Deb Result: Suit Decreed. Page 28 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 & Anr. AIR 1962 SC 567 (V 49 C88) to the effect that the mere fact that the Will is registered Will not itself is sufficient to dispel all the suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If such examination reveals that registration was made in such manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration of will dispel the doubt as to the genuineness of the Will but if the evidence as to registration shows that it was done in a purfunctory manner that the officer registering it did not read it over to the testator or did not bring home to it that he was admitting the execution of Will or did not satisfy himself in some other manner that the testator knew that it was a Will, the execution of which he was admitting, the fact that the Will was registered would not be of much value.
C. Joseph Antony Lazarus (Dead) by LRs v A.J Francis 2006 (2) CCC 134 (SC) to the effect that entire circumstances of the said case coupled with the fact that the advocate who drafted the Will and Sub Result: Suit Decreed. Page 29 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Registrar before whom the Will was registered was not examined hence genuine doubt on genuineness of the Will.
D. Pratap Singh & Anr v State & Anr 173 (2010) DLT 132 (DB) to the effect that it is duty of the Probate Court to see whether prima facie document constitutes a Will and propounder is able to satisfy conscience of Court that Will was validly executed and genuine document and signed out of free will in sound disposition of mind. In the said case, no cogent evidence of the Doctor who treated the Testator or the Lawyer who prepared the will was brought on record. E. Suraj Prakash (Deceased) through LRs v Usha Rani & Ors 182 (2011) DLT 337. This case is a regular first appeal from the orders of trial Court in a suit for Declaration, Possession and Injunction which was decreed on the ground that the Will propounded by the appellants/sisters of deceased was an unnatural Will and was disinherited by the respondents who were widow and children of the deceased. It is also observed that Will in question was unregistered Will and surrounded by many unnatural circumstances. It was also observed that if the Will was genuine, the deceased would surely have chosen a witness known to his wife and children and not Result: Suit Decreed. Page 30 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 just normal acquaintance. Finding of trial Court was affirmed.
16. Depending on the facts of each individual case, it was held in Rajindra Motwani v State & Ors 208 (2014) DLT 373 to the effect that mere presence of propounder of Will at the time of its execution and registration has no material bearing on authenticity or genuineness of the Will when no evidence is led by the respondents to show how said person made attempt to influence or coerce the testator. This judgment is also relied on the aspect that if some natural LRs are excluded as beneficiaries in the Will and that the testator has given reason in the Will, it is not a circumstance to show that any coercion, force or pressure was brought upon the testator to execute the Will. In this respect, in Uma Devi Nambiar Vs. T. C. Sidhan, III (2004) SLT 754, the division bench of the Hon'ble Supreme court has further held that a Will is generally executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Result: Suit Decreed. Page 31 of 83
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08
Suspicion means doubt, conjecture or mistrust. But the fact that
natural heirs have either been excluded or a lesser share has been given to them, (by itself without anything more), cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
17. In a full bench judgment of the Hon'ble Apex Court reported in (1959) Supp. 1 SCR 426 titled H. Venkatachala Iyengar Vs. B. N. Thimmajamma, the Hon'ble Apex Court has discussed the entire gamut of law relating to the discharge of the onus of proving the Will while dwelling into sections 45,47,67 & 68 of Indian Evidence Act, Result: Suit Decreed. Page 32 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 1872 and sections 59 & 63 of the 1925 Act and observed :
"Section 63 requires that 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 that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will ?
Did he understand the nature and effect of the dispositions in the Will ? Did he put his signatures to the Will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of Wills it would be idle to Result: Suit Decreed. Page 33 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
The Hon'ble court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of dispositions and put his signatures to the document of his own freewill. It has been further held that :
"Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
The Hon'ble Apex Court has further discussed the circumstances, which may be termed as suspicious circumstances surrounding the Result: Suit Decreed. Page 34 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Will and held that there may be circumstances where the signatures of the testator may be shaky, doubtful or the condition of testator's mind may appears to be feeble and debilitated so as to raise a legitimate doubt as to mental capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble court has succinctly held that :
"It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
It has been further held that an active participation of the propounder or the fact that the propounder has taken a prominent part in the execution of the Will and Result: Suit Decreed. Page 35 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence.
The ratio of H. Venkatachala Iyengar's case (supra) was later relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out the various prepositions :
"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.
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 Result: Suit Decreed. Page 36 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 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, and 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 Result: Suit Decreed. Page 37 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 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 reason, 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 emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
Result: Suit Decreed. Page 38 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08
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."
18. In the case before me, the question of due execution as well as due registration of Will ExPW1/D2 is of paramount importance in which evidence on the aspect of soundness of disposing power of deceased testatrix Smt. Lakshmi Devi and/or her incompetence to execute a valid Will has been produced. This Court shall be further guided by the following law on the subject viz;
Section 63 (C) of The Indian Succession Act,1925 requires that 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 been some other person sign the Will, in the presence and by the direction of the testator, or has received from the Result: Suit Decreed. Page 39 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator. But the law does not necessarily require that more than one witness be present at the same time, or that a particular form of attestation is necessary. As per section 68 of the Indian Evidence Act, 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, capable of giving evidence.
It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the Result: Suit Decreed. Page 40 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 probate court. The probate court do not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance placed on 2008 (4) SCC 300 Krishan Kumar Vs. Rajinder Singh Lohra & ors. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the subject Will which may lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 titled Vella Swamy Servai Vs. L. Shivraman Servai.
19. This is in addition to the observations made in H. Venkatachala Iyengar's case (Supra) and Jaswant Kaur's case (Supra). In his cross examination, by the plaintiff recorded on 26.9.2014, defendant no. 3 has stated that, "in the absence of Will, all brothers and sisters would be entitled to 1/5th share each in the suit Result: Suit Decreed. Page 41 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 property". In order to prove the Will ExPW1/D2 he deposed that on or around 17th May 2005, his mother expressed her desire to make her Will which was then typed by computer typist in Tis Hazari Court Complex. He further submits that typist prepared the Will as per her instructions after which he verified the contents in Hindi and she herself asked him to get the same registered for which he asked defendant no. 3 to call his friends namely Sh P.C Gautam and Sh Raj Kamal. Both of them fixed 24.2.2005 as date of registration. On the said appointed date, they reached the office of Sub Registrar, Mehrauli at 10 a.m where they found the attesting witnesses present. Upon reaching there, his mother again asked Sh P.C Gautam to read out the Will to her and explain the contents in Hindi which was done. Subsequently he hired an agent who helped them in registration process. He states that first his mother appended her signature on the Will followed by Sh P.C Gautam and Sh Raj Kamal. It was then presented for registration and receipt was kept by the agent. After two days he and his mother went to the Sub Registrar office where the agent delivered registered Will in original to him.
Result: Suit Decreed. Page 42 of 83
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 19.1. It is not provided in the written statement however it is in the testimony of Sh P.C Gautam/D13/W2 that the other attesting witness Sh Raj Kamal died in the year 2007 at Tughlakabad Extn. So far as this witness is concerned, he testifies to be one of the witness to the Will and also testified to be well conversant with the facts and circumstances of the case. He testifies that he and other attesting witness used to come frequently to the suit property to meet defendant no. 3 and the deceased testator. He states that on 23.2.2005, he received call from defendant no. 3 that his mother had got made her Will and that his presence was required on 24.2.2005 at Sub Registrar office, Mehrauli for witnessing the same and getting the same registered. He further deposed that on the appointed date, he and Raj Kamal reached the designated place before 10 a.m where they met defendant no. 3 and the deceased testator. She requested this witness to read out the Will to her and explain the contents to her in Hindi which he did. After that defendant no. 3, hired an agent. He states that first deceased testator namely Smt. Lakshmi Devi appended her signature on the Will followed by him and Sh Result: Suit Decreed. Page 43 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Raj Kamal. He identified his signature on the copy of Will at point A. He identified the signature of testatrix on the Will at point B and of Sh Raj Kamal at point C. In view of the above testimony, the prima facie requirement of Section 63 (C) of Indian Succession Act 1925 as well as requirement of Section 68 of the Indian Evidence Act 1872 are raising presumption of its due execution which is rebutable. In order to rebut the presumption, the plaintiff as well as defendant no. 4 have cross examined the witnesses of the defendants.
20. I have already pointed out that mere registration of the Will is not itself sufficient to dispel all suspicion regarding it where suspicion exists without submitting the evidence of registration to a close examination. Reference may be had to Rani Purnima Debi's case (Supra). The fact that execution of document and its registration are two different acts can not be lost sight of. Not only the execution of the document is to be proved but also due registration is to be proved in order to satisfy the test of its legality. In this context, reference may be also made to Ragni Chopra's case (Supra) which holds that registration of Will itself is not a conclusive evidence of due Result: Suit Decreed. Page 44 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 execution of a Will. Rani Purnima Debi's case (Supra) was relied on in this judgment. The said judgment also holds that in the facts and circumstances of the said case, the fact that testatrix was not fully conversant with the English language would be a suspicious circumstance in itself.
21. The written statement of defendants no. 1 to 3 states that Smt. Lakshmi Devi had executed a duly registered Will dated 24.2.2005 in their favour. From the entire written statement, it is given to understand that the Will dated 24.2.2005 was also registered on the same date. Further, the entire written statement is silent about any further details that will throw light on further details regarding the circumstances attending to its execution as well as registration. These facts as sworn in para 3 of the affidavit of third defendant and para 2 & 3 of the affidavit of attesting witness have come to light for the first time only at the time of evidence of said defendants. They are missing even in cross examination of PW 1/plaintiff. This Court is referring to the role played by the third defendant in the execution as well as registration of the Will aforesaid. 21.1. An analysis of testimony of third defendant, particularly para 3 Result: Suit Decreed. Page 45 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 of his affidavit is necessary. Not only this affidavit verified on 12.8.14 and filed on 17.9.14 but also his earlier affidavit sworn on 31.7.14 and filed on 1.8.14 makes mention on oath that his mother expressed her desire to make her Will with respect to property in question on 17.5.2005. The Will is said to be dated 24.2.2005. If the said testimony is accepted, then a doubt is created as to which of the two dates is correct. It would be quite obvious that if the mother of defendants no. 1 to 3 was expressing her desire to make her Will on 17.5.2005, which can not be correct but if it is taken to be correct, then it would not stand to reason as to why she would not disclose to have already executed and registered a Will dated 24.2.2005. It becomes more difficult to comprehend the above as the third defendant, a beneficiary, himself is said to have taken active participation in execution as well as registration of Will. Thus, there can be a typographical error in the aforesaid date i.e. 17.5.2005 but even if so, the Court can not loose sight of the fact that this point was duly urged and argued by the plaintiff's counsel but not responded to in rebuttal by the counsel for defendants no. 1 to 3. Even if there was no occasion for such rebuttal then also the third defendant was Result: Suit Decreed. Page 46 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 suggested during his cross examination by the plaintiff that the Will in question had been back dated. In the cross examination of defendant no. 3 by the forth defendant, the execution of Will is said to be dated 17.2.2005. Even if, 17.5.2005 is read by this Court as 17.2.2005 then also it can not loose sight of the fact that the witness used phrase, "on and around the 17th May 2005" in para 3 of his affidavit. It nowhere clarifies whether the witness took his mother to Tis Hazari Court on the same date i.e 17.2.2005 or not. This aspect should have been clarified but left unattended and is found to be one of the suspicious circumstance which has not been clarified. 21.2. The testimony of defendant no. 3 is silent as to whom she had expressed her desire to make her Will. It is not clarified that if the said desire was expressed by her in the presence of defendants no. 1, 2 & 3 or to which of the individual defendant. What can be comprehended from the testimony is that the desire must have been expressed by her to the third defendant and that is why he alone took her to Tis Hazari Court. Here the knowledge of aforesaid aspect by defendants no. 1 & 2 is silent. It is thus not known whether the information was disclosed to them or not. This factor becomes Result: Suit Decreed. Page 47 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 important and worth consideration as not only defendant no. 3, but also defendants no. 1 & 2 are the beneficiaries under the Will, the defendant no. 3 being the major beneficiary. The entire evidence is clear that it was the third defendant who had the Will in his control during the execution as well as registration of Will ExPW1/D2. Thus, these facts makes this case distinguishable from the facts of the cases cited above for and against the impact of propounder of the Will taking active part in its execution and registration. 21.3. The deposition of defendant no. 3 further discloses that he took the testatrix to Tis Hazari Court since his father was also a practicing lawyer. I have already pointed out that it is not known whether he had taken his mother to the typist on the same date when she expressed her intention or not. The testimony further reveals that the typist prepared the Will as per the instructions conveyed by her to him. It is not provided as to whether said typist was well acquainted with the knowledge of Hindi as well as English language and if he was aware, he was competent enough to make true translation of the wishes of the testatrix from Hindi to English. The affidavit is silent as to in which language the testatrix conveyed her instructions to the Result: Suit Decreed. Page 48 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 typist, however, it is clear from the testimony of witnesses available on record that she was illiterate and spoke only Hindi and Punjabi languages. The said typist has not been examined in the Court which the defendants should have having regard to the above peculiar facts pointed out above. In this context, it is in the cross examination of defendant no. 3 that he never tried to contact the said typist after the date of execution of the Will although he has been coming to this Court in connection with this case regularly. It is also in the cross examination that the defendant no. 3 remembered the name of said typist which has been given by him as Monu @ Montu. The said typist is said to be sitting behind the office of one Mr. Narula, Advocate. It is in the cross examination of defendant no. 3 that it was Mr. Narula, Advocate who had told him to get the Will prepared from any typist in the Court complex and then show it to him. Even Mr. Narula, Advocate has not been examined in support of the confirmation to the above fact. These aspects are missing in the pleadings. The fact remains that said Montu played role of a scribe. Mere non examination of Montu is not be viewed as a suspicious circumstance. However, when the evidence establishes Result: Suit Decreed. Page 49 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 that the testatrix was illiterate and could have not read the Will at all for the lack of education and even otherwise if she had the requisite education, then also she could not have read the contents of the Will in any language, as clear from the fact that the testatrix at the time of execution of Will was 85 years old and has had three operations during her life time and was hard of hearing and was using hearing aid and that admittedly, she was not in a position to read. The defendant no. 3 categorically admits in his cross examination dated 17.9.14 that, "It is correct that she was not in a position to read. My mother was aged about 85 years in the year 2005." Even Sh P.C Gautam/attesting witness has said in his cross examination that Smt Lakshmi Devi did not use eye glasses. In his cross examination dated 26.9.14, defendant no. 3 has admitted that she used hearing aid although volunteered by saying that only seldom. Thus, the non examination of scribe/typist of the Will in this case despite his probable availability is suspicious circumstance in the facts of this case.
21.4. It is further in the testimony of defendant no. 3 that the testatrix verified the contents in Hindi once the Will was typed. The affidavit Result: Suit Decreed. Page 50 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 is silent as to how such verification was made. It has come in his cross examination only that he had come to the Court on 17.2.2005 at about 2/2.30 p.m and the Will was got typed on the said date itself. It has also come only in the cross examination of third defendant that it was typist who had explained the contents of the Will to his mother after typing it. This fact is not mentioned in the Will itself. In what language the typist explained the contents of the Will to his mother after typing it, is not clarified in the cross examination. Thus, as to under what circumstances, the contents of the Will were verified by the deceased testatrix on 17.2.2005 has not seen the light of the day.
21.5. It is further in the testimony of defendant no. 3 that after the Will was typed/verified, the testatrix herself asked him to get the same registered for which she asked him to contact his friends who used to come frequently to his house and were also very well known to his mother. Apparently, the witness implies that immediately after the Will was typed/verified, the testatrix disclosed her intention to have it registered for which she apparently asked her son/defendant no. 3 to call his friends to witness the Will and that she knew the said Result: Suit Decreed. Page 51 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 friends very well. The witness further implies that immediately thereafter, he and his mother fixed 24.2.2005 as the date of registration whereupon he requested both the attesting witnesses to be present at Sub Registrar Office, Mehrauli on the appointed date. As to when such contact was made is not provided. The said attesting witnesses are said to be the friends of third defendant and very well known to his mother. I have said earlier that written statement is silent on this. However, the testimony of Sh P.C Gautam clarifies that the one attesting witness Sh Raj Kamal can not be available to the Court as he died in the year 2007. Even otherwise, the law requires testimony of only one attesting witness to the Will. Now, in this context, defendant no. 3 states in his cross examination that Sh P.C Gautam and Sh Raj Kamal used to work alongwith him in Lodhi Hotel. Sh P.C Gautam had joined the said hotel in the year 197475. This hotel was handed over to a private company in the year 2002 where defendant no. 3 and the attesting witness Sh P.C Gautam worked till that year. He admitted that they worked for a period of 2530 years. He also admitted that Sh Gautam was junior to him although departments were different. This Result: Suit Decreed. Page 52 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 fact, when seen in conjunction with testimony of Sh Gautam stands affirmed in as much as Sh P.C Gautam deposes in his chief examination that he and Sh Raj Kamal used to come frequently to the suit property to meet the defendant no. 3 and the deceased testatrix. His testimony also clarifies that he had received a telephonic call at his land line number at his then residence of Tughlakabad Extn on 23.2.2005. It would imply that defendant no. 3 had complied with the instructions of his mother to call the attesting witnesses after 6 days of 17.2.2005 i.e on 23.2.2005. Further cross examination of Sh P.C Gautam reveals that he admitted to be knowing defendant no. 3 since 1973 from Lodhi Hotel where they worked upto 2002. During this long session, they had become good friends and used to visit his house also.
22. Reverting back to the testimony of defendant no. 3, he admits in his cross examination that his relations also stay in Delhi. His uncle Sh Sewa Ram and his family used to frequently visit his mother from Tilak Nagar. His maternal uncle Sh Ram Dayal Kalra and his son alongwith family also lives at Mehrauli, Delhi. He admits that number of neighbours used to reside nearby and they had good Result: Suit Decreed. Page 53 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 relations with them and their families and used to visit them in marriages or on other occasions etc. This cross examination has been done with an intent to highlight that no particular reason has been provided by defendants no. 1 to 3 as to why the testatrix chose to have her last Will witnessed by the friends of his son/defendant no. 3 but not their immediate relations/immediate neighbours with whom they had very good terms.
23. Ordinarily this does not make any difference and even the third defendant has relied on judgment in Leela Rajagopal's case (Supra). However, the ratio in that context will apply only when such circumstance support this version of defendant no. 3, that is to say, the testimony of the attesting witnesses. Coming to it, this witness has specifically given only two dates i.e the date of receiving the phone call from defendant no. 3 which is 23.2.2005 and the date of registration of Will i.e 24.2.2005. He did not maintain any schedule in respect of his visits. He could not give any other specific date on which the third defendant had earlier called him telephonically. He could not tell whether defendant no. 3 called him between 17.2.2005 to 23.2.2005 or not. He is unable to give the date Result: Suit Decreed. Page 54 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 of funeral of mother of defendant no. 3 (which he attended) or the dates of marriages of children of defendant no. 3. He could not give any particular date, month or even the year when he visited the house of defendant no. 3. He however, pressed above stated two dates and probably for the reason that as per him, he had earlier never appeared as a witness to the Will of anybody else. Thus, he may have remembered the above these two dates for this peculiar reason. However, owing to this, his testimony is to be further scrutinized so far as this point is concerned.
24. In his further cross examination dated 17.9.14, Sh P.C Gautam concedes that he had a talk with testatrix at her house about 56 months prior to 24.2.2005. He had gone there to meet defendant no. 3 and his mother had not called him. This witness has been claiming to be knowing defendant no. 3 as well as his mother very well. He had worked with defendant no. 3 in the same office from 1973 till 2002 and was in further contact with him even thereafter. It is therefore, quite surprising that the witness gives the age of the deceased testatrix at relevant time as 60 years only. It has come in the evidence of defendant no. 3 that her mother was 88 years old Result: Suit Decreed. Page 55 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 when she died on 22.4.08 and was about 85 years old in the year 2005. It is surprising that Sh P.C Gautam could not tell the difference of about 25 years between the actual age of testatrix and the age that he has provided. It is own of his cross examination recorded on 17.9.14 this witness submits that, "Probably Laxmi Devi may be aged 70 years at the time of her death". This witness had gone to attend the funeral of deceased testatrix and still falling short of around 18 years in correctly distinguishing the age of the deceased testatrix at the time of her death. Further, the information that this witness has shared in respect of family of plaintiff and defendants is also inadequate. He claims to be the close friend of third defendant and still not aware about their forth brother i.e defendant no. 4. He did not even know if defendant no. 4 used to meet and visits his parents or defendant no.3. He was not aware if the relations of the plaintiff and defendant no. 4 with their mother were cordial or not. He used to meet the testatrix regularly but is not aware if she was hard of hearing. She used to talk to him in Hindi language but the witness is not aware whether Smt Lakshmi Devi was educated or not. All the above factors points out to one Result: Suit Decreed. Page 56 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 conclusion that the attesting witness was not close to the testatrix as claimed by defendant no. 3 as the witness of defendants no. 1 to 3 and as claimed by the attesting witness Sh P.C Gautam. It being so, it would be hard to comprehend that the attesting witness was very well known to the testatrix and was well conversant with the facts and circumstances of this case. The testimony of second attesting witness is not available to this Court. Having regard to the totality of these circumstances, absence of any person directly known to the testatrix as attesting witness to the Will becomes a suspicious circumstance.
25. Before adverting to the circumstances attending to the registration of the Will in question, it is to be pointed out that there is yet another suspicious circumstance attending to the execution and safe keeping of the Will between the date of execution and registration. In this context, one of the factor which none of the parties emphasised upon has been specifically noted. The date column appearing on the copy of the Will ExPW1/D2 bears the diagonal stamp of the Sub Registrar making it not clearly visible, hence its original was called for perusal. The said date written in hand is 24th, the month is Result: Suit Decreed. Page 57 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 February and year is 2005. From the testimony that is available on record, the date of execution i.e typing of the Will is 17.2.2005. It is therefore, apparent that if the Will was typed in the manner stated on 17.2.2005, then its date column was left blank by the typist. If that is to be believed, the date would have been left blank as only on the asking of testatrix. Since the defendant no. 3 took active participation in taking her mother to the typist and also locating/arranging him, the possibility that the date was left blank on the asking of defendant no. 3 can not be ruled out. The entire evidence on record is silent as to filling the date column and when the same was filled. This fact has not been clarified at all. In the cross examination of defendant no. 3 dated 17.9.14 it has come that the typed Will remained in possession of his mother and that he had asked him if she wanted to have any change incorporated therein. Further, as against his stand that the Will was read over to her by the typist, he submits in his cross examination dated 26.9.14 that it was he who read over the contents of the Will to his mother after it was typed. Said stand is contrary to what was deposed earlier. If the typed Will remained in the possession of the deceased testatrix, then, Result: Suit Decreed. Page 58 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 further testimony of the defendant no. 3 in his affidavit in evidence is silent as to who carried the Will to the office of Sub Registrar on 24.2.2005. It has not sought to be clarified in the cross examination of defendant no. 3 as to who was carrying the original Will on the date of its registration. However, in the cross examination of the attesting witness recorded on 26.9.14, it has come in evidence that, "it was Mr. Subhash who was having the Will in his hands in the office of Sub Registrar". The attesting witness has categorically submitted in his cross examination dated 17.9.14 that, "The Will was already typed when I and Raj Kamal reached the office of Sub Registrar and the said Will was brought by defendant no. 3 who came alongwith Smt. Lakshmi Devi". The binding impact of the above is to the effect that the defendants have failed in establishing with certainty that original typed Will remained in exclusive possession of their mother since the moment it was typed and till the moment it was produced before the concerned Sub Registrar. Thus, the possibility of replacing the same as it was unsigned till the date of its presentation for registration, which stands established by way of evidence, can not be ruled out. Result: Suit Decreed. Page 59 of 83
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26. Lastly, one of the very important aspect relatable to the execution of the Will has also been left unexplained. It is recorded in the Will ExPW1/D2 in clause 5 between points X to X1 that, "The previous Will is, hereby cancelled". It has come in evidence that the deceased testatrix had not executed any Will previous to the Will in question. Although, the PW 1 in her cross examination has denied that the Conveyance Deed bears the signature of her mother and has failed to express any opinion on the signature appearing at point A on the Will in question yet, she has given the explanation that her mother used to discuss everything with her and if she had executed any such Will, she would ever told this fact to her. She has been very vocal in her cross examination to the effect that she was always in good book of her mother. It is also in the testimony of defendants' witnesses that the parties to the suit used to celebrate festival of Rakhi. It is also in the evidence that the plaintiff is the only sister amongst four brothers and that the relations between them were very cordial prior to the year 2004 and are still maintained though not very cordial. Still, the Will in question does not give any specific reason for not giving any portion of the suit property to the plaintiff Result: Suit Decreed. Page 60 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 or defendant no. 4 or to the effect as to why the testatrix was limiting their share to only Rs.10 lacs each. The Will merely states that Sh Prem Nath is living separately since long and Smt Raj Kumari Batra is also living at Agra since the date of her marriage. It is silent about the aspect as to how cordial were the relations between the testatrix, plaintiff and defendant no. 4 as on the date of execution of Will. Further, the Will is absolutely silent about the soundness of the disposing mind of the testatrix. It is silent in respect of her age at the time of execution of Will. It is silent in respect of her physical condition in respect of her competency to make such bequeath. It is silent as to how the property in question was acquired by her. It is silent in respect of any comment by her qua her independent, free, unbiased, untutored, impartial and unsolicited free will to make such bequeath. Last but not final, it makes a provision of attending to all the beneficiaries i.e defendants no.1 and defendant no. 3 as joint and/or several executor(s) of the Will without providing any reason as to why the second defendant was not considered appropriate to be the executor besides the others. Finally, it makes reference in respect of cancellation of previous Will which never was made or executed. Result: Suit Decreed. Page 61 of 83
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 In this context, it is in the cross examination of defendant no. 3 that his mother did not execute any other Will previous to one in question. He asserts to the correctness of the suggestion that said phrase has not been dictated by his mother to the typist. He did not raise the objection regarding the contents between points X to X1 as he was not paying attention. Still, he submits that to his knowledge there is no other such content in the Will which was not dictated by his mother. It is therefore, unclear as to how and in what circumstances the contents between points X to X1 were incorporated in the Will in question. The above aspects, cumulatively, are pointing out to the numerous circumstance attending to the execution/typing of the Will which have not been explained by the defendants. This now brings me to the circumstances attending to the registration of the Will ExPW1/D2.
27. According to defendant no. 3, he and his mother reached at 10 a.m at the office of Sub Registrar, Mehrauli where both the attesting witnesses were present. However, attesting witness Sh P.C Gautam in his cross examination dated 26.9.14 has submitted that, "Sh Subhash and his mother arrived after we had reached the Sub Result: Suit Decreed. Page 62 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Registrar office". This in itself is a major contradiction between the testimony of the propounder of the Will and its attesting witness. 27.1. According to defendant no. 3, his mother asked Sh Gautam to read out the Will to her and explain the contents in Hindi which he did. Sh Gautam also submits the same in his affidavit in evidence. There is no cross examination by defendant no. 4 in this context to the defendant no. 3. However, in the cross examination by the plaintiff the witness was extensively probed on the above aspect. In cross examination dated 26.9.2014 this witness submits that he had read the contents of the Will prior to signing the same and that he did not recollect the same at the time of his deposition. It was suggested that they were not aware of the contents of the Will on which they signed without reading the same. It reveals that Sh Raj Kamal had not read over the contents of the Will to Smt.Lakshmi Devi. He was further suggested that he is not in the habit of reading the documents that he signs and it is for this reason that his earlier affidavit constituted of the defect which was sought to be cured by way of substitute affidavit as it was one such instance which proved that he does not sign all the documents before reading them. Result: Suit Decreed. Page 63 of 83
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 27.2. Further, it is a stand of this witness that he had read out the Will to the testatrix and explained its contents to her in Hindi. On this aspect also, he was cross examined. This witness has done M.A in Hindi Literature and has through out remained in Hindi medium institutions. He was comfortable for his cross examination to be carried out in Hindi language. He asserted to have signed his affidavit after having read and understood its contents. He also tried to translate from English to Hindi and read out portion Mark X to X1 in para 2 of written statement of defendants no. 1 to 3 which he had read out loudly and unhesitatingly in the Court. He was then asked to explain and translate the meaning of same in Hindi. The Court had observed that the witness gave the crux of the part what he read but was unable to explain the meaning of the word 'prejudice'. He submitted to be knowing only Hindi and English language and admitted that he can not do fluent Hindi to English or English to Hindi translation. He did not know the meaning of word 'testatrix', word 'executrix', word 'vernacular', word 'bequeath', word 'Conveyance Deed', word 'demise' of which he gave contextual meaning in the Court and also submitted that he can not differentiate Result: Suit Decreed. Page 64 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 between 'Will' and 'Conveyance Deed'. He admitted that he could not explain as to what is meant by 'testatrix' or 'executrix'. He had not worked with any agency engaged in translation of Hindi/English language. Having regard to the above, it can be observed that this witness may have a working knowledge of English language but he is definitely not well conversed with most of the phrases and words used in Will ExPW1/D2 and thus his competence of having explained the entire contents of the Will in question from English to Hindi in its literal sense to the deceased testatrix is doubtful. It itself is therefore a suspicious circumstance coupled with the other factors.
28. The testimony of defendant no. 3 further reveals that it was he who hired an agent who helped in registration process. The affidavit of Sh P.C Gautam also states so. However, in his cross examination dated 17.9.14, he submitted that, "number of agents were roaming in the office of Sub Registrar at Mehrauli on 24.2.2005. When my mother was signing the Will the agent came at his own. Nobody had called the said agent. The said agent asked me if any documents is to be got registered in the office of Sub Registrar and I told him that the Will is to be got registered. I do not know Result: Suit Decreed. Page 65 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 the name or address of said agent, who approached me for getting the Will registered. He was not having any office." 28.1. On the contrary, the attesting witness Sh Gautam has maintained his stand. His cross examination reasserts that defendant no. 3 called an agent and that he is not aware whether he was advocate or deed writer or that he was having a seat in the office complex. He again reasserted in his cross examination dated 17.9.14 that it was defendant no. 3 who had gone to call the agent. The above aspect is again a major contradiction between the testimony of propounder of the Will and its attesting witness. The entire consequences of events as narrated by the witness therefore, becomes doubtful in the absence of other corroboration. I have already said that the Court has not been disclosed whether defendants no. 1 & 2 knew about these developments between 17.2.2005 to 24.2.2005 and even thereafter till the death of their mother or not.
28.2. Further chain of the events is to the effect that during the registration process in which the agent took part and whose fees was paid by defendant no. 3, first the mother of defendant no. 3 appended Result: Suit Decreed. Page 66 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 her signature on the Will which was followed by Sh P.C Gautam and then Sh Raj Kamal. Nothing further has been stated in the examination in chief. Thus, in his chief examination by virtue of affidavit ExD13/W1/A, atleast one of the propounder of the Will is not seen saying anything about the presence of all the parties together at the time of execution of Will i.e when the signature were being appended thereupon.
29. In this context, the testimony of D13/W2/A Sh P.C Gautam is the most crucial testimony. In his chief examination i.e his affidavit in evidence, the witness states that, "I identify my signatures on the copy of the Will already on record at point A. I also identify the signature of deceased namely Smt. Lakshmi Devi on the Will at point B since she had signed in my presence, as also that of Sh Raj Kamal at point C, since he had also witnessed the Will in my presence after I had witnessed the same, as already mentioned above."
30. It would be clear that Mr. Gautam and testatrix signed in the presence of each other. However, the further evidence that comes on record in this context is also note worthy. According to the third Result: Suit Decreed. Page 67 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 defendant, when his mother was signing the Will, the agent had come on his own. This was at the time when his mother was signing the Will. Although the witness and D3 were present at that time, it was he (D3) who had told her mother to put her signature at point X and at point already Mark A on Will ExPW1/D2. He did not remember as on whose asking his mother signed at point X1 and X2. He did not know with certainty on whose asking she put thumb impression at point X3 and X4. On second thought, he stated that signature at point X1 and X2 and thumb impression at points X3 and X 4 were put at the asking of the agent at the same time. These are the thumb impression and signatures that were taken on the back sheet of the aforesaid Will. He further said that signatures at point A, X and X1 on last page of the Will were appended at 10 a.m. He was not aware as to after how much time, the signature at point X1 and X2 thumb mark at points X3 and X4 were appended and whether in his presence or not. He was not sure if thumb marks at points X5 and X6 were put in his presence or not. Thus, on this count, witness stand belied in his statement that he was present Result: Suit Decreed. Page 68 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 through out the registration process. He further submits to have gone on three different windows. At the first window, the document asked for were deposited. At the second window, some questions were asked from his mother. He was not aware as to whether same were asked by the Sub Registrar or the staff. At the third window, the photographs were taken. He was not aware as to behind which window the Sub Registrar was sitting. According to him, his mother had already signed at point X and A i.e at first and last page of the Will when the agent arrived and the remaining signatures of the attesting witnesses were obtained by the agent thereafter. The above evidence is clearly in contradiction with what attesting witness has to say. According to him, when the third defendant had gone to call the agent, 'in the mean time, Lakshmi Devi signed on the Will and I as well as Raj Kamal also signed the Will. After about 4 5 minutes thereafter, defendant no. 3 brought the said agent'. The remaining signatures and thumb marks of the testatrix and of the witnesses on the reverse page of the first page of Will were then obtained by the agent. Further, the Sub Registrar had not made any inquiry from him or Raj Kamal. The witness volunteered to be not Result: Suit Decreed. Page 69 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 aware as to whether Sub Registrar himself was sitting behind the window or his staff. He further submits that the official concerned had asked only one question from Smt. Lakshmi Devi as to whether she knew the contents of the Will to which she had replied in positive. He states under oath that the contents of the Will were not explained by the said official to Smt Lakshmi Devi in his presence. This becomes more important in view of the fact that witness thereafter admits the correctness of the suggestion that they had left the window only after completion of formalities.
31. A comparison of above two contradictory testimonies is sufficient in order to further demonstrate that the sequence of events in respect of registration has not been put correctly by either the third defendant or the attesting witness making the factum of legality and validity of the Will as more doubtful.
31.1. The attesting witness has admitted that Sub Registrar concerned neither knew him or Sh Raj Kamal personally and therefore, the endorsement on the Will made by Sub Registrar V that 'witness no. 2 namely Raj Kamal is known to him personally' is of no relevance and it appears to be mere user of a printed format. Result: Suit Decreed. Page 70 of 83
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Similar is the position with respect to endorsement that the 'contents of the documents were explained to the parties who understood the same and admitted as correct'. This fact specifically stands belied in the testimony of attesting witness who states that no inquiry was made from him and only one question was asked from the testatrix and that nobody had explained the contents of the Will to her. Thus, none of the case law on the subject cited by the respective parties on the above aspect has factual bearing in the distinct facts of this case. Merely because PW 5 has stated about the usual procedure followed during registration of documents would not imply that the same was followed in this case also. This creates strong possibility that the contents of Will after being typed on 17.2.2005 could have been easily substituted the document being unsigned between the intervening period, and also leads to the conclusion regarding incompetency of attesting witness to have translated its true and complete contents to the testatrix. It definitely leads to the conclusion that the official concerned at the Sub Registrar office had not explained or read over the contents of the Will to the testatrix in her language which is definitely not English. This leads to a final Result: Suit Decreed. Page 71 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 conclusion that the testatrix may not be even aware as to what was being signed by her before the Sub Registrar concerned.
32. Thus, when the execution as well as registration of the Will ExPW1/D2 itself is surrounded by numerous doubtful circumstances, the question of the testatrix making special provision of distribution of Rs. 10 lacs each from the rental proceeds of the ground floor amongst the plaintiff and defendant no. 4 does not arise. Similar is the position with respect to other parts of her bequeath. The intention of the testatrix can be gathered from the fact that according to own case of defendants no. 1 to 3, defendant no. 3 had particularly stated to the defendant no. 4 that they were required to pay Rs.10 lacs according to the Will. It is recorded in his cross examination dated 17.9.14 that he had not offered the payment even though the forth defendant had given his account number to the third defendant. The reason assigned for not offering the payment is that at the particular time, the defendants no. 1 to 3 had no sufficient amount to make the payment. It is not anybody's case that the defendants no. 1 to 3 had also intimated this fact to the plaintiff. The initial case set up by the defendants was that with complaint dated Result: Suit Decreed. Page 72 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 1.6.08 copy of which is ExDW1/1, copy of the Will the deceased was annexed. It is thus claimed that the plaintiff had knowledge of the Will as on that date. This incident has been denied by the plaintiff. It would be apparent from the cross examination of plaintiff/PW 1 when she was specifically asked a question with respect to this incident that she did not know the correct date but asserted that the month and the year i.e June, 2008 is correct. According to her version, she had gone to the suit property with only one son Sh Ramesh Batra in end June 2008 where the first defendant was very aggresive towards them. On this she had picked up her bag containing her personal belongings and left the suit property. It is in the plaint that towards the end of June, 2008 plaintiff had gone to the suit property. She does not concede that she had gone on 1.6.08. As a matter of fact,the perusal of copy of complaint ExDW1/1 reveals that it was made over by defendant no. 1 Sh Om Prakash Popli only. In the entire contents of the complaint, he is not referring that his other brothers were present in the suit property and threatened. The complaint does not mention as to who was allegedly threatened from amongst defendants no.1 to 3. Result: Suit Decreed. Page 73 of 83
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33. None has been called from P.S Lajpat Nagar for proving the receipt of complaint. Further more, the defendant no. 1 who could have proved the complaint by proving his signature on it has not been examined as defence witness. Even defendant no. 3 has failed in identifying the signature of first defendant on the complaint aforesaid. Further more, it would be apparent from reading the relevant part of cross examination of defendant no. 3 on the alleged incident dated 1.6.08 that the first defendant and the visitors were on the upper floor while he remained on the ground floor. His entire testimony in respect of the incident which he narrates in his cross examination is merely heresay. It is his own admission in his cross examination dated 26.9.14 that the conversation was not audible to him. Thus the complaint dated 1.6.08 has not been proved and consequently it can not be said that the plaintiff can be imputed with the knowledge of the Will ExPW1/D2 prior to filing of the suit. In this context, I may also point out that in his cross examination dated 26.9.14, the defendant no. 3 has submitted that after registration, original Will was in the custody of his mother. He denied the suggestion that he kept the fact of execution/registration of Will Result: Suit Decreed. Page 74 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 concealed from his brothers and sister. He volunteered that all of them knew as he had told the contents of the Will to every body during life time of his mother. This fact has not been pleaded anywhere and has come in the evidence for the first time. If defendant no. 3 had told the factum of registration/execution of Will to his other siblings particularly the plaintiff and defendant no. 4, then, there was no occasion for this witness to state in his earlier cross examination that he had disclosed about the factum of payment of Rs.10 lacs to the forth defendant after death of his mother. It also does not stand to reason as to why then plaintiff and forth defendant would not then, ask the payment of sum of Rs.10 lacs during life time of their mother. All the rental documents are pertaining to the year 2008 onwards. The written statement does not provide as to when the tenant having agency of 'Godrej' vacated the ground floor of the suit premises. It is given to understand that there was no sufficient rental income during the period between execution of the Will and death of the mother of the defendants. However, it has categorically come in the cross examination of defendant no. 3 recorded on 17.9.2014 that the tenant of the property in February, Result: Suit Decreed. Page 75 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 2005 was an agency of 'Godrej' which was paying Rs.72,000/ per month as rent and said portion was vacated in January/February, 2008. The date of death of deceased testatrix is 22.4.2008. Thus why the testatrix, who even if believed, intentionally made a provision that if sum of Rs.10 lacs each from the rental income was paid to plaintiff and defendant no. 4 during her life time, did not start paying the same to them in installments during her life time. There was nothing stopping her from starting making payment on this count during her life time. I may as well point out that defendant no. 4 had sent a sealed envelope by air mail from Canada to the Predecessor in this Court which contained letter sent by him dated 28.3.09. The factum of receipt of this letter and its intimation to both sides is recorded in order sheet dated 4.2.09. His written statement was filed later. However, in the said letter, the forth defendant has stated that the Will produced may not be the one which his mother would have asked the Will writer to write. Previous to it, same very defendant had also sent a letter dated 23.11.08 by air mail to the Predecessor Court, perusal of which shows that after the demise of his mother, the forth defendant came to India on 24.4.08 and also participated in Result: Suit Decreed. Page 76 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 her last rites and visited Haridwar. The fact that he accompanied the remaining defendants to Haridwar is admitted in the cross examination of defendant no. 3. In the same letter,defendant no. 4 submits that defendant no. 3 had told him that his deceased mother had given all the property to defendants no. 1 to 3 and that he and his sister were to be given only Rs.10 lacs each. The said contents match with the testimony of defendant no. 3 that after his mother's death he has told about the provision of Rs.10 lacs to forth defendant. There is nothing on record that the forth defendant ever shared this fact with the plaintiff. This knowledge can not be therefore attributed to the plaintiff. It is not known as not brought on record as to whether relationship between the plaintiff and the forth defendant were/are cordial. It can be thus safely said on the basis of preponderance of probabilities that the plaintiff had no knowledge of the alleged Will prior to the date of filing of the suit and forth defendant may have knowledge about it without having any chance to go through the Will after few days of the death of his mother. This fact cannot come against the plaintiff. Thus the conclusion that the plaintiff may be correct in putting up a case in cross examination of defendant no. 3 Result: Suit Decreed. Page 77 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 with respect to factum of execution/registration of the Will, which fact even otherwise was deliberately kept concealed from other siblings till the death of their mother and even after filing of the suit as such disclosure would have resulted into complications during the life time of the deceased testatrix. This also explains to some extent the fact as to why the deceased testatrix did not start making payment of Rs.10 lacs each to the plaintiff and defendant no. 4 during her life time. She survived for more than three years after the date of the alleged Will. It does not stand to reason that she will not have informed her children about the execution of the Will, particularly when one of the children i.e defendant no. 3 claims to have knowledge about it since the date of its execution which is stated to be 17.2.2005.
33.1. It being so, the issue no. 2 stands not proved by the defendants and consequently, the question of the defendants proving the third issue does not arise. Issue no. 2 & 3 are decided against the said defendants and in favour of the plaintiff.
33.2. So far as issue no. 1 is concerned, the Court has already pointed out that the third defendant who is the witness of defendants Result: Suit Decreed. Page 78 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 no. 1 to 3 has admitted that in the absence of Will, the suit property will be owned by all the parties to the suit having 1/5th share each. Further more, by virtue of Section 15(1)(a) of Hindu Succession Act 1956, the property of a 'female Hindu dying intestate' will devolve, according to the rules under Section 16, firstly, upon the sons and daughters and the husband. It is an admitted case here that the suit property is self acquired property of the deceased testatrix. The title documents are not in dispute. It is also admitted that all the parties to the present petition have only daughter i.e the plaintiff. Thus the property is to devolve as per Section 15(1)(a) of Hindu Succession Act. As per Section 16 (i) of the said Act, it shall not devolve upon any other succeeding entry. Further, all the sons and daughters in the same entry are to take the share simultaneously. Thus, as the execution and registration of the Will has not been proved and there is no other Will before the Court, it has to be said that the deceased testatrix died intestate and that the plaintiff alongwith codefendants is owner of 1/5th share in the suit property. The first issue is decided in favour of the plaintiff and against the defendants.
Result: Suit Decreed. Page 79 of 83
Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 Issue no. 4. Whether the plaintiff's suit has not been properly valued for the purposes of Court fee and jurisdiction being under value as alleged ? OPD 1, 2, 3 & 4.
34. The onus of this issue was upon the defendants no.1,2, 3 & 4. I have already pointed out that Sh. Aditya Madan, Advocate gave a statement dated 21.11.14 not pressing this issue. The forth defendant has not lead any evidence on the issue. Otherwise also, the defendants have asked only a few questions from PW 1 on the above aspect which do not suffice. They have not lead any evidence to either prove the circle rates prevailing at the time of institution of suit or to prove the market value of the similarly situated property in the neighbouring area. The issue is thus decided against the defendants.
Issue no. 5. Whether the plaintiff is entitled to the preliminary decree of partition as prayed for ? OPP.
35. The onus of this issue was upon the plaintiff. In view of the decision of the Court on issues no. 2, & 3 and more particularly, issue no. 1, it is held that the plaintiff is entitled to the Preliminary Decree of partition being entitled to, alongwith all the defendants to 1/5 th share Result: Suit Decreed. Page 80 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 each in the suit property. The issue is decided in favour of the plaintiff.
Issue no. 7. Whether the plaintiff is entitled to the decree of Permanent Injunction as prayed for ? OPP.
36. The onus of this issue was upon the plaintiff. Presently, the suit property is already on rent under intimation to the Court. The suit property is already in possession of the tenant. However, as the same has now to be partitioned, the defendants are hereby restrained by way of Permanent Injunction to create any third party interest in respect of title of the suit property till the passing of final decree. The issue is decided accordingly.
Issue no. 8 (Additional Issue).
Whether the plaintiff would be entitled to withdraw the rent to the extent of 1/5th share as per order of the Court dt. 4.11.11 or whether in case of plaintiff's not succeeding, the defendants no. 1 to 3 are entitled to the same ? Onus on both parties.
37. The onus of this issue was on both the parties. As Court has held that plaintiff is entitled to the decree of partition, it has to be Result: Suit Decreed. Page 81 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 necessarily held that she being the coowner of 1/5th share of the ground floor of the suit property, is also entitled to withdraw the rent to the extent of 1/5th share. Same is true for defendant no. 4 also. Issue is decided in favour of the plaintiff and against the defendants. Issue no. 6. Whether the plaintiff is entitled to the final decree of partition as prayed for ? OPP.
38. The aspect of passing final decree in terms of issue no. 6 being dependent on the subsequent events is to be considered subsequent to such events in respect of ascertaining the mode of devision of property by metes and bounds. So far as defendants no. 1 to 3 are concerned, they shall be entitled to withdraw the FDR of Rs.10 lacs that has been deposited by them in the present case. Relief.
39. In view of the observations made herein above, a Preliminary Decree of partition by metes and bounds is passed in favour of the plaintiff and defendants in respect of the suit property bearing no.IIC/5556, Lajpat Nagar, New Delhi consisting of ground floor, first floor and second floor, except the basement floor to the effect that the plaintiff alongwith codefendants is entitled to 1/5th share each in the suit Result: Suit Decreed. Page 82 of 83 Raj Kumari Batra v Om Prakash & Ors. CS 46/11/08 property.
40. Parties are left to bear their own costs.
41. Preliminary decree sheet be prepared accordingly.
Announced in open Court. (Manish Yaduvanshi)
Dated: 11.12.2014. ADJ06(Central)Delhi
Result: Suit Decreed. Page 83 of 83