Delhi District Court
Sulekha Karir Marwaha vs . Mukesh Karir & Ors. on 29 May, 2019
Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
IN THE COURT OF MS. JYOTI KLER, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Suit No. 5877/16
Case ID No. DLST010000162009
In the matter of
Sh. Sulekha Karir Marwaha
R/o C43, Panchsheel Enclave
Ground Floor
New Delhi - 110017
.............Plaintiff
Versus
1. Mukesh Karir
R/o C43, Panchsheel Enclave
Ground Floor
New Delhi - 110017
2. Bhupesh Karir
R/o C43, Panchsheel Enclave
Ground Floor
New Delhi - 110017
3. Neena Karir
C43, Panchsheel Enclave
Ground Floor
New Delhi110017
4. M/s Giraffe Advertising and
Marketing Pvt. Ltd.
Through its director
Suit No.5877/16 Page 1 of 48
Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Sh. Rohit Sharma
C43, Panchsheel Enclave
First Floor
New Delhi110017
..............Defendants
Date of Institution : 23.12.2009
Date of reserving the judgment : 24.04.2019
Date of pronouncement : 29.05.2019
Decision : Dismissed.
JUDGMENT
Preliminary
1. This suit is for declaration, partition, permanent injunction, mandatory injunction and recovery of money. Parties are siblings. Defendants no. 1 & 2 are brothers of the plaintiff and defendant no.3 is her sister.
Case of the Plaintiff
2. Plaintiff alleges that her late father Sh. Krishan Kumar Karir owned a property bearing no. C43, Panchsheel Enclave, New Delhi - 110014, built on a plot of 260 square yards, consisting of Ground Floor & First Floor (hereinafter referred as 'the suit property'). He died intestate on 16.11.2008. Plaintiff is married and has a son. However, her marriage was turbulent, hence, she & her son are residing in the suit property. Defendants are unmarried. All the Suit No.5877/16 Page 2 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
parties are residing on the ground floor of the suit property and shared good relations till recently. The first floor of the suit property was given on rent by Sh. Krishan Kumar Karir in his lifetime, however the Fittings and Fixtures Agreement with respect to this portion was executed by the plaintiff in favour of lessee & money due under this agreement used to be received by the plaintiff in her bank account. This bank account of the plaintiff was being handled by the defendant no. 2 because parties shared good relationship. The defendant no. 2 did not deposit rent due towards the fittings & fixtures in the bank account of the plaintiff for the month of August, 2009. On enquiry, he claimed that rent was not deposited in the bank account of the plaintiff because she had no right in the suit property or in its fittings & fixtures. Plaintiff approached the defendant no. 4, who is lessee of the first floor of the suit property, but defendant no. 4 also expressed inability to pay rental to the plaintiff and stated that he was threatened of physical injury by the defendants no. 1 & 2.
3. Plaintiff claims that she has no other source of income. The defendants no. 1 & 2 usurped entire business set up by Late father of the plaintiff and have denied all benefits due to her. They also grabbed the movable assets of their Late father like share in the Suit No.5877/16 Page 3 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
partnership firm, cash in hand, jewellery, credit balance in bank, stock, equity share and units in mutul funds.
4. It is alleged that on 16.09.2009 defendants no.1 & 2 assaulted the plaintiff & defendant no. 3. So plaintiff & defendant no. 3 filed a criminal complaint against defendants no. 1 & 2. When the plaintiff & defendant no. 3 asserted their rights in the suit property, the defendant no. 1 & 2 claimed that their Late father had left behind a Will whereby the suit property was bequeathed upon defendants no. 1 & 2. The plaintiff made another complaint against the defendants no. 1 & 2 on 10.10.2009. On 02.12.2009 defendants no. 1 & 2 threatened the plaintiff and asked her to vacate the suit property.
5. Plaintiff claims that defendants no. 1 & 2 never disclosed about the Will of their late father to her. She states that all the parties to this suit in fact filed an application for impleadment in another suit for partition filed by their father against his siblings but no reference to the Will was made in the said application. Plaintiff avers that she is entitled for partition of movable & immovable properties, left behind by her father, the rental amount and also the income received from business, by metes and bounds. It is further requested that the defendants be directed to divulge details of the movable properties Suit No.5877/16 Page 4 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
left behind by the father of the parties.
6. Following prayers are accordingly made in the plaint: "(a) Declaration that the applicant is coowner to the extent of 1/4 of all the movable and immovable assets left behind by the late Sh. Krishan Kumar Karir upon his demise intestate on 16.11.2008.
(b) Pass a preliminary decree of the partition of the property bearing No.C43, Panchsheel Enclave, New Delhi, by metes and bounds with the applicant receiving 1/4th share upon such partition AND ALTERNATIVELY if partition of the same property is not considered feasible by this Hon'ble Court on the basis of a Report filed by the learned Local Commissioner appointed by the latter for the said purpose then the direction of the sale of the same property with 1/4th of the proceeds therefrom coming to the applicant,
(c) Pass a preliminary decree of partition with the Applicant receiving 1/4th share of the movable assets left behind by the late Sh. Krishan Kumar Karir upon the disclosure of the details thereof by the Respondents no. 1 and 2 pursuant to this Hon'ble Court's directions,
(d) Pass a decree of permanent injunction restraining the Respondents no. 1 and 2 from interfering with the Applicant's joint peaceful possession and enjoyment of the aforementioned immovable property till its partition by metes and bounds or sale pursuant to this Hon'ble Court's orders.
(e) Direct the Respondents no. 1 and 2 to make the payment Suit No.5877/16 Page 5 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
in the sum of Rs. 65,000/ which is the applicant's share of the monthly rental of the First Floor of the said property from 16.11.2008 till date and continue to make payments in the sum of Rs.5,000/ per month or such other sum of money being the Applicant's 1/4th share of the rent at which the First Floor of the said property is leased out upon the termination of the existing lease.
(f) Direct the respondents no. 1 and 2 to make payment to the applicant in the sum of Rs. 75,000/ being the monthly rental for the fittings and fixtures, etc. provided by the Applicant to the tenant of the First Floor of the said property from August, 2009 till date.
(g) Pass a decree of permanent injunction restraining the Respondents nos. 1 and 2 from wrongfully usurping the applicant's 1/4th share of the monthly rental of Rs.20,000/ for the lease of the First Floor of the said property and the monthly rental for the fittings and fixtures, etc. provided by the Applicant for the same property.
(h) Pass a decree of mandatory injunction directing the Respondent no. 4 to make the payment in the sum of Rs.5,000/ plus Rs.15,000/ every month to the Applicant directly till such time that it's tenancy subsists,
(i) an order granting such other or further reliefs that this Hon'ble Court may deem fit and proper in the facts and circumstances of this case and
(j) direct Respondents no. 1 and 2 to pay the legal costs that are likely to be incurred by the Applicant in the instant proceedings."
Suit No.5877/16 Page 6 of 48Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Case of the Defendants
7. Defendants no. 1 & 2 filed written statement averring that the suit is not maintainable and liable to be dismissed. It is stated that the plaintiff has misled the Court and concealed that their father Late Sh. Krishan Kumar Karir had left behind a registered Will dated 26.03.2003 bequeathing the suit property as well as all his movable properties except bank deposit and shares, in favour of defendants no. 1 & 2. Deposit in bank accounts and shares were bequeathed to the plaintiff & defendant no. 3. The Will also provides that defendants no. 1 & 2 shall maintain the plaintiff, till her matrimonial dispute gets settled & she goes back to her husband, and defendant no. 3, till she gets married. It is claimed that defendant no. 3 is now married.
8. The defendants no. 1 & 2 aver that the registered Will of their late father was lying with his brother Sh. D.D. Karir, who introduced the Will to the family after demise of Late Sh. Krishan Kumar Karir. He asked all the parties to take a copy of the Will against receipt but plaintiff refused to sign though she took a copy of the Will. It is stated that the plaintiff can claim maintenance from her husband and the defendant no. 1 & 2 are also bound to maintain her under the Suit No.5877/16 Page 7 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Will which they shall do. It is stated further that the suit, where an application for impleadment of the legal heirs was moved by the parties, has nothing to do with the suit property, and subject matter of the said suit is not covered by the Will.
9. Defendants no. 1 & 2 have admitted that hire agreement with respect to the fittings and fixtures of the first floor of the suit property was executed between the plaintiff & defendant no. 4 but claim that the position has now changed. It is averred that the property has devolved upon defendants no. 1 & 2 and therefore plaintiff has no authority now to claim rent qua the fittings & fixtures of the first floor. It is further the case of the defendants that Late Sh. Krishan Kumar Karir left his business in the year 1980 because he was removed from the list of contractors and the defendants no. 1 & 2 started working as independent contractors in the year 19861987. Defendants have categorically denied the allegations levelled against them by the plaintiff and averred that the complaints & instant suit filed against them by the plaintiff & defendant no. 3 are false and frivolous.
Replication
10. Plaintiff denies that her late father had executed any Will. She alleges that the Will in question is a forged and fabricated document Suit No.5877/16 Page 8 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
because it is not conceivable that a father would leave his daughters, one of whom was facing matrimonial dispute and another unmarried, high and dry without a roof over their head. The plaintiff denies that Will of her late father was ever shown to her or a copy was given but she refused to sign the receipt. She avers that she got to know about the Will for the first time from the written statement filed by defendants no. 1 & 2. It is averred by the plaintiff that she did not get any economic support from her husband and the fittings & fixtures agreement executed by her qua first floor of the suit property is her only source of income. She also claimed that as per their own admissions, defendants no. 1 & 2 are bound to maintain her so they cannot throw her out of the suit property. She further claimed that the fittings & fixtures agreement executed by her in favour of defendant no. 4 is an independent agreement that cannot get effected because of the Will. So, she has a right to receive rent due under the aforesaid hire agreement.
Issues
11. On completion of pleadings, following issues were framed vide order dated 09.12.2013:
(i) Is the plaintiff entitled to a declaration for her 1/4th share in the estate of late father Sh. Krishan Kumar Karir and further entitled to seek a preliminary and final decree of partition on Suit No.5877/16 Page 9 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
that basis? OPP
(ii) Is the plaintiff entitled to a decree of permanent injunction as prayed for? OPP
(iii) Is the plaintiff entitled to rendition of accounts as prayed for? OPP
(iv) Is the plaintiff entitled to a mandatory injunction as prayed for? OPD
(v) Are the defendants entitled to rely on the registered but unprobated Will dated 26th March 2003 of late Sh. Krishan Kumar Karir? OPD1 & 2
(vi) Relief.
12. It shall be relevant to note that vide order dated 03.06.2011 passed by the Hon'ble High Court of Delhi, the entire money towards hire agreement, lying deposited in the Court, was directed to be released in favour of the plaintiff. The defendant no. 4, who was a tenant at the first floor of the suit property was also deleted from the array of parties vide order dated 11.09.2012.
Plaintiff's Evidence
13. Plaintiff examined two witnesses in support of her case. She stepped in the witness box as PW1 and deposed by way of evidence Suit No.5877/16 Page 10 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
affidavit Ex.PW1/A, wherein she reiterated contents of her plaint and relied upon the following documents: S.No. Description of Documents Exhibit Number
1. Lease deed dated 05.08.2008 Ex.P1 (also Ex. PW1/1) executed between Late Sh.
Krishan Kumar Karir and Giraff Advertising Agency i.e. Defendant no. 4.
2. Hire Purchase agreement with Ex.P2 (also Ex.PW1/2) respect to fittings and fixtures installed at the first floor of the suit property executed between the plaintiff and defendant no.4.
14. Following documents were admitted by the plaintiff during admission/denial: S.No. Description of Documents Exhibit Number
1. Agreement to hire of fittings & Ex. D1 and fixtures of first floor of the suit property, dated 08.08.2005, executed between the plaintiff and Myung GA Hospitality
2. Lease deed dated 26.07.1991 Ex.D2 executed between Late Sh.
Krishan Kumar Karir and Sh. G.S. Dosajh with respect to the first floor of the suit property including fittings and fixtures.
3. Lease deed dated 13.06.1996 Ex.D3 executed by Late Sh. Krishan Kumar Karir with Sh. G.L. Mitra Suit No.5877/16 Page 11 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
with respect to the first floor of the suit property including fittings and fixtures.
15. The following documents were admitted by the plaintiff during her cross examination: S.No. Description of Documents Exhibit Number
1. Signatures of Defendant no. 3, Ex. PW1/D1 dated 21.12.2008, at point B of copy of Will.
2. Lease deed dated 21.09.2001 Ex.PW1/D2 executed between Late Sh.
Krishan Kumar Karir and Sh. T. Satya Narain with respect to first floor of the suit property.
3. Lease deed dated 08.11.2005 Ex.PW1/D4 executed with respect to the first floor of the suit property between Late Sh. Krishan Kumar Karir and Sun Jae Hospitality.
4. Lease deed dated 08.11.2005 Ex.PW1/D5 executed between the plaintiff and Sun Jae Hospitality with respect to fittings and fixtures installed at the first floor of the suit property.
16. PW1 denied the following documents during her cross examination with respect to fittings and fixtures installed at the first floor of the suit property: Suit No.5877/16 Page 12 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
S.No. Description of Documents Exhibit Number
1. Will of Late Sh. Krishan Kumar Identified as Mark Karir PW1/D6 (later exhibited as Ex.DW1/1 during testimony of DW1)
2. The hire agreement dated Mark PW1/D3 (later 21.09.2001, executed between exhibited as defendant no. 3 and Sh. T. Ex.PW2/D2 during the Satyanarayan with respect to testimony of PW2 fittings and fixtures installed at because she admitted the first floor of the suit property this document).
17. Plaintiff was cross examined by the defendant no. 1 & 2 in detail. She deposed during her cross examination that her father continued to work as Government Contractor till the year 1997. He retired thereafter and his source of earning was the rent received by him from the suit property. She also deposed that the defendant no. 1 had started earning in the year 19861987. He was also a Government Contractor and used to take contracts in his personal name. Her later father had no partnership firm and he too would take Government contracts in his personal name. PW1 admitted that she never spent any money towards the fittings & fixtures installed at the first floor of the suit property. She further deposed that earlier the fittings & fixtures agreement with respect to the first floor of the suit property used to be in her father's name, later defendant no. 3 Suit No.5877/16 Page 13 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
started executing the fittings & fixtures agreement with respect to the first floor of the suit property and after few years she started executing this agreement in her name. She deposed that the money towards rental qua hire agreement used to be paid in her bank account or in her sister's bank account and this money used to be withdrawn by her father in case of need. Plaintiff admitted that her uncle Sh. D.D. Karir had attended the last rituals of her father, however, denied that he had told her about the Will of her late father. She admitted that the Will Mark PW1/D6 (later Ex.DW1/1) was bearing photograph of her father but deposed that she was unable to identify his signatures. She deposed that a copy of the Will had been taken by her sister and she read contents of the Will at that time. Plaintiff denied the suggestions put to her with respect to the defence raised by the defendants in their written statement.
18. The second witness of the plaintiff is defendant no. 3. She has been examined as PW2 by way of evidence affidavit Ex.PW2/A. PW2 was also cross examined by the defendants no. 1 & 2. She admitted during her cross examination that fittings & fixtures at the first floor of the suit property were not purchased by her and she never spent any money towards these items. She denied that her uncle Sh. D.D. Karir had visited them on demise of her father and gave a copy of the Suit No.5877/16 Page 14 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Will but admitted her signatures on Ex.PW1/D1 at point B. She also admitted her signatures on the hire agreement dated 01.07.1998, executed with Automative Tyre for fittings & fixtures of first floor of the suit property which is Ex.PW2/D1 and hire agreement dated 21.09.2001 executed with T. Satyanarayan, which is Ex.PW2/D2. PW2 voluntarily informed the Court that her sister i.e. the plaintiff, had told her that their father used to say that he had executed a Will and distributed his property amongst all his four children.
Defendant's Evidence
19. Defendants no. 1 & 2 examined total four witnesses in support of their case.
20. Advocate Sh. D.P. Singh was examined as DW1 by way of evidence affidavit Ex.DW1/A. He deposed that the Will Ex.DW1/1 was scribed by him at the instance of Late Sh. Krishan Kumar Karir. The Will was then signed by Late Sh. Krishan Kumar Karir and another attesting witness in his presence. Late Sh. Krishan Kumar Karir requested him to be the attesting witness, and due to his request he signed the Will as attesting witness too. The Will was then presented for registration. The testator was in sound disposing mind at the time of execution of Will and he executed the Will without any Suit No.5877/16 Page 15 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
pressure.
21. DW1 was cross examined by the plaintiff wherein he deposed that he was paid his fees for scribing the Will by Late Sh. Krishan Kumar Karir. He deposed that another attesting witness had come with Late Sh. Krishan Kumar Karir. He denied the suggestion that Late Sh. Krishan Kumar Karir was not in sound disposing mind at the time of execution of the Will, but objection was raised to this suggestion on the ground that it was beyond pleadings. Other suggestions given to him pertaining to the case of the plaintiff were also denied by DW1.
22. Defendant no. 1 stepped in the witness box and was examined as DW2 by way of evidence affidavit Ex.DW2/A. He reiterated contents of his written statement in the evidence affidavit and relied upon the documents already Ex.D1, Ex.D2, Ex.D3, Ex.P1, Ex.P2, Ex.PW1/D1, Ex.PW2/D1 and Ex.DW1/1. In addition to the aforementioned documents, he also relied upon further documents, details of which are as below: S.No. Description of Documents Exhibit Number
1. Site plan of the suit property Ex. DW2/1
2. Order dated 19.10.1987 reflecting Ex. DW2/2 that the Contract was awarded by CPWD to defendant no.1 Suit No.5877/16 Page 16 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
3. Office order dated 09.01.1997 by Ex.DW2/3 CPWD revalidating the list of contractors, in which name of defendant no. 2 is reflected
4. IT clearance certificate dated Ex.DW2/4 11.06.1993 pertaining to defendant no. 2
5. Income tax clearance certificate Ex.DW2/5 dated 22.01.1997 reflecting income of the defendant no. 2 from CPWD from 1994 to 1996
23. DW2 was cross examined by the plaintiff wherein he deposed that separate Fittings and Fixtures Agreement with respect to the first floor used to be executed at the instance of his late father Sh. Krishan Kumar Karir in order to save tax. He also produced document Ex.DW2/D1 (colly) during his cross examination in order to show that expenses for marriage of plaintiff were borne by him. He denied that his father was unfit because of paralytic attack and was unable to move but this suggestion was objected by Ld. Counsel for the defendants on the ground that it was beyond pleadings. He deposed that Gurdeep Singh i.e. the second attesting witness to the Will Ex.DW1/1, was a friend of his father and denied that Gurdeep Singh was his friend. He denied that the Will Ex.DW1/1 was fabricated by him with the help of Sh. Gurdeep Singh. He also denied that he had taken his father to the office of SubRegistrar and Suit No.5877/16 Page 17 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
got the Will executed.
24. DW3 Sh. Praveen Kumar Rana, UDC in the office of Sub RegistrarI, Kashmere Gate, brought the summoned record pertaining to the registration of Will Ex.DW1/1. He deposed that the Will was registered on 26.03.2003.
25. DW4 Sh. D.D. Karir deposed that he is settled in England since 1963 and used to visit India after every four to five years. He visited Delhi on 18.11.2006 and at that time his brother Late Sh. Krishan Kumar Karir had informed him about his Will and given it to him for keeping it in the safe custody. He deposed that his brother Late Sh. Krishan Kumar Karir expired on 16.11.2008. He came to India on 26.11.2008 to attend his last rites after which he went to Punjab to meet his other relatives. He returned to Delhi on 20.12.2008 and informed the parties about the Will Ex.DW1/1 on 21.12.2008.
26. DW4 admitted in his cross examination that he was brought to the Court by defendant no. 1 but he denied that his evidence was influenced by defendant no.1. He also denied other suggestions pertaining to the case of the plaintiff.
Suit No.5877/16 Page 18 of 48Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Final Arguments
27. Ld. Counsel for the plaintiff contended that the only defence raised by the defendants against the suit of the plaintiff is the Will Ex.DW1/1. The said Will however has not been executed as per law because it is not signed by two attesting witnesses. Ld. Counsel argued that the scribe of the Will was called in the witness box by the defendants to prove the Will but he is not the attesting witness and therefore cannot prove the Will. It was argued that scribe of the Will is a professional who wrote the Will on payment of his fees and thus cannot be an independent witness & had no animo attestendi. Ld. Counsel also argued that Will is surrounded by suspicious circumstances because it completely excludes the daughters from inheritance without reasons and despite the fact that both daughters were dependent upon their father when the Will was allegedly executed. In support of his contentions, Ld. Counsel for the plaintiff has relied upon the following judgments:
(i) Benga Behera & Anr. Vs. Braja Kishore Nanda & Ors.:
W.P. (Civil) No. 3467 of 2003 decided by the Hon'ble Apex Court on 15.05.2007: "10. PW9Banabehari Upadhyaya who, as noticed hereinbefore, not only scribed the Will but also stated himself to be an attesting witness and identifier of the testatrix, in his deposition stated as under:
"On 15.01.82, Sarajunmani Dasi executed a Will in Suit No.5877/16 Page 19 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
favour of one Brajakishore Nanda and the same was scribed by me.
I do not remember anything that happened on 15.01.82 except what I have deposed with reference to the document.
I first saw Sarajumani Dasi when she executed the sale deed. I did not know her before that. Sarajumani Dasi was with Surendranath Panda and I was called to scribe the Will to become an identifying witness and also an attesting witness. Surendra Panda identified Sarajumani Dasi to me and that is how I know her. I did not make a draft of the Will but scribed it as per dictation of Surendranath Panda. Sarajumani Dasi did not put her L.T.I. in my presence on the Will at the time of execution of it. I attested her L.T.I. Before she put her L.T.I. on the sale deed and the Will. Sarajumani Dasi was not present when I scribed the sale deed and will and made the endorsement attesting her L.T.I. I do not know if any other person attested the Will and the sale deed. I scribed whatever was dictated by Sri Panda without understanding the meaning or purport. I did not disclose before the SubRegistrar or before any body that I identified Sarajumani Dasi without knowing her or attested her L.T.I. even though her L.T.I. were not affixed in my presence......
14. If he had put his signature before the testarix had put her thumb impression on the sale deed and the Will, he does not answer the requirement of attesting witness. He was not aware of any other person attesting the Will Suit No.5877/16 Page 20 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
and the sale deed. PW9, therefore, failed to prove execution or attestation of the Will. Not only he did not take any instruction from testatrix before the Will was scribed, but the same was done on the dictation of PW7. There is nothing on record to show that the testatrix understood the meaning, purport and contents of the Will. She had put her thumb impression in his presence. There is nothing on record to show that the Will was read over and explained to the testatrix and she had put her thumb impression upon understanding the contents and purport of the Will and put her thumb impression as admission thereof. A certificate to that effect was in ordinary course required to be given by the scribe of the Will, particularly when the same had been found to be given by him in the sale deed executed by her on the same day which was marked as Ext.16......
42. No independent witness has been examined to show how the testatrix came close to the respondent no.1. Why valuable agricultural land measuring Ac 4.187 and homestead land along with a house standing thereon had been gifted in favour of the first respondent, has not been explained. The original Will has not been produced. Why both the Will and the sale deed should have been executed on the same day, has not been explained.
43. The burden on the first respondent was heavy, he being a stranger to the family. He failed to discharge the said burden. Variance, inconsistencies and contradictions have been brought on record, particularly in the statement of PW4 and PW9 and other witnesses vis'vis the contents of the document, which we have noticed hereinbefore."Suit No.5877/16 Page 21 of 48
Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
(ii) Premvati Vs. Sundarajan: Appeal no. 387 of 2001 decided on 29.06.2009 by Hon'ble High Court of Judicature at Madras: "6. The legal requirement in terms of section 63 of the Indian Succession Act, 1925 and 68 of the Indian Evidence Act, 1872 is now well settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and Indian Evidence Act. The testamentary capacity of the propounder must be established. The execution of the Will by the testator has to be proved. Atleast, one attesting witness is required to be examined for the purpose of proving the execution of the Will. However, it is also required to be shown that the Will has been signed by the testator with his free Will and that at the relevant time he was in the sound disposing state of mind and understood the nature and effect of disposition. It is also required to be established that he has signed the Will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other. The deprivation of due share by the natural heirs by itself is not a factor, which would lead to the conclusion that there existed suspicious circumstances. But the background of the facts would tilt to the balance otherwise. When a Will is prepared and executed under circumstances which raise the suspicion of the Court, it lies on the propounders not merely to prove the execution of the will, in the sense that it was signed by the testator, but also to adduce evidence which removes such suspicion and to satisfy the Court that the testator knew and approved of the contents of the Will, vide Sadachi Ammal v. Rajathi Ammal, AIR 1940 Mad 315, Indu Bala Bose v. Manindra Suit No.5877/16 Page 22 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Chandra Bose, (1982) 1 SCC 20, Guro (Smt.) v. Atma Singh, (1992) 2 SCC 507, S. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Rani Purnima Devi v. Kumar Khagendra Narayan Dev, AIR 1962 SC 567, Savithri v. Karthyayani Amma, (2007) 11 SCC 621, Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369, Ramabai Padmakar Patil v. Rukminibai Vikshnu Vekhande, (2003) 8 SCC 537, P.P.K Gopalan Nambiar V.P.P.K. Balakrishnan Nambiar, AIR 1955 SC 1852, Pushpavathi v. Chandraraja Kadamba, AIR 1972 SC 2492, Rabindra Nath Mukherjee v. Panchanan Banerjee, AIR 1995 (4) SCC 459 and Daulat Ram v. Sodha, (2005) 1 SCC 40.
10. It is also available in the evidence of PW2 that the husband of the testatrix was present at the time of exedcution of the Will, but no reason, what so ever, has been given as to why he was not asked to sign as attesting witness. Further, it also came out from the evidence of Pws 1 and 2 that one Kabirdas Reddiar was also present at the time of execution of the Will. The said Kabirdas Reddiar is none other than the soninlaw of the testatrix. Being a family member, he would have been at least one among several attesting witnesses. Quite contrary to the evidence of PW1 about the availability of her husband Kabirdas Reddiar, PW3 the scribe had spoken that Kabirdas Reddiar was not present. PW2 Venkatesan, who was the sole attesting witness examined, cannot be regarded as an independent witness, as he admitted that he had been assisting PW1 in the conduct of the case and PW1 the beneficiary under the Will is the motherinlaw of PW2. PW1 in her evidence has stated that the Will was written in Cheyyur. But PW2 says that the Will was written in Devanur village. Further, it is the evidence of PW1 that no Suit No.5877/16 Page 23 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
one has come from Pachayambakkam for the execution of the Will. But contrary to that, PW3 the scribe is the resident of Pachyambakkam.
(iii) Onkar Pershad Vs. Jagdish Pershad and Ors.:AIR 1952 PH 237:
4. The next attesting witness, who according to Mr. Mltal, is a witness within Section 63 of the Succession Act is Sham Lal PW1. He is the scribe of the Will. After the Will and before the signatures he has written as follows:
"Dated 27th July, 1943, in the hand of Sham Lal deedwriter at Delhi, deed No. 337. The subject matter of the Will has been read out to the testator and has been understood by him."
Before this writing, there is the signature of Jewala Parsahd and his thumbmark and the attestations of Jagdish Prasahd and P.D. Bharge. Sham Lal PW1 does purport (sic) to be an attesting witness. The law has been summed up on the question of attestation of Wills in the following words by Sen Gupta in his Indian Succession Act at p.70:
"In order to make valid attestation, the signature of the witness must have been affixed 'animo attestandi'. In other words, they must subscribe the Will as witness and not in any other character. ***. where a Will was written and signed by the testator and subscribed by one witness and, on the next page an inventory was written to which three names were subscribed, these names were held to be not placed Suit No.5877/16 Page 24 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
'animo attestandi. ***. Attestation presupposes signature and the attesting witness must have placed his signature after he has seen the testator sign as evidence of such execution."
In the present case the scribe Sham Lal PW1 does not purport to be an attesting witness. He is nothing more than a scribe and the case seems to fall within the rule laid down by their Lordships of the Privy Council in 'Shiam Sundar Singh v. Jagannath Singh, 32 Cal WN 305, where the sons of the testator signed the Will to signify their assent but not to attest the Will. This was held merely as act of expressing consent to the bequest made therein and not as attesting witnesses of the Will as required by the Indian Succession Act. In a Patna case 'Bulaki Mahaton v. Mt. Dulia, AIR 1941 Pat 368, the signatures of a scribe who merely said that he had read over the contents of the document to the executant and did not purport to be an attestation as a witness of the Will was held not to be sufficient attestation as required by law."
28. Ld. Counsel for the defendants no. 1 & 2 argued that the Will Ex.DW1/1 has been duly proved and suit for partition is thus liable to be dismissed. Ld counsel also argued that scribe of the Will can be an attesting witness. Ld. Counsel for the defendants no. 1 & 2 relied upon the following judgments in support of his contentions:
(i) Mathew Oommen Vs. Suseela Mathew:2006 AIR (SC) 786: Suit No.5877/16 Page 25 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
"7. Learned counsel for the respondent argued that the last few words in the body of the Will appear to have been squeezed in. We are unable to accept this submission. A bare perusal of the Will is sufficient to reject this plea. The signatures of the testator on the Will are not disputed. The statements of PW1 and PW2 as attesting witnesses of the Will are quite natural and trustworthy. One of the attesting witnesses was the junior advocate working with the testator in his office. He has also scribed the Will. He has appeared as PW1 to support the execution of the Will. He states that he is an attesting witness to the Will as well as scribe of the Will. The other attesting witness has also appeared as PW2. He is a distant relation of the testator. From all this we find execution of the Will quite natural and normal. We are unable to accept the contention of the learned counsel for the respondent that a senior lawyer will not discuss about the Will with his junior. It was also suggested that nothing prevented the testator from writing the Will himself. This is no ground to reject a Will which is otherwise perfect.
8. Another circumstance mentioned by the learned counsel for the respondent for challenging the Will is that the beneficiary never applied for probate or for mutation of the property in his name soon after the death of the father. This again is no reason to dislodge the Will. The learned counsel for the respondent also argued that the Will had not been attested by two attesting witnesses as required under the law. In support of this argument it was submitted that one of the alleged attesting witness is only scribe of the Will and is not attesting witness. Regarding this objection we may note that there is no requirement in law that a scribe cannot be an attesting witness. The Suit No.5877/16 Page 26 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
person concerned has appeared in the witness box as PW1 and has clearly stated that he is a scribe of the Will as well as he is an attesting witness of the Will. For attestation what is required is an intention to attest which is clear from the statement of PW1. He categorically stated that he has signed as an attestor and scribe. In our view, the requirement of attestation of the Will by two witnesses is fully met in the present case. After the execution was complete the testator kept the Will in the drawer of his table. PW1 has also mentioned the fact that the Will was executed because the case was pending in this Court challenging Travancore Christian Succession Act, 1917. The testator who was himself a lawyer knew this fact. A perusal of the statements of PW1, PW2 and PW3 further shows that they have not been crossexamined on the points now sought to be urged before this Court. It was never suggested to the witness that the Will was scribed on a blank letter head containing signatures of the testator. It was never suggested that the Will had been fabricated."
(iii) Mahesh Kumar (Dead) by LRs Vs. Vinod Kumar and others: 2012 AIR (SCW) 2347: "18. We shall now consider whether the appellant had succeeded in discharging the onus of proving that Will dated 10.02.1992 was validly executed. For deciding this question it will be useful to notice some of the precedents in which this Court had considered the mode and manner of proving a Will. In one of the earliest judgments in H. Venkatachala Iyengar v. B.N. Thimmajamma (supra), the three Judge Bench noticed the provisions of Section 45, 47, 67 and 68 of the Indian Evidence Act, 1872 and Suit No.5877/16 Page 27 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Section 59 and 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 signature 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 signature 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 requirement of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to 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.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speak from the death of the testator, and so, when it is propounded or Suit No.5877/16 Page 28 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove that 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.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the Suit No.5877/16 Page 29 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. 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.
Apart from the suspicious circumstances to which we have referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has Suit No.5877/16 Page 30 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference of judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator, who is no longer alive." (emphasis supplied)
19. The ratio of H. Ventatachala Iyengar's case was relied upon or referred to in Rani Purnima Devi v. Kumar Khagendra Narayan Dev (supra), Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529, Surendra Pal v. Dr. (Mrs.) Saraswawti Arora (supra), Seth Beni Chand (since dead) now by Lrs. v. Kamla Kunwar (supra), Uma Devi Nambiar v. T.C. Sidhan (supra), Sridevi v. Jayaraja Shetty (supra), Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (supra) and Suit No.5877/16 Page 31 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
S.R. Srinivasa v. S. Padmavathamma (supra). In Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 the Court analysed the ratio in H.Venkatachala Iyengar's case and culled out the following propositions: "1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
Suit No.5877/16 Page 32 of 48Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. The suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasis 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 Suit No.5877/16 Page 33 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
(iv) Leela Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors.: 2015 AIR (SC) 107:
"10. A Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the Court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the Court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon Suit No.5877/16 Page 34 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
before us.
11. In the present case, a close reading of the Will indicate its clear language, and its unambiguous purport and effect. The mind of the testator is clearly discernible and the reasons for exclusion of the sons is apparent from the Will itself. Insofar as the place of execution is concerned, the inconsistency appearing in the verification filed alongwith the application for probate by PW3 and the oral evidence of the said witness tendered in Court is capable of being understood in the light of the fact that the verification is in a standard form (Form No. 55) prescribed by the Madras High Court on the Original Side as already noticed. Besides, in the facts of the present case the participation of the first respondent in the execution and registration of the Will cannot be said to be a circumstance that would warrant an adverse conclusion. The conduct of the first respondent in summoning her friend (PW3) to be an attesting witness and in taking the testator to the office of the Sub Registrar should, again, not warrant any adverse conclusion. It also cannot scape notice that the Will dated 11.1.1982 is identical with the contents of the earlier Will dated 28.12.1981. Insofar as the execution of the Will dated 28.12.1981 and its registration is concerned no active participation has been attributed to the first respondent. The change of the attesting witnesses and the nonexamination of Seetha Padmanabhan who had attested the second Will dated 11.01.1982 has been sufficiently explained."
(v) Gopal Swaroop Vs. Krishna Murari Mangal & Ors.:
2011(1) RCR (Civil) 249: Suit No.5877/16 Page 35 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
"12. From a conjoint reading of the two provisions extracted above it is evident that a Will is required to be attested by two or more witnesses each of whom has seen the Testator signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and by the direction of the Testator or has received from the Testator a personal acknowledgment of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the Testator. Section 68 of the Evidence Act is against the use of a Will in evidence unless one attesting witness has been examined to prove the execution."
(vi) Baldev Raj Vs. Man Mohan:2001 (92) DLT 274: "10. The question as regards valid attestation of the Will was not urged before the learned Single Judge. However, for our perusal the original Will was shown to us by learned Counsel for the respondent. Below the signature of the executant against the space meant for signatures of the attesting witnesses against Sr. No.1 one of the attesting witnesses has put his signatures with his description. Similarly, against serial no. 2 also there are signatures, which are of the Advocate, who has also described himself to be the scribe of the Will. It is not universal rule that a scribe cannot be treated as an attesting witness. Even in the decision of Himachal Pradesh High Court relied upon by learned Counsel for the applicant it has been held that scribe may be an attesting witness of the Will, but it must be show that the scribe put down his signature for the purposes of attesting the document. Only a prima facie view has to be taken at this stage of the proceedings. The Suit No.5877/16 Page 36 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
original Will would show that the same Advocate also appeared before the SubRegistrar at the time of registration of the Will in whose presence as per the endorsement of the Sub Registrar, the Will was read out and the executant acknowledged correctness thereof. The Will is also duly registered. As such prima facie it cannot be inferred that there is any legal infirmity therein. However, it is a matter, which will have to be examined during the course of trial of the suit."
29. Ld. Counsel for the plaintiff, in rebuttal, argued that the judgments relied upon by Ld. Counsel for the defendants are not applicable to the facts of the present case because in one of the cases the scribe was not a paid witness and the second judgment is actually an interim order, not given on the merits of the case and thus cannot be relied upon.
Findings
30. I have considered the rival contentions. Record has been carefully perused. My issue wise findings are as below: Issue no. (v): Are the defendants entitled to rely on the registered but unprobated Will dated 26th March 2003 of late Sh. Krishan Kumar Karir? OPD1 & 2
31. Onus to prove issue no.(v) was upon defendants no. 1 & 2. The Will in question is Ex.DW1/1. The law relating to execution and proof of Will is laid down in Indian Succession Act, 1925 and the Suit No.5877/16 Page 37 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Indian Evidence Act, 1872. Section 59 of the Indian Succession Act, 1925 provides for persons who are capable of making a Will. Section 63 of the Indian Succession Act, 1925 provides for the manner in which the Will has to be executed and Section 61 of the Indian Succession Act, 1925 provides that a Will obtained by fraud, coercion etc. is void. These sections read as below: "59. Person capable of making Wills. - Every person of sound mind not being a minor may dispose of his property by Will. Explanation 1. - A married woman may dispose by Will of any property which she could alienate by her own act during her life. Explanation 2. - Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3. - A person who is ordinarily insane may make a Will during interval in which he is of sound mind. Explanation 4. - No person can make a Will while he, is in such a state of mind, whether arising from the intoxication or from illness or from any other cause, that he does not know what he is doing.
63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give Suit No.5877/16 Page 38 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
61. Will obtained by fraud, coercion or importunity. - A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void."
32. It is clear on reading of aforesaid sections that the defendants were to prove that Will was executed by their late father Sh. Krishan Kumar Karir in sound, disposing mind without any force, coercion etc. and in the manner provided in Indian Succession Act, 1925. Section 68 of the Indian Evidence Act, 1872 provides for the manner in which execution of Will can be proved and reads as below:
68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting Suit No.5877/16 Page 39 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
33. A combined reading of the above quoted sections makes it clear that the person propounding the Will shall have to prove its execution by calling the attesting witness in the Court.
34. The defendants no. 1 & 2 called DW1 in the Court for proving the Will stating that he is the attesting witness. Ld. Counsel for the plaintiff contended that DW1, being scribe of the Will, cannot be an attesting witness because he was paid for scribing the Will and therefore he is not independent.
35. In order to appreciate the contention raised by Ld. Counsel for the plaintiff, I have perused the Will Ex.DW1/1. The Will clearly reflects that it has been scribed by DW1. The Will is registered and reflects that DW1 appeared before the SubRegistrar also. DW1 has signed the Will at three places. He has signed as scribe of the Will at point D2, as attesting witness at point D and before the SubRegistrar at point D1. The Will thus sufficiently reflects that it was signed by DW1 as a scribe as well as in the capacity of an attesting witness and Suit No.5877/16 Page 40 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
therefore animo attestandi on the part of DW1 is apparent.
36. Ld. Counsel for the plaintiff contended that DW1 cannot be an independent witness to the Will because he was paid his fees for scribing the Will. The Indian Succession Act, 1925 does not attach any disqualification to a person who has scribed the Will. A scribe can be an attesting witness provided he had animo attestendi. The only disqualification attached to the attesting witness is provided in Section 67 of Indian Succession Act, 1925 i.e. where some benefit is bequeathed in favour of the attesting witness by the Will. The Will Ex.DW1/1 does not bequeath any benefit upon DW1 who is a professional, being an Advocate. Merely because he was paid his fees for scribing the Will does not make him a partial witness unless some such circumstances are shown which reflect that he is a witness with motivation. PW1 in fact is a natural witness because he scribed the Will at the instance of the testator who then executed the Will in his presence. Apart from the fact that DW1 received money for scribing the Will, no other such reason are pleaded/shown/proved by the plaintiff which would raise a doubt on the veracity of DW1. Hence, in my considered opinion, DW1 is an independent attesting witness to the Will and he can prove the Will as per Section 68 of the Indian Evidence Act, 1872.
Suit No.5877/16 Page 41 of 48Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
37. The defendants no. 1 & 2 were also required to prove that Late Sh. Krishan Kumar Karir was in sound disposing mind at the time of execution of Will. DW1 deposed to this effect in his evidence affidavit Ex.DW1/1. Plaintiff suggested to him that Late Sh. Krishan Kumar Karir was not in sound disposing mind when the Will was executed. However, no such plea was raised by the plaintiff in the pleadings. The plaintiff further did not place on record any such medical document which could show that Late Sh. Krishan Kumar Karir was not in sound, disposing mind at the time of execution of the Will. She did not, while suggesting the witness about the state of mind of Sh. Krishan Kumar Karir, specify any illness to which he suffered that could have affected his cognitive faculties. The Will having been duly executed, registered and proved by the attesting witness, is valid and operative. There is no averment to the effect that any force or coercion was practiced upon Late Sh. Krishan Kumar Karir at the time of execution of the Will. The Will rather was outrightly disputed by the plaintiff saying that it was forged and fabricated without proving any forgery or fabrication. In such circumstances, there is no reason for this Court to doubt the veracity of the Will.
Suit No.5877/16 Page 42 of 48Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
38. Plaintiff averred in the plaint and also in the replication that the Will was surrounded by suspicious circumstances because her father had no reasons to deprive his two daughters from the benefit of his estate knowing fully well that one of the daughter was having a turbulent marriage and another was unmarried. The Will, however, reflects otherwise. The testator, Sh. Krishan Kumar Karir, not only bequeathed his bank deposits and shares in favour of his two daughters i.e. plaintiff and defendant no. 3, but has also clearly stated in the Will that defendants no. 1 & 2 were obligated to maintain plaintiff and defendant no. 3 till plaintiff returned to her husband and defendant no. 3 got married. This shows that Late Sh. Krishan Kumar Karir was not unmindful of the situation of plaintiff & defendant no. 3 and while bequeathing his estate in favour of defendants no. 1 & 2, he made provisions for plaintiff and defendant no. 3 also. The circumstances, alleged by the plaintiff, are thus neither suspicious nor sufficient to raise doubt on the veracity of the Will.
39. Plaintiff also alleged that she was never informed about the Will by the defendants. They only ranted about the Will when plaintiff demanded her share in the suit property but never showed the same to her and she got to know about the Will for the first time Suit No.5877/16 Page 43 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
when written statement was filed. However, during her cross examination, PW1 admitted that she had read the Will because her sister had received a copy of the same. She further admitted signature of her sister PW2 (defendant no. 3) on Ex.PW1/D1 at point B which reflects that copy of the Will was given to defendant no. 3 on 21.12.2008, as also deposed by DW4. Defendants alleged that the plaintiff was given a copy too but she did not acknowledge it in writing, which fact was denied by the plaintiff however she did not explain why she did not reveal about having been told & seen copy of the Will when it was received by her sister i.e. Defendant no. 3, in her plaint. This itself raises a doubt on the veracity of plaintiff's stand that she was unaware of the existence of the Will.
40. The Will Ex.DW1/1 is a registered document, registration having been duly proved by DW3, which supports the inference that the Will was duly executed. So far introduction of the Will is concerned, plaintiff admitted that her uncle Sh. D.D. Karir had visited her after the death of her father. Thus there was an occasion for Sh. D. D. Karir, to introduce the Will to the parties and his deposition to this effect succeeds on the touch stone of probabilities. PW4 Sh. D.D. Karir also explained sufficiently how he came in possession of the Will and he was not cross examined by the plaintiff Suit No.5877/16 Page 44 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
on this aspect.
41. It is the settled law that Will executed with respect to the property located in Delhi is not required to probated.
42. The Will Ex.DW1/1 is duly proved for the reasons aforesaid, and can be relied upon by defendants no. 1 & 2.
43. Issue no. (v) is accordingly decided in favour of defendants no.
1 & 2 and against the plaintiff & defendant no. 3.
Issue no. (i): Is the plaintiff entitled to a declaration for her 1/4th share in the estate of late father Sh. Krishan Kumar Karir and further entitled to seek a preliminary and final decree of partition on that basis? OPP Issue no. (ii): Is the plaintiff entitled to a decree of permanent injunction as prayed for? OPP Issue no. (iii): Is the plaintiff entitled to rendition of accounts as prayed for? OPP and Issue no. (iv): Is the plaintiff entitled to a mandatory injunction as prayed for? OPD Suit No.5877/16 Page 45 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
44. Onus to prove issue no. (i) to (iv) was upon the plaintiff.
Plaintiff has prayed for partition of the immovable property and movable property left behind by her father Late Sh. Krishan Kumar Karir. However, Late Sh. Krishan Kumar Karir bequeathed all his movable property except the bank deposits & shares, and the suit property, in favour of defendants no. 1 & 2.
45. Plaintiff has claimed rental towards fittings & fittings installed on the first floor of the suit property but she herself admitted in her cross examination that fittings & fixtures were not owned by her. Defendant no. 3 also admitted that she did not own the fittings & fixtures. Both PW1 and PW2 further admitted that earlier their father used to rent out fittings & fixtures in his name. Ex.D2 and Ex.D3 were placed on record to prove this fact and were admitted by PW1 and PW2. These admissions are sufficient to hold that fittings & fixtures installed at the first floor of the suit property were also owned by Late Sh. Krishan Kumar Karir and these thus devolved upon defendants no. 1 & 2 if these were part of the immovable property, or even if these could not be categorized as immovable property, but were movable properties.
46. So far business of Late Sh. Krishan Kumar Karir is concerned, Suit No.5877/16 Page 46 of 48 Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
plaintiff herself admitted that he left the business in the year 1997 itself and that he had no partnership firm. She also admitted that defendants no. 1 & 2 used to receive Government contracts in their own individual names. The defendants no. 1 & 2 placed on record various documents i.e Ex.DW1/1 to Ex.DW1/5 to show that they were earning in their individual capacity since 19861987. It is thus clearly reflected that defendants no. 1 & 2 did not succeed to the business of their father but had their own independent business and plaintiff thus cannot claim any right in the earnings received from the said business.
47. In view thereof, it is held that Late Sh. Krishan Kumar Karir did not die intestate and his property thus cannot be partitioned as per the rules of intestate succession. The estate left behind by Late Sh. Krishan Kumar Karir has devolved in terms of the Will Ex.DW1/1. It is also proved that Late Sh. Krishan Kumar Karir did not leave any business and thus plaintiff cannot claim partition of the income from business.
48. Issue no. (i) to (iv) are accordingly decided against the plaintiff & defendant no. 3 and in favour of defendants no. 1 & 2.
Suit No.5877/16 Page 47 of 48Sulekha Karir Marwaha Vs. Mukesh Karir & Ors.
Relief
49. In view of discussion above, the plaintiff is not entitled for any relief. The suit is dismissed for reasons aforesaid.
50. No order as to costs.
51. Decree sheet be prepared accordingly.
Digitally signed by
52. File be consigned to Record Room. JYOTI JYOTI KLER Date:
KLER 2019.06.11
18:30:17
+0530
Announced in the open (JYOTI KLER)
Court on 29.05.2019 ADJ05 (SOUTH DISTRICT)
(Judgment contains 48 pages) SAKET COURTS, NEW DELHI
Suit No.5877/16 Page 48 of 48