Delhi District Court
Raman Kumar vs The State Anr on 6 June, 2024
Raman Kumar Vs. The State & Anr.
IN THE COURT OF DISTRICT JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC No. 5997/2016
Filing No. 12384/2012
CNR No. DLST01-000655-2012
In the matter of
Raman Kumar
S/o Late Sh. Dharam Shil
R/o S-129, Greater Kailash-I,
New Delhi ...Petitioner
Versus
1. The State (N.C.T. Of Delhi)
2. Sh. Pawan Kumar
S/o Late Sh. Dharam Shil
R/o E-2/57, Sector-11,
Group-6, Rohini, Delhi-110085 ...Respondents
Date of Institution : 23.05.2012
Date of reserving the judgment : 10.05.2024
Date of pronouncement : 06.06.2024
Decision : Dismissed
PC No. 5997/2016
DLST010006552012
Page 1 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024
Raman Kumar Vs. The State & Anr.
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, 1925 FOR GRANT OF PROBATE ON
THE BASIS OF WILL DATED 01.10.2008 OF LATE SH.
DHARAM SHIL
JUDGMENT
1. The present petition has been filed by the petitioner under Section 276 the Indian Succession Act, for obtaining Probate in respect of a registered Will executed by late Sh. Dharam Shil S/o Shri Jai Gopal, R/o S-129 Greater Kailash-I, New Delhi- 110048 (since deceased) (hereinafter referred to as 'testator'). The case of the petitioner, as per the petition, is as under:-
1.1. That the deceased testator Sh. Dharam Shil was the permanent resident of Delhi having its dwelling unit/residence at S-129, Greater Kailash-1, New Delhi- 110048 and his demise also took place in Delhi on 12.02.2009.
1.2. That the testator was the owner of immovable property bearing No. S-129, Greater Kailash-1, New Delhi-110048 having purchased the same vide Conveyance Deed dated 28.05.1962 by DLF Housing & Construction Pvt. Ltd.
1.3. That the testator during his life time executed his last Will & Testament dated 01.10.2008 duly registered as PC No. 5997/2016 DLST010006552012 Page 2 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
Document No. 5859 in Addl. Book No. I, Vol. No. 1665, on pages 192 to 193 registered on 03.10.2008 with Sub Registrar V, New Delhi.
1.4. That by virtue of aforesaid Will, the deceased testator bequeathed the ground floor of aforesaid property No. S-129, Greater Kailash-1, New Delhi-110048 in favour of Sh. Pawan Kumar (respondent No. 2) who is his elder son and he bequeathed the rest of the said property i.e. entire first & the roof of the second floor to his younger son Sh. Raman Kumar i.e. petitioner herein, which portion alone is the subject matter of the present probate petition as the petitioner is not concerned with the ground floor owned by his brother except some conditional rights in his favour. Besides this immovable property, the testator bequeathed all his movable assets equally amongst his sons, who are the only legal heirs.
1.5. That upon demise of the testator, the entire first and roof of the second floor alongwith proportionate ownership right in the land underneath the said property have devolved upon the petitioner who is one of the beneficiary of the Will against which probate is sought. Even otherwise, the deceased had already gifted the entire second floor (when it was merely a roof/terrace floor) to PC No. 5997/2016 DLST010006552012 Page 3 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
the petitioner vide Gift Deed regd. as Document No. 557, in Addl. Book No. 1, Vol. No. 87, on pages 193 to 198 registered on 26.02.1999 with Sub Registrar, Delhi. However, as an abundant caution the said portion has also been made as subject matter of the present petition. 1.6. That the ordinary place of residence of the deceased was within the territorial jurisdiction of this Court and the property left by the deceased is also situated within the territorial jurisdiction of this Court, hence this Court has the territorial jurisdiction to try and entertain the present petition.
1.7. That the petitioner alone is the beneficiary of entire first & second floor (with roof rights) as per the last Will & Testament of the deceased and after execution of this Will dated 01.10.2008, the deceased did not execute any other Will nor he ever revoked the Will dated 01.10.2008. 1.8. That there is no legal impediment for grant of probate to the estates left by Sh. Dharam Shill as per his last Will referred above. Hence, the present petition has been filed with the following prayers:-
"a) Entire first & second floor (with roof rights) of property bearing No. S-129, Greater Kailash-I, New Delhi-110048, alongwith proportionate (half) ownership right in the land underneath the said property.PC No. 5997/2016
b) Proceeds lying in bank accounts."
2. Vide order dated 27.07.2012, the citation was directed to be published in the newspaper for general public. The citation was published in the newspaper "The Statesman" dated 31.08.2012. Both the respondents were served.
3. The petition is opposed by respondent No.2 i.e. brother of the petitioner.
Objections / Written Statement:
4. No objection / written statement has been filed by respondent.
5. Vide order dated 06.04.2013, the matter was dismissed in default. On 06.05.2013, an application was filed on behalf of applicant under Order IX Rule 4 CPC r/w Section 151 CPC for restoration of petition. Vide order dated 05.02.2014, the petition was restored to its original position.
Issues:
6. On the basis of the record, following issues were framed vide order dated 01.12.2021: -
1. Whether the testator Sh. Dharam Shil executed the Will dated 01.10.2008 in a sound disposing mind? OPP
2. Whether petitioner is entitled for grant of probate/ letters of administration in respect of Will dated 01.10.2008 executed by Late Sh. Dharam Shil? OPP PC No. 5997/2016 DLST010006552012 Page 5 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
3. Relief.
Evidence adduced:
7. The petitioner examined himself as PW-1. He tendered his evidence by way of affidavit which is Ex. PW-1/A. He has relied upon the following documents: -
i. Ex.PW1/A is the original Will left by his father Sh.
Dharam Shil. (objected to on the grounds of mode of proof and admissibility. Objections kept open) ii. Ex.PW1/B is the original death certificate of his father Sh. Dharam Shil.
iii. His mother Smt. Swaran Lata had also expired on 4.8.2008 and the original death certificate is Ex.PW1/C. iv. He also rely upon Mark A, copy of the sale deed and Mark B, copy of the electricity bill relating to electricity connection pertaining to the property, issued in the name of his father.
7.1. PW-1 Raman Kumar was duly cross examined on behalf of the Respondent No.2. On 09.05.2022, 10.05.2022 and 06.06.2022, during the cross-examination of PW-1, he stated as under:
"I am 70 years old. I got married in the year 1980. The first floor in property No. S-129, G.K.-1, was constructed in the year 1989 and I have shifted in the first floor in the year 1990 or 1991. It is correct that ground floor as well as the first floor and have two bedroom each. My elder brother might have got married second time in the year 1990. It is correct that first floor of the property was constructed by my father after his retirement. (Vol. I have financially supported him for construction of first floor). It is PC No. 5997/2016 DLST010006552012 Page 6 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
wrong to suggest that I have not contributed anything for construction of first floor. It is wrong to suggest that after marriage of my brother, my father wanted my brother to shift on the second bedroom of the first floor, however, I had not allowed the same. It is correct that my brother's wife was in government service at the time of her marriage. I am not aware if my brother's wife was posted in Jahangirpuri at North Delhi, when she was appointed. It is wrong to suggest that my brother has to shift from Greater Kailash to North Delhi because of the paucity of the accommodation. I am not aware if my father has executed a registered Will in August, 1999. In the year 2008, I came to know that my father had executed a registered Will, some time back. (Vol. He informed me that he has cancelled that Will). I have not seen that Will even till date. I am aware that Sh. Pawan Kumar has filed a probate petition in respect of the 1999 Will. I am not a party to the said probate petition. I am only contesting the case in respect of 2008 Will. The documents shown to me which is exhibited as Ex.PW1/DX, bear signature of my father at point A, B, C and D. I am not in possession of the original Will of the year 1999. I was working as Assistant General Manager with State Bank of India. I am not aware if the Will of 2008 was drafted and prepared by Sh. Bahl, Advocate.
I know Sh. Komal Jhunja. He is around 42 years old. He is son of the friend of my father. His father was working in some Government Department but I do not know exactly in which department. I am not certain but Sh. Jhunja is also a friend of my son. I cannot say if he is a close friend of my son. I do not know Sh. K.C. Bahri or Sh. Swaran Singh. I am not aware if these two people were very close friend of my father. It is wrong to suggest that my father was having very good relations with my brother Sh. Pawan Kumar and his wife. I am not aware if Sh. Pawan Kumar was visiting my father frequently or my father was visiting Sh. Pawan Kumar. I am aware that my brother met with two accidents, however I cannot say if the first accident was in the year 1995. I am not aware that in the year 1995 after my brother met with an accident, my father had taken him to Mool Chand Hospital for treatment. I am not aware that for fixing the leg of my brother after the accident, my father had taken him to Mool Chand Hospital and got him treated there. It is wrong to suggest that my brother was residing in the Greater Kailash House when he was under treatment after his accident. (Vol. After 1990 my brother and his wife left PC No. 5997/2016 DLST010006552012 Page 7 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
Greater Kailash house). I am not aware if my brother and his wife used to visit my father in Greater Kailash House. I am not at all aware that my mother used to visit my brother and his family in Rohini. I am not aware if Cataract and Glaucoma has developed in the eyes of my Bhabhi and she was brought to Greater Kailash house by my father in the year 2004 and she was treated in Greater Kailash. I am not aware if she along with my brother remained in the Greater Kailash House for about one month. I do not know if after Cataract Operation in the year 2004 my father has sent his domestic aid to Rohini to look after my brother and his wife and the domestic help remained there for about an year. It is wrong to suggest that my Bhabhi has attended an educational seminar from
08.07.2003 to 31.07.2003 in Defence Colony, and she remained in Greater Kailash house in that period. It is wrong to suggest that I along with my family were having good relations with my brother Pawan Kumar and his family. It is correct that my father was hail and hearty in the year 1999 and he had no medical history prior to that. I do not know if after 1999 my father was suffering from diabetes. I am not aware if my father had fallen down due to diabetes attack in the year 2007. I cannot recall my father remained hospitalized for high blood sugar in the year 2007. It is wrong to suggest that my father was not willing to execute any Will in the year 2008. It is further wrong to suggest that I had put undue pressure on him to execute the Will. I am not aware that the Rohini's LIG Flat was purchased by my Bhabhi."
"It is correct that I have stated yesterday that I was not having good relationship with my brother and his family. I do not know if I stood surety for the wife of my brother when she purchased a WagonR car in the year 2007, which was financed by State Bank of India. It is correct that my father used to take help of walking stick for movement. (Vol. He was an old man and sometime he used to use stick and sometime he used to walk without stick). It is wrong to suggest that my father always used to take help of walking stick even for standing from Sofa, Chair or Benches. It is correct that my father did not die a natural death. (Vol. He had committed suicide). My mother died on 04.08.2008. She suffered a heart attack, resulting into her death. It is correct that my mother was not taken to hospital after she suffered Heart Attack. (Vol. A Doctor was called at home, within five minutes of her suffering from heart attack, who declared her dead). It is wrong to suggest that my mother had fallen ill at 5:00AM and she died at about 2:00PM. I PC No. 5997/2016 DLST010006552012 Page 8 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
have no medical document of my mother as she had died suddenly. It is wrong to suggest that my father was suffering from depression. (Vol. My mother and his wife used to threatened him and trouble him which was the reason that he was sad). It is correct that I have not mentioned this fact of ill treatment by my brother, in my petition. (Vol. As it was a probate petition and it was drafted by my counsel). I do not have any document relating to health of my father. (Vol. He was suffering from diabetes and doctor had prescribed him medicines for diabetes). I cannot bring the medical prescription of my father in the Court. It is wrong to suggest that there was no relationship problem between my father and my brother's family from 1999 to 2008. (Vol. My brother and his wife used to torture my father by threatening him). It is wrong to suggest that my brother and his wife never tortured or threatened my father. It is correct that 17th August is the birthday of my elder brother Sh. Pawan Kumar. I do not know if the Will dated 17.08.1999 was executed by my father on the birthday of my brother. It is wrong to suggest that my father was having very good relationship with his elder son and his family. It is wrong to suggest that my father had executed Will dated 17.08.1999 as I have forced him to execute a gift deed in respect of roof right of the first floor. It is wrong to suggest that my father was apprehending that I may get the entire property Willed in my favour and for that reason Will dated 17.08.1999 was executed. I do not know as to who had drafted the Will, executed the same and got it typed. I have not accompanied my father to the office of Sub-Registrar. I do not know even as to who has taken him to the office of Sub-Registrar. I do not know if my son has taken my father to the office of Sub-Registrar. It is wrong to suggest that I was officially on leave in the month of October, 2008. It is wrong to suggest that I have taken my father to Chandigarh in October, 2008. I am not aware if my father had visited Chandigarh in October, 2008 with my son. It is wrong to suggest that my father was under serious depression after the death of my mother. I am not aware if my father was taking advice from some friend regarding treatment of depression. Again said it is wrong that he was taking any advice/suggestion from his friend regarding treatment of depression or anything else. It is wrong to suggest that after getting the Will of 2008, got executed my father was very upset. (Vol. I never got the Will of 2008 executed. I did not even have knowledge about the same). It is wrong to suggest that I have not informed my brother immediately after the death of PC No. 5997/2016 DLST010006552012 Page 9 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
my father and my brother was only informed at about 1:00PM. (Vol. As soon as I got knowledge about the death of my father, I immediately informed my wife, my children and my brother). It is wrong to suggest that Will in the year 2008 was got executed after taking benefit of the mental condition of my father. My father was residing in Greater Kailash property since the year 1966. My father was having friendship with some of the neighbours. I do not know if my father had ever informed any of his friends in neighbourhood about execution of Will."
"It is wrong to suggest that my mother has died due to heart attack as she and my father were under pressure from me to bequeath the property in my favour and not to give anything to my elder brother. It is wrong to suggest that because of the continuous pressure from my side, my father and my mother were in deep depression. I am not aware if the Will Ex.PWI/A was executed within two month of death of my mother. It is wrong to suggest that my father was under deep depression after the death of my mother. I do not know if my father was taking medicines for depression. There is no medical record in my possession showing that my father was under
deep depression. It is wrong to suggest that I have intentionally concealed the medical record of my father. I do not know if my father used to weep several times after death of my mother. (Vol. My father was tortured by my elder brother and after my father's death, my brother and his wife also tortured me and my family, I have also filed police complaint regarding the same). I am not able to understand as to which of my case is going on in this court. I do not remember whether I had told to my advocate or not regarding the allegation of torture made by me today in the court. It is wrong to suggest that me and my family have tortured my father to the extent that he has committed suicide in the house. (Vol. Respondent no. 2 had tortured my father and his has committed suicide). I do not remember if I have mentioned this fact of torture by respondent no. 2 in my petition or briefed my lawyer regarding that. It is correct that my father was aged above 80 years, when he died. It is wrong to suggest that my brother and his wife did not visit Greater Kailash House since year 2007 upto the death of my mother. My brother and his wife used to visit my father after I used to go to office. It is wrong to suggest that my brother and his wife never visited my parents in absence.
It is correct that my bhabhi was in government employment but I do not know if she was a teacher in a government school. It is PC No. 5997/2016 DLST010006552012 Page 10 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
wrong to suggest that she could only visit my parents on holidays just to know their well being. It is wrong to suggest that my brother and his wife never tortured my parents. My bhabhi remained in Greater Kailash's house for one year after her marriage and after that they left the Greater Kailash's house. I do not know if my nephew (son of my brother) was also born in the Greater Kailash's house in May 1991. It is wrong to suggest that my brother and his family were forced to leave the said house by continuous misbehavior by me and my family. It is wrong to suggest that my parents never wanted that my brother and his family should go from his house. It is wrong to suggest that my father and my mother even used to visit my brother and his family in Rohini after respondent no.2 shifted from Greater Kailash's house. It is wrong to suggest that I had forced my father to get a gift deed dated Feb, 1999 of a terrace of first floor of the property at Greater Kailash, in my favor. (Vol. He had executed the gift deed voluntarily with his free will). It is wrong to suggest that after I had got the said gift deed forcibly, my father immediately on 17.08.1999 executed a registered Will Ex.PW1/D2 in respect of the property at Greater Kailash in favour of both the brothers I.e. me and my brother in equal share. My father was hail and hearty at the time of execution of the said Will Ex.PW1/D2. (Vol. However, I am not aware of execution of the said Will, but my father was healthy and of sound mind on 17.08.1999). I had come to know about the Will of 17.08.1999 after the year 2008.
It is correct that I was having a transferable government job. It is wrong to suggest that during my job, I was most of time posted out of Delhi. During my job of 39 years, I was only 7 years posted out of Delhi. During the years 1982-1986, I was posted some time in Agra and some times in Delhi.
I do not know whether the Will Ex.PW1/A was drafted by Lalit Behl Advocate or by some other person. I do not know whether my father had a bank account in Standard Chartered Bank, GK Branch and that the said account was closed one week prior to the suicide committed by my father.
It is correct that my brother had filed a petition for obtaining a letter of administration in the court prior to my filing of the present petition. It is wrong to suggest that I had filed the present petition as counter blast to the said petition. It is wrong to suggest that Will Ex.PWI/A was obtained under undue influence and duress. It is wrong to suggest that during the last stage of my father he was so PC No. 5997/2016 DLST010006552012 Page 11 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
weak that he was not even able to stand on his feet any time without taking help of stick. It is correct that the ceiling from the floor of the ground floor of the property at GK is I have heard Ld. Counsel for the parties. I have also gone through material available on record. About 12 feet.
I do not remember whether my son Gagan had got a cheque of Rs. 45,000/- encashed from the account of my father in Bank of Baroda on 17.02.2009, I.e. after death of my father. I am not in possession of any cheque book or pass book of the account of my father in Bank of Baroda. It is correct that after death of my father, I am in exclusive possession of the entire property at GK as above- mentioned.
I know Gaurav, who is son of my elder brother from his first wife who was divorced later on.
(At this stage, Ld. Counsel for respondent wants to show a document to the witness from his file which is not a part of the judicial record. The document is Ex.PW1/DX-1). It is correct that Mr. Gaurav had filed a suit against me and my brother and Ex.PW1/DX-1 is the photocopy of the summons and the plaint of the said suit.
I do not know if the Civil Court has passed an ad interim order restraining me and my brother from selling, transferring and alienating property No. S-129, G.K.-I, New Delhi. It is wrong to suggest that I deliberately and intentionally did not file my WS in the said suit.
(At this stage Ld. Counsel for the respondent No.2 wants to show copy of a document to the witness from his personal file which is not part of the record. The copy of the document is exhibited as Ex.PW1/DX-2).
I do not remember whether I had filed the said application and affidavit Ex.PW1/DX2 in Civil Suit No. 855/2009 titled Gaurav Vs. Pawan Kumar and Anr. I also do not remember whether the application and the affidavit Ex.PW1/DX-2 bears my signatures at point A, B & C. It is wrong to suggest that the above mentioned suit was filed by Gaurav at my instigation and I was in collusion with him. I do not know whether Gaurav was residing in US when the said suit was filed on 29.05.2009.
It is wrong to suggest that at my instance the counsel of Gaurav stopped appearing in the said suit and therefore the suit was dismissed in default on 19.11.2014. I do not remember whether the PC No. 5997/2016 DLST010006552012 Page 12 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
said suit was pending when I had filed the present petition. 1 do not know whether Sh. K.C. Bahri and Sardar Swarn Singh were very close friends of my father. It is wrong to suggest that both of them used to visit our house during lifetime of my father. I do not know whether both of them were colleagues of my father in State Bank of India. It is wrong to suggest that I have got the Will Ex.PW1/A executed from my father by misusing his physical condition as well as mental condition, as he was totally dependent on me due to his old age. It is correct that my father was financial independent till his death and he was getting a handsome amount as pension. It is wrong to suggest that various transactions were made in the bank accounts of my father whereby amounts were transferred in my account or in the accounts of my children. I have not offered possession of ground floor to my brother after death of my father. It is wrong to suggest that I have rented out the first and second floor of the said property on handsome amount. It is correct that I am in possession of ground floor (vol. I am in possession of the entire property and no portion of it has been rented out). It is wrong to suggest that I am deposing falsely."
7.2. The petitioner has also examined Sh. Komal Jhunja as PW-2. On 02.09.2022, during his cross-examination PW-2 stated as under:
"I have been residing in Chandigarh since October 2010. I am working with ICICI Bank as a Area Operational Manager since 2021. Before that I was working in IndusInd Bank in Chandigarh itself. It is correct that I am not residing at Delhi. Vol. I am having my parental house in Delhi. Late Sh. Dharam Shil was a friend of my father and that is how he was known to me. My father was working in Railway Board. My father died in 2019, at that time he was approximately 80 years old. I do not know if there were age gap of about 10-15 years between my father and that of Late Sh. Dharam Shil. It is wrong to suggest that my father was not the friend of Late Sh. Dharam Shil but I am friend of Gagan Shil. I know Sh. Gagan Shil who is son of the petitioner. He must be of the same age as myself. I know him since last about 15-20 years. I and Gagan Shil were studying in the same University but in different section. It is correct that Sh. Gagan Shil is my friend since PC No. 5997/2016 DLST010006552012 Page 13 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
last about 15 years. It is wrong to suggest that my father was not a friend to Mr. Dharam Shil. Vol. I am friend of Gagan Shil because of the reason that my father and grand father of Gagan Shil were friend. It is wrong to suggest that my father and grand father of Sh. Gagan Shil were not friend and I have come to depose at the instance of Sh. Gagan Shil. I have being called by Ld. Counsel for petitioner for making the statement before this Court today and not by Sh. Gagan Shil.
I do not know about the designation of Late Sh. Dharam Shil when he was working with State Bank of India. I am not even aware as to when Mr. Dharam Shil has retired from above-said bank. I can not even say in which year he has retired from the abovesaid bank. I was 7 year old in the year 1988. I do not know if Late Sh. Dharam Shil has retired in the year 1988. Late Sh. Dharam Shil was lastly posted with SBI, Chandni Chowk Branch but I do not know in which year he was posted at the said branch. I have been visiting the house of the petitioner when I was approximately about 16 year of age. I used to visit the house of the petitioner alongwith my father. It is wrong to suggest that I used to visit the house of the petitioner alongwith my father. It is further wrong to suggest that I used to visit the house of petitioner because of my friendship with Sh. Gagan Shil. I am an attesting witness to Will dated 01.10.2008. I do not know as to where the said Will was typed. I am not even aware that who has made the Will or typed it. I am also not aware that who got it typed.
I have signed the Will dated 01.10.2008 in Saket Court, New Delhi. My father had directed me to sign the Will dated 01.10.2008 and no other person asked me to sign the Will as attesting witness. I have came alone myself to sign the Will as witness. No other person has accompanied me for signing the Will. I have left my house on 01.10.2008 in the first half of the day. My father only asked me to reach at Saket Court on 01.10.2008. I met Late Sh. Dharam Shil in Saket Court itself. There was no other person except myself, Late Sh. Dharam Shil and Sh. Lalit Behl Advocate. I had reached Saket Court on 01.10.2008, however, I do not remember whether it used to be called as Saket Court or not at that time.
I have no idea about the age of Late Sh. Dharam Shil on 01.10.2008. I am aware that the wife of Late Sh. Dharam Shil had died approximately 2 or 2½ months prior to 01.10.2008. Q: Do you know how the wife of Late Sh. Dharam Shil had died?PC No. 5997/2016
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A: She died of heart attack.
Q: Are you aware that Sh. Dharam Shil was more than 81 year old and was suffering from various ailments including hypertension and depression?
A: No. I am not aware of.
Q: Is it correct that he was quite feeble in the year 2008? A: No. He was healthy.
It is wrong to suggest that Sh. Dharam Shil was not healthy in the year 2008.
Q: On 01.10.2008, when you met Sh. Dharam Shil, who accompanied him to Saket Court?
Ans. He came alone himself.
It is wrong to suggest that he was accompanied by Sh. Gagan Shil, who is my friend.
Q: When you signed the Will dated 01.10.2008, have you read the Will?
A: No, I have not.
Q: Have you asked any reason for execution of the Will? A: No, I have not.
Q: How much time you remained in Saket Court? A: It was approximately an hour.
Q: Do you know Mr. Behl Advocate before 2008? A: No. I have never met him before.
Q: When you reached there, was Mr. Behl already there? A: He had reached approximately 10 minute after I reached there. Q: Who introduced you to Mr. Behl, Advocate? A: I was introduced by Late Sh. Dharam Shil to Mr. Behl, Advocate.
Q: Do you know the name of father of the late Sh. Dharam Shil? A: No. I do not know.
Q: You have mentioned the name of his father in your affidavit Ex.PW2/A who got it typed?
A: I do not know. It might have been disclosed by the Advocate. Q: Where Ex.PW2/A was drafted and signed?
A: It was drafted and signed in Saket Court itself. Q: Who drafted the same?
A: Affidavit was drafted by Ld. Counsel for petitioner. Q: Where have you signed your affidavit?
A: Saket Court complex. Vol. I have only signed affidavit not put my signature at any other place.
Q: Is it correct that Late Sh. Dharam Shil had not asked you to PC No. 5997/2016 DLST010006552012 Page 15 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
become a witness to his Will?
A: It is correct. Vol. He has asked my father to tell me to become a witness.
Q: In the year 2008, your father was physically and mentally fit or not?
A: My father was physically and mentally fit in the year 2008. Q: When your father is physically and mentally fit while he has not himself become an attesting witness?
A: He might have not been having time to become a witness. Q: Was there any interaction between you and late Sh. Dharam Shil on 01.10.2008 before becoming a witness, if so what it was? A: I do not remember if there was any interaction between me and late Sh. Dharam Shil on 01.10.2008 as it was long time ago. Q: What were you doing in the year 2008?
A: I was working with ICICI Bank in the year 2008. Q: Is it correct that Gagan Shil was working with ICICI bank in the year 2008?
A: I do not remember.
It is wrong to suggest that I am not replying the question intentionally.
Q: Is it correct that prior to signing the Will, there has never been any talks about the Will between you and late Sh. Dharam Shil? A: It is correct that there have been no talks about the Will between me and late Sh. Dharam Shil. Vol. It was between my father and late Sh. Dharam Shil.
Q: Do you know about the facts of the present case? A: Yes, I know about the case filed but do not know about the facts of the present case.
Q: You said that you know about the case, can you tell what is the case?
A: I do not know about the details of the case. Q: Do you know, what the Will is about?
A: No, I do not know.
Q: Do you know that late Sh. Dharam Shil was having various friend in the locality of Greater Kailash itself? A: No. I do not know. My father must be knowing. Q: Was late Sh. Dharam Shil aware about the execution of the Will when you put your signature on the Will?
A: Yes. He was aware about the Will.
It is wrong to suggest that Sh. Dharam Shil was not in a position to understand the contents of the Will when he put his signature on PC No. 5997/2016 DLST010006552012 Page 16 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
the Will.
Q: Who brought Sh. Dharam Shil to Saket Court? A: Sh. Dharam Shil came himself.
Q: Are you aware that Sh. Dharam Shil was under complete influence of Mr. Raman Kumar and the Will has been executed under that influence?
A: No. Q: Do you know how many children of late Sh. Dharam Shil has have?
A: I know only about two children of late Sh. Dharam Shil I.e. Raman Kumar and Sh. Pawan.
Q: Is it correct that Sh. Raman Kumar has been residing with late Sh. Dharam Shil?
A: It is correct.
Q: Is it correct that in your presence, nothing was discussed about the Will?
A: It is correct.
Q: Do you know about the relation between Sh. Dharam Shil and Sh. Pawan Kumar?
A: No, I do not know.
Q: Do you know that Sh. Dharam Shil had very cordial relation with Sh. Pawan Kumar and his family?
A: No, I do not know.
Q: Do you know that after the death of his wife late Sh. Dharam Shil was under depression and dementia ?
A: No. I do not know.
Q: Do you know how and when Sh. Dharam Shil had died?A: Yes I know, he has committed suicide but I do not know the date, month and year of his death.
Q: Have you been at the house of Sh. Dharam Shil after he committed suicide?
A: Yes, I and my father had visited there.
Q: Is it correct before his death, late Sh. Dharam Shil was taken Dehradhun?
A: No, I am not aware.
It is wrong to suggest that I have signed the Will at the instance of Sh. Raman Kumar and my friend Sh. Gagan Shil. It is wrong to suggest that I was fully aware Late Sh. Dharam Shil was not mentally and physically fit to execute the Will as on 01.10.2008. It is wrong to suggest that I was fully aware that late Sh. Dharam Shil was under medical treatment for depression and dementia in PC No. 5997/2016 DLST010006552012 Page 17 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
addition to age related ailments and to conceal that fact that I became the witness to the Will. It is further wrong to suggest that Sh. Raman Kumar was having all medical documents of late Sh. Dharam Shil and I was apprised by him about his medical condition. It is wrong to suggest that the Will was a result of undue influence. It is wrong to suggest that I have not mentioned about unfit mental and physical condition of late Sh. Dharam Shil and that is the reason, I have not mentioned these facts in my affidavit I.e. Ex.PW2/A. It is wrong to suggest that I am deposing falsely."
7.3. The petitioner has also examined Sh. Lalit Bahl as PW-3. On 19.10.2022, during his cross-examination PW-3 stated as under:
"1. Que: Do you know the petitioner personally and since when? Ans: I do not know the petitioner personally.
2. Que: Since when you know the petitioner? Ans: I know the petitioner after the death of his father, Sh. Dharam Shil (since deceased).
3. It is wrong to suggest that I have been panel lawyer For State Bank of India.
4. Que: How do you Late Sh. Dharam Shil and since when? Ans: Mr. Dharam Shil was friend of my father. They used to go together on Morning Walk.
5. Que: What was the occupation of your father? Ans: He was working with United Nations.
6. Que: Are you aware that Late Sh. Dharam Shil had executed a registered Will dated 17.08.1999? Ans: I am not aware about the said Will.
7. Que: Who has drafted the Will in question? Ans: The Will was drafted by me under instructions from Dharam Shil, who had drafted the Will himself with his own hand and asked me to put it down in legal terms.
8. Que: Is it correct that this fact of drafting of Will by Late Sh. Dharam Shil is not mentioned anywhere, in the Will or the Petition?
Ans: I think so, that it is not there, either in petition or in the Will.
9. Que: On which date the said Will was drafted and at what place?PC No. 5997/2016
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Ans: Kindly clarify the question as to who drafted the Will.
10. Que: On which date the Will on record at the present case was drafted and at what place?
Ans: The Will in question was drafted by me on the instructions of Dharam Shil and he brought a written draft of the said Will regarding all the details which has been written in the Will, which I finally drafted after consultation with Sh. Dharam Shil. (Vol. Further I asked him not to include the notes regarding his son's behaviour towards him and his daughter in laws as it would bring differences between the brothers but he insisted that I should bring all these facts in details as stated by him in his written draft of the Will, so I drafted the Will as per his instructions roughly around end of September, 2008 and finally the final draft was written on 01.10.2008.
11. It is wrong to suggest that Sh. Dharam Shil had not given any hand written draft of the Will to me and that the reason the fact stated by me now has neither been mentioned in my affidavit nor in the petition itself. It is wrong to suggest that Sh. Dharam Shil had not instructed me to draft a Will as stated by me.
12. Que: Is it correct that you have filed present petition on behalf of the petitioner as his counsel, and prosecuted the same from 2012 upto 2019, when you filed your affidavit as Witness of the petitioner?
Ans: It is not correct, I have filed the present petition personally as this was filed by our firm Bahl & Company Advocates, of which my brother Ajay Bahl is one of the partner, along with me, who had taken up the matter.
13. Que: Is it correct that the petition bears only signature of yourself and not that of your brother, nor of any of the lawyers from the firm Bahl & Company Advocates?
Ans: It is incorrect.
14. Que: Is it correct that Late Sh. Dharam Shil was under
serious depression and he was under treatment? Ans: It is incorrect.
15. Que: Is it correct that Sh. Dharam Shil had committed suicide?
Ans: I have no knowledge.
16. Que: Is it correct that you have been to the house of the petitioner on the date of the death of Late Dharam Shil or even thereafter?
Ans: Once I went to their house after the death of Sh. Dharam Shil PC No. 5997/2016 DLST010006552012 Page 19 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
when Sh. Raman Shil called me to show the Will to Pawan Shil. When I went there Pawan Shil and his wife along with Raman Shil and his wife were sitting in the drawing room on the ground floor where I read out the Will to them. After reading the Will wife of Sh. Pawan Shil started abusing me and shouting at me and after intervention by Raman Shil and his wife, I left the place, as they were very furious to hear the Will. This is the only time I had gone to their residence.
17. It is wrong to suggest that no such incident had taken place, as stated by me.
18. Que: Is it correct that the fact stated by you now had not been incorporated in the petition or in your affidavit? Ans: It is correct and as it was not required. I did not want to give any personal remarks in my affidavit.
19. Que: Do you know that the wife of Late Dharam Shil had died on 04.08.2008 by heart attack?
Ans: I know that Sh. Dharam Shil's wife was no more when the Will was drafted. I do not know the exact date which has been written above.
20. Que: Is it correct that Sh. Dharam Shil was more than 80 years old in the year 2008 and he was neither mentally nor physically fit?
Ans: It is correct that he was more than 80 years as per his own statement given to me while drafting the Will Only a sane person will draft such a detailed Will. I did not find him insane or mentally or physically unfit.
21. It is wrong to suggest that Late Sh. Dharam Shil was neither mentally nor physically fit in the year 2008. It is wrong to suggest that after the death of his wife his depression had increased many folds and because of the Will, prepared under the instruction of Raman Kumar, he committed suicide.
22. Que: Is it correct that in the year 2008 Sh. Dharam Shil was not even in a position to walk without stick and with help of some person?
Ans: It is wrong to suggest.
23. Que: I put to you that Mr. Dharam Shil used to walk with a stick all the time in the year 2008?
Ans: I do not remember.
24. Que: Have you ever seen medical history of Sh. Dharam Shil prior to or at the time of drafting of the Will? Ans: No it is not required to see medical history of a person, at the PC No. 5997/2016 DLST010006552012 Page 20 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
time of drafting a Will.
25. Que: Who brought Late Dharam Shil to your office for drafting the Will?
Ans: I do not remember, who brought him to my office. (Vol. He had come with the notes to be drafted in the Will).
26. Que: I put it to you that Sh. Raman Kumar had brought Late Dharam Shil to your place and instructed you to draft the Will. Ans: It is wrong to suggest. I met Raman Kumar only when he called me to his residence to read out the Will.
27. It is wrong to suggest that I knew Sh. Raman Kumar personally since many years before the drafting of the Will in question.
28. Que: Who other person was present when the Will was drafted by you?
Ans: No one, as Will is a personal matter, so we do not allow any person to be present.
29. Que: Who had accompanied Dharam Shil and brought him, when the Will was registered at the office of Sub Registrar? Ans: I do not remember who accompanied Mr. Dharam Shil who brought him to the Sub Registrar office but one Mr. Komal Juneja was the other witness along with me when we got the Will registered with Sub Registrar-V.
30. Que: Have you been acquainted to Sh. Komal Juneja before that date when he came to the office of Sub- Registrar? Ans: No.
31. Que: Is it correct that Late Dharam Shil was accompanied by Raman Kumar and his son Gagan Shil at the office of Sub- Registrar?
Ans: No, I met Raman Shil the very first time at his residence when he called me after his father's death. I have never met his son ever.
32. Que: Have you ever met Mr. Dharam Shil after 01.10.2008 and if yes, how many times?
Ans: Yes I met him on 03.10.2008 for registration of the Will and once thereafter for handing over the registered Will.
33. Que: Did you go to his place or he came to visit you at your place?
Ans: I met him near his house. He did not want me to come to his house to deliver the Will.
34. Que: What was the reason for him not to welcome you at his house?
Ans: He wanted to bring the Will to his house but when I called PC No. 5997/2016 DLST010006552012 Page 21 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
him to deliver, he said that he was going out, so I met him outside near the gates of the colony.
35. It is wrong to suggest that he was not going anywhere and he met you outside the gate of the colony only.
36. Que: Is it correct that you have drafted and filed the objections in the probate petition filed by Sh. Pawan Kumar, on behalf of Raman Kumar?
Ans: It was drafted in my office by me associate partner Ajay Bahl, Advocate under our name Bahl and Company Advocates.
37. Que: Do you know that Pawan Kumar and his family was residing separately since the year 1992?
Ans: Yes this fact was told to me by Sh. Dharam Shil when the Will was being drafted but I do not remember the year.
38. Que: Do you know that when Pawan Kumar met with an accident, he was brought to Greater Kailash by Late Dharam Shil and he was got treated by Late Dharam Shil in Mool Chand Hospital?
Ans: I do not know.
39. Que: Do you know that Sh. Pawan Kumar and his wife remained in Greater Kailash house for more than two weeks when wife of Late Dharam Shil expired in August, 2008? (question disallowed as the witness is a witness of the Will and he had drafted the Will and he has no relation regarding the personal family relations of the testator with his family).
40.Que: Is it correct that after the death of Late Dharam Shil one Sh. Gaurav Shil had filed a suit for injunction and declaration and you have represented Sh. Raman Kumar (petitioner herein), as his lawyer in the said case.
Ans: I do not remember.
41. Que: I put it to you that in that case no reference of the present Will was given by Sh. Raman Kumar in his pleadings even though the property in question was subject matter of that suit? (at this stage Ex.PW1/DX1, the copy of a plaint and Ex.PW1/DX2, copy of an application are also shown to the witness). Ans: I do not remember as such pleadings are not shown to me today.
42. Que: I put it to you that document Ex.PW1/DX2 was drafted and signed by you as counsel for the applicant Raman Kumar. What you have to say?
Ans: It is correct.
43. Que: Is it correct that in the application Ex. PW1/DX2 no PC No. 5997/2016 DLST010006552012 Page 22 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
reference of Will Ex.PW1/A has been given? Ans: It is a matter of record.
44. It is wrong to suggest that the Will in question was not drafted by me as per the instruction of Mr. Dharam Shil rather it was drafted as per the instructions of Raman Kumar and it was got registered by me in collusion with Raman Kumar. It is wrong to suggest that Will in question is not a genuine Will of Dharam Shil and it is a forged and fabricated document shown to be his Will. It is wrong to suggest that Dharam Shil (since deceased) was not mentally or physically fit to give instructions to draft his Will on 01.10.2008 and on the date of its registration on 03.10.2008. It is wrong to suggest that Dharam Shil (since deceased) had committed suicide when he came to know that a fraud had been committed upon him by getting his signature on the Will. It is wrong to suggest that I have deposed falsely."
7.4. Therafter, the PE was closed and matter was listed for RE.
7.5. On behalf of the respondent No.2 Pawan Kumar, he was examined as RW1 who tendered his evidence by way of affidavit Ex. RW1/A. He had relied upon the photocopy of Will dated 17.08.1999 already exhibited as Ex.PW1/DX.
7.6. RW1 Pawan Kumar was cross examined by Ld. Counsel for the petitioner. On 09.02.2023 and 29.03.2023 during the cross examination, RW1 deposed as under :-
"My affidavit Ex. RW1/A was got prepared in Tis Hazari Court by my counsel under my instructions. I have the knowledge of the contents of my affidavit. At present, I do not work. Last I was employed at my mother in law's business. I got married in the year 1990. At the time of my marriage, I was residing at S-129, Greater Kailash Part 1, New Delhi - 110048 on the ground Floor. I stayed in the said residence till 1992.PC No. 5997/2016
DLST010006552012 Page 23 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
I used to stay with my father on the ground floor at the above mentioned residence. After the year 1992, me and my wife shifted to a rented accommodation in Shalimar Bagh, Delhi for 1 year. Thereafter since 1993, we stay at present residence in Rohini. The Rohini residence is owned by me and my wife. The Rohini residence was bought by us in the year 1993. I used to work in my brother in law's business from 1990 till 1995. I do not remember, but after that I started working with some property dealer for 2 years. I am not doing any work after the year 1997. My wife was in government employment who has retired in the year 2016.
We had purchased the present house at Rohini for a sum of Rs. 2,50,000/- and finance for the same was raised by taking loan from my mother in law and sale of the jewellery of my wife. We shifted to Shalimar Bagh because my wife was employed at Jahangirpuri which was easily accessible from Shalimar Bagh. After employment she had to get up at 05:00 am for reaching her school as Greater Kailash was away from Jahangirpuri, Delhi. My wife worked at Jahangirpuri for 8 years. The distance from Shalimar Bagh to the school of my wife in Jahangirpuri is about 1 to 1.5 km. The distance from our Rohini residence to her school is about 5 km. My brother Raman Kumar has been residing at House No. S-129, Greater Kailash Part 1, Delhi since beginning. Me and my brother (Raman Kumar) had been having cordial relations between us. At present, we have not having cordial relations. My relations with my brother Raman Kumar has not been good after I got married in 1990.
My marriage which took place in the year 1990 is a successful marriage. This is my second marriage, my first marriage took place in the year 1976.
My first marriage was dissolved by a decree of divorce in the year 1988. I used to visit my parents after 10 to 12 days after I shifted from Greater Kailash house. We also used to stay with our parents whenever we visited them. My mother was suffering from blood pressure, sugar and knee problems after my second marriage. My mother had died on 04.08.2008. At the time of the death of my mother, I was at Rohini residence. I was informed by Sh. Raman Kumar in the evening at 04:00 pm that my mother had expired. (At this stage, the witness is shown affidavit Ex. RW1/A para no.
10). It is correct that I have mentioned in para no. 10 of my affidavit that my mother was hail and hearty but suddenly stated to PC No. 5997/2016 DLST010006552012 Page 24 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
have died on 04.08.2008.
It is wrong to suggest that my father used to financially support me during his lifetime. I met with an accident in the year 1995 and again in the year 2004. When I met with an accident in the year 1995, my brother Raman Kumar had not given any support to me and even he did not visit the hospital. Same is my answer in respect of the accident in the year 2004. My father and my wife had supported me during the time when I met with both the accidents. (Vol. On 13.12.2004, I slipped in the Greater Kailash house and was got admitted in MoolChand Hospital at 07:00 pm on same day. I was staying at Greater Kailash house since last 2 days prior to 13.12.2004 with my parents.
My father was suffering from knee problems and he was not in a position to stand up himself without the help of a stick. My father used to forget the things and he used to remain tense."
"As per government rules, an employee cannot be transferred within 2 years of his employment and for this reason we had not applied for transfer of my wife from Jahangirpuri to Greater Kailash, New Delhi. My wife has joined her services in the year 1990. We had shifted from Greater Kailash to Shalimar Bagh in the year 1992. It is correct to say that my wife never applied for transfer from Jahangirpuri to Greater Kailash, however, she was transferred by the Department to Government Senior Secondary School, Sector - 16, Rohini. I do not remember the year of the transfer.
I do not know about the rule of the transfer of the government employee. My father had died on 12.02.2009. I had attended the funeral ceremony of my father. I had not accompanied the persons who went to Haridwar for emersing his ashes. Mr. Raman Kumar has told me that I need not to accompany them to Haridwar. I did say that I want to go to Haridwar for emersing his ashes but Raman Kumar has stated that why should I accompany him. I did not go to Haridwar because my father used to live with Raman Kumar. I agreed not to go to Haridwar as Raman Kumar had denied. I do not remember as to where I went after my brother left for Haridwar on the day for emersing my father's ashes. I do not remember as to who has accompanied the Raman Kumar to Haridwar. My son also did not go to Haridwar for emersing of the ashes. My son was in the school on that days so I did not ask him to accompany Raman Kumar.
My son's name is Anuj Arora. My son was approximately 17 - 18 PC No. 5997/2016 DLST010006552012 Page 25 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
years old and he was appearing for his board examination of class 10th. It is correct that neither I nor my son went to the Haridwar. My son lives with me till date.
I have another son from my first wife whose name is Gaurav Shil. I do not remember the age of Gaurav Shil at the time of death of my father but he was staying in USA. I do not remember as to when he left for USA. I do not have any contact with Gaurav Shil. (Vol. Raman Kumar is in contact with Gaurav Shil). Gaurav Shil is married but I do not remember as to when he was married. (Vol. Raman Kumar must be knowing as he attended the marriage of Gaurav Shil). I have not attended the marriage of Gaurav Shil. I have no relations with Gaurav Shil.
At this stage, witness is shown his evidence affidavit Ex. RW1/A at para no. 14. The witness states that the contents of para 14 of evidence affidavit are correct as per his knowledge. I do not remember the year but I have no relation with Sh. Gaurav Shil after matrimonial litigation between me and my first wife started. I do not have any knowledge whether Gaurav Shil had fallen ill in the year 1988. I came to know about the Will of year 2008 only in the Court when I was served with a summon of the petition with respect to Will of year 2008. We remained in Greater Kailash for about 10 - 12 days after the demise of my father. I do not know if any person named Sh. Lalit Behl had visited our house in Greater Kailash within those 10 - 12 days. I do not know whether Mr. Lalit Behl read the Will of my father dated 01.10.2008, I have never been read over any such Will. As no Will was read over in presence of my wife and myself, there is no question of abusing the family members by me and my wife. It is wrong to suggest that any altercation had taken place in Greater Kailash on 15.03.2009. It is totally wrong to suggest that on 15.03.2009 me and my wife went to Greater Kailash House for taking forcefully possession of ground floor and during the argument with my brother, any neighbour and police from the local police station had come at the spot.
After the death of my mother, my father informed me that Raman Kumar had forced him to write a new Will and his physical and mental health was not good as stated by me in my evidence affidavit Ex. RW1/A. I have no document to show that petitioner Raman Kumar had forced my father to write a new Will as stated in my affidavit. I do not remember the date, month or year when I filed the probate petition in respect of Will dated 17.08.1999. I do PC No. 5997/2016 DLST010006552012 Page 26 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
not remember whether MR. Raman Kumar was made a party by me in the petition filed by me as above mentioned and therefore, I cannot say that I had not made him party deliberately in the said petition.
I had met with my father and talked to him in person before 2 - 3 days of his committing suicide. I had not talked to my father in person or on phone after that visit.
It is wrong to suggest that I am deposing falsely."`
8. The respondent No.2 did not examine any other witness. Accordingly, RE was closed. Thereafter, the matter was fixed for final arguments.
Arguments and findings:
9. I have heard Ld. Counsels for the parties. I have also gone through material available on record.
10. Time now to deal with the issues.
Issue no. 1. Whether the testator Sh. Dharam Shil executed the Will dated 01.10.2008 in a sound disposing mind? OPP
11. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person PC No. 5997/2016 DLST010006552012 Page 27 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
to make a Will. It reads as under:
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will. "Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life. "Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
"Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind. "Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
12. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason (such as intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its PC No. 5997/2016 DLST010006552012 Page 28 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
purport or import.
13. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. "(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
14. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed PC No. 5997/2016 DLST010006552012 Page 29 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, PC No. 5997/2016 DLST010006552012 Page 30 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
15. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease 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 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence."3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
"This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which PC No. 5997/2016 DLST010006552012 Page 31 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
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 surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. "5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. "6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
16. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the PC No. 5997/2016 DLST010006552012 Page 32 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC)
567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
17. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has PC No. 5997/2016 DLST010006552012 Page 33 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v.
Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
"(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator.
Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents PC No. 5997/2016 DLST010006552012 Page 34 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
18. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"68. Proof of execution of document required by law to be attested.
--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
19. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as PC No. 5997/2016 DLST010006552012 Page 35 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
CHeeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
20. The petitioner's narrative is that the testator Dharam Shil executed his last Will and testament dated 01.10.2008 and got it registered with Sub-Registrar-V, New Delhi on 03.10.2008. The testator expired on 12.02.2009 leaving behind two class-I legal heirs i.e. petitioner and respondent no. 2. Wife of the testator had already expired during the lifetime of the testator.
21. The present petition was dismissed in default on 06.04.2013. However, application of the petitioner under Order IX Rule 4 CPC r/w Section 151 CPC was allowed on 05.02.2014 and the petition was restored to its original position.
22. Issues were framed by the court on 01.12.2021. No reply/ objection was ever filed by contesting respondent no. 2 in the present case despite opportunity.
PC No. 5997/201623. It is the duty of the propounder of the Will to prove the Will in question in accordance with law. In the present case, the petitioner examined total three witnesses. He examined himself as PW1. He has also examined PW-2 and PW-3 being attesting witnesses of the Will.
On identification of signatures of testator and attesting witnesses on the Will:-
24. PW-2 tendered his evidence by way of affidavit Ex. PW- 2/A. Except the statement in para 2 of the affidavit that the testator had executed a Will dated 01.10.2008 in his presence and the same was got registered in the office of Sub-Registrar- V, New Delhi and he had signed the same as witness in the above said Will, nothing further regarding attestation was stated by PW-2 during his examination-in-chief or in the affidavit. During his cross-examination dated 02.09.2022, he answered that testator was friend of his father. He answered that he knew petitioner's son namely Gagan Shil as both of them were studying in the same university. He answered that Sh. Gagan Shil is his friend for last about 15 years. He also answered that he did not know as to where the said Will was typed and who had made the Will or typed it. He also answered that he had not read the Will dated 01.10.2008 before he signed it. He also answered hat he did not ask reasons for execution of the Will.
PC No. 5997/2016He answered that he did not know the name of the father of the testator and the same was mentioned in his affidavit Ex. PW- 2/A as it might had been disclosed by the advocate. He also answered that the testator had not asked him to become a witness to his Will. He voluntarily answered that testator asked his father to tell him to become a witnes. He also answered that his father was physically and mentally fit in the year 2008. He further answered the question that why his father had not himself become attesting witness when he was physically and mentally fit by saying that his father might had not been having time to become a witness. He also answered that he did not remember if there was interaction between him and late Dharam Shil on 01.10.2008 as it was long time ago. He answered that he was working with ICICI Bank in the year 2008. He answered that he did not remember if petitioner's son namely Sh. Gagan Shil was working with ICICI Bank in the year 2008. He had also answered the suggestion by saying that it is correct that there had been no talks about the Will between him and the testator. He also answered that he also did not know about the facts or details of the present case. On the question "do you know what is Will about?" he answered that "no, I do not know". He answered the suggestion by saying that it is correct that in his presence nothing was discussed about the Will.
PC No. 5997/2016Perusal of cross-examination of PW-2 shows that he merely signed on a document and he even did not know about the contents. As per his own answers the Will was not discussed by the testator in his presence. Moreover, he could not give any statisfactory answer that why his father himself did not become an attesting witness, when testator was his friend and his father was mentallly and physically fit at that time. It was also not explained that why testator asked the father of PW- 2 to ask PW-2 to become a witness instead of asking PW-2 directly for the same. Such circumstances castigate the genuineness of the Will.
25. Petitioner also examined PW-3 being another attesting witness of the Will. PW-3 also tendered his evidence by way of affidavit Ex. PW-3/A. He also deposed in para 2 of his affidavit that the testator executed a Will dated 01.10.2008 in his presence and the same was got registered in the office of Sub- Registrar-V and he had signed the same as witness no. 2 in the abovesaid Will. Nothing further regarding attestation was stated by PW-3 during his examination-in-chief or in the affidavit. During his cross-examination dated 19.10.2022, he answered that testator was friend of his father. He also answered that Will was drafted by him under instructions from testator, who had brought a written draft of the said Will and PC No. 5997/2016 DLST010006552012 Page 39 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
asked him to put it in legal terms. He did not answer the question that at which place the Will was drafted. He answered that he did not remember who brought the testator to his office. He voluntarily answered that testator had come with the notes to be drafted in the Will. He further answered that it was wrong to suggest that testator had not given any hand written draft of the Will to him. He also answered that no one was present when the Will was drafted by him as Will is a personal matter so no other person is allowed to be present.
26. Neither the abovesaid written draft as brought by the testator was produced before the court to show that the Will was finally prepared by PW-3 on the basis of that draft nor the further custody of the written draft was disclosed by the PW-3 or even by the petitioner despite the specific suggestion to PW- 3 in his cross-examination regarding the non giving of any such written draft by the testator to PW-3 for preparation of hte Will in question.
Concealment of true facts by PW-3:
27. Copy of a plaint Ex. PW-1/DX1, copy of an application Ex. PW-1/DX2 were put before PW-3 during his cross-
examination and it was suggested to him that document Ex. PW-1/DX2 was drafted and signed by him as counsel for petitioner herein, on which he answered that it is correct. On PC No. 5997/2016 DLST010006552012 Page 40 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
the question "is it correct that in the application Ex. PW-1/DX2 no reference of Will Ex. PW-1/A has been given?", he answered that it is matter of record. On the question that is it correct that after death of testator one, Sh. Gaurav Shil (respondent no. 2's son from his first wife) filed a suit for injunction and declaration and in that case you represented the petitioner herein as his lawyer", he answered that he did not remember. While showing the abovesaid documents i.e. plaint and the application, one suggestion was put to the witness by suggesting that in the suit for injunction and declaration, no reference of the present Will was given by Sh. Raman Kumar/ petitioner herein in his pleadings even though the property in question was the subject matter of that suit, to which he answered that "I do not remember as such pleadings were not shown to me today".
28. Perusal of the cross-examination of PW-3 shows that PW-3 answered that present petition was filed by firm Bahl & Co. Advocates, of which his brother Ajay Bahl is partner along with him. Perusal of Ex. PW-1/DX-2 shows that PW-3 had also been an advocate for the petitioner herein in civil suit no. 855/2009. Below the signature of PW-3 on Ex. PW-1/DX2 "Bahl & Co. Advocates" also has been written. Moreover, perusal of the previous ordersheets of this case also shows that PC No. 5997/2016 DLST010006552012 Page 41 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
presence of PW-3 Sh. Lalit Bahl has been marked as counsel for the petitioner till 03.05.2018. Despite these facts PW-3 tried his best to hide the fact that he has been an advocate for petitioner herein in the present case and in also other case due to the reasons best known to him. But his such conduct shakes his credibility at least upto some extent.
29. Further, it was also not explained that when testator was friend of PW-3's father then why testator did not ask father of PW-3 to be an attesting witness of the Will. Contradiction in the version of PW-2 and PW-3:-
30. PW-3 answered during his cross-examination that no one was present when Will was drafted. However to the contrary PW-2 answered during his cross-examination that he met the testator in Saket Court itself on 01.10.2008 and there was no other person present except himself, Late Sh. Dharam Shil and Sh. Lalit Bahl, Advocate. During his cross-examination, PW-3 answered the question no. 29 by saying that one Mr. Komal Jhunja/ PW-2 was the other witness along with him when we got registered the Will with Sub-Registrar-V. He further answered question no. 30 i.e. "Have you been acquainted to Sh. Komal Jhunja before that date when he came to the office of Sub-Registrar?" by answering that "no". This answer is quite contrary to the petitioner's version, where he claims that Will PC No. 5997/2016 DLST010006552012 Page 42 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
Ex. PW-1/A was executed on 01.10.2008 and was got registered on 03.10.2008. PW-2 and PW-3 both have also answered that they are witnesses of Will dated 01.10.2008. PW-2 answered that he went to Saket court on 01.10.2008 where except him, testator Sh. Dharam Shil and Sh. Lalit Bahl, Advocate, no other person was present. According to PW-2, he met PW-3 on 01.10.2008, however, as per answer of PW-3 to question no. 30, he had not been acquainted to PW-2 Sh. Komal Jhunja before the date when he came to the office of Sub-Registrar i.e. on 03.10.2008. Accordingly, the contrary versions of PW-2 and PW-3 on this aspect creates serious doubt regarding their attestation on the Will Ex. PW-1/A.
31. Much emphasis has also been laid that alleged Will is a registered Will. However, registration of Will is not mandatory and it is also a settled law on merely Will is a registered Will, it is no assurance that same is genunine and validly executed document with sound disposing of mind and free will. However, even if only registration of the document is relied upon, it is also the petitioner who failed to prove its registration itself by not examining any witness from the office of Sub- Registrar V due to the reasons best known to him.
32. Perusal of cross-examination of PW-2 & PW-3 nowhere shows that they identified the Will Ex. PW-1/A during their PC No. 5997/2016 DLST010006552012 Page 43 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
examination or even identified their signatures or signature of the testator on the Will.
33. In view of the abovesaid discussion, material on record and analysis of examination of PW-1, PW-2 and PW-3, I am of the considered opinion that petitioner failed to prove the valid attestation of the Will.
On sound and disposing mind and free will of the testator: -
34. In H. Venkatachala Iyengar case (supra), Hon'ble Supreme Court of India has observed that the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind;
(iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will.
It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signatures as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the PC No. 5997/2016 DLST010006552012 Page 44 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
execution of the Will.
35. The petitioner examined total three witnesses i.e. PW-1, PW-2 and PW-3. PW-1, PW-2 and PW-3 tendered their evidence through their affidavits Ex. PW-1/1, Ex. PW-2/A and Ex. PW-3/A respectively. However, nothing regarding sound disposing mind, free will of the testator and understanding of the testator at the time of execution of the Will, has been stated in the affidavits. Moreover, nothing was deposed regarding the same during their examination-in-chief also by the witnesses. PW-2 during his cross-examination dated 02.09.2022 answered that he did know that after the death of his wife testator Sh. Dharam Shil was under depression and dementia. He also answered that he did not remember if there was any interaction between him and the testator on 01.10.2008. He also answered that nothing about the Will was discussed in his presence. He also answered that "it is correct that there have been no talks of Will between him and late Sh. Dharam Shil". He also answered that he was not aware if testator was more than 81 years old and was suffereing from various ailments including hypertension and depression.
36. Perusal of examination as well as cross-examination of PW-2 shows that he was not aware about the sound disposing mind of the testator at the time of execution of the Will as when PC No. 5997/2016 DLST010006552012 Page 45 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
he did not discuss anything about the Will with the testator and also there was no interaction between him and the testator on 01.10.2008, then how it can be believed that he was well aware that the Will was signed by the testator after understanding the nature and effect of disposition and in a sound disposing state of mind and testator was putting his signature on the document with his own free will. Accordingly, evidence of PW-2 adduced in support of the Will to prove the sound and disposing state of mind of the testator and his free will at the time of execution of the Will is not satisfactory and sufficient.
37. PW-3 also did not said anything in his affidavit Ex. PW- 3/A as well as during the examination-in-chief about the sound disposing state of mind, understanding and free well of the testator at the time of execution of the Will Ex. PW-1/A. He answered the suggestion put in question no. 23 of his cross- examination i.e. "that Mr. Dharam Shil used to walk with a stick all the time in the year 2008" by saying that he did not remember. However, he simply denied the suggestion put to him regarding ill health of the testator in his cross-examination. He also denied the suggestion put to him in question no. 22 of his cross-examination by answering that it is wrong to suggest that in the year 2008 the testator was not even in position to walk without stick and with the help of some person. However, PC No. 5997/2016 DLST010006552012 Page 46 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
both the answers are contrary to each other. There may be only one answer for a fact, either the fact shall be wrong or the witness shall not remember about the fact. Both the answers regarding the same fact cannot be relied upon.
38. PW-1 also did not depose anything about the sound disposing mind and free will of the testator at the time of execution of the Will during his examination-in-chief or in his affidavit of evidence. During his cross-examination, PW-1 answered that he did not know if after the year 1999 his father was suffering from diabetes. He also answered that he is not aware whether his father had fallen down due to diabetes attack in the year 2007. He also answered that he could not recollect that his father remained hospitalized for high blood sugar in the year 2007. He also answered during his cross-examination on 10.05.2022 that his father committed suicide. His mother died on 04.08.2008 due to heart attack. He also answered that he do not have any documents relating to health of his father. He answered voluntarily that his father was suffering from diabetes and doctor had prescribed him medicines for diabetes. He answered that he could not bring the medical prescription of his father in the court. He also answered that as his brother/ respondent no. 2 and his wife used to threaten the testator and troubled him, which was the reason that testator was sad. He PC No. 5997/2016 DLST010006552012 Page 47 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
denied the suggestion that his father was in deep depression after the death of his mother. However, he further answered that he did not know if his father was taking medicines for depression. He also answered that he did not know if his father used to weep several times after the death of his mother. He also answered that he was not aware that if the Will Ex. PW- 1/A was executed within two months of death of his mother.
39. These answers of PW-1 shows that he was not aware about the mental health of the testator at the time of execution of the Will.
40. In view of the abovesaid discussion, material on record and analysis of examination of PW-1, PW-2 and PW-3, I am of the considered opinion that petitioner failed to prove that testator was of sound and disposing state of mind and testator understood the nature and fact of disposition and had put his signature on the Will of his own free will at the time of its execution.
Other suspicious circumstances:-
41. Will Ex. PW-1/A shows that an earlier Will dated 17.08.1999 was categorically revoked while executing the present Will dated 01.10.2008. In the present case, petitioner herein did not dispute earlier Will dated 17.08.1999. However, in one another connected matter "Pawan vs. State", PC no.
PC No. 5997/20165998/2016 (earlier PC no. 14/10), petitioner herein in his objections to the petition for grant of probate of Will dated 17.08.1999, objected the Will by stating that it is wrong and denied that prior to the death of testator Sh. Dharam Shil, he had executed a registered Will in favour of the petitioner. He also objected the Will by stating that it is wrong and denied that attesting witness had put the signature in the presence of Sh. Dharam Shil. It was also objected by stating that it is wrong and denied that the said Will was voluntarily executed by the testator without any outside pressure. However, these facts does not found any mention in the Will dated 01.10.2008 allegedly executed while revoking Will dated 17.08.1999. This non mentioning was also not explained by the petitioner herein. Reason for change of witnesses of the Will not explained:-
42. In the present case, petitioner does not dispute one prior Will dated 17.08.1999 allegedly executed by the testator.
However, it is stated by the petitioner that same was revoked by the present Will dated 01.10.2008. Two persons namely Sh. Swarn Singh and Sh. K.C. Bahree witnessed that Will dated 17.08.1999. However, the alleged subsequent Will dated 01.10.2008 was witnessed by Sh. Komal Jhunja and Sh. Lalit Bahl. While comparing both the Will a natural question arises that what forced the testator for not repeating the same PC No. 5997/2016 DLST010006552012 Page 49 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
witnesses at the time of execution of subsequent Will. It is also not the case that witnesses of the subsequent Will were friends or relatives of the testator rather these witnesses were sons of testator's friends and one attesting witness was also the Advocate of the petitioner. The above reasons remained unexplained. These circumstances create doubt on the genuineness of the Will.
Effect of non mentioning of the Will dated 01.10.2008 in earlier civil suit no. 855/2009:-
43. Non mentioning of the Will dated 01.10.2008 Ex. PW-
1/A in any of the pleadings filed on behalf of Raman Kumar in an earlier Civil Suit no. 855/2009 titled as "Gaurav Shil vs. Pawan Kumar & Anr.", wherein petitioner herein appeared as defendant no. 2 and the PW-3 was his counsel, creates clouds of doubt on the genuineness of the Will Ex. PW-1/A. The present petition was filed on 23.05.2012 and the abovesaid civil suit is prior in time, which pertains to the year 2009. Moreover, document Ex. PW-1/DX2 i.e. application on behalf of defendant no. 2 (petitioner herein) u/o VIII rule 10 CPC shows that it was filed in the month of March of the year 2010 i.e. after the present Will came into picture. This application also does not mention the fact of existence of the present Will. Moreover, despite the fact that document Ex. PW-1/DX1 (i.e. plaint for PC No. 5997/2016 DLST010006552012 Page 50 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
perpetual and mandatory injunction in the matter of "Sh. Gaurav Shil vs. Sh. Pawan Kumar and Sh. Raman Kumar", wherein relief of perpetual injunction against the defendants therein qua the same suit premises which has allegedly been bequeathed vide above said Will Ex. PW-1/A) was put to PW-1 and PW-3 and the question on non mentioning of the Will Ex. PW-1/A in these documents was categorically asked, then also neither it was the stand of either of the petitioner or PW-3 that the fact of existence of the Will was mentioned in any of the pleadings in that civil suit nor petitioner borthered to produce documents showing such mentioning of the Will in question. When the civil suit for perpetual injunction was filed in the year 2009 qua the same suit premises, then not taking the plea of existence of the Will in his favour by Raman Kumar in the suit further creates clouds of doubt on the genuineness of the Will.
44. In view of the abovesaid discussion, material on record, I am of the considered opinion that petitioner failed to prove that the testator Sh. Dharam Shil executed the Will dated 01.10.2008 in a sound disposing mind. Accordingly issue no. 1 is decided against the petitioner.
Issue no. 2 Whether the petitioner is entitled to grant of probate/ letters of administration in respect of Will dated 01.10.2008 executed by Late Sh. Dharam Shil? OPP PC No. 5997/2016 DLST010006552012 Page 51 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Raman Kumar Vs. The State & Anr.
45. As issue no. 1 has already been decided agianst the petitioner, therefore, petitioner is not entitled to grant of probate/ letters of administration in respect of Will dated 01.10.2008 executed by Late Sh. Dharam Shil. Accordingly, issue no. 2 is also decided against the petitioner.
Issue no. 3 Relief:
46. In view of the findings given qua issues no. 1 and 2, this petition is dismissed, leaving parties to bear their own costs.
47. The Will Ex. PW-1/A shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925.Digitally signed
Pronounced in the open Court YADVENDER by YADVENDER SINGH on this 6th day of June 2024. SINGH Date: 2024.06.07 18:52:39 +0530 (DR. YADVENDER SINGH) DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
PC No. 5997/2016DLST010006552012 Page 52 of 52 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024