Delhi District Court
Smt. Subhadra @ Savitri vs State on 21 December, 2022
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE - 01, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
Probate Case No.110/16
CNR No. DLET01-006678-2015
IN THE MATTER OF :-
Smt. Subhadra @ Savitri,
W/o Sh. Ram Singh,
D/o Late Sh. Nathu Singh,
R/o A-179, Harijan Basti, Kondli,
Delhi-110096.
.....Petitioner
Versus
1. State, Govt. of N.C.T. of Delhi
Through its Secretary, Secretariat,
IP Estate, ITO, New Delhi.
2. Smt. Ram Kaur (deceased)
W/o Late Sh. Nathu Singh
R/o A-179, Harijan Basti,
Kondli, Delhi.
(Now through defendant no.3)
3. Smt. Satyaprakashi
W/o Sh. Bhanu Pratap
R/o A-122, Harijan Basti,
Kondli, Delhi-110096.
4. Davinder Kumar
S/o Late Sh. Nathu Singh
R/o A-179, Harijan Basti,
Kondli, Delhi.
.....Respondents
Date of Institution : 21.02.2015
Reserved for order on : 21.12.2022
Date of Decision : 21.12.2022
Petition U/s 276 of the Indian Succession Act, 1925
for Grant of Probate of Family WILL DATED 29.05.1997.
PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.1 of 10
JUDGMENT
1. Brief facts, of the case relevant for the disposal of the present petition are that the petitioner has filed the petition for grant of probate of the 'Family WILL', on the averments that deceased father of the petitioner namely Sh. Nathu Singh Bodh was resident of A-179, Harijan Basti, Kondli, Delhi, who died on 02.08.1997, leaving behind his above mentioned legal heirs (i.e. Petitioner and Respondents No.2 to 4). Deceased Nathu Singh Bodh was the absolute and sole owner of property bearing No.A- 179, measuring 50 sq. yards consisting of one shop and one room, latrine, bathroom on the ground floor and two rooms on the first floor out of Khasra No.238, situated in the area of Village Kondli, Illaqa Shahdara, Delhi. The deceased had executed a 'Family Will' dated 29.05.1997 in the presence of two independent witnesses, namely Smt. Veena and Ram Tirath, bequeathing his said property, in favour of the petitioner. Further, there is no impediment in granting probate of Family Will.
2. The notices of the petition were issued to the respondents. Respondent No.1/State was served by way of publication in the newspaper 'Veer Arjun', but despite service, none appeared on behalf of respondent No.1/State, so it was proceeded exparte, vide order dated 01.04.2015.
3. Respondents No.2 & 3 have filed objections to the petition in which preliminary objections were taken on the ground that the petitioner has not come with clean hands and the petition of the petitioner is based on surmise and conjectures because the petitioner has no concern whatsoever with the suit property as the suit property was never in the name of Sh. Nathu PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.2 of 10 Singh Bodh and was in the name of respondent no.2. Several other litigations qua the suit property going on between the parties but factum of 'Family Will' was never disclosed in any of their proceedings. The instant petition is filed on the basis of forged and fabricated Will.
On merits, it is submitted that the respondent no.4 is the son of petitioner and he was never adopted by Late Sh. Nathu Singh Bodh. Besides this, all other averments of the petition are denied specifically and prayer to dismiss the petition with cost was made.
4. Reply to the objections was also filed on behalf of the petitioner, wherein, she has denied the averments made in the objections and prayer is made for rejection of the objections with heavy cost and for grant of probate of WILL.
5. Respondent no.4 has filed written statement in which he admitted that deceased Sh. Nathu Singh Bodh was the absolute and sole owner of the abovesaid property bearing No.A- 179, measuring 50 sq. yards. He further admitted that deceased Nathu Singh Bodh had executed a Family Will dated 29.05.1997 in favour of the petitioner in respect of immovable properties in the presence of two independent witnesses, namely Smt. Veena and Ram Tirath and by virtue of the said Will, the petitioner has become the absolute owner of the said property. Therefore, it is prayed that the respondent no.4 has no objection, if the present petition is allowed.
No reply to the written statement of respondent no.4 was filed by the petitioner.
PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.3 of 10
6. From the pleadings of the parties, following issues were framed on 02.07.2015:-
(i) Whether the Will in question executed by testator Sh. Nathu Singh is a valid Will? OPP
(ii) Whether the Will in question is forged and fabricated? OPR-2 & 3.
(iii) Relief.
7. In order to prove the case, the petitioner herself stepped into witness box as PW1 and tendered her evidence by way of affidavit Ex.PW1/1. She relied upon the original Deed of Will dated 29.05.1997 as Ex.PW1/A. She has been cross examined at length by ld. counsel for respondents no.2 & 3.
PW2 Sh. Ram Tirath Gupta is the attesting witness to the Family Will, who tendered his evidence by way of affidavit Ex.PW2/A and relied upon the document i.e. Family Will already Ex.PW1/A and admitted that the same bears his signature at point A-2 and the signature of testator at point A-1 on each page. He further deposed that the Will was executed by Sh. Nathu Singh in 1997.
This witness was exhaustively cross-examined by Ld. counsel for respondents no. 2 & 3.
8. Petitioner's evidence was closed on 14.12.2017 and the matter was listed for respondent's evidence.
9. In defence, respondent no.2 examined herself as RW2/1 and tendered her evidence by way of affidavit Ex.RW2/1X. She also relied upon the following documents:-
i. Ex.RW2/1A (colly.) are photocopies of GPA dated 07.08.1987, agreement to sell dated 07.08.1987, receipt PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.4 of 10 dated 07.08.1987.
ii. Ex.RW2/1B (colly.) is photocopy of order dated 01.04.2010.
iii. Ex.RW2/1C is the certified copy of the order dated 01.04.2010 passed in case titled as "Devender Kumar V. Ram Kaur & Ors.
iv. Ex.RW2/1D is the certified copy of the order dated 20.10.2012 passed in case titled as "Devender Kumar V. Ram Kaur & Ors.
v. Ex.RW2/1E is the photocopy of the certified copy of the order dated 20.05.2014 passed by Hon'ble High Court of Delhi.
vi. Mark A is photocopy of affidavit of Smt. Subhadra.
Respondent no.3 examined herself as RW3/1 and tendered her evidence by way of affidavit Ex.RW3/1X and she relied upon the documents already relied upon by RW2/1.
Both the witnesses were exhaustively cross- examined by Ld. counsel for petitioner.
10. Despite opportunities, respondent no.4 did not lead any evidence. Hence, recording of evidence on behalf of all the defendants was closed vide order dated 08.08.2018. Thereafter, the matter was listed for final arguments.
11. Final arguments heard. Record perused. Considered. On the basis of submissions advanced at bar, pleadings and evidence, my issue-wise findings are as under:-
ISSUE NO.(i):
" Whether the Will in question executed by testator Sh. Nathu Singh is a valid Will? OPP"
12. Onus to prove this issue is upon the petitioner. In order to prove this issue, petitioner has examined two witnesses.
PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.5 of 10 PW1 is the petitioner herself whereas PW2 Ram Tirath Gupta is one of the attesting witness of the Will Ex.PW1/A. PW1 deposed on the lines of the petition. However, in her cross-examination, she stated that she along-with PW2 namely Ram Tirath Gupta and another attesting witness namely Beena accompanied her father to the office of Sub-Registrar. However, she pleaded ignorance as whether she appeared before Sub-Registrar or not. Further, after going through the court record, she was unable to identify any such document. On perusal of the record, it is observed that Will in question Ex.PW1/A is the only document which bears the signature of Ram Tirath and Beena. Meaning thereby, this particular document is referred by petitioner in her cross-examination. However, it does not bear thumb impression of the petitioner as stated by her. Further, her testimony is contradictory to the testimony of PW2 who stated in his cross- examination that he never visited the office of Sub-Registrar with Sh. Nathu Singh Bodh or any other office in respect of property No.A-179, Old Kondli, Delhi. Further, the testimony of PW2 is also contradictory to the testimony of PW1 as he pleaded ignorance regarding any person by the name of Mahesh or Beena, though the said Beena is a signatory to the Will in question which as per petitioner accompanied the PW2 to the registrar office for execution of the document i.e. the Will and Mr. Mahesh is her husband. Further, he also admitted in his cross-examination that he had never seen Sh. Nathu Singh Bodh while signing. Meaning thereby, the Will in question was not signed by the testator in his presence. Further, he pleaded ignorance as to the time when he put his signature on the Will at point A2.
PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.6 of 10
13. As per Section 63 of Succession Act and Section 68 & 71 of Indian Evidence Act, a Will can be proved only by examining its attesting witness who shall depose regarding the time of the execution and the factum of execution of the Will by putting signatures by testator in his presence. The Hon'ble Delhi High Court in case titled as " CS Aggarwal Vs. State, TEST. CAS. 8/1995, while discussing the principles relating to mode of proving a Will held so:-
"25. Section 63 of the Succession Act, 1925 provides that a will has to be attested by two or more witnesses, each of whom has seen the testator sign or affi X 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 of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator. If the eXecution of a will is surrounded by the suspicious circumstances, such as doubt on the mental capacity of the testator; the propounder taking prominent part in the eXecution of the will which confers substantial benefit on the propounder; or unnatural, improbable or unfair dispossessions, the onus is on the propounder of the will to remove the suspicions. The probate can be granted only after the judicial conscience of the Court is satisfied that the will was eXecuted by the testator and the propounder has removed all legitimate suspicions.
26. In H. Venkatachala Iyangar v. B.N. Thimmajamma, AIR 1959 SC 443, the Supreme Court laid down the principles which govern the proving of a will. The Supreme Court held that the Court has to consider whether the testator signed the will; did he understand the nature and effect of the dispositions in the will; did he put his signature to the will knowing what it contained. The onus of proving the will is on the propounder. If there are any suspicious circumstances, the onus would be on the propounder to eXplain them to the satisfaction of the Court before the will could be accepted as genuine. Apart from suspicious circumstances, the will may suffer from infirmity where the propounder takes prominent part in the eXecution of the will which confers on him substantial benefits. Such infirmities are also treated as suspicious circumstances. Even where there were no such pleas but the circumstances gave rise to doubts, the propounder has to satisfy the conscience of the Court. Relevant portion of the said judgment is reproduced hereunder:
"18... the question as to whether the will set up by the propounder PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.7 of 10 is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document e X cept as to the special requirements of attestation prescribed by s. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to eXpect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not ; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the e X ecution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally eXpect that all legitimate suspicions should be completely removed before the PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.8 of 10 document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the eXecution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the eXecution of the will and as received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the eXecution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence."
In view of the above discussion, considering the contradictory statement of petitioner and the attesting witness inter se, the authenticity/genuineness of the Will is surrounded by serious cloud of suspicion. In such a situation, the onus upon the propounder of the Will is very high. However, in the present case, the contents of the Will itself became the last nail in the coffin of the petition. The relevant portion is as under:-
"I further willfully declare that after my death the said property A- 179, 50 Sq. yds. Consisting of one shop and one room latrine, bathroom on the ground floor and two rooms on the first Floor out of Khasra No.238, situated in the area of Village Kondli, illaqa Shahdara, New Delhi State, Delhi, shall become the property of aforesaid legatee(s) who will be the absolute owner(s) of the said property and shall get the same mutated, substituted and transferred in her name own name(s) in the records of NDPL/BSES/DESU or any other electricity department or any concerned authority on the basis of this Will or its certified true copy and if the Legatee(s) die(s) earlier then me, her legal heir(s) shall be entitled to the above said property in equal share"
14. The Will in question was executed by testator in May, 1997 whereas the BSES or NDPL came into existence only in the year 2002. The petitioner has also placed on record the computer generated notification in this regard. Even otherwise, the judicial notice of this fact can also be taken as per which the PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.9 of 10 NDPL was founded in the year 2002 only. Meaning thereby in the year 1997, at the time of execution of alleged Will in question, NDPL or BSES was even not in existence. Therefore, their mentioning in the Will itself is sufficient to discard the entire Will.
In view of the above discussion, it is held that the Will in question executed by the testator is not a valid Will. Accordingly, this issue is decided against the petitioner.
ISSUE NO.(ii):
"Whether the Will in question is forged and fabricated? OPR-2 & 3."
15. Onus to prove this issue was upon the respondents no. 2 & 3. In view of the finding recorded in issue No.(i), it is held that the Will in question is forged and fabricated. Hence, this issue is decided in favour of the respondents no.2 & 3 and against the petitioner.
ISSUE NO.(iii):
16. In view of the findings recorded in issue no.(i) &
(ii), it is held that petitioner is not entitled to grant of probate or letter of administration of the Will in question. Hence, present petition is dismissed. No order as to cost.
Ordered accordingly.
File be consigned to record room after due compliance.
Announced in the open (AJAY GARG) Court on 21.12.2022. Additional District Judge-01 East District, KKD Courts/Delhi PC 110/16 Smt. Subhadra @ Savitri Vs. State & Ors. Page No.10 of 10