Delhi District Court
Devender Singh vs Hari Prakash on 25 February, 2023
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
RCA No.154 of 2019
In the matter of:
Daya Nand (deceased)
Through LRs
1. Devender Singh
2. Balram Singh
Both sons of late Sh. Daya Nand
Residents of: VPO Kanganheri,
Post Office Chhawla,
New Delhi. .......Appellants.
Versus
1. Hari Prakash
S/o late Sh. Ram Chander
2. Kanchan
3. Youdhister
Respondents no.2 and 3
sons of late Sh. Satbir Singh
All r/o VPO Kanganheri
near Village Chhawla,
New Delhi. ......Respondents.
RCA No.154/2019
page 1 of 45
Date of Filing : 19.12.2019
Date of Arguments : 22.02.2023
Date of Decision : 25.02.2023
JUDGMENT
1. Appellants are aggrieved of the judgment and decree dated 06.08.2019 passed by Dr. Jagminder Singh, Ld. JSCCASCJCumGuardian Judge, Dwarka Courts, Delhi in case titled as "Daya Nand v. Hari Prakash & Ors" whereby and whereunder Ld. Trial Court was pleased to dismiss the suit preferred by predecessors of the appellant/plaintiff. I note herein that the plaintiff had expired and accordingly was survived by his legal heirs and the suit was continued/further prosecuted by them.
2. For the sake of convenience, the parties shall be denoted as per their rank before Ld. Trial Court i.e. legal heirs of appellant as plaintiff and respondent no.1 who is the main contesting party as contesting defendant/defendant no.1 and the legal heirs of late Satbir Singh shall be referred to as defendant no.2 and defendant no.3 respectively.
3. It is noted that at the very outset that the challenge in the present suit is with respect to the Will allegedly executed by late Sh. Ram Chander dated 22.08.1991 (hereinafter referred to as 'Will in question'), whereby he had bequeathed his share in the agricultural land in Khasra No.3/20/2 (11), 21/1 (018), 4/15 (210), 16 (416), 25 (411), 28 (05) and 11/5 (416) to the extent of ¼ share i.e. equivalent to 4 bighas 14 biswas 5 biswansi, comprised in Khata Khatauni No.139/135 situated in the area of village Jhatikara, Tehsil Palam, New Delhi out of total land measuring 18 Bighas 17 Biswas in favour RCA No.154/2019 page 2 of 45 of Hari Prakash the defendant no.1 to the exclusion of his other legal heirs - primarily the plaintiff and Satbir Singh his son, the predecessor in interest of defendant no.2 and 3 herein.
4. Notice of the appeal was directed upon the respondents who had appeared and contested the appeal. TCR was also called for.
5. There is one application under Section 5 of the Limitation Act, 1963 along with appeal. Submissions on the same were also heard.
6. Coming directly on the application U/s 5 of the Limitation Act, the reason which has been assigned is that after dismissal of the suit, the son of the plaintiff namely Ravi who was also a party to the present case expired on 10.08.2019 and owing to his death the entire family was shocked. Secondly when the appellants contacted some other counsel, he had suggested that the appeal will be filed before Hon'ble High Court and not before Sessions Court. Later on when they contacted the counsel who had later on filed the appeal, he advised to file the appeal before the District Court, as such the delay occasioned owing to the said fact(s) be condoned in the larger interest of justice as the same was not deliberate nor intentional but was on account of bonafide reason. This application was supported with the affidavit of Devender the son of the plaintiff.
6.1 Now suffice to note in this regard that the litigation was pending in the trial court for more than a decade. The Will in question is also of the year 1991. There has to be an end to the litigation and it is trite that the final RCA No.154/2019 page 3 of 45 verdict should be passed on merits and not on technicalities as it will keep the litigation sword hanging. Reason which has been afforded/pleaded in the application U/s 5 of th Limitation Act, 1963 seems to be plausible. The plaintiff/his legal heirs were throughout vigilant in prosecution of the suit. Considering the totality of facts and circumstances and in the larger interest of justice, the delay in filing of the appeal is condoned.
7. Before I deal with the merits of the appeal, case which has been set forth by the plaintiff is summarized as hereunder:
(i)Plaintiff stated that the defendant no.1 is his brother and defendant nos.2 and 3 are his nephews,
(ii)Sh. Ram Chander their father was recorded Bhumidar in respect of agricultural land in Khasra No.3/20/2 (11), 21/1 (018), 4/15 (210), 16 (4
16), 25 (411), 28 (05) and 11/5 (416) to the extent of ¼ share i.e. equivalent to 4 bighas 14 biswas 5 biswansi, comprised in Khata Khatauni No.139/135 situated in the area of village Jhatikara, Tehsil Palam, New Delhi out of total land measuring 18 Bighas 17 Biswas and the entire land was ancestral as the same was inherited by Ram Chander from his forefathers,
(iii)It is further stated that Ram Chander was old and used to remain ill and in the year 1990 he made a family partition whereby he partitioned his entire agricultural land as well as residential houses/plot in equal shares amongst the plaintiff, defendant no.1 and father of defendant nos.2 and 3 and handed over possession of the land as well as residential houses/plots in village Kanganheri, Delhi to the parties who occupied the same.
(iv)It is further stated that all the disputes with respect to properties were settled during his lifetime. Ram Chander was living with the plaintiff and with RCA No.154/2019 page 4 of 45 father of defendants no.2 and 3 who were serving him in his old age. At all points of time Ram Chander was happy and having full love and affection towards his sons and grand sons and as such family was in bliss and brothers had full trust over each other and likewise their father was having full trust over them and there was no question of making any Will or testament in favour of defendant no.1,
(v)Alleged Will is stated to be a fabricated and fraudulent piece of document and there is no question of Satbir Singh i.e. father of defendants no.2 and 3 appearing as attesting witness and some fictitious person had appeared and had put his signatures on the Will,
(vi)It iss further stated that defendant no.1 had separated from the plaintiff during his lifetime and as such Ram Chander was not happy with him. Ram Chander had expired on 26.05.2002,
(vii)Plaintiff and father of defendant no.2 and 3 had no apprehension that there would be any manipulation by defendant no.1 and were in bonafide impression that all the brothers have equal shares in the suit land. However, unfortunately defendant no.1 had played a fraud and got suit land mutated only in his name and even no notice was given to the plaintiff, whereas he and father of defendants no.2 and 3 were in actual occupation and cultivatory possession of the suit land since the lifetime of their late father Sh. Ram Chander in terms of family settlement,
(viii)Plaintiff came to know about mutation when he contacted Halka Patwari.
He got shocked to know that the defendant no.1 got entire land mutated in his name only. Plaintiff assailed the mutation order dated 31.03.2004 which was cancelled/quashed and the matter was again remanded to the Court of Revenue Assistant, RCA No.154/2019 page 5 of 45
(ix)It is further stated that father of the plaintiff never disclosed about the factum of Will and neither he was aware about the same nor had any opportunity to challenge the same. Even in his last days, he had not so disclosed about there any Will. Execution of the Will is stated to be fraudulent act on the part of the defendant no.1 and infact father of the plaintiff had fallen ill in the year 1989 and was unwell till his death,
(x)It is further stated that alleged Will was registered on 22.08.1991 vide registration no.39020 in Book No.3, Volume No.1135 at pages 87 to 89 in the office of Sub Registrar, Kashmere Gate, Delhi same is not a bonafide and genuinely executed document and it is result of fraud and fabrication played with its testator who was an illiterate person and was not knowing either Hindi or English language. Alleged Will is stated to be forged and sham document. Ram Chander was not presented before registering authority and even his thumb impressions/signatures were not obtained and the Will was fabricated,
(xi)Subsequently before revenue authority, the defendant no.1 had also produced fake person in place of deceased Satbir Singh on 31.03.2004 whereas Satbir Singh had already expired on 20.02.2004. Statement of dead person was got recorded on oath by producing somebody else by the name of Satbir Singh. Defendant no.1 is completely dishonest and cannot be relied upon.
7.1 In these facts and circumstances, challenge was made to the Will with following reliefs:
(a)Declaring the Will dated 22.08.1991 allegedly registered vide document no.39020 in book no.3, volume no.1135 on pages 87 to 89 dated 22.08.1991 in RCA No.154/2019 page 6 of 45 the office of Sub Registrar, Kashmere Gate, Delhi in respect of land bearing Khasra No.3/20/2 (11), 21/1 (018), 4/15 (210), 16 (416), 25 (411), 28 (0
5) and 11/5 (416) to the extent of 1/4 share out of land total measuring 18 Bighas 17 Biswas situated in the area of village Jhatikara, Tehsil Palam, New Delhi, as null, void, fraudulent, unlawful, invalid and not binding on the plaintiff and further the plaintiff be declared as legal heir/male lineal descendant of late Sh. Ram Chander in respect of the suit land,
(b)A decree of permanent injunction may also be passed in favour of the plaintiff and against the defendant no.1 thereby restraining the defendant no.1, his Lrs, attorneys, successors, representatives, assigns etc from transferring, alienating, creating the interest of third party and also dispossessing the plaintiff without following due process of law from the suit land bearing Khasra No.3/20/2 (11), 21/1 (018), 4/15 (210), 16 (416), 25 (411), 28 (05) and 11/5 (416) to the extent of 1/4 share out of land total measuring 18 Bighas 17 Biswas situated in the area of village Jhatikara, Tehsil Palam, New Delhi.
8. Written Statement was filed on behalf of defendant no.1 and it was stated that the suit is liable to be dismissed as barred by limitation. It is further stated that the plaintiff had knowledge about execution of the Will dated 22.08.1991 as the same was executed by Ram Chander after family settlement was arrived at between Ram Chander and his three sons. Furthermore, suit has been filed after death of Satbir Singh i.e. father of defendants no.2 and 3 who was attesting witness to the Will in question. Plaintiff and Satbir Singh had given affidavit in the year 2000 in which plaintiff and Satbir Singh had admitted that they have no objection for RCA No.154/2019 page 7 of 45 sanction of mutation of suit land in favour of defendant no.1. It is further stated that the plaintiff has no locus standi to file the present suit as the plaintiff was neither owner nor in possession of the suit land. It was further stated that the Will in question was executed pursuant to family settlement. It is further stated that one acre land in the name of Ram Chander and one acre land in the name of defendant no.1 was sold when family was joint and all the consideration money of the said two acre of land was distributed amongst all the family members including the plaintiff and father of the defendant no.2 and in lieu of the above said sale of two acres land, Ram Chander had executed the Will in question in favour of defendant no.1 so that no injustice was done to the defendant no.1 in the distribution of the property.
8.1 On merits the defendant no.1 justified execution of the Will. He denied that Ram Chander used to remain ill and suffering with old age related diseases and had become too week in the year 1990. It was further contended that the Will in question was executed with the consent of plaintiff and Satbir Singh as Satbir Singh signed as attesting witness. Defendant no.1 denied the case setforth by the plaintiff. Insofar as aspect of mutation is concerned, it is stated that Satbir Singh had appeared before Tehsildar in person on 20.02.2004 and had made his statement in favour of defendant no.1, however, owing to mistake of revenue officials, the officials of Tehsildar had noted down wrong date i.e. 31.03.2004 instead of actual date of statement. Defendant no.1 had denied that any fake person was produced in the office. Dismissal of the suit was sought for.
9. Replication was filed on behalf of the plaintiff to the Written Statement RCA No.154/2019 page 8 of 45 preferred by the defendant no.1.
10. Written Statement was also filed on behalf of defendant Nos.2 and 3. Defendant Nos.2 and 3 had supported the stand of the plaintiff and claimed that a family settlement/partitioned had taken place in the year 1990 and the defendant no.1 had played a fraud. By and large their version is also supporting the stand of the plaintiff.
11. Issues were settled which read as under:
(i)Whether the plaintiff is entitled for a decree of declaration with regard to Will dated 22.08.1991 as null and void as prayed for in the plaint?OPP
(ii)Whether the plaintiff is entitled for a decree of permanent injunction against defendant no.1 as prayed for in the plaint?OPP
(iii)Whether the suit is barred by law of limitation?OPD1
(iv)Whether the suit is not maintainable as this court does not have the pecuniary jurisdiction to try the same?OPD1
(v)Whether the suit has not been properly valued for the purpose of court fees and jurisdiction?OPD1
(vi)Relief.
12. Parties had also led evidence and the same have been quoted in para no.6 to 15 of the impugned judgment. For the sake of convenience same are quoted as hereunder:
6. PW1 is plaintiff himself who tendered his affidavit in evidence Ex.PW1/A1 and he relied upon the following documents: • Ex.PW1/A i.e. Certified copy of Khatoni showing late Sh. Ram Chander as CoBhoomidar to the extent of 1/4th share in respect RCA No.154/2019 page 9 of 45 of suit land. Sh. Daya Nand Vs. Sh. Hari Prakash & Ors. Suit No. 25564/16 Page 11 of 42 • Ex.PW1/B i.e. Death Certificate of Late Sh. Ram Chander.
• Ex.PW1/C i.e. Certified copy of impugned Will dated 22.08.1991. • Ex.PW1/D i.e. Death Certificate of his later brother Sh. Satbir Singh.
• Ex.PW1/E i.e. Certified copy of order dated 05.03.2008 passed by Court of Deputy Commissioner, SW, Kapashera.
7. PW2 is Sh. Nepal Shah Kanoongo, Tehsil Palam, Najafgarh, Delhi who brought the file pertaining to mutation Case No. M 125/TEH/P/200304 titled as Hari Prakash V. Ram Chander showing that Satbir Singh and Hari Prakash (defendant no.1) appeared as witnesses on 31.03.2004 before the Tehsildar to depose in said mutation case. Attested copies of their depositions are Ex.PW2/1. He proved mutation order Ex.PW2/2. He further proved notice of mutation proceedings which were sent to Hari Prakash (Defendant no.1) & one Roop Chand (attesting witness of alleged Will) Ex.PW2/3 & PW2/4 respectively. He further stated that as per the summoned record no notice about the mutation proceedings was given to the plaintif Dayanand and no information was given about the death of Sh. Satbir till the date of passing of final mutation order.
8. PW3 is Sh. L.B. Verma, Halka Patwari, Tehsil Palam, Najafgarh, Delhi had proved the attested copy of the Khatoni of year 20032004 Ex.PW3/1. He further proved true attested copy of Old Khatoni for years 198081 Ex.PW3/2. He proved true attested copy of current Khasra Girdawaries for the year 201011 Ex.PW3/3. He further stated that the Khata Khatoni No.171/188 is in the name of Sh. Ram Chander to the extent of 1/4th share out of the total land measuring 18 Bighas 17 Biswas of village Jhatikara, Najafgarh Tehsil, Delhi.
9. PW4 Sh. Hari Om, Patwari from D.C., SW, Kapashera and he proved copy of order dated 05.03.2018 Ex.PW4/1. He further stated that as per record i.e. appeal no.100/07 titled as Daya Nand Vs. Hari Prakash & Ors. And other appeal No. 130/07 titled as Sh. Kanchan Vs. Hari Prakash, mutation order dated 31.03.2004 has been set aside by the Court of Collector, SW and abovesaid case has been remanded back to RA/SDM, Najafgarh.
RCA No.154/2019page 10 of 45
10. No other PW was examined on behalf of plaintif. Thereafter, PE closed and matter was fixed for DE. Defendant no.1 had examined 4 witnesses as DW1, DW2, DW3 & D1W4. Defendants no. 2 & 3 had examined one witness as DW2.
11. DW1 is defendant no.1 himself who tendered his affidavit in evidence Ex.D1 and he relied upon the document Ex.DW1/C i.e. document/affidavit dated 29.01.2000.
12. DW2 is Sh. Roop Chand who tendered his affidavit in evidence Ex.DW2/1.
13. DW3 is Sh. Rohtash who tendered his affidavit in evidence Ex.DW3/1.
14. DW1W4 is Sh. Ashok Kumar, UDC from office of Sub RegistrarI, Kashmiri Gate had proved Ex.PW1/C i.e. Will bearing Registration No.39020 in Additional Book No.3, Volume No.1135 at Page No.87 to 89 dated 22.08.1991.
15. DW2 is Sh. Kanchan (examined on behalf of defendants no. 2 & 3) and he tendered his affidavit in evidence Ex.DW2/A.
13. Now as evident in terms of order dated 06.08.2019 the suit was dismissed. Ld. Trial Court insofar as issues no.3, 4 and 5 had returned the findings in favour of plaintiff and qua issue no.1 and 2 findings given were adverse the plaintiff.
14. There is no challenge on behalf of the respondent no.1 qua the findings on issue no.3, 4 and 5. However, in my considered opinion it would be trite to note down the findings on issue no.3 with respect to the limitation RCA No.154/2019 page 11 of 45 returned by Ld. Trial Court. I just wish to quote findings penned down by Ld. Trial Court, particularly para no.20 of the impugned order as the same has a relevance which I would be discussing hereinafter:
20.No any other evidence is produced on behalf of defendant no.1 to show that plaintiff was in knowledge of the Will at the time of its execution. On the other hand, as per the plaintiff, he came to know about execution of the Will in the year 2008 when he came to know that mutation qua the land in question was got sanctioned by defendant no.1 in his favour on the basis of the Will in question.
PW2 Sh. Nepal Shah brought the record of concerned mutation proceedings and he stated that on the basis of depositions of the witnesses Sh.Satbir Singh & defendant no.1 before the concerned Tehsildar, mutation order dated 31.03.2004 was passed which is Ex.PW2/2 and notices of said mutation proceedings were only sent to defendant no.1 and Sh. Roop Chand i.e. one of attesting witness of the Will which are Ex.PW2/3 & Ex.PW2/4. PW2 had further stated that as per the record no notice about the mutation proceedings was given to the plaintiff Daya Nand. Therefore, there is no evidence that plaintiff was in knowledge of the Will at the time of its execution or at the time of mutation proceedings in year 2004. There is no any other appropriate reason to disbelieve the version of the plaintiff that he came to know about the Will in question in year 2008. Present suit has been filed by the plaintiff in the year 2008 itself and accordingly same is not beyond the period of limitation. Issue No.(iii) is decided in favour of plaintiff and against the defendants.
15. I have heard Sh. Satya Prakash and Sh. S.C. Ahlawat, Ld counsel for the plaintiff as well as Sh. Joginder Singh Sehrawat, Ld counsel for respondent/defendant no.1 and Sh. S.B. Sharma, Ld counsel for respondents/defendants no.2 and 3. I have also gone through the record and through the written submissions filed by either side.
RCA No.154/2019page 12 of 45
16. Apart from the findings which have been returned by Ld. Trial Court on issue no.3 which I had quoted purposively I am also at the very outset quoting from the order which was passed by Ms. Varsha Joshi, Dy. Commissioner (South West) in case no.100/07 titled as "Daya Nand v. Hari Prakash & Anrs" and in case No.130/07 titled as "Kanchan & Anr v. Hari Prakash & Anr" dated 05.03.2008 whereby she had set aside the mutation earlier ordered in favour of Hari Prakash on the basis of the Will in question. Said order reads herein as under:
The brief facts of the case are that Sh. Daya Ram, late Sh. Satbir Singh and Sh. Hari Prakash are real brothers and son of late Sh. Ram Chander. Sh. Ram Chander was the lawful owner/bhumidhar of land bearing Kh. No.3/20/2 (11), 21/1 (018), 4/15 (210), 16 (416), 25 (411), 28 (05) and 11/5 (416) total land measuring 18 bigha 17 biswa to the extent of 1/4 share i.e. equivalent to 4 bigha 14 biswa situated in the revenue estate of village Jhatikara, Tehsil Palam, New Delhi. Sh. Ram Chander expired on 26/05/2002 leaving behind his three sons. The mutation was sanctioned by Tehsildar on the basis of WILL dated 22/08/2001 without service of notices to all parties.
Notices were issued to both the parties Sh. V.S. Rana, Advocate appeared on behalf of Sh. Daya Nand and Sh. Hari Prakash, Sh. Kanchan and Sh. Youdhister present in person.
The Counsel for Sh. Daya Nand submitted that the suit land was ancestral property and as deceased Sh. Ram Chander had attained very old age and about year 1990 had distributed the said land in favour of his three sons as per their respective shares all three sons occupied the same on the spot. He further submitted that mutation was got sanctioned by Sh. Hari Prakash on the basis of WILL dated 22/8/1991 by playing fraud and by showing dead person Sh. Satbir Singh as witness on31/03/2004. He further adds that as per RCA No.154/2019 page 13 of 45 truthful facts and death certificate Sh. Satbir Singh had died on 20/02/2004 and this is not possible for a dead person to appear in witness box as witness on 31/03/2004. he further states that enquiry should be conducted in this matter.
I have gone through the lower court record and record reveals that Sh. Satbir Singh expired on 20/02/2004 and his statement is recorded on 31/03/2004, this shows that there has been grave illegality and non application of mind in the conduct of the lower court proceedings.
In view of the above facts and circumstances, the mutation order dated 31/03/2004 is set aside and it would be in the interest of justice that the proceeding be initiated afresh by RA/SDM (NG) to whom this matter is remanded. Both parties are directed to appear before RA/SDM (ND) on14/03/2008.
Order announced in open court under my hand and seal of this court on 05th March 2008. (For the purpose of emphasis I have underlined the aforesaid portion).
16.1 Curiously though this fact was noticed by DC, South West i.e. statement of Satbir Singh was recorded on 31.03.2004 whereas he had expired on 20.02.2004 for the reason best known to DC, South West no other enquiry/investigation was conducted as to the circumstances whereby the statement of a deceased person was recorded on 31.03.2004. It was a serious matter and ought to have been enquired. It ought not to have been merely brushed aside contending that it was a clerical mistake as so argued by Ld counsel appearing for defendant no.1 or otherwise any sort of inadvertent error. Worthwhile to note herein that the case setforth by the defendant no.1 is that the Will in question, in a manner was an open Will - the contents whereof were known to one and all including the plaintiff and other family members, RCA No.154/2019 page 14 of 45 still the revenue authority had not admittedly issued any notice of the mutation proceedings to the plaintiff.
16.2 Delving further on this aspect, I again note herein that the Will in question is dated 22.08.1991 and testator Ram Chander had expired on 26.05.2002. Infact Satbir Singh had expired on 20.02.2004 meaning thereby sufficient time was there insofar as the property was to be mutated on the basis of the Will moreso when the Will in question was known to one and all but still for the reason best known to defendant no.1 proceedings were initiated after delay and after the death of Satbir Singh. To my mind this is the first suspicious circumstance as the defendant no.1 wished to keep the factum of Will as secret till the mutation was allowed/proceedings of mutation were complete.
16.3 Now coming to the broad case which has been setforth by the defendant no.1 in Written Statement that infact father of the defendant no.1 Ram Chander had disposed of one acre agricultural of his land and he too disposed of one acre of his land and proceeds were divided equally and since he was not having any agricultural land, this land in question which was ancestral land, was given to him by his father Ram Chander. He also supported the fact that there was family settlement and accordingly Will in question was executed by Ram Chander in pursuance of the family settlement.
16.4 Now let me deal on this aspect on the basis of evidence led by DW1 which was led before Ld. Trial Court. DW1 deposed that "I was owner of the land measuring one acre out of Khasra No.33/1, village Raghopur, RCA No.154/2019 page 15 of 45 Delhi. I have not filed any document on record to show that I was the owner of the said land at Raghopur. I do not know name of the person to whom said land at Raghopur was sold." He further deposed that this land was sold in the year 1987. He also deposed that his father had partitioned residential properties at village Kanganhari, Delhi amongst his three sons in equal shares during his lifetime as per family settlement.
16.5 Now relevant to note herein that insofar as land in Raghopur is concerned this witness has not placed on record any document to show that he owned any land in Raghopur which was sold by him for the family benefits.
Subsequently in his crossexamination he admitted that Jamabandi Ex.DW1/P1 reveals that he was only a lessor of the said land and he was not owner thereof. Thus sale of land at Raghopur in pursuance of any family settlement has not been established.
16.6 During the course of submissions, Ld counsel for the defendant no.1 raised plea that sale proceeds were divided equally insofar as said land was concerned. Now qua this aspect there is no evidence whatsoever led that the sale proceeds of the land disposed of at Raghopur or any other land disposed of by their father was distributed in favour of the sons of Ram Chander i.e. parties to the suit. Otherwise also if there would have any such mutual family settlement then the best course would have been to incorporate this plea/aspect in the Will in question. Will is conspicuously silent of there being any family settlement but it only speaks of the fact that the land in question was bequeathed along with one house to defendant no.1.
RCA No.154/2019page 16 of 45
17. Now much emphasis was made on the affidavit placed on record and proved as Ex.DW1/C allegedly given by Daya Nand and Satbir Singh for the purposes of effecting the mutation in favour of defendant no.1 Hari Prakash. The affidavit is also extracted as hereunder:
We, Daya Nand and Satbir Singh both sons of Sh. Ram Chander r/o Village Kanganheri, New Delhi-71, do hereby solemnly affirm and declare as under:-
1.That we the undermentioned Depondents and legal heirs of Sh. Ram Chander have NO OBJECTION if agricultural land of our father's 1/4th share out of 18 Bigha 17 Biswas, out of Khasra No.3/20/2, 21/1, 4/15, 16, 25, 28, 11/5, situated in the village Jhatikra, New Dlehi, is mutated in favour of Sh. Hari Parkash s/o Sh. Ramchander (3rd legal heir).
2.That it is our true statement.
17.1 Now first of all there is no mention of the fact in the affidavit that Ram Chander had executed any Will or in pursuance of the family settlement said affidavit was given. Further if I look at the language of the affidavit it in a manner rather supporting the case of the defendant no.1 damages his case for the reason that it recognises the right of the plaintiff and Satbir Singh in the property as it is stated that they are according/giving their no objections in the land. Further I fail to understand what was the need of such an affidavit/NOC at the first place as Ram Chander was alive at that point of time i.e. in the year 2000. In any eventuality this affidavit/NOC probalises that even at that point of time the Will in question was not disclosed or made open or otherwise known to the plaintiff.
17.2 The fact that the said deponents namely Satbir Singh and Daya RCA No.154/2019 page 17 of 45 Nand had allegedly given the said affidavit/NOC by itself suggests that even as on 19.01.2000 the question of succession in the eventuality of demise of Ram Chander was still not a close chapter but was likely to open post his demise or death.
18. Now Ld. Trial Court had returned the finding that the Will in question was genuine and much emphasis was laid on the aspect that the testimony of DW2 namely Roop Chand can be read in evidence or not. I note that Roop Chand was examined, crossexamined in part and while his further crossexamination was going, he expired. Ld counsel for the plaintiff had urged that his evidence cannot be read as his cross examination was not concluded. This plea was sought to repealed by Ld counsel for defendant no.1.
18.1 I think this particular aspect clouded or in a manner put the discussion off on the fundamental question which Ld. Trial Court ought to have decided as to whether Will in question was last testament of deceased Ram Chander and whether the same was executed by him voluntarily or not. Infact there is scant discussion on the said aspect. For the said purpose it was imperative to look at the document and for the sake of convenience the Will in question reads as under:
WILL BE IT KNOWN TO ALL THAT I Sh. Ram Chander son of Late Sh. Sohan lal, Aged: 74 years.R/O Village P.O. KANGANHERI, New Delhi, in my sound senses and health and in my disposing mind without any force or compulsion from others with my own free accord and sweet will I hereby make this Will to the following effect:-
That my wife is dead and I have got three sons and three RCA No.154/2019 page 18 of 45 daughters namely:-
Sons: Daya Nand, Satbir and Hari Parkash. Daughters: Ganga Devi, Champa and Kamla. My all daughters are married and my all the three sons are also married. That at the time of marriages of my daughters I gave them sufficient cash, ornaments, dowries etc and with God belling they are well settled.
That I am sole and complete owner in respect of 1/4th share in Agricultural Land measuring total area 12/1(0-18), 4/15 (2-10), 16(4-16) 25 (4-11), 28(0-5) and 11/5 (4-16) entered in Khata Khatuni No.139/135 situated in the area of village Jhatikra, Teh. Mehrauli, New Delhi.
Besides the said land I am also owner of a House which is built on land about 240 sq yards approx. situated in the abadi and area of village Kanganheri, New Delhi. That my two sons Daya Nand and Satbir are residing separately and I got constructed two houses for them and they are residing in their respective own houses and well settled and moreover they are having their own land which was allotted to them being Landless by the Gram Panchayat, but my youngest son Hari Parkash is at present not having any land and house for his own use and for the use of his family members.
Thus in the light of the above fact I hereby bequeath that after my death my entire ownership shares in agricultural land (including type-well which is under my ownership) at village Jhatikara, New Delhi and my said House at village Kangan Heri, New Delhi will go and devolve to my son Hari Parkash only. My other two sons, any of my daughters or anybody else shall have no right, share claim, concern whatsoever with respect to my said properties, if any one raises any objection it will be considered as null and void and not maintainable.
That this is my first and last final Will in respect of my above said property/properties and prior to this I have not made any Will/Testament of mine, if at any time any personal shall produce such any documents the same shall be considered null and void, false and concocted and not maintainable in any respect.
IN WITNESS set my hands to this Will at Delhi on this the 22nd day of August, 1991 in the presence of the following witnesses, who have signed in the presence of each other and in my presence also.RCA No.154/2019
page 19 of 45 TESTATOR R.O.&.A.C. WITNESSES:
1. Sh.Satbir Singh S/o Sh. Ram Chander (Testator) r/o Vill: P.O. Kanganheri, New Dlehi.
2. Sh. RoopChand S/o Sh. Ram Gopal Vill. P.O. Palam, New Delhi.
Drafted by:
H.G. Batra Advocate
19. Before I proceed further, I may usefully quote extensively from the recent judgment of Kavita Kanwar v. Pamela Mehta & Ors (2021) 11 SCC 209 wherein the entire law on the subject has been discussed. The relevant portion is extracted as hereunder:
22. As noticed, the basic point for determination in this appeal is as to whether the Trial Court and the High Court were justified in declining to grant probate in relation to the Will dated
20.05.2003 as prayed for. Obviously, a just and proper determination of this point would revolve around the legal principles applicable as also the relevant factual aspects of the case. Before entering into the factual aspects and the questions in controversy, appropriate it would be to take note of the applicable legal provisions and principles concerning execution of a Will, its proof, and its acceptance by the Court.
23. It remains trite that a Will is the testamentary document that RCA No.154/2019 page 20 of 45 comes into operation after the death of the testator. The peculiar nature of such a document has led to solemn provisions in the statutes for making of a Will and for its proof in a Court of law. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion thereof, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. Chapter III of Part IV of the Succession Act makes the provision for execution of unprivileged Wills (as distinguished from privileged Wills provided for in Chapter IV) with which we are not concerned in this case.
23.1. Sections 61 and 63 of the Succession Act, relevant for the present purpose, could be usefully extracted as under: - "61. Will obtained by fraud, coercion or importunity. A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
*** *** ***
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 RCA No.154/2019 page 21 of 45 Will.
(c) The Will shall be attested by two or more witness, 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." 23.2. Elaborate provisions have been made in Chapter VI of the Succession Act (Sections 74 to 111), for construction of Wills which, in their sum and substance, make the intention of legislature clear that any irrelevant misdescription or error is not to operate against the Will; and approach has to be to give effect to a Will once it is found to have been executed in the sound state of mind by the testator while exercising his own free will. However, as per Section 81 of the Succession Act, extrinsic evidence is inadmissible in case of patent ambiguity or deficiency in the Will; and as per Section 89 thereof, a Will or bequest not expressive of any definite intention is declared void for uncertainty. Sections 81 and 89 read as under: "81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency. Where there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted.
*** *** ***
89. Will or bequest void for uncertainty. A Will or bequest not expressive of any definite intention is void for uncertainty."
Moreover, it is now well settled that when the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be removed before the document in question is accepted RCA No.154/2019 page 22 of 45 as the last Will of the testator.
23.3. As noticed, as per Section 63 of the Succession Act, the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act, that 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."
24. We may now take note of the relevant principles settled by the consistent decisions in regard to the process of examination of a Will when propounded before a Court of law.
24.1. In the case of H. Venkatachala Iyengar (supra), a 3Judge Bench of this Court traversed through the vistas of the issues related with execution and proof of Will and enunciated a few fundamental guiding principles that have consistently been followed and applied in almost all the cases involving such issues. The synthesis and exposition by this Court in paragraphs 18 to 22 of the said decision could be usefully reproduced as under: "18. What is the true legal position in the matter of proof of RCA No.154/2019 page 23 of 45 wills? It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. S. 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed.
Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof RCA No.154/2019 page 24 of 45 of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by 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 execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not RCA No.154/2019 page 25 of 45 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 document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
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 has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial RCA No.154/2019 page 26 of 45 conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946 PC 156), "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect." (emphasis supplied) 24.2. In Rani Purnima Debi RCA No.154/2019 page 27 of 45 (supra), this Court referred to the aforementioned decision in H. Venkatachala Iyengar and further explained the principles which govern the proving of a Will as follows: "5. Before we consider the facts of this case it is well to set out the principles which govern the proving of a will. This was considered by this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443.
It was observed in that case that the mode of proving a will did 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 was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were 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. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free RCA No.154/2019 page 28 of 45 will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even when where there suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations." (emphasis supplied) 24.3. In the case of Indu Bala Bose (supra), this Court again said, "7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the 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. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent 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 RCA No.154/2019 page 29 of 45 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.
8 . Needless to say that any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person." (emphasis supplied) 24.4. We may also usefully refer to the principles enunciated in the case of Jaswant Kaur (supra) for dealing with a Will shrouded in suspicion, as follows: - "9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will." (emphasis supplied) 24.5. In the case of Uma Devi Nambiar (supra), this Court extensively reviewed the case law dealing with a Will, including the Constitution Bench decision of this Court in the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964 SC 529, and observed that mere exclusion of the natural heirs or giving of lesser share to them, by itself, will not be considered to be a suspicious circumstance. This Court observed, inter alia, as under: "15. Section 63 of the Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his RCA No.154/2019 page 30 of 45 presence and by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 68 of the Indian Evidence Act, 1872 (in short the "Evidence Act") mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the court while dealing with a case based upon a Will has been examined in considerable detail in several decisions of this Court ....... A Constitution Bench of this Court in Shashi Kumar Banerjee's case succinctly indicated the focal position in law as follows: (AIR p. 531, para 4) "The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 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 the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in RCA No.154/2019 page 31 of 45 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."
16. A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.:
[1995] 2 SCR 585, it is the duty of the propunder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. ..... In Rabindra Nath Mukherjee and Anr. v . Panchanan Banerjee (dead) by LRs. and Ors.: AIR 1995 SC 1684, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly." 24.6. In the case of Mahesh Kumar (supra), this RCA No.154/2019 page 32 of 45 Court indicated the error of approach on the part of the High Court while appreciating the evidence relating to the Will as follows: "44. The issue which remains to be examined is whether the High Court was justified in coming to the conclusion that the execution of the will dated 1021992 was shrouded with suspicion and the appellant failed to dispel the suspicion? At the outset, we deem it necessary to observe that the learned Single Judge misread the statement of Sobhag Chand (DW3) and recorded something which does not appear in his statement.
While Sobhag Chand categorically stated that he had signed as the witness after Shri Harishankar had signed the will, the portion of his statement extracted in the impugned judgment gives an impression that the witnesses had signed even before the executant had signed the will.
45. Another patent error committed by the learned Single Judge is that he decided the issue relating to validity of the will by assuming that both the attesting witnesses were required to append their signatures simultaneously. Section 63(c) of the 1925 Act does not contain any such requirement and it is settled law that examination of one of the attesting witnesses is sufficient. Not only this, while recording an adverse finding on this issue, the learned Single Judge omitted to consider the categorical statements made by DW 3 and DW 4 that the testator had read out and signed the will in their presence and thereafter they had appended their signatures.
46. The other reasons enumerated by the learned Single Judge for holding that the execution of will was highly suspicious are based on mere surmises/conjectures. The observation of the learned Single Judge that the possibility of obtaining signatures of Shri Harishankar and attesting witnesses on blank paper and preparation of the draft by Shri S.K. Agarwal, Advocate on pre signed papers does not find even a semblance of support from the pleadings and evidence of the parties. If Respondent 1 wanted to show that the will was drafted by the advocate after Shri Harishankar and attesting witnesses had signed blank RCA No.154/2019 page 33 of 45 papers, he could have examined or at least summoned Shri S.K. Agarwal, Advocate, who had represented him before the Board of Revenue. ....." 24.7. Another decision cited on behalf of the appellant in the case of Leela Rajagopal may also be referred where this Court summarised the principles that ultimately, the judicial verdict in relation to a Will and suspicious circumstances shall be on the basis of holistic view of the matter with consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature. This Court said, "13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us." 24.8. We need not multiply the references to all and other decisions cited at the Bar, which essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Civil Appeal No. 6076 of 2009: Shivakumar & Ors. v. Sharanabasppa & Ors., decided on 24.04.2020, this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a Will as follows:- "1. Ordinarily, 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.
RCA No.154/2019page 34 of 45 Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera 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 give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected RCA No.154/2019 page 35 of 45 of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.'
7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will."
RCA No.154/2019page 36 of 45
20. Delving on the aspect as to whether the evidence of DW2 Roop Chand the attesting witness to the Will can be taken into consideration for the reason that he had died before his crossexamination could be concluded, I am of the firm opinion that the evidence of DW1 even if the same was not concluded can be taken into consideration. First of all merely on this plea that crossexamination is not complete does not by itself means that the evidence led on record is to be effaced. It has to be duly appreciated/evaluated on the basis of the entire evidence led. In cases with respect to Wills when challenge is made at a later stage of time i.e. much after the execution of the Will, the evidence cannot be excluded on any trifle or immaterial ground. I also note herein that the import of the evidence of DW2 Roop Chand can be gauzed from the suggestion given to DW1 while his crossexamination was conducted which was to the fact "It is wrong to suggest that I fabricated Will in question in collusion with witness Roopchand for causing wrongful loss to the plaintiff and Satbir Singh". Thus insofar as role of Roop Chand is concerned, his role is quite important or pivotal.
20.1 Now considering the testimony of Roop Chand, I am also of the view that his testimony is the most relevant one and speaks a lot about the factum of the manner in which the Will in question was prepared and registered. DW2 Roop Chand in his affidavit by way of evidence Ex.DW2/1 states at the very outset as hereunder:
That the deponent is the permanent resident of above mentioned address and was known to Late Sh. Ram RCA No.154/2019 page 37 of 45 Chander S/o Sh. Sohan Lal, the executants of the Will dated 2281991 and his family members since about 1965 when the deponent was posted as Patwari. That the deponent and late Sh. Ram Chander are belongs to same cast. That the wife of Sh. Hari Parkash namely Smt. Krishana Devi and mother of defendant no.2 and 3 Smt. Bala w/o late Sh. Satbir Singh are the real sisters and daughters of the brotherinlaw of deponent Sh. Ram Kishan.
20.2 Further in para 3 of the affidavit, he had deposed that the Will was executed with the consent of other sons. Ram Chander was accompanied by him, Satbir Singh and Rohtash. Rohtash is the husband of daughter of Ram Chander. He also deposed in his examination in chief that the Will was got typed by Sh. H.G. Batra, Advocate and contents were read over to Ram Chander, Satbir Singh and to him and thereafter Ram Chander and Satbir Singh had put their signatures on the Will. He had also signed at the Will.
20.3 Now it is but apparent that this witness was interested qua defendant no.1 Hari Prakash and even with respect to Satbir Singh and in the evidence in chief he had on his own deposed as to the said fact. He also remained as Patwari. Now in the crossexamination he admitted the fact that he was instrumental in the marriage of Hari Prakash. Inspite of the fact that the details of the land in question were stated in examination in chief during his crossexamination upon being asked about Khasra number, this witness deposed that Khasra number of the land involved are not known to him. He also deposed that Ram Chander knew Urdu language. He also deposed that Ram Chander had informed him about execution of the Will and he reached at RCA No.154/2019 page 38 of 45 Kashmere Gate directly from his office.
20.4 Now insofar as Will in question is concerned this witness deposed that he went to one Sh. K.K. Verma, the Deed Writer who was residing at Palam village and he had drafted the said will He also admitted that Satbir Singh, Hari Prakash (defendant no.1), Ram Chander, Dayanand and one more relative were present at that point of time. This witness admitted that Hari Prakash was beneficiary of the Will was present at the time when Will was being drafted. He also reached there when said persons were present. It is but apparent that it is not a family settlement or family deed which was being prepared but Will of Ram Chander and presence of Hari Prakash at that point of time who is beneficiary is a suspicious circumstance.
20.5 Regarding name of advocate, he stated that he does not remember whether K.K. Verma had signed the Will or not. He also stated that he does not know any advocate namely Sh. H.G. Batra. He also admitted that Ram Chander does not know how to read or write in English language though he had some knowledge of Urdu language.
20.6 His further crossexamination was conducted wherein he admitted that in the year 1962, he joined as Patwari and in the year 199091 he was posted as Kanungo at LAC Branch, Tis Hazari Courts. He also admitted that in the year 19901991, Ram Chander was of old aged but at the same time deposed that he was not keeping bad health as well. Now in the further cross examination he again changed colours and stated that Hari Prakash was not present at the time of signing of the Will. Again he deposed that from the RCA No.154/2019 page 39 of 45 office of Sh. K.K. Verma he came back directly to his office and at that point of time Hari Prakash was also not present there. He also admitted that he had appeared before Tehsildar in the year 2004 at the time of mutation as well.
20.7 Now I note herein that repeatedly DW2 has named Sh. K.K. Verma as the Advocate who had drafted the Will then how the name of Sh.
H.G. Batra, Adv was mentioned in the Will. This fact has not at all been considered by Ld. Trial Court as who was Sh. K.K. Verma, Adv or the deed writer. This question to my mind requires to have been dealt with which had skipped the attention of Ld. Trial Court as to who said K.K.Verma was and what was his role in the entire transaction. Whether he was a deed writer or Advocate (may be so) but the name of the person who had drafted the Deed as evident from the Will was Sh. H.G. Batra, Adv. It is further relevant to note herein that in the Will Sh. H.G. Batra had not even stated his enrollment number or even the office address as well. Said facts are conspicuously silent. The date is also not there beneath the signatures of Advocate. Again it is important to note herein that DW2 Roop Chand by his nature of work knows the importance of Will or such like documents and his evidence as to the fact that the Will was drafted by Sh. K.K. Verma, deed writer cannot be brushed aside. The only logical inference which I can deduce is the fact that the Will was prepared by Sh. K.K. Verma but for the reason best known to him same has been shown to have been prepared through Sh. H.G. Batra, Adv. This to my mind is another suspicious circumstance which has not at all been explained by Ld counsel for defendant no.1 and it is a material circumstance for the reason that the person who had prepared the Will had not even acknowledged the said Will by putting his signature/his address. This aspect RCA No.154/2019 page 40 of 45 has not been looked at into by Ld. Trial Court.
21. Now bare perusal of the Will reveals that first of all the factum of family settlement between the parties has not at all been disclosed in the Will in question. At the cost of repetition, there is no mention in the Will as to the fact that Ram Chander had disposed of his one acre land earlier and also defendant no.1 had also disposed of his one acre land.
21.1 Furthermore contention that Will in question was read over to Ram Chander is also an important fact for the reason that he had knowledge of Urdu and was not having knowledge of English while Will was drafted in English language and qua this facet let me now again look into the evidence of defence witnesses. As mentioned above role of DW Roop Chand is pivotal in preparation, registration and execution of the Will. However, I am of the opinion considering the fact that he is an interested witness qua the said aspect i.e. for adjudicating or even clarifying the said fact that as to whether the Will was read or explained to the testator deceased Ram Chander his evidence is not of any use.
21.2 Coming to the testimony of DW3 who is also son in law of Ram Chander and who had also been examined on the aspect of preperation of Will and was present there at that relevant point of time. First of all I note that he is not signatory to the Will so his evidence is not of much use either. This witness has deposed that he is M.A. Economics and was a govt employee. Despite the fact that he was present there at the time of presentment of Will at Kashmere Gate, he had not signed as a witness and so much so one signatory RCA No.154/2019 page 41 of 45 was Satbir Singh himself who was being deprived of his share in the agricultural land.
21.3 DW3 during his crossexamination has deposed that Ram Chander, Daya Nand and Satbir Singh had gone to Sub Registrar Office, Kashmere Gate from village Kanganheri. He was informed by Ram Chander for coming to Kanganheri. He deposed that they went to Kashmere Gate and met an advocate but he could not tell the name of the advocate nor his chamber or office address. He further deposed that the said advocate got typed the Will in question from one typist. Ram Chander was having the Fard at that point of time. This witness again stated that when Will was prepared, Satbir Singh, Dayanand and Roop Chand were present there. He further deposed that Ram Chander had signed the Will first, then Satbir Singh and then Roop Chand had signed the same in chamber. He deposed that Ram Chander signed in Urdu language.
21.4 Now insofar as the testimony of this particular witness is concerned, it is slightly perplexing as this witness has deposed that he was asked by Ram Chander his father in law to come to Kanganheri and he also deposed that he stayed in Kanganheri the preceding night and went to the office of Sub Registrar and also was witness to the preparation of the Will, still, he had not signed or became a witness to the Will. Again if I look at the testimony of DW2 who is an attesting witness to the Will, he had deposed that the Will in question was drafted by Sh.K.K. Verma, deed writer and at that point of time Satbir Singh, Hari Prakash, Ram Chander and Daya Nand and one more relative were present there. I again note herein that in his cross RCA No.154/2019 page 42 of 45 examination which was recorded by Ld. Local Commissioner, he had only referred to the names of the sons of Ram Chander and notwithstanding the fact that he was just like a family to Ram Chander, he had not during the cross examination deposed as to the name of DW3 Rohtash being present there. Meaning thereby that DW3 had also been introduced later on. I am of the opinion that not much credence can be taken to the testimony of DW3 either on the aspect of the due execution of the Will or as qua clarifications or explanations as to the suspicious circumstances surrounding the Will.
21.5 Now in view the ratio of Kavita Kanwar (Supra) there are strong suspicious circumstances with respect to the due execution of the Will, the prominent role played by defendant no.1 Hari Prakash, the zeal shown by DW2 Roop Chand who is the main person behind the Will and the fact that the testimony of DW2 and DW3 is replete with glaring infirmities which leaves to the irresistible conclusion that the Will in question cannot at all be relied upon and the defendant has failed to satisfactorily account for/explain the suspicious circumstances apparent on record.
21.6 The findings on issues no.1 and 2 returned by Ld. Trial Court cannot be sustained and are accordingly set aside. The plaintiff is held entitled to a decree of declaration with respect to the Will in question declaring the same to be null and void and bereft of any legal import coupled with the fact that since the plaintiff is the owner/part owner of the property, the defendant no1 is also injuncted from transferring, alienating or creating any third party interest in the suit lands bearing Khasra No.3/20/2 (11), 21/1 (018), 4/15 (2
10), 16 (416), 25 (411), 28 (05) and 11/5 (416) to the extent of 1/4 share RCA No.154/2019 page 43 of 45 i.e. equivalent to 4 bighas 14 biswas 5 biswansi, comprised in Khata Khatauni No.139/135 situated in the area of village Jhatikara, Tehsil Palam, New Delhi out of total land measuring 18 Bighas 17 Biswas.
21.7 The upshot of the aforesaid discussion is that appeal is allowed and the judgment and decree dated 06.08.2019 is set aside. The plaintiff's suit is decreed.
Relief.
22. Suit of the plaintiff is decreed thereby declaring the Will dated 22.8.1991 allegedly registered vide document no.39020 in book no.3, volume no.1135 on pages 87 to 89 dated 22.08.1991 in the office of Sub Registrar, Kashmere Gate, Delhi in respect of land bearing Khasra No.3/20/2 (11), 21/1 (018), 4/15 (210), 16 (416), 25 (411), 28 (05) and 11/5 (416) to the extent of 1/4 share i.e. equivalent to 4 bighas 14 biswas 5 biswansi, comprised in Khata Khatauni No.139/135 situated in the area of village Jhatikara, Tehsil Palam, New Delhi out of total land measuring 18 Bighas 17 Biswas as null and void and the plaintiff is declared as legal heir/male lineal descendant of late Sh. Ram Chander in respect of the suit land.
22.1 Further a decree of permanent injunction is also passed in favour of the plaintiff and against defendant no.1 thereby restraining the defendant no.1, his legal heirs, attorneys, successors, representatives, etc from transferring, alienating, creating the interest of third party and also dispossessing the plaintiff without following due process of law from the RCA No.154/2019 page 44 of 45 aforesaid suit land.
No order as to cost.
Ordered accordingly.
Decree sheet be prepared accordingly.
Copy of the order be sent to Ld. Trial Court along with its record.
Appeal file be consigned to record room.
Announced in the open Court on 25.02.2023.
(SUMIT DASS) Additional District Judge04, South West, Dwarka Courts, New Delhi RCA No.154/2019 page 45 of 45