Delhi District Court
Ved Prakash Ors vs State on 10 September, 2024
IN THE COURT OF SH. DEEPAK DABAS
DISTRICT JUDGE (NORTH-01): ROHINI COURTS: DELHI
PC No. 23/2016
CNR NO. : DLNT010004032014
1. Late Sh. Ved Prakash
S/o Late Sh. Ram Chand
Through his LRs:-
1A Ms. Shruti Chopra,
D/o Late Sh. Ved Prakash.
1B Ms. Tanya Chopra,
D/o Late Sh. Ved Prakash.
Both Residents Of :-
H. No. 628, 2nd Floor, Bhai Parmanand Colony,
Delhi-110009
2. Sh. Harish Chander,
S/o Late Sh. Ram Chand,
R/o H. No. 628, 1st Floor, Bhai Parmanand Colony,
Delhi-110009.
.... Petitioner(s)
Versus
1. The State
Govt. of NCT of Delhi
2. Smt. Neelam Sharma, Objector No-1
W/o Sh. B.S. Sharma,
R/o H. No. 2054, Outram Line,
GTB Nagar, Delhi-110009.
3. Smt. Anju Bala, Objector No-2
W/o Sh. Jitender Kumar Alag,
R/o H. No. 3/20-A, Double Storey,
Vijay Nagar, Delhi-110009.
Date of Institution : 30.06.2014
_______________________________________________________________________
PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 1 of 16
Date of argument : 07.09.2024
Date of Order : 10.09.2024
PETITION U/S 276 OF THE INDIAN SUCCESSION ACT ,
1925 FOR GRANT OF PROBATE IN RESPECT OF WILL
DATED 30.09.2004 EXECUTED BY LATE SH. RAM CHAND
IN FAVOUR OF PETITIONER(S).
JUDGMENT
1. Petitioners have filed the present petition u/s 276 of The Indian Succession Act, 1925 for grant of probate in respect of duly registered will dated 30.09.2004, executed by Late Sh. Ram Chand in their favour.
2. In the petition, petitioners have stated that Sh. Ram Chand S/o Late Sh. Kalu Ram Chopra had expired on 05.02.2006 leaving behind five class-1 legal heirs, namely, P-1/Ved Prakash (son); P-2/Harish Chander (son); R-2/ Neelam Sharma (daughter); R-3/Anju Bala (daughter) and Smt. Darshana (wife). It has been further stated that Smt. Darshana wife of Late Sh. Ram Chand had also expired on 21.03.2007. During his lifetime, Late Sh. Ram Chand had executed a registered will dated 30.09.2004 in favour of petitioners.
3. After receiving the petition, notice of same was issued to The State, respondents as well as to the general public/public at large and publication was also made in daily English newspaper, namely, "The Statesman", dated 24.07.2014 as well as daily Hindi newspaper, namely, "Navbharat Times", dated 23.07.2024.
4. R-2 and R-3 have filed objections qua present petition. In their objections/written statement R-2 and R-3 _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 2 of 16 have taken some preliminary objections and have given reply on merits also. In the objections/written statement, R-2 and R-3 have stated that petitioners have fraudulently manipulated and forged the said will in order to grab the valuable rights of the respondents in said property. It has been further averred that Late Sh. Ram Chand was not exclusive owner of said property and same is a HUF, hence, deceased testator was not authorized and competent to execute the said will as said property was allotted by the Government of India to Late Sh. Ram Chand and his family members in lieu of their property situated and left in Pakistan after partition of the country. Initially, a house/ property was allotted to the deceased and his family members at Kingsway Camp, Delhi, in lieu of the property left in Pakistan by the family of Late Sh. Ram Chand. Thereafter, the said property was re-allotted by DDA and as such Late Sh. Ram Chand was not competent and authorized to execute the alleged will dated 30.09.2004 in favour of petitioners or to transfer or to sell the said property to any other person. It has been further averred that respondents no-2 and 3 are having 1/4th share each in said property, hence, present petition is liable to be dismissed with heavy cost. Late Sh. Ram Chand was suffering from old age diseases. From December 2002 till his death i.e. for the last five years of his life Late Sh. Ram Chand was not in his sense and he remained bed ridden. Even, he was not in a position to go to Sub- Registrar Office to execute said will in favour of petitioners and petitioners have filed present petition by _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 3 of 16 concealing the material and true facts.
5. Rejoinder was filed on behalf of petitioners to the objections/WS filed on behalf of R-2 and R-3.
6. Notice to general public/public at large was given by way of publication in the daily English newspaper, namely, "The Statesman", dated 24.07.2014 as well as daily Hindi newspaper, namely, "Navbharat Times", dated 23.07.2024. In spite of it, no public person has come forward to make/ raise any objection in respect of prayer made by the petitioners in the present petition.
7. Valuation report was received from SDM, Model Town, Delhi with respect to said property and as per said valuation report the total value of said property is Rs.52,14,224/-.
8. On completion of pleading, the following issues were framed on 25.01.2016 :-
1) Whether petitioners are entitled for grant of probate of the Will dated 30.09.2004, as prayed for? OPP
2) Whether the will dated 30.09.2004 is manipulated, forged and bogus? OPR.
3) Whether the petitioners have filed the present petition by concealing the material and true facts?
OPR
4) Relief
9. In order to prove their case, P-2/Harish Chander himself entered into witness box as PW-1 and tendered his evidence by way of affidavit Ex PW-1/A. He had also _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 4 of 16 relied upon following documents:-
i) Copy of death certificate of Late Sh. Ram Chand i.e. Ex PW-1/1;
ii) Copy of death certificate of Late Smt. Darshana i.e. Ex PW-1/2;
iii) Original will dated 30.09.2004 i.e. Ex PW-4/1;
(iv) Photocopy of passbook of Late Sh. Ram Chand of Saving Bank Account No. 3900 in Syndicate Bank i.e. Ex PW-1/3;
(v) Copy of passbook of Late Smt. Darshana of Saving Bank Account No. 6184 in Oriental Bank of Commerce i.e. Mark-A;
(vi) Copy of Voter-I Card of P-2/Harish Chander i.e. Ex PW-1/4;
(vii) Copy of electricity bill in the name of Late Sh. Ram Chand i.e. Mark-B (Colly);
(viii) Copy of Delhi Jal Board bills in the name of P-1/ Late Sh. Ved Prakash i.e. Mark-C (Colly); and
(ix) Copy of property tax receipt in the name of Late Sh.
Ram Chand i.e. Mark-D. PW-1 was cross-examined at length by Ld. Counsel for R-2 and R-3.
10. To prove the contents of petition, petitioners have also examined PW-2 Smt. Renu Chopra i.e. wife of P-1/ Late Sh. Ved Prakash. She tendered her evidence by way of affidavit Ex PW-2/A. She had also relied upon following documents:-
i) Copy of death certificate of Late Sh. Ved Prakash i.e. Ex PW-2/1;
ii) Copy of Aadhar Card of PW-2 Smt Renu Chopra i.e. Ex PW-2/2;
iii) Copy of Voter-I Card of PW-2 Smt. Renu Chopra i.e. Ex PW-2/3;
iv) Copy of Aadhar Card of Ms. Shruti i.e. Ex PW-2/4;
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v) Copy of Voter-I Card of Ms. Shruti i.e. Mark-A;
vi) Copy of Aadhar Card of Ms. Tanya i.e. Mark-B;
vii) Copy of Voter-I Card of Ms. Tanya i.e. Mark-C;
viii) Evidence by way of affidavit of Late Sh. Ved Prakash i.e. Ex PW-2/B. PW-2 was also cross-examined on behalf of R-2 and R-3.
11. Petitioners have also examined PW-3 Sh. V.P. Joshi, Senior Manager from Oriental Bank of Commerce, Kingsway Camp, Delhi. He produced statement of account of Late Smt. Darshana Kumari i.e. Ex PW-3/1. He was also cross-examined on behalf of R-2 and R-3.
12. Petitioners have also examined attesting witness PW-4 Sh. Samrendra Kumar Das. He deposed that he is attesting witness no-1 of said will i.e. Ex PW-4/1, bearing his signatures at points-A and B. He was also cross- examined at length on behalf of R-2 and R-3.
13. Petitioners have also examined second attesting witness i.e. PW-5 Sh. Ranvir Singh Dhama. He deposed that he is second attesting witness of will i.e. Ex PW-4/1, bearing his thumb impression at points-C and D. He was also cross-examined on behalf of R-2 and R-3.
14. PW-6 is Sh. Praveen Kumar Rana UDC, Sub-
Registrar-I, Kashmiri Gate, Delhi. He had produced the record pertaining to registration of said will. He deposed that said will was registered vide registration no. 11158, Book No. IV, Volume No. 500 on pages 108-109, dated 30.09.2004. He was also cross-examined on behalf of R-2 and R-3.
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15. On 28.05.2019, PE was closed by petitioner vide his separate statement and case was fixed for respondents evidence.
16. RW-1 Smt. Neelam Sharma filed and tendered her evidence by way of affidavit Ex RW-1/A, bearing her signatures at points-X and Y. She was cross-examined on behalf of petitioners.
17. RW-2 Smt. Anju Bala also filed and tendered her evidence by way of affidavit Ex RW-2/A (wrongly mentioned as DW-2/A), bearing her signatures at points-X and Y. She was also cross-examined on behalf of petitioners.
18. On 16.11.2019, RE was closed by counsel for respondents no. 2 and 3 vide his separate statement and case was fixed for final arguments.
19. FINAL ARGUMENTS:-
Arguments advanced by Ld. Counsel for petitioners and Ld. Counsel for R-2 and R-3 were heard. I have perused the record carefully. I have also perused the written arguments filed on behalf of petitioners as well as on behalf of R-2 and R-3.
20. I have also perused the following judgment relied upon by R-2 and R-3:-
Pitamber Singh & Anr. Vs. Rattu Singh & Anr., decided on 08.10.2018 by Hon'ble High Court of Chhatisgarh, Bilas Pur.
21. ISSUEWISE FINDINGS:-
_______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 7 of 16 ISSUE NO-1
1) Whether petitioners are entitled for grant of probate of the Will dated 30.09.2004, as prayed for? OPP
22. In order to prove the will in question, petitioners have produced and examined both attesting witnesses i.e. PW-4/S.K. Dass and PW-5/R.S. Dhama. Perusal of testimony of PW-4 as well as PW-5 shows that the examination in chief of PW-4 and PW-5 lacks material particulars. Examination in chief of PW-4 is being reproduced herein for sake of convenience and ready reference :-
"I am summoned witness in the present case. I have seen the original registered will dated 30.09.20024. I am the attesting witness no. 1 in the said will and same is signed at Point-A and Point-B. Same is Ex PW4/1 (Objected to mode of proof of the will)."
23. Examination in chief of PW-5 is also being reproduced herein for sake of convenience and ready reference :-
"I am second attesting witness in the will in question and I have seen the said will which is already Ex PW- 4/1 and same is signed by me with thumb impression at point-C and D."
24. It is also pertinent to mention that PW-5/R.S. Dhama in his cross-examination stated that the said will was not prepared or drafted in his presence nor he has any knowledge about the contents of said will.
25. Section 63 of The Indian Succession Act, 1925 deals with execution of unprivileged wills. Section 63 of said _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 8 of 16 Act is also being reproduced herein for sake of convenience and ready reference :-
63. Execution of unprivileged Wills.--
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
26. Section 68 of The Indian Evidence Act, 1872 deals with proof of execution of document required by law to be attested. Section 68 of said Act is also being reproduced herein for sake of convenience and ready reference :-
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 _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 9 of 16 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.]
27. In Pitamber Singh's case (supra), Hon'ble High Court of Chhatisgarh held as under :-
"28. From the aforesaid narration of facts, it is quite vivid that compliance of Section 63(c) of the Succession Act, 1925 is missing though strict compliance of the said provision is imperative. Defendant No.1 being propounder of the will must have proved that the testator has signed the will in presence of attesting witnesses Parsuram (DW-2) & Buturam (DW-3) and the attesting witnesses have also signed in presence of the testator. Section 63(c) of the Succession Act, 1925 clearly lays down the requirement of valid and enforceable will that it shall be attested by two or more witnesses, each of them has seen the testator signing or affixing his mark to the will and each of the witnesses has signed the will in presence of the testator as held by the Supreme Court in H.Venkatachala Iyengar (supra) that a will has to be proved like any other document except that evidence tendered in proof of will should additionally satisfy the requirement of Section 63 of the Succession Act, 1925 apart from under Section 68 of the Evidence Act, 1872.
29. Analysing the facts of the present case, it would appear that defendant No.1 being the testator of the will has failed to prove the attestation of will in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of Evidence Act, 1872. Both the attesting witnesses Parsuram (DW-2) & Buturam (DW-3) did not state before the Court that testator Thakni Devi signed the will in their presence and they signed the will in presence of the testator. Mere signing of a will as a witness would not per se amount to compliance of Section 63(c) of the Succession Act, 1925 as animo attestandi is absolutely missing. In the matter of Bhagat Ram v. Suresh 9, it has been held that to be an attesting witness it is essential that the witness should have put his signature animo attestandi _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 10 of 16 for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. Therefore, this Court is fully satisfied that execution and attestation of will is not found established in accordance with law and defendant No.1 has failed to discharge his burden placed upon him by law to prove attestation of a will.
30. Apart from this, the first appellate Court is absolutely unjustified in holding that it is for the plaintiffs to establish execution and attestation of will in accordance with law. Defendant No.1, being propounder of the will, was duty bound to prove execution and attestation of will in accordance with law.
31. Consequently, I hold that defendant No.1 being propounder of will has failed to establish due attestation of will in accordance with Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, and the finding recorded by the first appellate Court deserves to be set aside."
28. Hon'ble High Court of Delhi in a case titled as "Anita Khosla Vs. State", reported as 2010 (96) AIC 766 had held as under :-
"12. It was contended by the learned counsel for the objectors that since PW-2 and PW-3 did not sign in the presence of each other, there was no proper execution of the Will. I, however, find no merit in the contention. The evidence on record does not show that PW-2 was not present when the Will was attested by PW-3 or that PW-3 was not present when it was attested by PW-2. In fact, their affidavits indicate that both of them were present together when the Will was first signed by the Testator and then by these witnesses. Moreover, a bare perusal of Section 63(c) of Indian Succession Act would show that a Will is required to be attested by two or more witnesses and each of them must have seen the Testator sign or affixing his mark to the Will or should have seen some other person signing the Will in the presence and under the directions of the Testator or should have received a personal acknowledgment from the Testator with respect to his signature or mark or signature of the another person who signs the Will in the presence and under the direction of the Testator and _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 11 of 16 it is also necessary that each witness should sign the Will in the presence of the Testator. This, however, is not the requirement of law in India that both the attesting witnesses should also sign in the presence of each other.
13. Though the English law requires that both the witnesses must be present at the same time and both must see the Testator execute the documents as his Will, the Indian law expressly lays down to the contrary by providing in clause 6(c) of Section 63 that "it shall not be necessary that more than one witness be present at the same time." In fact, it is also not necessary that all the witnesses must see the Testator sign. It may as well happen that one witness may see the executor sign and the other witness may not see him sign, but the Testator may acknowledge his signature before him.
14. There are number of modes of proving signature or writings of persons, such as, by calling the person who signed or wrote the document; by calling a person in whose presence the document was signed or written; by calling a handwriting expert; by calling a person acquainted with the handwritings of the person by whom the document is supposed to be signed or written; by comparison in Court of the disputed signatures or writings with some admitted signatures or writings; by proof of an admission by the person, who is alleged to have signed or written the document that he signed or wrote it, etc. In case the document happens to be a Will, there is a slight distinction, which has to be kept in mind. Unlike other documents, the Will speaks from the death of the Testator, and so, where it is propounded or produced before a Court, the Testator who has already departed the world cannot be called upon to say whether it is his will or not.
15. Section 68 of Evidence Act, to the extent, it is relevant, provides that if a document is required by law to be attested, it shall not 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 giving evidence." Since the Will is a document required by law to be attested by at least two witnesses, the petitioner could have proved it by producing one of the attesting witnesses of the Will. The petitioner has duly proved execution of the Will dated 02nd April, 2003, by producing not one, but both _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 12 of 16 the attesting witnesses to the Will.
17. In "Girja Datt Singh vs Gangotri Datt Singh"
AIR 1955 SC 346, it was held that in order to prove the due attestation of the will the propounder of the will has to prove that the two attesting witnesses saw the Testatory sign the will and that they themselves signed the same in the presence of the testator. As regards the proof and attestation, reference was made to Section 68 of the Evidence Act and it was held that it is necessary to comply with the provisions of the Evidence Act to prove the due execution and attestation of the will by calling at least one attesting witness in case he is alive and one cannot presume from the mere signatures appearing at the foot of the endorsement of registration or at the foot of the document that the witnesses appended their signatures to the documents as attesting witnesses.
29. In the present case, perusal of testimony of attesting witnesses i.e. PW-4 and PW-5 clearly shows that PW-4 and PW-5 have not deposed that they had seen the testator signing or affixing his mark to the said will or has seen some other person signing th will in the presence and by the direction of testator or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person. The testimony of PW-4 and PW-5 is not only very vague one but is contradictory to each other. The testimony of PW-4 and PW-5 has failed to inspire confidence or to satisfy the judicial conscience of this court. PW-4 and PW-5 are most important witnesses in this case being the attesting witness of will in question but PW-4 and PW-5 have failed to satisfy the essential ingredients of Section 63 of The Indian Succession Act, 1925 and Section 68 of The Indian Evidence Act, 1872. PW-4 and PW-5 have miserably failed to prove the attestation and execution of the will in question as _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 13 of 16 envisaged in the aforesaid two provisions. The mere fact that both attesting witnesses have identified their signatures on the will in question ipso facto does not mean that the attestation and execution of will in question stands proved, as per law. The attestation and execution of will in question is to be proved by propounder/petitioners but they have failed to do so, in the present case.
30. Since petitioners have failed to prove the attestation and execution of will in question, as per law, the petitioners are not entitled to grant of probate of will dated 30.09.2004, as prayed for.
31. Hence, Issue no-1 is decided against the petitioners.
ISSUES NO-2 & 3
2) Whether the will dated 30.09.2004 is manipulated, forged and bogus? OPR.
3) Whether the petitioners have filed the present peti tion by concealing the material and true facts? OPR
32. Onus of proving Issue no-2 and 3 is upon the respondents. Issue no. 2 and 3 are connected/inter related and hence they are taken up together.
33. R-2 and R-3 in their objections qua present petition have stated that the will dated 30.09.2004 is manipulated, forged and bogus. In their objections, R-2 and R-3 have also claimed that the petitioners have filed the present petition by concealing the material and true facts.
34. In order to prove the aforesaid facts, R-2/Neelam Sharma herself entered into witness box as RW-1 and filed _______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 14 of 16 her evidence by way of affidavit. R-3/Anju Bala also deposed in court as RW-2.
35. Perusal of testimony of RW-1 and RW-2 shows that in their evidence they have reiterated the aforesaid allegations but have not produced any documentary proof regarding illness/incapacity of testator at the time of execution of will in question.
36. The objections taken by R-2 and R-3 are general in nature and they are not specific. It appears that the said objections were taken merely for the sake of taking the objections. R-2 and R-3 have also failed to lead evidence in support of the aforesaid objections and after perusal of entire evidence adduced by R-2 and R-3, I am of the considered view that R-2 and R-3 have failed to prove the allegations/objections taken by them regarding forgery, manipulation etc. of will in question and also pertaining to concealment of material and true facts.
37. While dealing with and deciding issue no-1, it has been held that the petitioners have failed to prove the attestation and execution of will in question but the aforesaid findings ipso facto does not mean that the will in question is manipulated, forged and bogus.
38. Since, the respondents have failed to prove that the will in question is manipulated, forged and bogus and also that the petitioners have concealed the material and true facts, issue no-2 and 3 are decided against the respondnets no. 2 and 3.
_______________________________________________________________________ PC No. 23/2016 Ved Prakash & Anr. Vs. State & Ors. Page 15 of 16 ISSUE NO-4
4) RELIEF
39. In view of my fidnings with respect to issue no. 1, 2 & 3, neither the petitioners nor the respondents are entitled to any relief in the present petition. The present petition is hereby dismissed and disposed of accordingly. File be consigned to record Room after necessary compliance.
Announced in the open court Digitally signed
by DEEPAK
DEEPAK DABAS
on 10th day of September 2024 Date:
DABAS 2024.09.10
20:32:01
+0530
(Deepak Dabas)
District Judge-01/North
Rohini Courts/Delhi
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