Delhi District Court
Smt. Kamlesh Mehta ( Since Deceased) vs State on 24 January, 2017
IN THE COURT OF SH. SANJAY KUMAR : ADDL. DISTRICT JUDGE
(WEST)-02, TIS HAZARI COURTS:DELHI
Old P.C No. 160/10/05
New P.C. No. 15955/16
Smt. Kamlesh Mehta ( since deceased)
through Sh. Vishal Mehta
S/o Sh. Late Amrit Lal Mehta
R/o 18817, Calvert Street
Tarzana, California- 91335
U.S.A
... Petitioner
Versus
1 State
through its Secretary,
Govt. of NCT of Delhi,
Delhi
2 Sh. Vishal Mehta
S/o Sh. Late Amrit Lal Mehta
R/o 18817, Calvert Street
Tarzana, California- 91335
U.S.A
2 Smt. Hema D'Souza
Nee Mrs Hema Mehta
W/o Mr. Melvin D'Souza
D/o late Amrit Lal Mehta
R/o 82, Sector-2, Pocket-1,
Dwarka, New Delhi-110045
... Respondents
Date of original institution of the case : 20.01.2005
Date of reservation of order : 16.01.2017
Date of pronouncement of judgment : 24.01.2017
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 1/33
JUDGMENT:
1 A petition under Section 278 of Indian Succession Act for grant of letter of administration on the will annexed.
2 In brief the facts are that the husband of petitioner late Shri Amrit Lal Mehta died on 24.06.2004 at Delhi. ( hereinafter referred to as 'deceased'). The deceased was the permanent resident of Delhi and survived by the following legal heirs: -
1. Smt. Kamlesh Mehta Wife W/o Late Amrit Lal Mehta R/o CP-187, Maurya Enclave Pitam Pura, New Delhi 2 Shri Vishal Mehta Son S/o late Amrit Lal Mehta R/o 18817, Calvert Street, Tarzana, California- 91335 U.S.A. 3 Smt. Hema D'Souza Daughter Nee Mrs Hema Mehta W/o Mr. Malvin D'Souza D/o Late Amrit Lal Mehta, R/o 82, Sector-2, Pocket-1, Dwarka, New Delhi- 110045
3 It is stated that deceased was the exclusive owner of whole of the house No. CP-187, Maurya Enclave, Pitam Pura, New Delhi. The deceased left behind his last Will and Testament dated 18.08.2003. The said will was executed in presence of the witnesses as given in the Will. By virtue of the said Will dated 18.08.2003 the petitioner has become the owner of the whole of the New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 2/33 property bearing house No. CP-187, Maurya Enclave, Pitam Pura, Delhi. This is the last known Will executed by the deceased.
4 It is further stated that deceased has left behind no other son, daughter or legal heir except for those mentioned hereinabove. Petitioner seeks Letter of Administration in favour her favour by virtue of Will dated 18.08.2003.
5 Upon filing the present petition, notice of the same was issued to all respondents/LRs of the deceased. Citation for general public was published in the daily newspaper "Dainik Jagran" dated 24.03.2005. And notice was also served to the concerned Collector/SDM accordingly Tehsildar (Saraswati Vihar) filed the valuation report of the property bearing No. CP,187, Maurya Enclave, Pitampura, in question and assessed the market value of the same as Rs. 12,04,224/-.
6 In this petition respondent no. 2 Shri Vishal Mehta, S/o petitioner,filed reply-cum- No Objection in favour of the petitioner.
7 Respondent no. 3 Hema D'Souza, daughter of the deceased filed objection to the petition and taken preliminary objections that the correct name of the petitioner is Smt. Kamlesh Kumari Bakshi, a widow of late Baldev Raj Bakshi @ Push Raj Bakshi and not Kamlesh Mehta W/o late Shri Amrit Lal Mehta, father of the objector. It is further stated that late Shri Amrit Lal Mehta, father of the objector was married to Mrs Shashi Mehta and from the wedlock New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 3/33 one son Shri Vishal Mehta and one daughter being the objector herein were born. Smt. Shashi Mehta, mother of the objector, died on 14th January, 1989.
8 It is further stated that somewehere in the mid of 1993, the petitioner, Smt. Kamlesh Kumari Bakshi, a widow of late Shri Baldev Raj Bakshi @ Pushp Raj Bakshi became friendly with the deceased and started staying with him by representing that she was subsisting only on the family pension of her late husband and petitioner was going through a bad time and did not have any proper place to stay.
9 It is further stated that deceased was also a family pensioner beneficiary of Smt. Shashi Mehta, mother of objector and withdrew the same till 31st May, 2004 which is few days before his death. It is also submitted that both the petitioner and the deceased, father of the objector were given undertakings to their respective family pension departments that they have not re- married. As per family pension Act 1964, pension is payable to widow/widower till the date of her/his death or remarriage, whichever is earlier.
10 It is further stated that as per Central Civil Service rules (Rule 54) (12) also applicable to Govt. of NCT of Delhi it is mandatory to advise the head of the department of any subsequent change in the size of the family and deceased, father of the objector never intimated the alleged date of re-marriage in his service New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 4/33 records as per inspection carried out by the objector in the service book of the deceased under Delhi, Right to Information Act, 2001. It is stated that petitioner by dubious means and by falsifying and suppressing facts, obtained identities as "Kamlesh Mehta" The petitioner got her name entered into the Ration Card, Passport etc. by playing fraud.
11 It is further stated that father of the objector on 5.10.2002, much after his retirement, opened two joint MIS account, Nos 120060 & 120061, at Maurya Enclace, Pitam Pura Post Office, with the petitioner. The name of the petitioner as mentioned by the deceased is " Smt. Kamlesh Kumari Bakshi" and not Kamlesh Mehta, which itself shows that the deceased recognized the petitioner as Smt. Kamlesh Kumari Bakshi.
12 It is stated that after the death of deceased, petitioner started to show her true colour and refused to hand over the details of the banks accounts, FDs, property papers and also started claiming the possession of the house situated at Pitam Pura. The petitioner deceitfully took custody of the pass-books and records of the money and bond/funds kept in various bank accounts and refused to give information regarding the above immovable properties of deceased with malafide intentions and illegal designs to usurp the above said properties and started showing and misrepresenting herself as the legally wedded wife of the deceased in order to get unlawful and undue advantage and gain.
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 5/33 13 It is further stated that petitioner opened a Saving ( Pension )Bank Account no 36362 with Punjab National Bank, Pitam Pura Branch, in the name of Smt. Kamlesh Mehta, where she already operating a saving (Pension Bank) Account no. 16852, in the name of Smt. Kamlesh Kumari Bakshi. It is further submitted that petitioner has been drawing family pension as beneficiary of her late husband Sh. Baldev Raj Bakshi since 1976 for the last 29 years. Now Petitioner started withdrawing family pension of the deceased by falsely claiming to be the legally wedded wife of deceased, simultaneously, with the family pension of her late husband, Sh. Baldev Raj Bakshi from the same Bank/Branch. An enquiry was also conducted by Punjab National Bank, Department of Eduction, Govt. NCT of Delhi and the Central Pension Accounting Office, Ministry of Finance, Govt. of India and acknowledged the fact that Smt. Kamlesh Kumari Bakshi is drawing two pensions and marked a letter no. CPAO/A-1/2004/2/VOL-II/P-29-31 dated 16th November 2004 to the Manager, Punjab National Bank, Pension Cell.
14 It is further stated that Vide letter dated 8 th October 2004, addressed to CPAO, wherein they informed CPAO they they have stopped disbursement of Pension to Smt. Kamlesh, claimant of family pension of late Sh. Amrit Lal Mehta and recovered the pension amount paid to her till dated from her Pension Account. It is further stated that petitioner, with two others, namely, Shri Ved Prakash Bhandari and Shri Varinder Sharma entered into a criminal conspiracy and fabricated a "No Objection Affidavit" bearing objectors's forged signatures and the said "Will" bearing forged New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 6/33 signatures of the deceased, father of the objector, with a common objective to mutate the immovable property no. CP-187, Pitam Pura, Delhi belonging to late Sh. Amrit Lal Mehta, father of the objector, in MCD'S records.
15 It is stated that petitioner with three other MCD officials mutated the property in dispute in her name as "Smt. Kamlesh Mehta" vide no. HT/TAX/PP/2002-03/961 dated 1 st October, 2004 and attempted to dispose it off. On inspection of the mutation file and after obtaining certified copies of the forged documents under"
Delhi, Right to Information Act 2001, the objector lodged a complaint with the higher authorities in MCD and subsequently the mutation was cancelled vide order no. HT/PP/2004/1403 dated
16.12.2004.
16 It is stated that as the objector had filed an FIR in this regard, the petitioner and other two accused in order to escape criminal action, again in collusion with the Asstt. Assessor and Collector, MCD attempted to tamper with the evidence and make false notations that the forged affidavit was submitted by the objector and not by the petitioner. A punitive action also taken against the colliding MDC officials vide letter dated 3 rd August 2005. The objector filed an FIR bearing no. 1016/04 against the petitioner and other persons in which petitioner applied Anticipatory bail in the court of G.P. Mittal, ASJ on 26.02.2005.
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 7/33 17 It is stated that Will dated 18th August, 2003, is a forged and fabricated document which was never executed in the real sense by the deceased. The objector is the real daughter of the deceased and the petitioner was never married with the deceased, father of the objector. Deceased was a well qualified person, scholar and a PGT by profession. The deceased spent his entire career as a language teacher and has been recognized for his unblemished career of achieving 100% results. The alleged Will has several grammatical, typographical mistakes and glaring discrepancies.
18 It is further stated that petitioner in collusion with the witness Sh. V.K. Sharma, property dealer made one of his neighbour Sh. Ved Prakash Bhandari to sign as co-witnesses with an ulterior motive in order to usurp the property in question. It is stated that deceased died under mysterious circumstances on 24.06.2004. It is prayed that petition of the petitioner may kindly be dismissed with heavy cost.
19 Petitioner filed reply to the objections filed by the objector and denied all the objections and reiterated the averment made in the petition.
20 On the basis of pleadings of the parties, the following issues were framed by my ld, Predecessor vide order dated 16.05.2006:-
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 8/33
1. Whether the Will dated 18.8.2003 of Sh. Amrit Lal Mehta is proper and valid? OPP
2. Whether the petitioner is entitled to grant of letter of administration in respect of the Will dated 18.8.2003of Sh. Amrit Lal Mehta? OPP
3. Relief 21 It is pertinent to mention here that vide order dated 6.1.2007 the following additional issue was framed: -
Additional Issue Whether the Will dated 18.08.2003 of Sh. Amrit Lal Mehta is forged and fabricated? OPR-3 22 Petitioner examined herself as PW-1 and tendered her evidence by way of affidavit Ex. P1. In the affidavit she deposed that late Shri Amrit Lal Mehta her husband was exclusive owner of double storey house bearing property No. CP-187, Maurya Enclave, Pitampura, Delhi who died on 24.06.2004 and proved his death certificate as Ex. PW-1/1. She deposed that she is fully conversant with handwriting and signatures of deceased late Shri Amril Lal Mehta as saw him writing and signing in her presence. She put exhibit mark on the Will of the deceased dated 18.08.2003 Ex. PW-
1/2 and identified the signatures of deceased testator on both pages at point A and A1.
23 She deposed that deceased testator signed the will in her presence. She also identified the signatures of attesting witnesses Sh. Varinder Sharma at point B and signature of Sh. Ved New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 9/33 Parkash Bhandari at point C and deposed that both also signed in her presence. The deceased Amrit Lal Mehta hale and hearty at the time of execution of the Will and having sound disposing mind. She further deposed that deceased Amril Lal Mehta handed over the Will to her keeping in safe custody in the Almirah. Before executing the Will deceased talked to his son Vishal Mehta who was living at America. The Son Vishal Mehta has filed NOC.
24 She deposed that respondent/Objector No. 2 Vishal Mehta step son and respondent/Objector no. 3, Hema D'Souza step daughter born out of the first marriage of late Shri Amrit Lal Mehta with late Mrs Shashi Mehta who died in the year 1989. She deposed that she was also widower, and married with Shri Amrit Lal Mehta on 08.07.1990. She proved the Copy of Passport where her husband name is as Amrit Lal Mehta dated 28.11.1991 Ex. PW-1/3. Thereafter renewed the passport as Ex. PW-1/4 to 6.
25 She further proved the copy of Ration Card as Ex. PW- 1/7 mentioning the name of husband of petitioner as Amrit Lal Mehta. Similarly, Voter I-Card Ex. PW-1/8. She further deposed that in the pension papers also she has described as wife of Sh. Amrit Lal Mehta and joint photographs of the petitioner and deceased has been affixed and proved the same Pension Payment order as Ex. PW-1/9 and Joint Bank Account Ex. PW-1/10. She further proved the original photographs of her marriage with deceased as Ex. PW-1/11 to 26. She further proved the photographs of marriage of step daughter Hema with Mr. Melvin D Souza in the year 1995. She New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 10/33 deposed that Hema Mehta changed her caste and become Smt. Hema D'Souza and started living at matrimonial home at 82, Sector 2, Pocket 1, Dwarka, New Delhi-110075.
26 Shri further proved the original photographs of marriage of Hema as Ex. PW-1/27 to 42 and marriage card Ex. PW- 1/43. She also relied on copy of order of Civil Suit No. 448/04 pending in the court of Shri M.K. Gupta, ld. ADJ. She further deposed that she alongwith deceased visited Vishal Mehta in America and reference is there in the passport. She further deposed that Will Ex. PW-1/2 executed by deceased during his life time as last will and testament and executed in the presence of two attesting witnesses Shri Varinder Sharma and Shri Ved Parkash Bhandari. The deceased was hale and hearty and was having good health and sound disposing mind. The deceased had executed the Will Ex. PW-1/2 on 18.8.2003 in her favour and left behind Vishal Mehta and Hema D'Souza as the legal heirs.
27 In the detailed cross-examination by counsel for respondent no. 3 she deposed initially about her birth at Mathura on 8.6.1947, her educational that she studied up to 8 th standard and her first marriage was with Sh. Baldev Raj Bakshi. Initial cross- examination was concentrated on her life with her first husband. She deposed that she met deceased Sh. Amrit Lal Mehta 2-3 days of her second marriage and after her marriage she started living with deceased. She further deposed that deceased Amrit Lal Mehta was PGT in Sanskrit and can translate Sanskrit to English but knew little New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 11/33 English. She further deposed that Vishal Mehta had done M.A and Hema D'Souza was studying in 10th standard when she came into contact with deceased Amrit Lal Mehta. She deposed that she changed her name Kamlesh Bakshi to Kamlesh Mehta after her marriage with deceased. The marriage of Hema took place on 21.10.1995. It was a love marriage and deceased Amrit Lal Mehta was not happy with this marriage. Vishal Mehta was working in police in USA.
28 She further deposed that deceased had opened two joint accounts with her in Post Office Mauriya Enclave, Pitampura in July 2002 and her name was mentioned as Kamlesh Bakshi. In June 2004 deceased was keeping normal health though he had sugar problem. She does not know the exact cause of death of deceased but on that day he vomiting blood and was taken to hospital with the help of one Sh. Hukam Chand Malhotra. She admitted that Dr. P.K. Goyal at Munni Mayaram Hospital was treated the deceased. She denied the suggestion that Dr. P.K. Goyal advised for postmortem but she refused. In the further cross-examination that Sh. Virender Sharma, attesting witness filled up the form qua the death of deceased at the cremation ground on the asking of Smt. Hema. She deposed that they were upset due to death and not in a position to fill the form properly. Although Hema D'Souza and her husband and other relatives were present there. She deposed that Virender Singh was having visiting terms with deceased during the life time of first wife and he was aware parentage, age etc of deceased.
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 12/33 29 The further cross-examination pertains towards mutation of the property in question. She admitted that she was arrested by official of Police Station Shalimar for allegation of forgery the signatures of Hema. She admitted that mutation of the property in question was in her name and cancelled on 16.12.2004. She deposed that she does not know from where the will in question was got prepared by the deceased. The will was signed by deceased and two attesting witnesses in her presence. None of the attesting witnesses was related to the deceased. The deceased was having cordial relations with other close relatives. The Will was read by deceased in her presence before signing. Deceased did not carried out any correction in her presence. The attesting witness are resident of Hari Nagar. Sh. Ved Prakash is also in teaching line and not teaching in the same school of the deceased. She denied the suggestion that deceased has not left any immovable property in her favour or in favour of his son. She admitted that she has been withdrawing the family pension of the deceased after the death. She deposed that deceased never executed any will either on 18.8.200. She denied the suggestion that will dated 18.8.2003 is forged and fabricated and does not bear the signature of deceased. She denied the suggestion that deceased never married after the death of first wife Smt. Shashi Mehta. She denied that she was employed by deceased to look after the children. She denied that deceased never handed over any will to her. She denied that Vishal and Hema are not step son and daughter. She denied that passport, ration card, identification cared were prepared by her on the basis of forged documents.
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 13/33 30 Petitioner further examined Sh. Varinder Sharma, attesting witness to the Will Ex. PW-1/2 who tendered his evidence by way of affidavit Ex. P-2. He deposed that he is one of the attesting witness of the Will dated 18.08.2003 of Shri Amrit Lal Mehta S/o late Shri Laxman Das mehta, Resident of CP-187, Maurya Enclave, Pitampura, Delhi. He was called by Shri Amrit Lal Mehta to come at his residence on 18.08.2003 alognwith Shri Ved Parkash Bhandari in the noon for becoming the witness to the Will which he wanted to execute.
31 He further deposed that both to them reached at the residence of Shri Amrit Lal Mehta at noon. Shri Amrit Lal had a typed Will with him. He was present at the time of execution of the said Will and exhibited the same as Ex. PW-1/2. He further deposed that Late Shri Amrit Lal Mehta signed the above Will on both the pages, in his presence and in the presence of Shri Ved Prakash Bhandari, another attesting witness, and this Will bears the signatures of Shri Amrit Lal Mehta at Mark "A" and "A-1". Thereafter he signed the above Will Ex. PW-1/2 at place marked "B" as an attesting witness in the presence of Shri Amrit Lal Mehta and Shri Ved Parkash Bhandari and another attesting witness of the said Will at point "C". He further deposed that they all, Shri Amrit Lal Mehta, Shri Ved Parkash Bhandari and he signed in the presence of each other. Smt. Kamlesh Mehta was also present at the time of execution of Will. Before signing the Will Shri Amrit Lal Mehta told them that he is executing the said Will in favour of his wife Smt. Kamlesh Mehta.
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 14/33 32 He further deposed that he knew late Shri Amrit Lal Mehta and his children Vishal Mehta and Ms Hema since the day when Amrit Lal Mehta's first wife Smt. Shashi Mehta was alive. He assisted Shri Amrit Lal Mehta, whenever he desired, in his affairs after his son Vishal Mehta and left for America. He further deposed that he had seen Shri Amrit Lal Mehta writing and signing and can identify his signatures and writing. At the time of execution of the Will and even earlier late Shri Amrit Lal Mehta was hale and hearty and was keeping good health with sound disposing mind. In the cross-examination he deposed that the will Ex. PW-1/2 was prepared by deceased Sh. Amrit Lal Mehta. The deceased was a school teacher but he does not know his qualification. He does not know who typed the Will Ex. PW-1/2. He does not know if the will was got typed with the help of typewriter or computer print out. The will was not prepared in his presence. The will was signed by Sh. Amrit Lal Mehta in his presence. When the Will was executed himself, deceased Amrit Lal Mehta, Sh. Ved Prakash Bhandari and Kamlesh Mehta were present.
33 He further deposed that he was running a workshop in open space adjoining Rashtrapati Bhawan School, where the deceased was employed as teacher and he used to come to his workshop for getting his scooter repaired. He deposed that on the day when he had signed the Will he was called by deceased at Pitampura at his residence alongwith Sh. Ved Prakash Bhandari where he was asked by the deceased to sign the will alongwith Sh. Ved Prakash Bhandari. Mr. Ved Prakash Bhandari resides on the New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 15/33 back side of his house. First of all the deceased has signed the will. He voluntarily deposed that deceased had signed only one page and kept the pen aside and when he pointed out that the deceased has not signed on another page he took another pen from 4-5 pens lying nearby and signed the another page of the will with another pen.
34 He further deposed that deceased has signed the second page at his asking and he does not know why he forgot to sign second page but he was in hurry at that moment. He does not know if the deceased has signed the will with ball pen or ink pen. The deceased has read over the will to them before signing the same. The deceased used to read one sentence of the will in English and translated the same in Hindi to us. The deceased had not carried out any correction in the will in their presence. He further deposed that when the deceased read over the will, he, deceased Amrit Lal Mehta, Sh. Ved Prakash Bhandari and Kamlesh Mehta were present. He admitted that he had filed the death report of the deceased at cremation ground. He voluntarily deposed that he had filed the form at asking of Ms Hema D'souza and Smt. Kamlesh Mehta. He admitted the fact that he disclosed himself as son of deceased. He said so at the asking of Hema D'souza. The last rites of cremation of deceased were carried out by his elder brother.
35 He further deposed that he had always seen deceased signing in English. He does not know if deceased used to sign in New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 16/33 Hindi also. He denied the suggestion that he helped Smt. Kamlesh Mehta for getting the property mutated in her name. He further deposed that he knew Sh. Vishal Mehta since 1986. He was not present at the marriage of Smt. Kamlesh Mehta and deceased took place in the year 1990. This fact was told by deceased in the last of the year 1990. He had not sseen Smt. Kamlesh Mehta at the house of deceased prior to December 1990. He used to visit the house of decease after a gap of one or two months. The deceased used to call him his house for taking him to hospital as he remained sick. Deceased expired on 24.06.2004.
36 In the further cross-examination he deposed that in the month of June 2004 deceased was not keeping good health. The deceased died natural death. The deceased has not mentioned anything about his movable property in the will Ex. PW-1/2. The will was prepared on two papers. He cannot tell the colour of papers on which the will was written but it was written on white sheets. He denied the suggestion that deceased never executed any will either on 18.08.2003 or thereafter. He further denied the suggestion that will dated 18.08.2003 does not bear the signature of deceased. He further denied the suggestion that deceased was never remarried after the death of his wife Smt. Shashi Mehta. He denied the suggestion that he never signed the Will Ex. PW-1/2 as attesting witness.
37 PW-3 Ms Deepa Verma Assistant Director ( Documents) FSL, deposed that in the year 2005-2006. She was Senior Scientific New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 17/33 Officer ( Documents) FSL, Rohini, Delhi. The original Will Ex. PW-1/2 executed by late Sh. Amrit Lal Mehta was sent to her for forensic and handwriting expert opinion. The signature of deceased Sh. Amrit Lal Mehta were marked as Mark-Q1 and Mark Q-1/2. The standard signatures of deceased were also sent alongwith the Will. The original standard documents were marked as MarkA1/1, A2/1 and A3 to Mark A20. These are original documents were sent in criminal case FIR No. 1014/14, P.S. Prashant Vihar.
38 She deposed that after examination of standard signatures of deceased and Mark-A1/1, A2/1 and A3 to A20 with the signatures of the Will marked as Mark Q1 and Q2/1 a report FSL 2-- 5/D-3700 dated 17.01.2006 prepared which bears her signatures on all pages. She proved the certified copy of the report Ex. PW-3/1 and identified her signatures at point A to D. She further proved the certified copy of all documents bears standard signatures Ex. PW- 3/2 and documents Ex. PW-3/3 to Ex. PW-3/14. She compared all the certified copies with the originals lying in the criminal file. She deposed that as per her opinion the person who wrote the signatures Mark A1/1, A2/1 and A3 to A20 also wrote the signatures Mark Q1 and Q2/1. The detail reason are mentioned in her report Ex. PW-3/1.
39 In the detailed cross-examination she deposed that she never seen Sh. Mr. A.L. Mehta in the process of execution of his signature she examined the signature on the basis of the documents. She admitted that the admitted signatures which were New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 18/33 provided to him had element of dremore and impulse. The stereo microscope was used to study the line quality condition of the strokes of the signatures and rest of the instruments were used to detect if any kind of eraser was there or not. She further deposed that she had examined the ink used for the signatures marked Mark Q-1/1 and Mark Q-2/1 but there was no abnormalities however ink of both the signatures were different.
40 She further deposed that she had examined nature of both the papers used the Will. Both the papers were different but the typewriting existing upon them similar. But she did not express opinion whether the paper used in the second page of the Will is older than the paper used in the first page. She admitted that writing instrument used on the page no. 2 of the Will is different from the instrument used on the page no. 1 of the Will. She further deposed that she cannot express any opinion regarding age/execution of the signatures of Sh. A.L. Mehta and no general opinion can be expressed that a paper becomes brittle and yellowish only after 15020 years it it is initially a while paper.
41 She further deposed that interlinear space in the typewriting existing above the signature of testator show consistency among themselves. The typewriting below the signature testator also shows consistency between them, however, interlinear space in typewriting above testator and below testator is different. She further deposed that interlinear space in the typewriting existing on page no. 1 of Will show inter consistency, New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 19/33 however, she cannot express confirm opinion about interlinear space of page no. 2 in comparison of page no. 1 of this Will. She further deposed that no opinion can be expressed whether word testator on page no. 2 of this Will has been typed at this location to adjust the signatures or not. She deposed that line quality of the signatures is also one of the important character in hand writing/signature examination. She further deposed that Line quality is not always a conclusive characteristic to identify a genuine or forged signature. She deposed that there is mention about the line quality of the question signature in the report. She denied that line quality of the signature Marked Q-1/1 is poorer than the signature Marked Q-2/1.
42 She further deposed that in handwriting comparison Pen pressure may be an important character for comparison, however, Pen position and shading may vary with the use of instrument. She deposed that she had examined the pen pressure of the writings on the documents but she did not mention the same in her report. She does not agree that the science of hand writing comparisons generally not taken as an exact science. She denied the suggestion that she had not followed correctly the basis principle of science of hand writing comparison while forming her opinion on the identification of questioned signature Marked Q-1/1 and Q-2/1. She further denied that her report is wrong based on incorrect and contradictory observations. She denied the suggestion that the question signatures Marked Q-1/1 & Q-2/1 are not written by one and the same person whose admitted signatures are Marked A-1/1, New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 20/33 A-2/1 and A-3 to A-20. She denied the suggestion that her report is without sufficient data, observation and is vague and wrong.
43 Respondent no. 3 Ms Hema D'Souza appeared in the witness box as R3W1 and tendered her evidence by way of affidavit Ex. R3W1/A. 44 In the cross-examination she deposed that she is graduate and gone through the contents of the petition and its documents filed by the petitioner. She had filed reply to the said petition. She had also gone through the contents of the counter reply of the petitioner as well as the documents filed by her. She does not remember she had gone through the No objection filed by his brother Sh. Vishal Mehta to the present petition. She voluntarily that she does not know if any such No objection has been filed on behalf of his above named brother or not.
45 She further deposed that she never met Baldev Raj Bakshi. As per record, he died in 1976. She does not know what assets were left behind by Sh. Baldev Raj at the time of his death. She does not know any person by the name of Ms Kamlesh Mehta and the petitioner Ms Kamlesh Mehta present in the court today is known to her only by the name of Ms Kamlesh. She further deposed that Ms Kamlesh Bakshi is widow of Sh. Baldev Raj Bakshi.
46 She further deposed that she was nominee of PPF account of his father late Sh. Amrit Lal Mehta and she had New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 21/33 withdrawn the amount of PPF after his death on the basis of nomination. She further deposed that she does not remember where her voter I card was got prepared, however, it might be form Dwarka address. She denied the suggestion that she is concealing the fact that her voter I card was got prepared at Pitampura address of her father. She does not remember if voter I card of the petitioner was also got prepared on the same day.
47 She further deposed that Ms Shashi Mehta died on 14.01.1989. After he death, she left her husband, Sh. Amrit Lal Mehta, herself and her younger brother Sh. Vishal Mehta. She does not remember if they all beneficiary of family pension of Ms Shashi Mehta. She denied the suggestion that her deceased father got married with the petitioner on 8.7.1990. She voluntarily deposed that deceased never re-married. She does not know if her father and the petitioner applied for the passport in their names in the year 1991. She cannot say if deceased has been mentioned as husband of petitioner in the passport of the petitioner issued in the year 1991.
48 She further deposed that she cannot say if the petitioner has been mentioned as wife in the passport of Sh. Amrit Lal Mehta issued in the year 1991. She does not remember if his father had gone to visit his brother Sh. Vihsal in USA on the basis of the passport. She cannot say if the petitioner had accompanied his father to USA or not. She cannot say if the petitioner and Sh. Vishal Mehta have jointly filed the suit for recovery of share of the PPF New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 22/33 account which is pending this court. She voluntarily deposed that she had never seen Sh. Vishal Mehta in India appearing in the court so she cannot say as to whether or not the above suit has been filed by him. She denied that Sh. Vishal has filed the recovery suit mentioning himself as step son of the petitioner.
49 In the further cross-examination she admitted that she married with Sh. Melvin Antony D'souza, who is a Christian and her marriage to him was performed according to Hindu rites ( Pheras). Again said her marriage was performed according to Christian rites. She does not know what does the term " Kanyadaan" means and as such she cannot say who did "Kanyadaan" during her marriage. She married on 21.10.1995. She deposed that it may be that her in- laws got printed marriage cards for the marriage of their son Mr Melvin. The original of that marriage card is not available with her at home. She does not know if in the marriage card of her husband, the word mentioning herself as daughter of 'Mrs & Mr Amrit Lal Mehta'. She does not know if she mentioned as daughter of 'Mrs & Mr Amrit Lal Mehta' in the marriage card got printed. She does not know if all the heir left by the deceased are entitled to family pension. She denied the suggestion that deceased did not draw family pension for himself and withdrew the family pension on behalf of her and her brother. She deposed that deceased withdrew her mother's family pension after her death from 1989 till May, 2004 and she have the certificate from postal authority.
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 23/33 50 In the further cross-examination she deposed that she is still Hindu even after marriage. She does not remember in which school her father was teaching in the year 1990. She voluntarily he was a government school teacher. She voluntarily deposed that as per government record there is no intimation of alleged marriage between the petitioner and Sh. Amrit Lal Mehta. She denied the suggestion that she have not checked any record under RTI about intimation of alleged marriage between the petitioner and Sh. Amrit Lal Mehta.
51 She further deposed that she does not know who had filed the pension paper forms but she had seen the record. She does not remember whether she saw the joint photograph of his father and the petitioner affixed on the forms and whether she was mentioned as wife in the forms. She further deposed that her father was M.A ( Sanskrit) and B.Ed. He retired as PGT teacher. He did not published any book in Sanskrit or any other subject.
52 She denied the suggestion that on her complaint the petitioner was found to be the wife of Amrit Lal Mehta and her family pension was restored. She further denied that she prepared a forged No Objection certificate and filed the same in the MCD record for harassing the petitioner. She further denied the suggestion that she had filed a false and frivolous FIRs against the petitioner and against the MCD officials. She denied that the mutation in the name of the petitioner was cancelled subject to the decision of case pending in the court of Smt. Shail Jain, Ld. ADJ, Tis New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 24/33 Hazari, She voluntarily deposed that MCD officials were found guilty in connivance with the petitioner. She does not know whether she had filed any record about the connivance between the petitioner and the MCD staff. She denied the suggestion that her father Sh. Amrit Lal Mehta executed a Will dated 18.08.2003.
53 I have heard Sh. Sanjay Sharma counsel for respondent no. 3 and there is no assistance on behalf of petitioner. Despite giving opportunities neither arguments addressed nor written arguments filed on behalf of the petitioner. I have gone through the written arguments filed on behalf of respondent no. 3.
54 It is pertinent to mention here that during the present proceedings petitioner, Smt. Kamlesh Mehta died and an application under order 22 rule 3 CPC order 1 rule 10 read with Section 151 CPC allowed and respondent no. 2 Sh. Vishal Mehta transit as petitioner in place of petitioner, Smt. Kamlesh Mehta.
55 In order to appreciate the contentions of respondent no. 3 and the judgments relied by the respondent no. 3 let us peruse th law laid down by the Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
1. Stated generally, a will has to be proved like any other document, the test to be applied New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 25/33 being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested , it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
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4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
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5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6 If a caveator alleges fraud, undue influence, coercion, etc, in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounded the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. "
56 My findings on issues is as follows:-
Issue no. 1 & 2 are inter-connected therefore, taken simultaneously.
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57 The close analyses the scrutiny of testimony of witnesses and documents proved on record the facts which are crystallized are discussed. Accordingly to the testimony of PW-1, Kamlesh Mehta, petitioner on 18.08.2003 the Will Ex. PW-1/2 was executed in her presence by the deceased Amrit Lal Mehta. She had seen him writing and signing. She has also identify the signature deceased. She further established that attesting witness Varinder Sharma and Ved Prakash Bhandari also signed the will in her presence. Thereafter the will was handed over to her by the deceased and she kept in safe custody in Almira. It established that the petitioner was well aware of the execution of the will and throughout remained present. She become the beneficiary of the Will Ex. PW-1/2 of the deceased/testator. In my opinion, it cannot be rule out that petitioner has influenced the deceased testator to execute the will wherein she is sole beneficiary. There is definite influence used by the petitioner to become beneficiary.
58 The next vital fact established on record is that the deceased as per will Ex. PW-1/2 described the real son Vishal Mehta and real daughter Hema D'Souza. According to him the son is quite well-off and daughter is married a Christian and he gave enough, therefore, excluded them. However, it is unnatural and improbable that a father would excluded both real son and daughter without giving sound reasoning for their exclusion and make preference to a lady who, married him after the death of first wife. The conduct of exclusion of real son and daughter is un-natural and improbable and does not based on cogent reasons mentioned in the will.
New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 29/33 59 Now coming to the attesting witness PW-2 Varinder Sharma is the one of the attesting witness and appeared in witness box. He is not close relative or close friend of the deceased testator. As per his testimony he used to repair bicycle near the school where the deceased used to work as PGT Sanskrit teacher and used to got repair his scooter. It is un-natural and improbable that for writing the last wish a person would call a known person or from whom he used to got prepared the scooter. However, I find certain discrepancies and contradictions. Accordingly to PW-2 Varinder Sharma deposed that Amrit Lal had typed will with him but in the cross-examination he failed to ascertain this fact and deposed that he does not know whether the Will Ex. PW-1/2 was got typed on type writer or a computer print out.
60 PW-1 Kamlesh Mehta is silent on when and who and where got typed the Will. The other attesting witness failed to appear in witness box. PW-2 Varinder Sharma has also admitted the throughout presence of petitioner of Kamlesh Mehta at the time of execution of Will. The attesting witnesses are not a natural attesting witness, therefore, this also raises suspicious with regard to the genuineness of the will.
61 I have closely scrutinize the Will Ex. PW-1/2. It consist of two pages. The first page is of bright as somewhere white colour and second page is light peach colour. Both the pages are stated to be typed on the same day and signed on the same day but having different colour. It is highly un-natural that a person would got New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 30/33 typed a will of two different papers it raises grave suspicion. In the entire case the petitioner has not explained or dispel this abnormalities phenomena of two different pages. PW-3 Ms Deepa Verma, Handwriting Expert, also admitted in her testimony that both pages are signed with different pens. Both pages of different colour. The typing is also not in a natural flow. It reflect that the pages must be signed prior to the typing of the contents it cannot be rule out to different pages available may be having the signature of the deceased are typed in such a manner to adjust the signature. In these circumstances with regard to two different pages two different pen, signature of deceased testator and the manner of typing raise grave suspicion with regard to the genuineness of the Will.
62 In my considered opinion in the present facts and circumstances of the case where deceased testator has used two different pages of different age and signatures are also done by two different pens. This fact is supported by handwriting expert, PW-3 Ms Deepa Verma and manner of typing on each page is also un- natural. It all insist grave suspicious that a normal person of sound disposing mind will not in natural course execute a will in such a manner.
63 The presence of beneficiary, perpounder of the will, Kamlesh Mehta also not rule out the influence of her on the deceased/testator on the execution of the will. The attesting witnesses are not the natural, probable witnesses but they are not New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 31/33 the appropriate witnesses in normal circumstances of the deceased testator. The other vital aspect is the exclusion of real son and daughter by the deceased/testator. On the basis of non-sound reasons of exclusion the Will Ex. PW-1/2 dated 18.08.2003 is surrounded by serious grave suspicious circumstances. The test of satisfaction of judicial conscious is not passed by the Will Ex. PW-1/2 dated 18.8.2003 being the last Will, legally, and genuinely executed by the deceased testator.
64 On the basis of above observation and discussion issue no. 1 & 2 are decided against the petitioner and in favour of the respondents.
Finding on Additional Issue 65 The onus of additional issue is on respondent no. 3, Smt. Hema D'Souza who examined only one witness I.e herself as RW3W1. In her affidavit Ex. R3W1/A she denied the marriage of petitioner with his father late Amrit Lal Mehta. She stated the facts about the pension fixation and other retirement of the deceased, his accounts and insurance etc. She further stated about the No Objection of her being the conspiracy of attesting witnesses and petitioner whereby the mutation took place in the MCD record of the property in question.
66 She deposed in one sentence in para 14 of her affidavit about the will that Will in question is forged and fabricated. However, no other vital witness examined to establish the forgery New PC No. 160/10/05 Kamlesh Mehta Vs State & Ors 32/33 and the fabrication of the Will either by the petitioner or the attesting witnesses.
67 It is pertinent to mention here that the testimony of PW-3, handwriting expert also not corroborates the plea of respondent no. 2. In my considered opinion the respondent no. 3 failed to establish that will Ex. PW-1/2 dated 18.8.2003 is forged and fabricated will by the petitioner or the attesting witnesses. Although it has been already decided while deciding issue no. 1 & 2 that will is not legal and genuinely executed being the last will of the deceased/testator Amrit Lal Mehta, hence, additional issue is decided against respondent no. 3.
68 Relief On the basis of finding on issue no. 1 & 2 and additional issue, petition filed by the petitioner is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
Court on 24th January, 2017 ) ADJ-02 ( West)
Delhi
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