Delhi District Court
District Judge-02 vs The State on 16 December, 2016
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
(Corrected copy of judgment in terms of order dated
16.12.2016)
M-48/10/07
New No. Misc. DJ - 58240/16
Shiv Mandir Sanstha (Regd)
situated at Khasra no. 18, 19
Village Khirki,
New Delhi-110017
Through its President
Shri Siri Kishan Saini ....Petitioner
versus
1. The State
2. Shri Ved Prakash Shastri
Son of Shri Chet Ram
Resident of 163,
Village Khirki,
New Delhi-110017 .....Respondents
Date of institution of the case : 15.02.2007
Date of reserving of judgment : 28.11.2016
Date of pronouncement of judgment : 03.12.2016
JUDGMENT
1. A revocation petition under Section 263 of Indian Succession Act for revocation of Probate and letter of administration granted on 02.02.2006 in respect of alleged Will executed by Sh. Rahimuddin son of Shri Bhika dated 21.06.2001 filed by applicant/petitioner.
2. In brief the facts stated by petitioner are that it is a registered Society registered with Registrar of Societies and Sh. Kishan Saini is its President, who is fully conversant with M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 1/30 the facts of the case and competent to depose, file, sign and verify the present petition.
3. It is stated that the respondent no. 2 Sh. Ved Prakash Shastri has filed a petition for grant of Probate on the basis of alleged Will dated 21.06.2001 and the said petition was marked as Probate petition No. 18/2006 and entrusted to Ld. ADJ Sh.Ravinder Dudeja. The said court was pleased to grant Probate/letter of administration in respect of said alleged Will in favour of respondent no.2. It is further stated that respondent no.2 has obtained the letter of administration/ probate on the basis of forged and fabricated Will and has concealed the material facts from the Court.
4. It is stated that the alleged Will mentioned as executed by late Shri Rahimuddin son of Shri Bhika, resident of village Hauz Rani, Malviya Nagar, New Delhi was never executed in favour of respondent no.2 and the said Will has been forged and fabricated. The said Sh. Rahimuddin along with his family had left India at the time of partition of the country and was never an Indian citizen nor any such Will was executed by late Sh. Rahimuddin. He never visited India or personally present at the time of registration of alleged Will and a forged and fabricated person produced before the concerned Sub Registrar as no photograph of alleged testator was affixed on the Will. It is further stated that the petitioner has been controlling the property falling in Khasra no. 18 and 19, Village Khirki Malviya Nagar, New Delhi and in possession of the same since 1972. A Mandir has been in existence prior to 1972 and as per revenue record, the possessory rights are in the name of petitioner. The property in question was M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 2/30 belonged to Bundu, Majuddin Lambardar etc. but the testator falsely, fraudulently represented himself as owner of property in Khasra no. 18. Deceased Sh. Rahimuddin was the co-owner having 15/th share in the property of the alleged Will, who migrated to Pakistan at the time of partition of the country and the land left by him became evacuee property. It is stated that the Will in question is self created and the same is forged and fabricated by the respondent no.2. There are sufficient material on record that show that respondent no.2 had played fraud before the Hon'ble Court. The respondent no.2 approached the court with uncleaned hands and probate was obtained while keeping in dark the Hon'ble Court and by misrepresentation, fraud, cheating and forgery.
5. It is further stated that respondent no.2 had filed one civil suit against Khubi Ram and other, which is pending before the court of Sh.Raj Kumar, Civil Judge, where he never disclosed the fact that the deceased Sh. Rahimuddin ever executed a Will in his favour. Another suit filed against MCD in re 'Ved Parshad Shastri vs. MCD' wherein stay application was dismissed vide order dated 24.11.2000 by Ms. Raj Rani Mitra, Civil Judge, Delhi and now appeal preferred by respondent no.2 also dismissed by Ms. Asha Menon, Ld. ADJ and ultimately that suit was withdrawn by respondent no.2. Another suit filed by respondent no.2 in re 'Ved Parshad Shastri vs. Khirki Welfare Society and others' before Sh. S.K. Singh, Civil Judge, Delhi but ultimately the said suit was also withdrawn.
6. It is stated that respondent no.2 applied for mutation of the property in question in his name with the M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 3/30 revenue authorities and when inquiry was made by the concerned authorities, then petitioner came to know about the fraud played by respondent no.2 and matter was reported to Economic Offenses South on 03.01.2007 and petitioner got certain documents especially the death certificate of deceased Sh. Rahimuddin and thereafter inquiry was made to higher authorities at Rajasthan and petitioner came to know that there is no mentioning of death of deceased Sh.Rahimuddin son of Sh. Bhim alleged to be died on 15.06.2003 and registration number of his death is mentioned as that of 26.05.2003 and certificate issued by Rajasthan authorities is attached with the petition. There is no such person recorded in the records who had died as per alleged forged death certificate.
7. It is further stated that the alleged attesting witness to the said alleged Wioll dated 21.06.2001, namely, Sh. Nathu Khan filed civil suit against Sh. Khubi Ram, which was dismissed by Sh. Rakesh Kumar, Ld. Civil Judge, Delhi. On inquiry, petitioner came to know that Sh. Nathu Khan never appeared before that court. It is stated that no notice has been served upon petitioner herein of the probate petition. Respondent no.2 also filed a transfer application of civil suit in re' Ved Prakash Shastri vs. Khubi Ram' before Ld. District Judge and taken false pleas. The petitioner seeks that probate granted by the court of Sh.Ravinder Dudeja, Ld. ADJ dated 02.02.2006 may be revoked.
8. Respondent no. 2 filed detailed reply and taken preliminary objection that petitioner has not approached the court with clean hands and suppressed the material facts.
M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 4/30 There is no cause of action in favour of petitioner. Therefore, petition is liable to be dismissed. It is stated that petitioner has no locus-standi to file the present petition and petition is not filed by competent person, therefore liable to be dismissed. The petitioner has mentioned the Will dated 24.06.2001 instead of 21.06.2001. Therefore, as per Order 7 Rule 11 CPC petition is liable to be dismissed.
9. On merits, all the averments made in the petition are denied. It is stated that petitioner is neither owner nor in possession of the premises in question, which is the subject matter of the Will. The society of the petitioner is not registered with the Registrar of Societies. It is stated that late Sh.Rahimuddin rightly executed the Will dated 21.06.2001 in the presence of two witnesses, namely, Sh. Naval Kishore and Sh. Nathu Khan in favour of respondent no. 2 and same was duly registered before Sub Registrar, Delhi. Deceased testator Sh. Rahimuddin was in sound disposing mind and signed in presence of each other and got it registered with the Sub Registrar.
10. It is stated that Sh. Rahimuddin was the co-owner of the 1/5th share of the property which is subject matter of the petition. It is denied that the land in question migrated to Pakistan at the time of partition of the country or the land become evacuee property. The possession of the property of the subject matter of the Will of the petitioner also denied. The fact regarding the reporting of the case to DCP, Economic Offenses also denied. The other civil suits referred in the petition are also denied. It is stated that Ld. ADJ Sh. Ravinder Dudeja has granted the Probate in favour of respondent no.2 rightly. It is stated that the petition is liable to be dismissed.
M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 5/30
11. Petitioner also filed rejoinder to the written statement of respondent no.2, in which he denied the averments made in the written statement and reiterated the averments made in the petition.
12. From the pleadings of the parties, the following issues were framed on 18.09.2007 by Ld. Predecessor:
1. Whether the applicant has no locus standi to file the present petition? Onus placed upon respondent no.2
2. Whether respondent no.2 has obtained Letter of Administration fraudulently by making false submissions and representations? Onus place upon applicant
3. Whether Letter of Administration granted in favour of respondent No.2 is liable to be revoked?
4. Relief.
13. To proved his case applicant/petitioner got examined AW1 Sh. Rakesh Kumar Aggarwal, Secretary Gram Panchayat, Rampura, panchayat Samiti Virat Nagar, Jaipur; AW2 Sh. Krishan Gopal, UDC in the office of SDM (Election); AW3 Sh. M.K. Bharti, Inspector, Food & Supply Office, Malviya nagar Circle-8, AW4 Sh. Ram Pravesh Kumar, LDC in the office of the Registrar of Societies, and Sh. Sri Kishan Saini. Thereafter, evidence of the applicant closed in affirmative M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 6/30 vide separate statement of Sh. Ved Prakash Sharma, Counsel for the applicant. However, vide order dated 04.12.2015 applications under Order 18 Rule 2 & 3 read with Section 151 CPC and another application under Order 7 Rule 14 (3) read with Section 151 CPC of the petitioner were allowed. The documents mentioned in the applications are taken on record and petitioner is allowed to summon the three witnesses i.e.
(i) Land and Building Department, Evacuee Property Cell, Vikas Bhawan, New Delhi, (ii) Investigating officer from Police Station, Shahpura, Jaipur, Rajasthan, and (iii) BDO from the office of Panchayat Samiti Virat Nagar, Jaipur. Thereafter, the applicant got examined AW6 Sh. Nagendra Sah, UDC from Land & Building Department, Evacuee property Cell; AW7 Sh. Mool Chand Meena, Panchayat Extension Officer, BDO office, Office of Panchayat Samiti, Virat Nagar, Jaipur; AW8 Sh. Hemraj, Sub Inspector, PS Shahpura, Jaipur and thereafter vide separate statement of Sh. Rakesh Saini, Counsel for the applicant/petitioner dated 14.03.2016, petitioner evidence was closed.
14. In support of their case, respondents got examined RW1 Sh. Kailash Arora, UDC from the office of Registrar of Society; RW1 Sh. Azhar Ahmed, Patwari from the office of SDM, Hauz Khas, Mehraui (wrongly mentioned as RW1 which should be RW2); RW2 Sh. Ramesh Chandra, Sr. Pharmacist, Primary Health Centre, Mehrauli; RW3 Sh.Nitin Kaushik, Ahlmad from the court of Sh. Vinod Kumar Gautam, ACJ/ARC North, Tis Hazari, Delhi; RW4 Sh. Rakesh Kumar Tyagi, Gram Sewak Paden Sachiv (Death & Birth Registrar) Panchayat Samiti, Kot Putli, District Jaipur, Rajasthan and RW5 Sh. Ved Prakash Shastri.
M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 7/30
15. I have heard Sh. Rakesh Saini, Ld. Counsel for the applicant/petitioner and Sh. Raj Kumar Bhartiya, Ld. Counsel for the respondent no. 2/non-applicant. I have also gone through the written arguments filed by applicant Shiv Mandir Sansthan and the judgments relied thereon.
16. Before findings on issues, I would like to refer to the testimonies of the witnesses of the parties.
17. AW1 Sh. Rakesh Kumar Aggarwal brought the record of Birth and Death Register for the year 2001 onwards. He deposed that as per record, there is no entry in the name of Rahimuddin son of Sh. Bhikha dated 20.06.2003 and 15.06.2003 at E-12/62B, Hazrani, Manviya Nagar, Delhi. The copy of the relevant period is Ex. AW1/1.
18. In his cross-examination AW1 stated that he has been posted in Panchayat Samiti Virat Nagar since July, 2007. The document Mark R has not been issued from Panchayat Samiti Virat Nagar. He volunteered that there is no register entry of issuance of this document. He denied the suggestion that the Mark R was issued from Panchayat Samiti Virat Nagar. He further stated that register brought by him pertains to the period since the year 2001 till date.
19. AW2 Sh. Krishan Gopal deposed that he has brought the summoned record for the period 2002 to 2007 and letter No. F/ERO.AC-08 & 34/Misc/2007/73 dated 31.05.2007 Ex. AW2/1 has been issued from their office to Sh. Kishan Saini (President) Shri Shiv Mandir Sanstha, Village Khirki, New Delhi. He further deposed that no entry in their M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 8/30 record of electoral roll of constituency Malviya nagar in the name of Sh. Rahimuddin S/o late Sh. Bhikha and Sh. Nathu son of late Sh. Nehra resident of E-12/62B, Hauz Rani, New Delhi. He admitted that there is no name in their record in the electoral roll in constituency of both the above persons for the year 2002. The photocopy of relevant period of said electoral roll is Ex. AW2/2.
20. In his cross-examination AW1 stated that he is posted in this office since 2004 and at the time of his joining the office, one Mr. Atul Kumar was AERO in their office. He has seen him signing and writing during the course of work in their office. He admitted that he has not brought the record prior to the year 2000. He has brought the record relating to the year 2007. The extract of electoral roll of the year 2007 brought by him is Ex. AW2/R1. He denied the suggetion that he has not brought the record having the name of Rahimuddin and Nathu Khan.
21. AW3 Sh. M.K. Bharti deposed that as per their record, there is no ration cared issued in the name of Sh.Rahimuddin son of late Sh. Bhika R/o E-12/62B, Hauz Rani, Delhi. There is no ration card existing in the name of Sh.Nathu Khan S/o Sh. Nehra R/o E-12/62B, Hauz Rani, Delhi. He further volunteered that earlier one ration card was issued in the name of Sh. Nathu Khan S/o Sh.Nehra but later on the same was cancelled when the inspection by the concerned Inspector was carried out as he was not found to be residing there. He further deposed that in reply to the question put under RTI Act by Sh. Kishan Saini, president, Shri Shiv Mandir Sanstha and he prepared the reply Ex. AW3/A. M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 9/30
22. In his cross-examination AW3 stated that the report pertains to the period after the card was renewed in the year 2005. He has not brought any record of the year prior to 2005. He can produce the record of the period prior to 2005, if directed. He denied the suggestion that he had given a false report.
23. AW4 Sh. Ram Pravesh Kumar proved on record copies of Memorandum of Association, Certificate of registration, intimation letter dated 31.01.2007, list of governing body members as Ex. AW4/1 to AW4/4 respectively.
24. In his cross-examination AW4 stated that he is posted in this office as LDC for the last 6-7 months. He was posted on 12.07.2007 in the concerned office. At the time of his joining the office, Shri Balwant Singh was the Registrar of Societies. He cannot identify the signature at point A on Ex. AW4/2. He admitted the suggestion that at the time of registration of society, the charge of Rs.50/- on account of registration of the society is taken. At the time of registration, a request letter from the proposed President of the Society/Committee, Memorandum of Association, Rules and Regulations of the Society, ID proof of the members/officials of the society, affidavit of the President of the Society, ownership proof of property where the society is situated, owner's affidavit regarding ownership are taken. He does not know whether at the time of registration of the petitioner's society proof were taken or not. He further stated that he cannot say whether the ownership proof is in the file brought by him. On 18.12.2007, he received a copy of FIR/NCR No. M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 10/30 3387/2007 dated 17.12.2007 along with letter dated 17.12.2007 from the office of Shiv Mandir Sanstha (Regd. ) as filed by Siri Kishan Saini, the present of the Society, which is in the file brought by him.
25. AW4 in his cross-examination further stated that he does not know whether at the relevant time for obtaining of NOC from the owner of the land was required before registration of the society. He admitted the suggestion that now a days such NOC is take. There is no NOC on the record brought by him in respect of the registration of society Shiv Mandir Sanstha. There is one document in torn condition which is a performa of Urdu language but the particulars in its are filled up in Hindi. He further admitted that name of Rahimuddin is mentioned in column no. 2 of this document. It is correct that in column no. 1 the figure 18 is mentioned but since the performa is in Urdu, so he cannot tell what is written against this column in Urdu language. In the next line under the column no. 1 the figure 19 is mentioned and in column no. 2 opposite figure 19, the name of Nathu is mentioned. He cannot say definitely whether this document is a Khasra Girdawari but the date of 25.09.1984 is mentioned on it. It is correct that on the top of this document the word Mehrauli and Khirki are written. He admitted the suggestion that in the summoned record an affidavit of Sh. Ram Kishan Kaushik dated 10.08.1984 is also available. He further admitted that this affidavit was given by Sh. Ram Kishan Kaushik in the capacity of Secretary of Shiv Mandir Sanstha. He also admitted that Sh. Jagbir Singh Saini also filed his affidavit dated 11.02.1985 in the capacity of President of this Society. He admitted that there is one M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 11/30 another affidavit of Sh. Ram Kishan Kaushik dated 11.02.1985.
26. AW5 Sh. Sri Kishan Saini, reiterated the averments as made in the petition in his affidavit Ex. A-5. He further proved on record copy of resolution dated 31.12.2006 as Ex. AW5/1; proceedings of the civil suit filed by respondent no.2 against Sh. Khubi Ram & others before the court of Sh.Raj Kumar, Civil Judge, Delhi as Ex. AW5/2 (colly); copy of plaint and applications in Civil suit No. 121/99 pending in the court of Sh. G.P. Singh, Civil Judge, Delhi as Ex. AW5/3 (colly) and proceeding of the said suit as Ex. AW5/4 (colly); copy of complaint dated 03.01.2007 filed before the DCP Economic Offenses as Ex. AW5/5; certificate of investigation report issued by the concerned Development Officer, Virat nagar, Jaipur, Rajasthan to the effect that the death certificate of Rahimuddin is forged as Ex. PW5/6; envelop Ex. AW5/7 along with the report of Gram Panchayat, Rampura dated 11.01.2007 as Ex. AW5/8 and covering letter of the report as Ex. AW5/9; letter dated 07.04.2007 from the office of Food & Civil Supply Department as Ex. AW5/10 and postal envelop as Ex. AW5/11.
27. In the detailed cross-examination, AW5 deposed that Sh. Jagbir Saini was the first President of Shiv Mandir Society in the year 1986 and he became the President in the year 2002. He admitted that the property in question was owned by Sh.Rahimuddin before 1947. He further deposed that there is no question arose for filing NOC of Sh.Rahimuddin as he had already left India in 1947 at the time of partition for registration of Society. He denied the M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 12/30 suggestion that Society has been registered illegally and against the Rules. He denied that he filed a written statement on behalf of defendant nos. 4 and 5 Sh. Ajit Singh and Sh. Jai Bhagwan Saini in a case Ved Parkash vs. Khubi Ram pending in the court of Sh. Raj Kumar, Civil Judge, Delhi . Sh. Jai Bhagwan Saini is his younger brother. He deposed that Sh.Rahimuddin was having share in the property in question but cannot say that he was having 1/5th share.
28. He denied the suggestion that petitioner's society is not the owner of land bearing Khasra no. 18. He admitted that land bearing Khasra no. 18 & 19 was owned by Bundu, Majuddin, Lambardar prior to 1947. He further deposed that his date of birth is 02.02.1937 and he has personal knowledge that Sh.Rahimuddin left India in 1947 as he knew him and his son. He further deposed that he knew that Rahimuddin's family consisting of 150 family members, who left India in a truck in the night as there were Hindu Muslim riots. He denied that Sh.Rahimuddin died in India. He denied that Sh.Rahimuddin executed a genuine Will dated 21.06.2001. He denied that Sh.Rahimuddin died on 15.06.2003. He denied that the Will dated 21.06.2001 bears the photograph of Sh.Rahimuddin. He denied that Sh.Rahimuddin was medically treated at MCD Hospital. He denied that petitioner society neither owner nor in possession of Khasra no. 18. He denied that address has not been shown at the time of registration of society as Khasra no. 18 & 19. he denied that the probate was correctly granted to Sh. Ved Prakash Shastri. He admitted that Sh.Rahimuddin was having four brothers sh. Bundu, Sh. Shamsher Ali, Sh. Alauddin, Sh. Majuddin. He denied that Sh.Rahimuddin transferred the plot M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 13/30 of Khasra no. 18 to Sh. Ved Prakash by agreement to sell dated 25.06.1988 after receiving consideratio of Rs.18,000/-. He denied the suggestion that Sh. Nathu Khan and Sh. Nawal Kishore signed as a witness on the Will of Sh.Rahimuddin dated 21.06.2001.
29. AW6 Sh. Nagendra Sah stated that he has brought the letter dated 22.09.1948 issued by Sh. U.S. Dixit, Custodian of Evacuee property, letter dated 22.09.1948 issued by Sh. D.B. Behl for custodian of Evacuee property, Land Allotment letter dated 23.09.1948 submitted by the allottees in the office of Assistant Custodian Rural P-Block, Raisana Road, New Delhi and form No.1 issued from the office of custodian and Evacuee property to Sh. Rahimuddin by Assistant Custodian Rural along with report of Halka Patwari and Kanoongo, the certified copies of the above record are Ex. AW6/1 to AW6/5 respectively.
30. AW6 in his cross-examination stated that he has no personal knowledge about the record produced by him. He has joined this office of Custodian of Evacuee Property in May, 1989. He does not know since when the record room of the evacuee property is maintained. The department maintained an Index Register regarding evacuee property. He denied the suggestion that no Index Register exists regarding evacuee property. He does not know Urdu language.
31. AW7 Sh. Mool Chand Meena brought the certified copy of the covering letter dated 10.10.2012 along with the inquiry report signed by Vikas Adhikari, Panchayat Samiti, Virat Samiti as Ex. AW7/1 (Colly) and the copy of the letter M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 14/30 dated 14.03.2013 addressed to SHO PS Shahapura, Jaipur by BDO Virat Nagar, Jaipur as Ex. AW7/2.
32. AW7 in his cross-examination admitted that he has not brought the original copy of Ex. AW7/2. The original copy was sent to concerned police station. He has no personal knowledge about the record produced by him.
33. AW8 Sh. Hemraj proved the copy of FIR No. 153dated 06.04.2013 U/s 420/467/468/471/167/120B IPC as Ex. AW8/1.
34. AW8 in his cross-examination stated that he had jointed the present police station on 01.07.2015 and he has no personal knowledge about the record produced by him.
35. RW1 Sh. Kailash Arora deposed that Shiv Mandir Sanstha was registered at registration No. S-16688. There is one document in Urdu. He does not understand Urdu language but one name of Rahimuddin is mentioned in Hindi and he cannot say whether this name is mentioned in column no.1 and 2 as it appears to be a proforma type document. The date mentioned in this documents is 20.03.1985. Copy of the document is marked as Mark A. The original of Mark A is also available in the file which according to him appears to be original. He further deposed that there are affidavits dated 10.08.184 of Sh. Ram Kishan Kaushik, Secretary of Sanstha and affidavit dated 11.02.1985 of Sh. Jagbir Singh Saini, President of the Sanstha are lying on the record. The copy of which are marked as Mark B and C respectively. Another affidavit of S. Ram Kishan Kaushik dated 11.02.1985 is marked as Mark D. M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 15/30
36. RW1 in his cross-examination stated that he joined this office in January, 2009. A list of governing body dated 31.01.2007 is submitted by this Sanstha.
37. RW1 (which should be RW2) Sh. Azhar Ahmed proved the record pertaining to Khasra Girdawari/Khasra No. 18 for the year 2001-03 in the name of owner with short and Jamabandi no. 2, in the name of Rahimuddin, Mundraja Khewat no. 111, Nakal Khasra Girdawari, issued by Sh. Rajiv Sharma, Patwari on 10.09.2003 as Ex. RW1/A.
38. RW1 (RW2) Sh. Azhar Ahmed in his cross-
examination stated that he has not brought the jamabandi record of the property in question. He volunteered that the same was not summoned. He has brought the summoned record i.e. record pertaining to Jamabandi for the year 1949-
50.
39. RW2 (which should be RW3) Sh. Ramesh Chandra deposed that he has been authorized to appear in the court along with record by Dr. A.K. Jain, Sr. Medical Officer, Incharge, Primary Health Centre, Mehrauli vide letter dated 10.01.2011. He has brought the record regarding admission of patient Rahimuddin s/o Sh. Bhika. Sh. Rahimuddin was admitted in Primary Health Centre, Mehrauli on 18.06.2001 and he was discharged as 20.06.2001. The relevant entry in this regard at point A is Ex. RW2/A.
40. RW2 (RW3)Sh. Ramesh Chandra, in his cross- examination stated that he cannot say if ID of the patient for the purpose of admission in hospital is required, the Doctor M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 16/30 can tell the same. The signatures of the patient were not obtained on the admission/discharge register he has brought. He has been working in the said hospital since 1988. He does not know the patient Rahimuddin personally nor he can identify him. Hospital authority do not verify the correctness of parentage, address and identification of the patient. He does not know if concerned Rahimuddin has already left for Pakistan after partition. He cannot say if the concerned Rahmuddin involved in the present matter was never admitted in the hospital as stated by him earlier and somebody else impersonated else in the name of Rahimuddin in Ex. RW2/A.
41. RW3 (which should be RW4) Sh. Nitin Kaushik brought the record pertaining to suit No. 1733/08 titled 'Sh. Ved Prakash Shastri vs. Khubi Ram & others'. In that suit written statement filed on behalf of defendant nos. 4 and 5 and is now pending in the court of Sh. V.K. Gautam, ACJ, North Delhi. The certified copy of the written statement is Ex. RW3/A and copy of order dated 30.07.2005 is Ex.RW3/A.
42. RW3 (RW4) Sh. Nitin Kaushik has not been cross- examined despite opportunity given for the same.
43. RW4 (which should be RW5) Sh. Rakesh Kumar Tyagi deposed that he has seen the copy of printed death certificate of Sh.Rahimuddin Ex. RW4/1 and copy of handwritten death certificate dated 05.03.2003 of Sh.Rahimuddin Ex. RW4/2 (originals of Ex. RW4/1 and RW4/2 are lying in the file of PC No. 18/06 titled as 'Ved Prakash Shastri vs. State'). He further deposed that Ex. RW4/1 and M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 17/30 Ex. RW4/2 bear his signatures at point A on each document. At the time of issuance of the said certificates Ex. RW4/1 and Ex. RW4/2, he was posted at Gram Sewak Paden Sachiv (Death & Birth Registrar) Panchayat Samiti, Virat Nagar, Gram Panchayat Rampura, District Jaipur.
44. RW4 (RW5) Sh. Rakesh Kumar Tyagi in his cross- examination stated that he is not a summoned witness for today and he received information about today's date from Ld. Counsel for the respondent no.2 Sh. Ved Prakash as well as from the applicant. He denied the suggestion that applicant Sh. Shree Krishan Saini had not informed him about today's date of hearing in the court. He volunteered that he came to his house to inform about the date. He was not present at home when Sh. Shree Krishan Saini came to his house to inform the date. He denied the suggestion that Sh.Shree Krishan Saini has never visited his house. He further stated that he is posted as Gram Sewak Paden Sachiv (Death & Birth Registrar) Panchayat Samiti, Kot Putli, District Jaipur, Rajasthan. He had given verbal information in his office regarding his deposition in the court. In his office, the verbal information is acceptable provided the liasoning is proper. Saturday is a weekly off in his office. He has not taken station leave for the purpose of coming to Delhi.
45. RW4 (RW5) Sh. Rakesh Kumar Tyagi in his cross- examination admitted that an FIR No. 237/2010 was registered against him under Section 420/409 IPC on 13.12.2010. He admitted that the allegation against him in the said FIR is that he has embezzled a sum of Rs.2 lacs from National Rural Employment Guarantee Programme. He M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 18/30 further admitted that in the said case, charge sheet has been filed against him in the court. He denied the suggestion that he has remained in judicial custody for six months during the investigation of the said case. He volunteered that he remained in judicial custody for about 44 days in the said case. He further admitted that he is suspended from his services at present.
46. RW4 (RW5) Sh. Rakesh Kumar Tyagi in his cross- examination further stated that he made inquiries about the death of Sh. Rahimuddin before issuing the death certificate Ex. RW4/1 and Ex. RW4/2. He volunteered that two persons, namely, Sh. Shabbir Mohd. And his driver came to him on 20.06.2003 and they showed him some discharge documents from the hospital in respect of Sh. Rahimuddin. They gave him a written application. The said application has been deposited with the monthly report before the Block Development Officer. He admitted that the date of receipt of application has not been mentioned on the document Ex. RW4/1. On 20.06.2003, he issued only one death certificate and it was pertaining to Sh. Rahimuddin. Later on, the format of death certificate was changed but he does not remember the date of changing of format of death certificate. He denied the suggestion that he has not mentioned the date of receipt of application on death certificate Ex. RW4/1 as it is forged document. He admitted that the date of issuance has also not been mentioned on the death certificate Ex. RW4/1. He is not aware whether the seal affixed on death certificate Ex.RW4/1 should also contained any code or not. He further admitted that the seal affixed on the document should contain the code of district. He volunteered that it started M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 19/30 with change in the format. The format was changed after 26.07.2002. He admitted that the death certificate Ex. RW4/1 is dated 20.06.2003. The code number of Rampura is 03099.
47. RW4 (RW5) Sh. Rakesh Kumar Tyagi in his cross- examination further stated that the letter/certificate Ex.RW4/2 was issued in confirmation of the death certificate Ex. RW4/1. Ex. RW4/2 is on the letter head of Panchayat and the said document could have been signed by Sachiv/Sarpanch. He volunteered that he or the Sarpanch were only authorized to sign the document. Ex. RW4/2 is in his handwriting. The code was not required to be mentioned on Ex. RW4/2. He usually issue confirmation in respect of the death certificate in other cases also if the need arises. In the year 2007, Sh. Prabhu Dayal Berwa was working as Sachiv after my transfer from Panchayat Rampura and Sh. Jhuta Ram Sharma was working as Vikas Adhikari, Panchayat Samiti Virat Nagar and he recognize his signatures. He has seen the document Ex. RW4/A-1 and therein it has been stated that the death of Sh. Rahimuddin has not been registered during the period from the year 2001 to 2005.
48. RW4 (RW5) Sh. Rakesh Kumar Tyagi in his cross- examination further stated that he has seen the document Ex. RW4/A-2 and it bears the signatures of Vikas Adhikari at point A & B. Vol. He do not know by whom the said inquiry was ordered. He admitted that Sh.Rakesh Kumar Aggarwal was working as a Secretary Gram Panchayat Rampura, Panchayat Samiti, Virat Nagar, Jaipur. He volunteered that he came after Sh. Prabhu Dayal. He has seen the death registered maintained by the Gram Panchayat Rampura M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 20/30 which is already Ex. AW-1/1. He admitted that the said register does not contain the entry regarding the death of Sh.Rahimuddin. He volunteered that he forgot to make the same regarding the death of Sh. Rahimuddin in the said register. He did not move any application regarding the said mistake before any Senior Officer or in his office. He denied the suggestion that he fort to make the same regarding the death of Sh. Rahimuddin in the aforesaid register. He further denied the suggestion that he issued a false death certificate regarding Sh. Rahimuddin to Sh. Ved Prakash for illegal consideration.
49. RW5 (which should be RW6) Sh. Ved Prakash Shastri in his affidavit almost reiterated the averments made by him in his reply. He further proved on record succession certificate dated 06.07.2006 as Ex. RW5/1; Electricity bill in his name as Ex. RW5/2; the report of Local Commissioner dated 19.01.1998 filed by Sh. Ajay Khatana, Advocate as Ex. RW5/3 and copy of his Ration Card as Ex. RW5/4.
50. In detailed cross-examination, RW5 Sh. Ved Prakash Shastri deposed that he was born at Bathenkalan, District Mathura, UP on 16.12.1964. He has done Shastri education from Varanasi Sanskrit Vishwavidyalaya through correspondence. He came to Delhi in the year 1983 and initially he stayed at House No. 163, Khirki Village, Delhi and thereafter at Khasra No. 18, Village Khirki till 1998. For the last 6-7 years he is residing at T-34B, Khirki Ext. Malviya Nagar, New Delhi, which is the address mentioned in the affidavit Ex. RW5/A. He denied the suggestion that Shiv Mandir Sanstha is in possession since 1998. He denied that M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 21/30 Hanuman Mandir was not at Khasra No. 18 in the year 1983. He deposed that Sh.Rahimuddin used to reside at Khasra no.
18. He denied the suggestion that Sh.Rahimuddin never resided at Khasra no. 18. He deposed that he had filed a suit for permanent injunction in the year 1997 against Khirki Resident Welfare Association and others. Thereafter probate case was filed in respect of property in question. Another suit filed for injunction regarding stay of digging of Rasta against the Khirki Ext. Society and MCD. Thereafter another suit filed for possession at Saket Court but withdrawn that suit for injunction against digging.
51. He denied the suggestion that no stay was gratned, therefore, suit was withdrawn. He denied the suggestion that he has withdrawn the suit against Khirki Resident Welfare Association after two weeks of its filing. He admitted that the suit filed by him against Sh. Khubi Ram Kaushik and other was dismissed by the court of Sh. V.K. Gautam, Ld.Civil Judge. He admitted that Shiv Mandir Sansthan had filed the application for impleading as party.
52. He admitted that Sh. Nawal Kishore is his real maternal uncle. He deposed that he went to the office of Advocate at INA in an auto from village Khirki. Rahimuddin, Nathu Khan and Nawal Kishore reached there before him. The typing work was started and other documents besides Will were also typed. He deposed that he paid the fees to the Lawyer and appeared before the Registrar and was carrying ration card as identification. He denied the suggestion that there was no person by the name of Rahimuddin s/o Bhika, who appeared before the Registrar at the time of execution of M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 22/30 Will. He denied that Rahimuddin had left for Pakistan at the time of partition in the year 1947. He deposed that he has no knowledge that the property mentioned in the Will has been declared evacuee property by Custodian Department. He denied the suggestion that the property was alloted to Sh. Panna Lal, Bhadra Sen and Shiv Prasad, the displaced persons from Pakistan in 1948. He denied the suggestion that photograph affixed on the Will Ex. PW1/4 is not of Sh.Rahimuddin and it is of some other person.
53. He denied the knowledge of person Sh. P.S. Chauhan resident of village Khirki. He deposed that he knew Sh. V.S. Chauhan, who is old resident of Khirki. He admitted that Sh. V.S. Chauhan has executed a surety bond in his favour. He deposed that the Will was typed and presented for registration on the same day and everything was happened in his presence. He does not know who inserted the date i.e. 21.06.2001 in hand on the Will. He denied the suggestion that no person in the name of Nathu Khan is residing in village Khirki and somebody impersonated as Nathu Khan. He admitted that Nathu Khan filed a suit in Tis Hazari Court, in which he was a party but never attended the court. He admitted that Khubi Ram is his maternal uncle (Mamaji). He does not remember of the withdrawal of case by Nathu Khan on 28.11.2000, wherein statement given that Shree Shiv Mandir Sansthan was in possession of Khasra no. 18 & 19, village Khirki.
54. He deposed that he was dispossessed from Khsar No. 18 on 16.01.1998 and when the probate petition was filed he was not in possession. He does not know any relative of M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 23/30 Rahimuddin at Rajasthan. He deposed that the certificate dated 18.09.1995 was issued by one Sh. Ram Phal after he was pleased with him services and character. A certificate issued by one Sh. B.S. Chauhan dated 02.11.1995 shown to the witness but he does not know the relationship between Sh. B.S. Chauhan and Sh. V.S. Chauhan, who executed surety bond in his favour. He further deposed that he does not remember whether he has stated in his petition that except Rahimuddin, all his relatives migrated to Pakistan. He deposed that he cannot say that Rahimuddin was owner of Khasra No. 18 and was residing therein. He denied the knowledge of meaning of word 'Jayadad Matruka'. He denied the suggestion that there was some person by the name of Rahimuddin and Nathu Khan in the village Khirki and they were fictitious persons. He further denied that the Will dated 21.06.2001 is a false and fabricated document and has been obtained by fraud.
55. Ld. Counsel for the applicant relied on (1) 1880 Law Suit (Cal) 142 (DB) Nobeen Chunder Sil vs. Bhobosoonduri Dabee; (2) AIR 1932 Calcutta 734 Nabin Chandra Guha vs. Nibaran Chandra Biswas; (3) AIR 1978 Patna 226 Narayan Sah Vs. Smt. Devaki; (4) AIR 1990 SC 1576 Elizabeth Antony vs. Michel Charles John Chown Lengera; (5) AIR 2006 Calcutta 200 Uma Addhya & Ors. Vs. Biren Mondal & ors.; (6) 2007 (12) Scale Basanti Devi vs. Raviprakash Ramprasad Jaiswal; (7) (2008) 10 SCC 489 G. Gopal vs. C. Baskar & ors. My findings of issues are as under:
M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 24/30 ISSUE NO. 1
56. Onus to prove this issue is on the respondent no.2. The objection taken is that the applicant Shiv Mandir Sansthan has no locus-standi to file the present revocation petition. The applicant examined AW5 Sh. Sri Kishan Saini, the President of the applicant society. The testimony discussed herein above establish that the society has been registered and registration certificate has been proved by AW4 Sh. Ram Pravesh Kumar, LDC from Registrar Office. He further proved the accompanying documents Ex. AW4/1 to AW4/4 with regard to constitution and registration of the applicant society. In the cross-examination of AW5 Sh. Sri Kishan Saini, who is the President since 1986 and it has come on record and established that Shiv Mandir Sansthan is in existence since 1995-96 and registered on 19.05.1986. It is pertinent to mention here that the subject matter of the assailed Will of deceased testator Rahimuddin is also claimed by applicant society i.e. the Khasra No. 18 of Village Khirki. In the cross-examination, no question or suggestion put to the witness AW5 regarding the registration of the applicant society. It is further pertinent to mention here that apart from probate petition, it has come on record that there were other civil litigations with regard to subject matter of the Will of deceased testator. The probate proceedings are in rem, therefore, a per procedure, citation has been published in the newspaper and notice given to the public at large. In the present circumstances of the case, the applicant society is also claiming to be having right, interest, ownership in respect of the subject matter of the Will of deceased testator. In my considered opinion, respondent no.2 failed to discharge M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 25/30 the onus. The applicant Shiv Mandir Sansthan has locus- standi to file revocation petition. Hence, issue is decided in favour of the applicant and against the respondent no.2.
ISSUE NOS. 2 & 357. Both these issues are taken up together as they are interconnected. The case of the applicant is that Sh.Rahimuddin had been migrated to Pakistan at the time of migration and the subject matter of the will of the deceased testator vest with the Evacuee Department and the Will was not executed by him but it is a forged and fabricated document produced by respondent no.2. Further, the death certificate Ex. RW4/1 and handwriting Ex. RW4/2 are forged and fabricated. Respondent no. 2 has concealed the material fact from the court. Therefore, letter of administration was obtained fraudulently. The applicant examined AW1 Sh. Rakesh Kumar Aggarwal, Secretary in Gram Panchayat Rampura Panchayat Samiti Virat Nagar, Jaipur, who brought the record of birth and death for the year 2001 onwards. He proved Ex. AW1/1 certified copy of the record pertaining to 20.06.2003 and 15.06.2003 at E-12/62B, Hazrani, Malviya Nagar, Delhi. RW4 Sh. Rakesh Kumar Tyagi examined by respondent no. 2 is the author of the death certificate of the deceased testator Ex. RW4/1.
58. The detailed cross-examination discussed herein above established that he was posted as Gram Sewak Paden Sachiv at the relevant time and his conduct shows that he himself came to the court without receiving any summons. He admitted recording of FIR No.237/2010 under Section M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 26/30 420/409 IPC registered against him in respect of embezzlement of sum of Rs.2 lacs from National Rural Guarantee Programme and he was also suspended from services. He admitted date of receipt of the application by one Shabbir Mohd. and his transfer on 20.06.2003 was not mentioned in Ex. RW4/1. He admitted that the format of death certificate also changed. He admitted that on Ex. RW4/1, there is no mention of date of issuance and not aware whether seal was affixed or not. The testimony of RW4 Sh.Rakesh Kumar Tyagi does not inspire confidence. Not only this AW7 Sh. Mool Chand Meena from the office of Panchayat Extension Officer brought the record with record of the inquiry and proved the inquiry report Ex. AW7/1. It corroborates that Ex. RW4/1 is not a genuine or legal death certificate of deceased testator Sh. Rahimuddin. In my considered opinion death certificate of Sh. Rahimuddin Ex. RW4/1 is not a genuine document and it was issued by RW4 without following the due process of law and without proper verification. The testimony of RW4 Sh. Rakesh Kumar Tyagi cannot be relied because of his conduct and character established on record.
59. The applicant examined AW6 Sh. Nagendra Sah, UDC from Evacuee Property Cell, who proved the record of allotment of land on 23.09.1948 Ex. AW6/1 to AW6/5. Record was filed along with the translated copy. According to this record, the property of Sh. Rahimuddin was vested with Custodian and Evacuee Property Department. According to Ex. AW6/1, on 22.09.1948, the land was allotted to Sh. Panna Lal, Sh. Bahadar Saini and Sh. Shiv Prasad, which includes the subject matter of the Will of the deceased testator. Ex.AW6/4 M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 27/30 further establish that at the time of partition it was belonged to Sh.Rahimuddin but later on vest with the Evacuee Department. It is pertinent to mention here that even respondent no.2 when appeared in witness box as RW5 also admitted the fact that all family members of respondent no.3 migrated to Pakistan. Revenue record and testimony of witnesses establish that that deceased Sh. Rahimuddin on the day of execution of the assailed Will Ex. PW1/4 dated 21.06.2001 was not in India. Therefore, it is highly improbable that he died in Jaipur. Nothing has brought on record about his shifting of Jaipur in the year 2002-03. No relative or the person in whose house he was residing, examined by respondent no.2. RW4 named the persons who came with the application of death certificate are also not examined by respondent no.2. It is established that the best evidence not produced by respondent no.2 to establish that deceased Sh.Rahimuddin remained in Delhi and thereafter shifted to Jaipur.
60. Respondent no.2 examined RW2 Sh. Ramesh Chandra from Primary Health Centre, Mehrauli regarding the illness record of 18.06.2001 and 20.06.2001. It is a copy of a Register where the Health Centre must have recorded visit of patients. However, it does not bear the photograph or any other verification particulars to establish that Sh. Rahimuddin is the same person. There is no prescription, discharge summary or any other document filed which show that any relative or family member got deceased Sh.Rahimuddin admitted to the hospital. It does not establish the identification that Sh. Rahimuddin is the same deceased testator. RW2/A does not inspire confidence in the totality of the circumstances.
M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 28/30
61. It is pertinent to mention here that the respondent no.2 had full opportunity to again call the attesting witnesses to the assailed Will but they are not examined and nothing has brought on record that they are not alive. No witness examined or any document proved that on the date of execution of the alleged Will whether the name of deceased Sh. Rahimuddin was figured in Voter List or in Ration Card or in Pass Book of Bank/Post Office.
62. On the basis of above observation and discussion, it is established on record that deceased Sh.Rahimuddin at the time of partition in the year 1947 had migrated to Pakistan and the land belongs to his family and he owned share 1/5th in Khasra no. 18 vested with the Custodian of Evacuee Properties Department and later on in the year 1948, it was alloted to displaced persons Sh. Panna Lal, Sh.Bahadar Singh and Sh. Shiv Prasad. The death certificate of deceased Sh. Rahimuddin is also not a legal and genuine document. It is further established that when Sh.Rahimuddin was not alive or not in India on the day of execution of the assailed Will dated 21.06.2001, then Will is also not a legal and genuine. The death certificate is also established to be not a legal and genuine document. Hence, Issue no. 1 and 2 are decided in favour of application and against the respondent no.2.
ISSUE NO. 4 (RELIEF)
63. In view of my findings on issue nos. 1 to 3, the petition is allowed and the letter of administration granted by Ld. Predecessor on 02.02.2006 stands revoked. No order as to costs.
M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 29/30
64. File be consigned to Record Room.
Announced in the open court today the 3rd December, 2016.
(Sanjay Kumar) ADJ-02,West/Delhi 03.12.2016 M-48/10/07 (New No. 58240/16) Shiv Mandir Sansthan vs. State & Ors. 30/30