Delhi District Court
Sh. Mohan Lal Kapoor (Since Deceased ... vs Smt. Asi Bai (Since Deceased Through ... on 22 February, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
(1) C.S. No. 219/2011
Unique I. D. No. 02401C0481312011
Sh. Mohan Lal Kapoor (since deceased through LRs)
......Plaintiff
Versus
Smt. Asi Bai (since deceased through LRs)
.......Defendant
A N D
(2) C.S. No. 220/2011
Unique I. D. No. 02401C0481302011
Sh. Bhag Chand (since deceased through LRs)
......Plaintiff
Versus
Sh. Mohan Lal (since deceased through LRs) & Ors.
.......Defendants
(1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs)
(2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 1 of 30
COMMON JUDGMENT
1. Vide order dated 14.03.2011 in RFA241/1999 titled, "Smt. Neelam Kapoor Vs. Sh. Bhag Chand, through LRs" and in RFA242/1999, titled "Smt. Neelam Kapoor & Ors. Vs. Sh. Bhag Chand, through LRs.", Hon'ble Mr. Justice Valmiki J. Mehta had directed the Trial Court in both the suits to frame appropriate issues regarding the existence and validity of Will dated 26.01.1999, executed by Sh. Bhag Chand in favour of Sh. Jagdish Lal Dua as well as to whether Sh. Jagdish Lal Dua was the legal heir of Late Sh. Bhag Chand by virtue of said Will dated 26.01.1999 and to give findings with reasons and return the same to High Court of Delhi.
2. Following two issues were framed on 19.12.2011 by my Ld. Predecessor in compliance of afore elicited directions of Hon'ble High Court of Delhi : ISSUES
1) Whether Sh. Jagdish Lal Dua was the legal heir of Late Sh. Bhag Chand by virtue of Will (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 2 of 30 dated 26.01.1999 executed in his favour?
2) Whether the Will dated 26.01.1999 executed by Sh. Bhag Chand in favour of Jagdish Lal Dua is a validly executed Will?
3. Vide judgment dated 08.06.2012, my Ld. Predecessor gave findings on aforesaid two issues and later sent the same to the High Court of Delhi.
4. Vide order dated 17.05.2013 of Hon'ble Mr. Justice A.K. Pathak in aforesaid two RFAs i.e., (i) RFA241/1999; and (ii) RFA242/1999, the order dated 08.06.2012 of my Ld. Predecessor was set aside and one more opportunity was afforded to respondents i.e. LRs of Sh. Bhag Chand to lead evidence, directing parties to appear before my Ld. Predecessor on 09.07.2013.
5. Consequent thereto in CS No. 219/2011, Smt. Krishna Devi and Sh. S.K. Sharma were examined as DW1 and DW2, respectively by the LRs of Sh. Bhag Chand. Thereafter, Sh. Sanjay Kapoor was (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 3 of 30 examined as PW1 by LRs of Sh. Mohan Lal in evidence.
6. When the matter was at the stage of arguments, order dated 26.11.2015 of Hon'ble Mr. Justice Rajiv Sahai Endlaw in RFA No. 241/1999 and RFA No. 242/1999 was received with the directions "the Trial Court to ensure that the findings are returned to this Court (High Court of Delhi) before that date (i.e. 25.02.2016)". On 23.12.2015, application under Section 151 CPC was moved by Sh. Kapil Kaushik, Advocate on behalf of Smt. Krishna Devi, seeking calling Sh. Charanjit Singh, Advocate and Sh. D.P. Bajaj in defendant evidence submitting them to be attesting witnesses of the Will. Vide detailed order, aforesaid application was dismissed with costs and matter was fixed for final arguments on 02.01.2016 and then further to 11.01.2016. On 11.01.2016, Sh. Kapil Kaushik, Ld. Counsel for LRs of Sh. Bhag Chand filed his affidavit with print out of supplementary list of matters listed on 11.01.2016 before Hon'ble Mr. Justice Rajiv Sahai Endlaw. In the affidavit of Sh. Kapil Kaushik, it was mentioned that vide CM application 857/2016, CM application 959/2016 in RFA No. 241/1999 and CM application 858/2016 in RFA No. 242/1999, titled as "Neelam Kapoor & (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 4 of 30 Ors. Vs. Bhagchand & Ors." were listed that day before Hon'ble Mr. Justice Rajiv Sahai Endlaw and the orders passed by Hon'ble High Court was "not to proceed with final arguments till next date" i.e. 21.01.2016, fixed in High Court for hearing of said applications. Matter was then fixed for 27.01.2016 for arguments/further proceedings. On 27.01.2016, Sh. Kapil Kaushik, Ld. Counsel for LRs of defendant Sh. Bhag Chand with Smt. Krishna Devi moved application under Section 151 CPC with copy of dasti order in CM(M) 87/2016 of Hon'ble Mr. Justice Indermeet Kaur, dated 25.01.2016, in terms of which, the petitioner therein had been permitted to examine one of the attesting witnesses of the Will in question. On 27.01.2016, affidavit of Sh. Charanjit Singh, stated attesting witness of the Will was filed by Sh. Kapil Kaushik, Ld. Counsel and copy was given to Sh. Sanjay Shangari, Ld. Counsel for LRs of Sh. Mohan Lal, in terms of directions contained in the afore elicited order dated 25.01.2016 of Hon'ble high Court of Delhi. The matter was adjourned for 29.01.2016 for evidence of said attesting witness of the Will in question in compliance thereof. On 29.01.2016, witness Sh. Charanjit Singh was examined as DW3 in CS No. 219/2011 and crossexamined at length. Matter was listed for arguments on 01.02.2016, 02.02.2016, 03.02.2016, (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 5 of 30 04.02.2016, 05.02.2016 and 06.02.2016 for arguments.
7. In case CS No. 220/2011, Sh. Sanjay Kapoor was examined as DW1 by LRs of Sh. Mohan Lal, Sh. Charanjit Singh was examined as PW1 by Smt. Krishna Devi, wife of Sh. Jagdish Lal Dua.
8. I have heard arguments addressed by Sh. Sanjay Shangari, Ld. Counsel for LRs of Sh. Mohan Lal; Sh. Manoj Sharma and Sh. Kapil Kaushik, Ld. Counsel for LRs of Sh. Bhag Chand and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, relied precedents, written arguments of both the parties and have also examined the record of the case.
9. Vide common judgment dated 16.01.1999, two suits viz., (i) Suit No. 116/98/82, titled "Sh. Mohan Lal Vs. Smt. Asi Bai & Ors."; and
(ii) Suit No. 115/98/89, titled "Sh. Bhag Chand @ Subhash Chand Vs. Sh. Mohan Lal & Anr." were decided by Sh. S.N. Dhingra, Ld. Additional District Judge, Delhi as his Lordship then was. With respect to said common judgment the aforesaid two RFAs No. 241/1999 and (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 6 of 30 242/1999 are pending before the High Court of Delhi.
10. Since, afore elicited two issues have been framed in compliance of common order dated 14.03.2011 in RFA No. 241/1999 and 242/1999 arising out of the common judgment aforesaid dated 16.01.1999, the parties in the both matters being the same, the facet of the Will in question to be decided being also the same, these two issues are being adjudicated vide common judgment in these two cases.
Findings on Issue No(2) Whether the Will dated 26.01.1999 executed by Sh. Bhag Chand in favour of Jagdish Lal Dua is a validly executed Will?
11. Sh. Sanjay Shangari, Ld. Counsel for LRs of Sh. Mohan Lal argued that Sh. Jagdish Lal Dua had been alleging himself to be the legal heir of Sh. Bhag Chand @ Subhash Chand. Sh. Bhag Chand @ Subhash Chand was admittedly a bachelor. No documentary evidence has been placed on record to prove that Sh. Jagdish Lal Dua is the legal heir of Sh. (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 7 of 30 Bhag Chand @ Subhash Chand. Sh. Jagdish Lal Dua was son in law of sister of Sh. Bhag Chand @ Subhash Chand and did not fall into any of the heir either in ClassI or ClassII, as per Section 8 of the Hindu Succession Act vizaviz, Sh. Bhag Chand @ Subhash Chand. Also was argued that in fact Sh. Jagdish Lal Dua and his propounded successors are strangers to the family of Sh. Bhag Chand or Sh. Mohan Lal. Sh. Jagdish Lal Dua during his lifetime did not obtain any declaration of his character as successor of Late Sh. Bhag Chand from any Court of competent jurisdiction. It was also argued that Sh. Jagdish Lal Dua claimed his right as successor to the estate of deceased Sh. Bhag Chand on the basis of the Will dated 26.01.1999 propounding that same has been executed by Late Sh. Bhag Chand. The said Will is a fabricated and procured document. In fact, Sh. Bhag Chand did not have any right, title or interest in the properties, which are alleged to have been bequeathed under the said Will. The said Will was also challenged in the Court of Ld. Civil Judge, Delhi, but proceedings were stayed under Section 10 of CPC. Also was argued that the law is well settled that the Will has to be established by obtaining a probate. Section 213 of the Indian Succession Act is conclusive on this aspect. Sh. Sanjay Shangari, Ld. Counsel (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 8 of 30 placed implicit reliance on :
i)Geevarghese Geevarghese & Anr. Vs. Issahak George & Ors., AIR 1971 Kerala 270 (V 58 C 60);
ii)Ranjit Kumar Bose Vs. Subodh Chandra Basu Malik & Ors., AIR 1937 Calcutta 252;
iii)Jogendranth Banerjee Vs. Makhan Lal Banerjee & Ors., AIR (29) 1942 Calcutta 401;
iv)Kanhialal Sarda & Anr. Vs. State of Orissa & Ors., AIR 1980 Orissa 27;
v)Ramdutta Sharma Vs. Krishna Dutta Sharma, AIR 1987 MP 192; and
vi)Kalarikkal Thressiamma & Anr. vs. Kallidukkananikkal Joseph & Ors., AIR 1998 Kerala 160.
12. Also was argued by Sh. Sanjay Shangari, Ld. Counsel that the LRs of deceased Sh. Mohan Lal had obtained a Probate/Letters of Administration dated to the estate left by him on the basis of Will dated 14.05.1996 of Sh. Mohan Lal vizaviz, the property under reference; which probate had been granted vide judgment dated 05.11.2001 in (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 9 of 30 Probate Case no. 64/2000, titled "Neelam Kapur & Ors. Vs. State" by the Court of District Judge. It was contended that this being a judgment in rem is conclusive under Section 41 of the Indian Evidence Act (in short IEA). The objection to the same had also met the fate of dismissal. It was also contended that even otherwise there were categorical admissions by Sh. Sandeep Dua in probate proceedings. Sh. Sanjay Shangari, Ld. Counsel placed reliance upon :
i)RuknulMulk S. Abdul Wajid & Ors. Vs. Mrs. Gajambal Ramalingam & Ors., AIR (37) 1950 Mysore 57 (CN 17);
ii)Smt. Malati De & Anr. Vs. Dhanapati Dutta & Ors., AIR 1964 Calcutta 41 (V 51 C 8);
iii)Surinder Kumar & Ors. Vs. Gian Chand & Ors., AIR 1957 SC 875 (V 44 C 127 Dec.);
iv)Satya Charan Das & Ors. Vs. Hrishikesh Karar & Ors., AIR 1959 Calcutta 795 (V 46 C 218);
v)Chiranjilal Shrilal Goenka (Deceased) Through LRs. Vs. Jasjit Singh, 1993 Legal Eagle (SC) 240; 1993 (1) ArbLR(SC) 443 ; 1993 (2) JT 341 : 1993 (2) Scale146 :
1993 (2) SCC 507: 1993 (2) SCR 454.
(1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 10 of 30
13. Also was argued by Sh. Sanjay Shangari, Ld. Counsel that by virtue of Explanation 4 to Section 59 of Indian Succession Act, the personal right, if any, though not admitted, if any accrued to Sh. Jagdish Lal Dua by virtue of any Will, got extinguished upon death of Sh. Bhag Chand. Sh. Sanjay Shangari, Ld. Counsel relied upon :
i)Barumal Singh Vs. 3rd Additional District Judge, Saharanpur & Ors., AIR 1986 Allahabad 307;
ii)Sh. S. Singh & Anr. Vs. Anand Kumar Singh, Testamentary Suit No. 14/2005, dated, 04.02.2013, decided by Allahabad High Court;
iii)Thrity Sam Shroff Vs. Shiraj Byramji Anklesaria & Anr., AIR 2007 Bom. 103;
iv)Deo Kumar Singh Vs. Kailash Singh, AIR 1961 Patna 304 (V 48 C 86);
v)Edakkavil Karimbuvalappil Abdulkhader Haji Vs. Thalakkal Kunhammad & Ors., AIR 1986 Kerala 3;
vi)HS Bhatnagar Vs. Collector Ghaziabad, Laws (All)19991115.
(1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 11 of 30
14. Also was argued by Sh. Sanjay Shangari, Ld. Counsel that allowing of substitution application does not confer any right. In Civil appeal no. 72187219 of 2002, titled "Sanjay Kapoor & Anr. Vs. Jagdish Lal Dua (dead), the Supreme Court had kept open to the appellant to urge all contentions available to him under the law at the time of hearing of appeal. It was also open to the appellant i.e. LRs of Sh. Mohan Lal to urge Sh. Jagdish Lal Dua was not legal heir of Sh. Bhag Chand @ Subhash Chand. Reliance was also placed upon :
i)Suraj Mani & Anr. Vs. Kishori Lal, AIR 1976 HP 74;
ii)Daulat Ram Vs. Mt. Meero & Ors., AIR 1941 Lahore 142;
iii)Shivraj S/O Ramji PaulShete Vs. Prayagbai W/O Mahadu Shete Died, 1994 (1) Bom CR 561, (1993) 95 BOM LR 681.
iv)Muniappa Nadar & Ors. Vs. K.V. Doraipandi Nadar & Anr., AIR 1988 Madras 117.
15. Sh. Sanjay Shangari, Ld. Counsel also argued that probate Court had exclusive jurisdiction and not Civil Court to adjudicate about (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 12 of 30 genuineness of Will. Even suit for injunction cannot be converted into suit for probate. Reliance was placed upon :
i)Gurmeet Singh Chopra Vs. Taruna Chopra & Ors., 169 (2010) DLT 688; and
ii)T. Venkata Narayana & Ors. Vs. Smt. Venkata Subbamma (Dead) & Ors., 1996 SCC (4).
16. As regards probate of a Will, it is settled law that in Delhi to enforce a Will, probate is not required. Section 213 read with Section 57 of Indian Succession Act makes it clear that where the parties to the Will are Hindus or the properties in dispute do not fall in the area falling under Section 57 (a) and 57 (b), SubSection (2) of Section 213 of the Act applies and SubSection (1) has no application. Therefore, as a consequence, a probate is not required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the immovable properties situated outside those territories. In Catena of decisions of High Court of Delhi, it has been held that probate or letter of administration is not required to claim succession on the basis of Will made in Delhi, wherein properties are also situated in Delhi. See (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 13 of 30
i)Justice UN Bachawat (Rtd.) & Anr. Vs. Chief Post Master General & Ors., 2015 SCC Online Del 10073 (2015) 221 DLT 542 : (2015) 151 DRJ 213;
ii)Santosh Kakkar Vs. Ram Prasad & Ors., 71 (1998) DLT 147;
iii)Ravendra Dayal Vs. Shashi Mehra, 2015 SCC Online Del 11040; (2015) 222 DLT 803;
iv)Manju Anand Vs. Geeta Chopra, 2015 SCC Online Del 13851;
v)Capt. (Retd.) OP Sharma & Anr. Vs. Kamla Sharma & Ors., 2008 SCC Online Del 354 : (2009) 158 DLT (DB) :
(2009) 81 AIC 381;
vi)Rajan Suri & Anr. Vs. State & Anr. 2006 (86) DRJ 34;
vii)Gulab Chaudhary Vs. Govinder Singh Dahiya & Anr., ILR (2012) III Delhi 138; and
viii)Chetan Dayal Vs. Aruna Malhotra & Ors., 2012 SCC Online Del 4197.
17. The result of aforesaid is that complete line of judgments referred by Ld. Counsel for LRs of Sh. Mohan Lal in support of the (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 14 of 30 submissions that probate is mandatory would have no application to the facts of the present case.
18. In the case of Chetan Dayal (supra) it was interalia held by Hon'ble Mr. Justice V.K. Jain of High Court of Delhi that : "In a civil suit whenever a party to the litigation set up a Will, which is disputed by the other party, the Civil Court with a view to decide the controversy involved in the suit is required to adjudicate upon the execution and validity of the Will set up in the pleadings, though the findings of the Civil Court not being judgment in rem will not bind those who are not parties to the suit."
Also was held therein that Civil Court cannot refuse to adjudicate upon the genuineness and execution of the Will and compel the parties to seek probate before relying upon the Will. Doing that would amount to making Probate of the Will executed by a Hindu mandatory, which would not be in consonance with the provisions of Indian Succession Act.
(1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 15 of 30
19. Wife and children of Late Sh. Mohan Lal preferred Probate Case no. 64/2000, titled "Neelam Kapur & Ors. Vs. State", decided by judgment dated 05.11.2001 of the Court of Ld. District Judge, whereby the Will dated 14.05.1996 of Late Sh. Mohan Lal was probated. Before that the aforesaid two Civil Suits (1) no. 116/98/82, instituted by Sh. Mohan Lal in his lifetime and (2) no. 115/98/89, instituted by Sh. Bhag Chand @ Subhash Chand in his lifetime were decided vide common judgment dated 16.01.1999, as elicited herein before. The decree sheets in afore elicited Suit no. 116/98/82 and Suit no. 115/98/89 embody adjudication by my Ld. Predecessor conclusively determining the rights of the parties to the lis with regard to the property in question i.e., property no. BIV/15, Amar Colony, Lajpat Nagar, New Delhi. With respect to said judgment and decree, afore elicited two RFAs No. 241/1999 and 242/1999 are pending adjudication before the High Court of Delhi. How could such an adjudication vide judgment and decree dated 16.01.1999 be deemed to be set aside/unsettled later by judgment dated 05.11.2001 in Probate Case no. 64/2000? The judgment in rem dated 05.11.2001 in Probate Case was preceded by judgment and decrees dated 16.01.1999 in afore elicited two Civil Suits and cannot supersede or (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 16 of 30 set aside the judgment and decrees dated 16.01.1999, unless they are set aside or modified in the Regular First Appeal (RFA) by the High Court of Delhi. Accordingly, the argument of Sh. Sanjay Shangari, Ld. Counsel that the judgment in rem dated 05.11.2001 in Probate Case no. 64/2000 having made the Will dated 26.01.1999 of Sh. Bhag Chand nonest, is of no substance. Even otherwise, incomplete testimony of Sh. Sandeep Dua, forming part of Ex DW1/P1 cannot be relied upon in the absence of complete testimony of Sh. Sandeep Dua in the matter in hand. So pronouncements to the effect that party should put to each of witnesses of opponent so much of his case as concerns that particular witness, as laid in cases :
i)A.E.G. Carapiet Vs. A.Y. Derderian, AIR 1961 Calcutta 359 (Vol. 48, C. 74) (1);
ii)Babulall Choukhani Vs. Caltex (Iinda) Ltd., AIR 1967 Calcutta 205 (V 54 C 48); and
iii)M/s Chuni Lal Dwarka Nath Vs. Hartford Fire Insurance Co. Ltd. & Anr., AIR 1958 Punjab 440 (V 45 C 130).
(1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 17 of 30 would be of no help to the LRs of Sh. Mohan Lal in the fact of the matter. In the case of Gendlal Mihilal Sahu & Anr. Vs. Ratanchand Jain & Ors., 1960 SC Online MP 19 : AIR 1960 MP 255, it was held that a District Court in its capacity of a Court of Probate, has no jurisdiction to determine any question of title regarding the property, which the Will probates to dispose of.
20. Sh. Sanjay Shangari, Ld. Counsel for LRs of Sh. Mohan Lal also relied upon :
i)H. Venkatachala Iyengar Vs. B.N. Thimmajamma, 1958 Legal Eagle (SC) 143 : AIR 1959 SC 443 : 1959 (Supp. 1) SCR 426;
ii)Kanakku Veettil K.P. Sankarankutty Menon Vs. Malathy Amma & Ors., AIR 1991 Kerala 123;
iii)Surinder Kumar Grover Vs. State & Ors., 177 (2011) DLT 188;
iv)Adivekka & Ors. Vs. Hanamavva Kom Venkatesh 'D' by LRs. & Anr., in Appeal (Civil) 74007401 of 2000, decided by Supreme Court of India on 09.05.2007; (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 18 of 30
v)Inder (Deceased) S/o Mahesh &.. Vs. Gujrati Widow of Buddhu Yadav ... decided by Allahabad High Court on 28.02.2008;
vi)Smt. Jaswant Kaur Vs. Smt. Amrit Kaur & Ors., AIR 1977 SC 74;
vii)Kalyan Singh Vs. Smt. Chhoti & Ors., AIR 1973 Rajasthan 263 (V 60 C 71);
viii)Girja Datt Singh Vs. Gangotri Datt Singh, 1955 Legal Eagle (SC) 4 : AIR 1955 SC 346;
ix)Anath Nath Das & Ors. Vs. Sm. Bijali Bala Mondal, AIR 1982 Cal 236;
x)Des Raj Gupta Vs. State, in Probate No. 62/1985, decided on 11.05.2009 by Hon'ble Mr. Justice S.N. Dhingra; and
xi)Deependra Singh @ Deepak Parihar Vs. Smt. Shakuntala Pal & Anr., 2008 (1) MPHT 138.
with respect to the proof of execution of Will.
21. In view of Sections 52 and 58 of the Registration Act, 1908, the only duty cast on the registering authority to endorse on the will is to (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 19 of 30 endorse the admission or execution by the person who presented the document for registration. The compliance with that provision leads to the legal presumption that the document was registered and nothing else. If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. To "attest" is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument; (ii) each of them has signed the instrument in presence of the executant. "Animus attestandi" is a necessary ingredient for proving the attestation.
22. Execution of a Will must confirm to the requirement of Section 63 of the Indian Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, however, can only be proved in terms of Section 68 IEA. In terms of the said provision at least one attesting witness has to be examined to prove the execution of a Will.
(1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 20 of 30
23. Section 71 of IEA provides for one of the exceptions where it is not possible to strictly comply with the requirements of Section 68 of IEA. Sections 69, 70 and 71 of IEA are exceptions to Section 68 of IEA. Section 69 of IEA provides for proof of a document where no attesting witness is found. Section 70 of IEA provides for admission of execution by party to the attested document. Section 71 of IEA deals with a situation where the attesting witness denies or does not recollect the execution of the document and only in that eventuality the document's execution may be proved by other evidence.
24. In the case of Benga Behera & Anr. Vs. Braja Kishore Nanda & Ors., (2007) 9 SCC 728, the Supreme Court held in para40 as : "40. It is now well settled that requirement of the proof of execution of a will is the same as in case of certain other documents, for example gift or mortgage. The law requires that the proof of execution of a will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 21 of 30 the executant. (See Modhukar D. Shende Vs. Tarabai Aba Shedage, (2002) 2 SCC 85; Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, (2003) 2 SCC 91; and Bhagat Ram Vs. Suresh, (2003) 12 SCC 35;"
25. In the case of Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao, (2006) 13 SCC 433, it was held that : "32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 22 of 30 understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Modhukar D. Shende Vs. Tarabai Abad Shedage, (2002) 2 SCC 85; and Shridevi Vs. Jayaraja Shetty, (2005) 2 SCC 784). Subject to above, proof of a will does not ordinarily differ from that of proving any other document."
26. DW1 Smt. Krishna Devi, wife of Sh. Jagdish Lal Dua relied upon the original Will dated 26.01.1999, registered on 26.02.1999, executed by Sh. Bhag Chand @ Subhash Chand bequeathing his 3/4th share in property no. BIV/15, Amar Colony, Lajpat Nagar, New Delhi, out of total area of 100 sq. yds. in favour of Sh. Jagdish Lal Dua. Sh. Charanjit Singh, DW3 testified that he had drafted the said Will, whose certified copy is Ex DW1/1 and whose original was shown by Smt. Krishna Devi in evidence. DW3 Sh. Charanjit Singh, stated on 29.01.2016 that he was of age 67 years, a Law graduate and practicing Advocate, residing in Tilak Nagar, New Delhi. DW3 Sh. Charanjit Singh (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 23 of 30 deposed that at about 12.00 noon on 26.01.1999, the Will Ex DW1/1 was executed in his chamber no. 441, Western Wing, Tis Hazari Courts, Delhi, where first of all testator Sh. Bhag Chand @ Subhash Chand had signed after which he (DW3) and thereafter Sh. D.P. Bajaj, Advocate had signed the Will, in presence of each other. Later on 26.02.1999, the said Will was registered before SubRegistrar, Karol Bagh, New Delhi and office of SubRegistrar was then at First Floor of Tis Hazari Court premises. As per DW3, the said Will was typed in his chamber by typist Sh. Mahinder Singh Sachdeva and contents of the Will in vernacular were explained to Testator Sh. Bhag Chand @ Subhash Chand in Punjabi. Otherwise Testator Sh. Bhag Chand @ Subhash Chand was having knowledge of English and he could read, write and understand English. PW3 had conducted the present cases of Testator several times and had seen the Testator several times reading and writing English. As per DW3, since he had to stand witness, he had not mentioned in the Will that it was drafted by him. DW3 identified signatures of Testator on Ex DW1/1 at portions encircledA, B and C on three sheets and his own signatures at page3 as attesting witness and signatures of other attesting witness of Will namely, Sh. D.P. Bajaj, Advocate at page no3 of said (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 24 of 30 Will. Also, DW3 stated that at the time of registration of the Will, he (DW3), Sh. D.P. Bajaj Advocate and Testator had signed on the back of first page of Will for the purpose of registration.
27. Sh. S.K. Sharma, LDC from office of SubRegistrarIII, Asaf Ali Road as DW2 had brought the original record of the Will in question, which was registered vide registration no. 75 in Additional Book No.III Vol. 5, on pages 15 to 17 in the office of SubRegistrar, Karol Bagh, New Delhi, on 26.02.1999.
28. DW3 testified that Testator Sh. Bhag Chand @ Subhash Chand was physically and mentally fit and capable of making and signing Will at the time of its execution, which he said so as the Testator was attending all dates of hearing in Court matters and was visiting Chamber of DW3. Though, Testator was suffering from cancer and expired on 12.03.1999, but on record there is no evidence that at the time of execution of the Will Ex DW1/1 the Testator was either feeble or debilitated or there was any legitimate doubt as to the mental capacity of Testator. On record, there is no evidence to the contrary of evidence of (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 25 of 30 attesting witness DW3 with respect to physical and mental condition of Testator, his sound and disposing mind. There is also no elicited suspicious circumstance in the execution of the Will. Mere execution of the Will in question on Republic Day or getting it registered at Tis Hazari Courts, instead of SubRegistrar Office, nearby home of Testator in themselves contain no premise to carve out any suspicious circumstances to caste any doubt over genuineness or valid execution of the Will. Judgment dated 16.01.1999 of my Ld. Predecessor in the two Civil Suits in question makes it crystal clear that the two brothers Sh. Bhag Chand @ Subhash Chand (alongwith his mother) and Sh. Mohan Lal were living in different standards in same premises number but in portions separate from each other. Whereas, Sh. Mohan Lal with his family members were in occupation of the part of the premises, which were pakka built; on the other hand, Sh. Bhag Chand with his mother Smt. Asi Bai were living in two kachhi kothris in same premises number having standard of living much lower than the standard of living of family of Sh. Mohan Lal. Both these brothers Sh. Mohan Lal and Sh. Bhag Chand @ Subhash Chand were at logger heads due to property dispute, which had resulted in the filing of the two suits in question. Will Ex DW1/1 in question is self (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 26 of 30 explanatory for the reason of its execution as the judgment dated 16.01.1999 had been passed, the Testator was suffering from cancer, though was in sound state of mind and the beneficiary Sh. Jagdish Lal Dua had come to rescue of Testator and helped him for food, medicine and other family needs; since Testator at that point of time had nobody else to bank upon, his mother having expired earlier and Testator having not got married. Instead of describing Testator as a bachelor, DW3 described testator as a spinster in Will Ex DW1/1. Much hype cannot be created on account of such mistake. To err is human. In cross examination, DW3 has clarified that by so writing spinster for Testator in the Will, he meant that Testator was not having any wife or children and he was not capable of reproduction and so not married and he had so written as per his understanding. Also, the incorrect version of DW3 having prepared vide affidavit Ex DW3/A after service of summons on 27.01.2016, also cannot be given any undue importance as before service of summons of DW3, affidavit Ex DW3/A was filed on 27.01.2016 in this Court. I say so since on that facet, DW3, may have come up with an incorrect version but on the material counts with respect to Will Ex DW1/1 in question, DW3 had stood his grounds and has been vivid and (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 27 of 30 clear and testified that at the relevant time of execution of the Will, the Testator was in a sound and disposing state of mind, the Testator understood the nature and effect of the Will and after understanding the Will had executed it with his own free will. There is no evidence to the contrary on these facts. Afore discussions lead me to the conclusion that the Will Ex DW1/1, dated 26.01.1999 was validly executed by Sh. Bhag Chand (now deceased) in favour of Sh. Jagdish Lal Dua. Issue no2 is decided in favour of LRs of Late Sh. Jagdish Lal Dua and against the LRs of Sh. Mohan Lal accordingly.
Findings on Issue No(1) Whether Sh. Jagdish Lal Dua was the legal heir of Late Sh. Bhag Chand by virtue of Will dated 26.01.1999 executed in his favour?
29. Had the Will Ex DW1/1 been executed by Sh. Bhag Chand @ Subhash Chand in favour of legal heirs of Late Sh. Mohan Lal, then it would have been a suspicious circumstance. I say so because of the findings contained in the judgment dated 16.01.1999, whereby the two (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 28 of 30 Civil Suits, one filed by Sh. Mohan Lal and other filed by Sh. Bhag Chand were decided by my Ld. Predecessor. Both these brothers Sh. Mohan Lal and Sh. Bhag Chand @ Subhash Chand were at a logger heads and Sh. Bhag Chand @ Subhash Chand had filed the Civil Suits after he was dispossessed by Sh. Mohan Lal from the portion in his occupation in the suit premises. In para30 of judgment dated 16.01.1999, it had been held by my Ld. Predecessor that Sh. Mohan Lal had forcibly dispossessed Sh. Bhag Chand from 50 sq. yards of land. In this backdrop of events, when the Testator Sh. Bhag Chand was suffering from cancer and he executes the Will ten days later on 26.01.1999, in favour of Sh. Jagdish Lal Dua, the one who was taking care of bachelor Testator for his daily needs, medicines and other assistance, it can be safely said that there existed no suspicious circumstance in execution of the Will. Testator Sh. Bhag Chand was bachelor when he expired on 12.03.1999. No ClassI legal heirs as per Section 8 of Hindu Succession Act were there of Sh. Bhag Chand @ Subhash Chand. Sh. Jagdish Lal Dua was son in law of sister of Sh. Bhag Chand @ Subhash Chand and sole beneficiary of the Will Ex DW1/1, consequent upon death of Sh. Bhag Chand @ Subhash Chand on 12.03.1999. Accordingly, Sh. Jagdish Lal (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 29 of 30 Dua was legal heir by virtue of Will Ex DW1/1, entitled to represent the estate of Sh. Bhag Chand consequent upon the death of Sh. Bhag Chand @ Subhash Chand on 12.03.1999. Before expiry on 18.11.2000, Sh. Jagdish Lal Dua was not bound to obtain probate to claim succession on the basis of Will Ex DW1/1 made in Delhi, wherein, the property in question was also situated in Delhi.
30. In view of the above discussion, the findings on Issue no1 are returned against LRs of Sh. Mohan Lal and in favour of applicant Smt. Krishna Devi and other legal heirs of Late Sh. Jagdish Lal Dua.
Announced in open Court (GURVINDER PAL SINGH)
nd
on 22 Day of February, 2016. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
(AD) (1) CS219/2011 Sh. Mohan Lal Kapoor (through LRs) Vs. Smt. Asi Bai (through LRs) (2) CS220/2011 Sh. Bhag Chand (through LRs) Vs. Mohan Lal (through LRs) & Ors. Page 30 of 30