Delhi District Court
Parveen Sachdeva vs The State on 21 February, 2025
IN THE COURT OF SH. SHIV KUMAR,
DISTRICT JUDGE-02(WEST DISTRICT),
TIS HAZARI COURTS :DELHI.
Old Probate Case No.- 45/2013
New Probate Case No. 15980/16
CNR No. DLWT01-000758-2013
DLWT010007582013
Parveen Sachdeva
S/o Shri Mohan lal
R/o 1690-A, Sector-6
Karnal, Haryana.
...Petitioner
Versus
1. The State
2. Smt. Kusum Malhotra
W/o Shri Sushil Kumar Malhotra
R/o A-1/79, Paschim Vihar,
New Delhi-110063
3. Smt. Anu Sohal
W/o Shri Rajesh Kumar Sohal
R/o A-1/60, F.F., Paschim Vihar,
New Delhi-110063
......Respondents
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 1 of 56
PETITION UNDER SECTION 276 & 278 OF THE INDIAN
SUCCESSION ACT FOR GRANT OF PROBATE OF WILL
TO THE ESTATE OF DECEASED SHRI RAMESH CHOPRA
Date of institution of the case : 03.07.2013
Date of for judgment reserved : 15.02.2025
Date of pronouncement of judgment : 21.02.2025
JUDGMENT
1. Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 & 278 of the Indian Succession Act, whereby the petitioner has sought grant of Probate of Will dated 12.08.2006, executed by deceased Shri Ramesh Chopra CASE OF THE PETITIONER, AS PER HIS PETITION:
2. According to the petition, the case of the petitioner in nutshell is that Shri Ramesh Chopra S/o late Shri Bansi Dhar Chopra (hereinafter referred to as ' the deceased'), died on 02.06.2011 and left behind the properties i.e. House no. 79, Block A-1, Paschim Vihar, New Delhi-110063 and deposits in Bank Accounts, FDRs and Contents of the Lockers.
3. It is averred by the petitioner that deceased at the time of his death had fixed palace of abode at A-1/79, Paschim Vihar, New Delhi ( hereinafter referred to as ' the property in question') which falls within the jurisdiction of this court.PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 2 of 56
4. It is further averred in the petition that the deceased during his life-time had executed a Will dated 12.08.2006, whereby he bequeathed the property in question in favour of Smt. Kusum Malhotra wife of Shri Sushil Malhotra, whom he treated like his daughter. It is further averred that the deceased testator was childless but was treating Smt. Kusum Malhotra as his daughter for all purposes. As much as the marriage of Smt. Kusum Malhotra was solemnized by Shri Ramesh Chopra and Smt. Swarn Chopra including the Kanyadaan. Smt. Kusum Malhotra is the beneficiary of the Will of the deceased testator.
5. It is further averred that the Will was executed in presence of Smt. Swarn Chopra and Shri Sudershan Kumar Duggal. The deceased advised the petitioner that this Will, be disclosed only after death of Smt. Swaran Chopra, his wife, in the event of her surviving him.
6. It is further averred that the petitioner is the appointed executor of the said Will dated 12.08.2006 of the deceased and respondent no. 2 Smt. Kusum Malhotra, is the beneficiary of the said Will and as such entitled to grant of Probate to the said Will, in respect of the estate left by the deceased.
7. It is further averred in the petition that one Ms Anu Sohal claiming to have a Will alleged to have been executed by Smt. Swarn Chopra, wife of late Shri Ramesh Chopra, alleging that property bearing No. A-1/79, Paschim Vihar, New Delhi was bequeathed to her and has filed a suit for possession and injunction against the petitioner and other relations of the PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 3 of 56 registered owner. It is further averred that the said alleged Will propounded by the said Anu Sohal besides being a forged and fabricated document, it is submitted that Smt. Swaran Chopra was not the owner of the property bearing no. A-1/79, Paschim Vihar, New Delhi and therefore, not competent to deal with the same and it was in her knowledge that the property stood bequeathed in favour of Smt. Kusum Malhotra. Therefore, the petitioner has arrayed Ms Anu Sohal as one of the respondents though not a relation, near or distant.
8. The petitioner by way of his petition has thus prayed for issuance of Probate in respect of the Will dated 12.08.2006, left behind by the deceased and letter of administration in favour of the beneficiary, Smt. Kusum Malhotra.
9. Upon filing the present petition, notice of the petition was issued to all the respondents. Citation for general public was published in the daily newspaper "Statesman" dated 12.08.2013.
Notice was also served to the State through Chief Secretary and to the Tehsildar for filing valuation report. The Tehsildar, Punjabi Bagh has filed the valuation report in respect of the property bearing no. 79, Block A-1, Paschim Vihar, New Delhi valuing the same to be of Rs.2,33,81,200/- (Rupees Two Crore Thirty Three Lakh Fifty Eighty One Thousand and two hundred only). No objections has been filed by any person of General Public despite publication of the citation in newspaper.
10. It is pertinent to mention here that respondent no. 2 has filed her "No objection" in favour of the petitioner.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 4 of 5611. Respondent no. 3 has filed objections to the present petition.
CASE OF RESPONDENT NO.3 AS PER HER REPLY.
12. Respondent no. 3 has filed reply/objections to the present petition by taking preliminary objections that present petition is not maintainable as the same has been filed under gross abuse of process of law and on account of concealment of material facts and she denied the execution and validity of the alleged Will dated 12.08.2006.
13. It is further contended by respondent no. 3 that the present petition is not maintainable as the same has been filed as counter blast to another probate petition filed by respondent no. 3, titled as Anu Sohal Vs State & Ors.
14. It is further contended that the present petition has been filed with ulterior motives of obtaining the mandate of the Hon'ble court over a forged and fabricated document i.e. the alleged Will dated 12.08.2006.
15. It is further contended that respondent no. 3 is a permanent resident of A-1/60, First Floor, Paschim Vihar, New Delhi and the property in question has been bequeathed by late Smt. Swaran Chopra to respondent no. 3, by virtue of two registered Wills dated 20.03.2012 and 01.06.2012, out of love and affection.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 5 of 5616. It is further contended that the probate proceedings pertaining to the said last and final Will dated 01.06.2012 is pending before the Hon'ble Court. It is further submitted that Smt. Swaran Chopra had resided in the neighbourhood of respondent no. 3, in the property bearing no. A-1/79, Paschim Vihar, New Delhi-110063.
17. It is further contended that since the said Smt. Swaran Chopra was an old lady, respondent no. 3 had been taking care of the daily needs and necessities of Smt. Swaran Chopra for the last many years. The husband of Smt. Swaran Chopra had predeceased her in the year 2011.
18. It is further contended that the respondent no. 3 used to take care of late Smt. Swaran Chopra like her real daughter and used to provide her entire medical needs, taking care of her clothes and other day to day care as well as management/upkeep of her house. It is further contended that respondent no. 3 also kept a maid for the upkeep of her house and for performing minor house hold chores, hence the keys of the property in question were in the hands of respondent no. 3 as late Smt. Swaran Chopra herself had handed over the said keys to respondent no. 3, during her life time. It is further contended that late Smt. Swaran Chopra has also appointed the respondent no. 3 as her nominee in the bank accounts in the State Bank of India even much before the execution of the Will dated 20.03.2012 and 01.06.2012. The above facts emphatically and clearly depicts the kind of relationship and trust between the deceased Smt. Swaran Chopra and the answering respondent.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 6 of 5619. It is further contented that Smt. Swaran Chopra during her life time executed a registered Will dated 20.03.2012 which was subsequently superseded by a subsequent last and final registered Will dated 01.06.2012 vide which the said Smt. Swaran Chopra bequeathed her entire property bearing no. A-1/79, Paschim Vihar, New Delhi in favour of respondent no. 3, out of love and affection. It is further contended that deceased testatrix/late Smt. Swaran Chopra also bequeathed her movable properties, as follows:
(i) Rs. 8 lacs to her friend i.e. Mrs Champa Sharma W/o Sh.
Virender Mohan Sharma, R/o H. No. 94/91, Shivaji Park, New Delhi-26
(ii) Rs. 4 lacs to one Smt. Priya Dutta W/o Sh. Deepak Dutta, R/o BE/40 Hari Nagar, New Delhi
(iii) Rs. 1 lac to Sh. Paras S/o Sh. Rajinder Takural R/o A-1/80, Paschim Vihar, New Delhi
(iv) Rs. 1 lac to Sh. Dalip Singh R/o Jahagir Puri, New Delhi
(v) Rs. 1 lac to Smt. Sweety W/o Sh. Praveen Sachdeva, R/o Karnal.
(vi) Rs. 1 lac to Smt. Kusum Malhotra W/o Sh. Sushil Malhotra R/o H. No. 876, Sector-40-A, Chandigarh.
(viii) Rs. 1 lac to Yogita D/o Rajinder Kumar Gupta, R/o A-1/137, Paschim Vihar, New Delhi.
20. It is further contended that Smt. Swaran Chopra left for heavenly abode on 14.01.2013 and respondent no. 3 was in possession of the suit property with the consent of Smt. Swaran Chopra for the last so many years. The suit property came under the actual & physical possession of respondent no. 3, PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 7 of 56 immediately after the death of Smt. Swaran Chopra i.e. on 14.01.2013 and from that day onwards the possession of the respondent no. 3 over the suit property finally converted into actual and physical possession alongwith the proprietary rights by virtue of the Will dated 01.06.2012. It is further contended that respondent no. 3 has informed the friends and relatives of late Smt. Swaran Chopra about her death and also arranged and performed the last rites of late Smt. Swaran Chopra.
21. It is further contended that petitioner and some other person namely Smt. Sweety, Smt. Kusum Malhotra and Sh. Sushil Malhotra approached the respondent no. 3 on 16.01.2013 and claimed themselves to be distant relatives of the late Smt. Swaran Chopra and expressed their willingness for participating in the last ritual of the deceased/testatrix. Therefore, they were given permissive access in the suit property for a temporary stay. It is further contended that above said persons including the petitioner had never visited the deceased testatrix prior to her death at any point of time and none of them including the petitioner has any bonafide claim over the suit property in any manner.
22. It is further contended that during such temporary stay of such persons for the purpose of performing last rites, the respondent no. 3 used to take care of them by arranging for their dinner, breakfast etc, since they arrived on 16.01.2013. Thereafter on 22.01.2013, when respondent no. 3 went to the suit property in order to discuss about the arrangement for the 17 th day ceremony/ritual, she was denied access to the suit property PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 8 of 56 on some frivolous excuses. However, out of abundant caution the above said incident was also informed to the SHO, Paschim Vihar, Police Station vide letter dated 22.01.2013. Thereafter, due to intervention of the respective members of the society, the above said issue was settled down and respondent no. 3 was allowed to enter the suit property on that day i.e. 22.01.2013.
23. It is further contended that on 23.01.2013, when respondent no. 3 had apprised the above said persons including the petitioner about the execution of registered Wills dated 20.03.2013 and 01.06.2012 by the deceased testatrix in her favour and in support of this factual aspect, the respondent no. 3 took out a pulanda of certain documents including the above said Wills from one of the almirah of the suit property and the same was thereafter opened before all the respectable members of the society including attesting witnesses of the above said Will and petitioner and contents of the said wills were read over in the presence of said persons including petitioner.
24. It is further contended that after coming to knowledge of the above said Wills, the intention of the above said persons including the petitioner turned malafide. Thereupon on 05.02.2013, due to continuous persuasive efforts, the above said persons including the petitioner finally told the respondent no. 3 that they would return after receiving their legitimate share as per the contents of the last and final Will dated 01.06.2012 and shall vacate the suit property immediately thereafter. The respondent no. 3 assured that she had applied to the concerned bank regarding the same and that it could take some time. In the PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 9 of 56 meanwhile, the above said person including the petitioner were allowed by respondent no. 3 to remain in the suit property upon their request and condition that the above said person including the petitioner would vacate the suit property after receiving the money bequeathed in their favour vide the Will dated 01.06.2012, as soon as the said money amount is released by the concerned bank.
25. It is further contended that unfortunately, on 11.02.2013 at about 8.30 P.M. when the respondent no. 3 went to serve dinner to the above said persons, she was shocked to see that her scooty ( Activa) had been parked outside the suit property without her consent and the main entrance locks have been broken and replaced with new locks. The respondent no. 3 also heard loud noises of several other unknown persons, who were present inside the suit property on the said date. The above said unwarranted acts on the part of the above said person including the petitioner itself suggests that they wanted to grab the suit property without having any bonafide claim over the suit property in any manner. The respondent no. 3 alongwith her husband contacted the concerned police station and filed a written complaint dated 11.02.2013 against the above said person including the petitioner. Thereafter, respondent no. 3 made numerous written complaints before P.S.Paschim Vihar dated 01.03.2013, 05.03.2013, 14.03.2013 etc.
26. It is further contended that in order to mislead the police officials, Smt. Kusum Malhora in connivance with above said person filed the frivolous complaint before the concerned police PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 10 of 56 station on 13.03.2013 and that too almost after 1.5 months. In the said complaint, Smt. Kusum Malhotra took the plea of being adopted daughter of Sh. Ramesh Chopra and Smt. Swaran Chopra and had not whispered anything about the alleged Will dated 12.08.2006 in the said frivolous complaint.
27. It is further contended that above said persons, particularly, Smt. Kusum Malhotra initially trespassed and illegally entered in the suit property under the garb of being adopted daughter of the deceased and suddenly changed their alleged stand and came out with an unregistered and manipulated Will dated 12.08.2006 of the predeceased husband of the deceased testatrix. However, in their earlier complaint dated 13.03.2013, they did not mention anything about the said alleged Will despite the above said person including the petitioner, being in possession of the alleged forged Will since 2006.
28. It is further contended that the alleged Will dated 12.08.2006 is further proved to be a sham document because it contains, "an unusual condition" that, " This will be disclosed only after the death of my wife ( Smt. Swaran Chopra)". Whereas, on the contrary, in the present petition, it has been stated in para 07 of the same that" the alleged Will dated 12.08.2006 has been executed in the presence of Smt. Swaran Chopra". The above said self-contradictory averments themselves prove the falsity of the alleged Will dated 12.08.2006 as well as its contents.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 11 of 5629. It is further contended that deceased testatrix Smt. Swaran Chopra has specifically made numerous representation before the MCD in writing thereby asserting herself to be the sole owner of the property in question and also specifically filed an an affidavit thereby stating that her husband namely Sh. Ramesh Chopra had not executed any Will. It is further contended that the alleged Will dated 12.08.2006 is an unregistered document where the Wills dated 20.03.2012 and 01.06.2012 executed in favour of respondent no. 3 are duly registered in the office of Sub- Registrar.
30. It is further contended that as per the contents of the Will dated 12.08.2006, Sh. Ramesh Chopra and Smt. Swaran Chopra had locker, FDRs, Pension account, deposits in SBI Branch of Lal Market, Paschim Vihar, New Delhi, whereas, on the contrary, it is a matter of fact that the SBI Branch in Lal Market has no locker facility till date, moreover, Sh. Ramesh Chopra and his wife neither had any FDR in the said Lal Market Branch. In view of the above said material contradictory contents mentioned in the Will dated 12.08.2006, it is crystal clear that the said Will is a forged document. It is also contended that the signatures of late Sh. Ramesh Chopra scribed over the alleged Will dated 12.08.2006 are also forged and fabricated.
31. It is further contended that the falsity of the Will dated 12.08.2006 is itself evident from the bare perusal of the fact that the alleged Will dated 12.08.2006 does not contain the signature of Smt. Swaran Chopra as an attesting witness, despite, the above said persons including the petitioner stated that the same had PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 12 of 56 been executed in the presence of Smt. Swaran Chopra and had Smt. Swaran Chopra was present at that time, the factum of her presence at the time of execution of the above said alleged will would have certainly been mentioned/incorporated in the alleged Will by her husband.
32. It has further contended that the alleged Will dated 12.08.2006 is further proved to be a sham document in as much as the same has neither been disclosed during the life time of Smt. Swaran Chopra nor the above said persons including the petitioner has challenged the mutation of the property in question in favour of Smt. Swaran Chopra. It is further contended that the Will dated 12.08.2006 is a forged and fabricated document as no ordinary person shall execute such a Will thereby excluding his own wife who has admittedly served him well during his entire life time.
33. Petitioner has also filed rejoinder to the reply filed by respondent no. 3 and reiterated the contents of his petition and denied all the objections taken by respondent no. 3.
34. On the basis of the pleadings, the following issues were framed vide order dated 27.03.2014:-
1. Whether the Will dated 12.08.2006 executed by testator Ramesh Chopra is a valid, legal and genuine Will? ? OPP
2. Whether the petitioner is entitled to the grant of Probate in respect of the aforesaid Will dated 12.08.2006, as prayed for?
OPP
3. Relief PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 13 of 56 EVIDENCE ON BEHALF OF PETITIONER
35. In order to prove his case, the petitioner has examined two witnesses i.e. PW1/petitioner himself and PW-2/Sh. Sudharshan Kumar Duggal, the attesting witness to the Will in question.
36. Sh. Parveen Sachdeva/Petitioner, appeared in the witness box as PW-1 and tendered his affidavit in evidence as Ex PW-1/A. In his affidavit, he reiterated and reaffirmed the averments mentioned by him in his petition and relied upon the following documents:
1. Ex. PW-1/1: Original death certificate of deceased Sh. Ramesh Chopra.
2. Ex. PW-1/2: Will dated 12.08.2006 executed by Sh. Ramesh Chopra
37. PW-1 has been duly cross-examined by ld. Counsel for respondent no. 3.
38. PW-2 Sh. Sudarshan Kumar Duggal, one of the attesting witness appeared in the witness box and tendered his evidence by way of affidavit Ex. PW-2/A. PW-2 identified his signatures on the Will already exhibited as Ex. PW-1/2 at point X, signatures of deceased Sh. Ramesh Chopra at points Y, Y1 and Y2. PW-2 also identified the signatures of another attesting witness Mr. Praveen at point Z.
39. PW-2 has been duly cross-examined by ld. Counsel for respondent no. 3.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 14 of 5640. On 10.11.2016, ld. Counsel for the petitioner closed petitioner's evidence by giving his statement in court.
EVIDENCE OF RESPONDENT NO.3
41. From the side of respondent no. 3, four witnesses have been examined i.e. RW-1 Smt. Anu Sohal, RW-2 Sh. Rakesh Kumar, RW-3 Sh. A.K. Gupta and RW-4 Sh. Deepak Jain.
42. RW-1/ Smt. Anu Sohal respondent no. 3 appeared in the witness box and tendered her evidence by way of affidavit Ex. RW1/A, in which she reiterated the objections taken by her in the written statement and relied upon the following documents:
i) Mark A (colly 18 pages) & Mark B ( colly 179 pages):
Photocopies of the documents in support of her affidavit of evidence.
RW-1 has been cross-examined on behalf of petitioner.
43. RW-2 Sh. Rakesh Kumar, appeared in the witness box and tendered his evidence by way of affidavit Ex. RW2/A, in which he reiterated the objections taken in the written statement filed by respondent no. 3.
RW-2 has been duly cross-examined by the Ld. Counsel for the petitioner.
44. RW-3 Sh. A.K. Gupta, the doctor of the deceased testatrix appeared in the witness box and tendered his evidence by way of affidavit Ex. RW-3/A and he relied upon the medical certificates issued in favour of late Smt.Swaran Chota which are marked as Mark A and Mark B. PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 15 of 56 RW-3 has been duly cross-examined by the Ld. Counsel for the petitioner.
45. RW4 Shri Deepak Jain, Handwriting and finger print expert appeared in the witness box and tendered his evidence by way of affidavit Ex. RW-4/A. He relied upon his report dated 25.02.2018 Ex. RW-4/1. He also relied upon 23 photographs, which are pasted on 3 juxtaposed chart papers and are collectively Ex. RW-4/2 (Colly). He also relied upon 6 diapositive plates which are contained in an envelope and are Ex. RW4/3 ( Colly) and certified copy of the Will dated 12.08.2006, already exhibited as Ex. PW-1/2.
46. RW-4 further deposed that he examined and took the photographs from the concerned State Bank of India Branch code 9111 and Branch Code 6623, in token of his examination and photography. The vouchers regarding bank charges are Ex. RW-4/4 & 5 respectively. RW-4 further deposed that by mistake he mentioned the Will in dispute as dated 'Nil' which could not be corrected despite due diligence before signing the report Ex. RW-4/1 and now the Will dated ' Nil' be read as Will dated 12.08.2006.
47. RW-4 Shri Deepak Jain, Handwriting and finger print expert has given his opinion in his report Ex. RW4/1 which is as follows:-
1. The disputed Hindi signatures marked Q-1 to Q-3 are not written by one and the same person Sh. Ramesh Chopra, whose comparative signatures are marked A-1 to A-20.PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 16 of 56
2. The identification of the disputed English Signatures marked Q-4 to Q-6 can be established even without having any comparative signatures of the contemporary period as these signatures are the product of traced forgery, so the disputed English signatures marked Q-4 to Q-6 cannot be the genuine signatures of Sh. Ramesh Chopra.
RW-4 has been duly cross-examined by the Ld. Counsel for the petitioner.
FINAL ARGUMENTS
48. I have heard final arguments from Ld. Counsel for the petitioner and Ld. counsel for the respondent no. 3 and have perused the entire record including pleadings, documents, and testimony of the witnesses examined in the court from the both sides and also considered the judgment relied upon by Ld counsel for the petitioner and ld. Counsel for respondent no. 3. I have also considered the written submissions filed on behalf of petitioner as well as respondent no. 3.
CONTENTIONS OF THE PETITIONER
49. It is argued by ld. Counsel for the petitioner that Shri Ramesh Chopra (deceased) was the original allottee of the property bearing No. A-1/79, Paschim Vihar, New Delhi-63 ( suit property) and during his life time, he had executed a Will dated 12.08.2006, in favour of Ms Kusum Chopra, who was virtually adopted by the deceased and by his wife Smt. Swaran Chopra as their daughter, who was youngest cousin of the deceased and was maintaining very close relations that of father and daughter. It is PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 17 of 56 further argued that the deceased had performed the Kanyadaan of Ms Kusum Chopra, at the time of her marriage, as the deceased was childless.
50. It is further argued that after execution of the Will dated 12.08.2006, it was handed over and preserved with Shri Praveen Sachdeva, executor of the said Will being a close relation to the deceased. It is further argued that both the attesting witnesses of Will dated 12.08.2006, namely Sh. Parveen Sachdeva and Sh. S.K. Duggal were known to the executor and his family and they have deposed before the court and confirmed their averments/deposition and vehemently supported the execution of Will in their presence by the deceased. It is contended that the Will stands proved as per law without any objections from any member of the family of Shri Ramesh Chopra or Smt. Swaran Chopra.
51. It is further argued that the main objector of the present Will is Ms Anu Sohal, who was neither known nor related to Shri Ramesh Chopra and Smt. Swaran Chopra. It is further argued that even Ms Anu Sohal was not born in the vicinity when the Will in question dated 12.08.2006 was executed. It is further argued that almost after a year of the death of Shri Ramesh Chopra, Smt. Anu Sohal caused her appearance in the scene in a planned filmy style drama & tried to grab the property left by Shri Ramesh Chopra.
52. It is further argued that Smt. Anu Sohal shifted to a floor in the neighbourhood of the property left by Sh. Ramesh Chopra PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 18 of 56 where his ailing wife was staying alone at First floor of property No. A-1/60, Paschim Vihar, New Delhi-63. It is further contended that the said Anu Sohal made a contact with Smt. Swaran Chopra, in the garb of helping her and served her as a maid and tried to gain the confidence and then started grabbing the property of the deceased.
53. It is further argued that the correspondence with the Municipal Corporation of Delhi, in the name of Smt. Swaran Chopra for the so called purpose of change of name of owner of the property and for the purpose of paying the annual property tax are just a creation of a false evidence and most of the correspondence is not even signed by Smt. Swaran Chopra. It is further argued that the alleged Wills- i.e. Will dated 01.06.2012 and 20.03.2012 have been got signed from Smt. Swaran Chopra on the pretext of mutation of property and payment of property tax.
54. It is further argued that the whole drama has been created by Sh. Jagdish Lal, who is one of the neighbour of the property in question and is also one of the shareholders of the so called loot group with Virender Mohan Sharma, Priya Dutta, Paras, Dalip Singh, Yogita, Nonu Arora who have been named as beneficiaries in the Will of late Smt. Swaran Chopra in order to keep their mouth shut. It is further contended that Shri Rakesh Kumar Sohal, examined on behalf of respondent no. 3, is a interested witness being the brother-in-law of Smt. Anu Sohal/R-3.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 19 of 5655. It is further argued that Shri Deepak Jain, handwriting expert has filed his report without obtaining the comparative signature of the deceased from the authentic resources. It is further contended that Dr. A.K. Gupta, has issued a medical certificate of the dead person, in back date, in blatant violations of the medical law and guidelines. Ld. Counsel for the petitioner relied upon the judgments passed by Hon'ble Apex Court in case titled as "Meena Pradhan vs Kamla Pradhan" and "H. Venkatachala Iyengar Vs B.N. Thimmajamma".
CONTENTION OF RESPONDENT NO. 356. Ld. Counsel for respondent no. 3 has argued that respondent no. 3 has filed a probate petition in respect of registered Will dated 01.06.2012 of late Smt. Swaran Chopra and thereafter in counter blast to her probate case, the petitioner has filed the present case, in respect of forged and unregistered Will dated 12.08.2006 of late Sh. Ramesh Chopra, husband of Mrs. Swaran Chopra.
57. It is further argued that the suit property has been bequeathed by late Smt. Swaran Chopra to the respondent no. 3 by virtue of two registered wills dated 20.03.2012 and 01.06.2012. It is further argued that respondent no. 3, was taking care of the daily needs and necessities of Smt. Swaran Chopra as her like daughter, who had given her the keys of the house. It is further argued that Smt. Swaran Chopra, had also appointed the respondent no. 3 as her nominee in bank accounts and concerned bank has also honoured the same.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 20 of 5658. It is further argued that late Sh. Ramesh Chopra had only one legal heir i.e. his wife late Smt. Swaran Chopra and both were issueless. He further argued that in the Will in question, no property has been given to late Smt. Swaran Chopra and no reason has been mentioned in the will for excluding her from inheritance by the deceased. He further argued that it is admitted by PW-1 & 2 that there were cordial relations between them. He further argued that PW-1/petitioner has admitted that there was no such circumstances to exclude Smt. Swaran Chopra from inheritance by the deceased. He further argued that the exclusion of Smt. Swaran Chopra from inheritance has made the will suspicious.
59. Ld. Counsel for respondent no. 3 further argued that Will in question does not bear the signatures of deceased. He further argued that as per report of handwriting expert/RW-4, the signatures in Hindi of Sh. Ramesh Chopra on the Will have not been found matching with the genuine signatures of Sh. Ramesh Chopra. He further argued that as per report of RW-4/the handwriting expert, the signatures in English of late Sh. Ramesh Chopra on the Will, have been found forged as the same are product of traced forgery. He further argued that the petitioner has not examined any expert witness to rebut the testimony of RW-4.
60. It is further argued that upon the Will in question, the signatures of the deceased are in two languages i.e. Hindi and English and this fact is not normal as nobody will sign a document in two languages and this fact also creates suspicion upon the execution of the Will by the deceased.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 21 of 5661. It is further argued that relations of testator with respondent no. 2/beneficiary mentioned in the Will in question is contradictory. He further argued that in the Will it is mentioned that Ms Kusum Malhotra is the cousin sister of the deceased whereas PW-1/Petitioner has deposed that the deceased was husband of the Massi of the wife of PW-1, so in no case, respondent no. 2 could be cousin sister of the deceased. He further argued that this fact also makes the Will in question doubtful.
62. It is further argued that in complaint dated 13.03.2013, given to the police by Ms Kusum Malhotra, she has not mentioned about the execution of the Will in question in her favour by the deceased. If the Will in question were in existence before 13.03.2013, she would have mentioned about the Will in complaint dated 13.03.2013.
63. It is further argued that late Smt. Swaran Chopra has got mutated the house in her name in the record of MCD by declaring that her husband has died intestate. He further argued that this fact also proves that the deceased has not executed any Will in the presence of Smt. Swaran Chopra.
64. It is further argued that in the Will it is written that " this will be disclosed only after the death of my wife". He further argued that petitioner has not explained from whom the Will in question has been concealed. He further argued that as per petitioner the Will was executed in the presence of Smt. Swaran Chopra so the Will was already in the knowledge of Smt. Swaran PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 22 of 56 Chopra. He further submitted that the above said term vague in nature and creates a doubt about the genuineness of the Will in question.
65. It is further argued that only vague assertion has been made in the Will in question in respect of bank accounts, FDRs, lockers, jewellery and other deposits. He further argued that if the deceased had executed the Will in question then he would have mentioned the details of above said movable assets in his Will.
66. It is further argued that in the Will it is mentioned that the deceased and his wife had locker in SBI, Lal Market Branch, Paschim Vihar, but on or before 12.08.2006, there was no locker facility available in the said bank.
67. It is further argued that Ms Kusum Malhotra, who is respondent no. 2 and is the sole beneficiary in the Will in question has not examined herself as a witness. So adverse inference is required to be drawn against petitioner as well as respondent no.2.
68. It is further argued that petitioner has not filed any document to prove that Ms Kusum Malhotra resided with Smt. Swaran Chopra. He further argued that there are various contradictions in the statement of the witnesses of the petitioner.
69. It is further submitted that it is well settled law that the presence of suspicious circumstances makes the onus heavier on PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 23 of 56 the propounder and, therefore, in cases where the circumstances attended upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of testator. He further argued that the petitioner has failed to dispel the above said suspicious circumstances surrounding the execution of the Will in question.
70. In the written statement, ld. Counsel for respondent no. 3 mentioned the objections raised by respondent no. 3 and relied upon the judgment of Hon'ble Supreme Court of India, given in case titled Shivkumar & Ors. Vs Sharanabasappa & Ors. (2020(4) CLJ 342 (SC).
STATUTORY PROVISIONS INVOLVED IN THE PRESNT CASE.
71. Before adjudicating the issues, I would like to discuss various relevant statutory provisions involved in the present case.
72. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death".
73. Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 24 of 5674. Section 61 of Indian Succession Act states that Will obtained by fraud, coercion or importunity- A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
75. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
76. The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters. Section 68 of Indian Evidence Act states as under:
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 25 of 56"if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied."
77. Section 45 of Indian Evidence Act states as under:
"When the Court has to form an opinion upon a point of foreign law or of science or art, or as identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant ..."
78. Section 47 of Indian Evidence Act states as under:
"When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation. - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he had received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 26 of 56
79. Section 73 of Indian Evidence Act 1872- Comparison of signature, writing or seal with others admitted or proved- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
ISSUE -WISE FINDING
80. My issue wise findings are as under:-
Findings on issue no. 1
1. Whether the Will dated 12.08.2006 executed by testator Ramesh Chopra is a valid, legal and genuine Will? ? OPP
81. The onus to prove issue no. 1 is upon the petitioner.
82. In order to prove issue no. 1, petitioner has examined total two witnesses, which are as under:
1. Sh. Praveen Sachdeva, PW-1/petitioner and also one of the attesting witness of the Will in question.
2. Sh. Sudarshan Kumar Dugal/PW-2 ( the second attesting witness of the will in question).PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 27 of 56
83. The principles for proving the Will have been well settled, in catena of judgments by Hon'ble Supreme Court of India as well as by Hon'ble High Court of Delhi. Some of the judgments have been mentioned below to appreciate the law, applicable on the facts of the present case.
84. In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down the following propositions:
(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind 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.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 28 of 56 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.
(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 emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is 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 surrounding 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."
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 29 of 5685. In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles to prove the Will and the same are as under; -
i This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 30 of 56vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, 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, etc. PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 31 of 56
86. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Hon'ble Supreme Court of India had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to its earlier decision of case titled H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors (Supra) the Hon'ble Supreme court has held as follows:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 32 of 56 clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied)
87. In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court of Delhi made reference to FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid testament of the testator. These are as under:
I. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 33 of 56 circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.
IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw& Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 34 of 56
IX. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
88. In the light of legal principles as carved out in catena of Judgments by the Hon'ble Superior Courts and some of them as discussed above, it is obligatory for the petitioner to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the testator:
(ii) That the testator while executing the Will was in sound and disposing state of mind:
(iii) That the testator had executed the Will, of his own free will, meaning thereby that he was a free agent when he executed the Will:
(iv) The petitioner has to prove that the Will in question is the last Will of the testator:
(v) The petitioner has also to remove all the suspicious circumstances, surrounding the execution of the Will:
(vi) For proving the Will, one attesting witness of the Will, at least, if alive, must be examined in the Court as per section 68 of the Indian Evidence Act.PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 35 of 56
89. The first foremost requirement of law is that the unprivileged Will must be executed according to Section 63 of Indian Succession Act and if the attesting witnesses of the Will alive or subject to process of the court and capable of giving evidence then one of the attesting witness must be examined in the Court to prove the Will, as per Section 68 of Indian Evidence Act.
90. I have perused the Will in question and the said Will is signed by two attesting witnesses i.e. Sh. Praveen Sachdeva and Sh. Sudarshan Kumar Duggal. Signatures of the testator are also appearing on the Will in question. The Will in question has been prepared as per Section 63 of the Indian Succession Act.
91. PW-1 has deposed in his examination in chief by way of affidavit that Sh. Ramesh Chopra (the deceased) has died in Delhi on 2.6.2011 and at the time of his death, he had affixed place of abode at A-1/79, Paschim Vihar, New Delhi. The death certificate of late Sh. Ramesh Chopra is Ex. PW-1/1. The date of death and place of death of testator is not disputed in the present case.
92. PW-1 has further deposed that late Sh. Ramesh Chopra was related to him through his wife Ms Sweety. He further deposed that Sh. Ramesh Chopra was my wife's Massi's husband and he treated his sister in law Smt. Kusum Malhotra as his daughter. He further deposed that the Kanyadan of Smt. Kusum Malhotra was also done by Sh. Ramesh Chopra and his wife late Smt. Swarn Chopra. No evidence has been led by the PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 36 of 56 petitioner to prove that the deceased used to treat Smt. Kusum Malhotra as his daughter. Even no photograph of Smt. Kusum Malhotra with the deceased has been filed on record. PW-1 has also deposed that he has not filed any document regarding the Kanya Daan of Kusum Malhotra by the deceased. Therefore it is held that petitioner has failed to prove that the deceased had treated Ms Kusum Malhotra as his daughter and he had done Kanya Daan of Ms Kusum Malhotra.
93. PW-1 and PW-2 have deposed that on 12.08.2006 they were called by the deceased for the purpose of execution of his Will. PW-1 and PW-2 have deposed that when they reached to the house of the deceased, the deceased had shown them already written Will. As per both witnesses, the Will in question has not been prepared in their presence and it was already prepared when they reached to the house of the deceased. Petitioner/PW-1 as well as PW-2 have not disclosed the name of the person who drafted the Will in question.
94. The PW-1 and PW-2 have deposed that the Will in question has been executed by the deceased in his perfect senses and faculty and with free will. Both witnesses further deposed that the Will in question was signed by the deceased in their presence and also in the presence of late Smt. Swaran Chopra. They further deposed that they all signed the Will in question in presence of each other.
95. PW-2 has identified the signature of deceased at points Y, Y1 & Y2, on Will Ex. PW-1/2. PW-2 has also identified his PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 37 of 56 signatures at point X and signatures of second attesting witness Sh. Praveen at point Z on will Ex. PW-1/2.
96. As per PW-1 and PW-2, the wife of the deceased namely late Smt. Swaran Chopra was also present at the time of execution of the Will. Will in question does not bear the signatures of late Smt. Swaran Chopra. Late Smt. Swaran Chopra has not been made witness in the Will by the deceased.
97. Ld. Counsel for R-3 has argued that there are several suspicious circumstances surrounding the execution of the Will in question and the said suspicions have not been removed by the petitioner. He further argued that the Will in question does not bear the signatures of the deceased and is a forged and fabricated document.
98. This court is conscious of the fact that the probate court is a court of conscience and its jurisdiction is limited to decide that the Will put forward before it, is the last legal Will of the deceased. It is settled law that the initial burden is upon the propounder to prove the due execution of the Will and also to remove all the suspicious circumstance surrounding the execution of the Will. The burden for proving that the Will is forged and fabricated is upon the respondent.
99. The evidence of handwriting expert Sh. Deepak Jain, RW-4 is relevant in the present case for determining whether Will in question bears the signatures of the deceased or not and is admissible under section 45 of Indian Evidence Act 1872.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 38 of 56100. The Hon'ble Supreme Court of India in a case titled State of Himachal Pradesh Vs Jal Lal & Ors. AIR 1999 SC has discussed the evidentiary value of Hand writing expert and mentioned the factors to be seen before acting upon the report of Handwriting expert and the same are as under: -
13. An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject. Shri P.C. Panwar in his evidence has stated that he passed B.Sc. (Agriculture) Hons. from University of Delhi in 1959;
thereafter he did his M.Sc. (Hort.) in 1967 from Punjab University. He joined the Agricultural Department in the year 1969 as a Research Assistant; he was promoted as Horticulture Development officer in the year 1973 and at the time of the assessment he was working as District Horticulture Officer, Shimla. He has also stated that in the year 1986 he attended a 3 months training course on apple technology in the University of Tasmania Australia. The assessment in the Orchards in question were made on different dates in November 1984. He has fairly accepted the suggestion that he had not received any training with respect to assessment of apple crop but that has been a part of his job. The witness could not state the number of scab cases in which he had been called upon to make assessment. He has specifically stated in the case against Jai Lal and others that was his first and last assignment till date as a commission for assessing productivity of an apple orchard.
17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 39 of 56 science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting, or finger impressions are relevant facts.
Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.
101. Section 73 of Indian Evidence Act empowers the court to compare the writing and signatures, on its own and formulate its own opinion. Section 73 reads as under:
102. Section 73 of Indian Evidence Act: Comparison of signature, writing or seal with others admitted or proved- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 40 of 56 any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
103. In a case titled Sarabjit Singh Vs Ms Gurpal Kaur 2013 DLT 196 326, the Hon'ble High Court of Delhi has held as under:
21. Coming to the second limb of the argument advanced by the counsel for the appellant husband relating to inadmissibility of the two FSL reports as were submitted by the Senior Scientific Officer (documents), this Court on perusal of the record does not find that at the time of calling for the said FSL reports the Court had referred to the said provision i.e. Section 293 of the Code of Criminal Procedure, 1973 and it is only in the impugned order that the Court while discussing about the admissibility of such FSL reports in the evidence referred to Section 293 and 294 of the Code of Criminal Procedure, 1973. There is no dispute that the instant case is a pure civil dispute between the parties and there could not have been any occasion for the Court to refer to Section 293 and 294 of the Code of Criminal Procedure, 1973. However, at the same time, the said report submitted by the FSL could still be taken into consideration by the learned Trial Court in terms of Section 45 of the Indian Evidence Act, 1872 read with Order 26 Rule 10A of the Code of Civil Procedure,1908. It is a totally flawed argument that such report cannot be taken into consideration by the Court unless the expert enters the witness box to prove his report. On the contrary, if there exists enough PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 41 of 56 corroborative evidence on record, the Courts can always take the help of such expert opinion to form a final view with regard to any forgery in the signatures or in the handwriting of any of the parties before the Court. In criminal trials, these reports may not form the sole basis for holding any person guilty of offence, but so far the civil trials are concerned, there the Court proceeds on the hypothesis of preponderance of probabilities and such a view can be formed by the Court taking into consideration the opinion of the expert as corroborative to the other material available on record. The opinion of the handwriting expert is not conclusive but is in the nature of opinion and it is always safe to rely upon report of an expert, if there is some other reliable evidence on record sufficient enough for the Court to form a particular view. The Apex Court in the case of Murari Lal vs State of Madhya Pradesh reported in (1980) 1 SCC 704 although dealing in a criminal matter, took a view that even the uncorroborated testimony of an handwriting expert may be accepted in cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. The relevant para of the judgment is reproduced as under:-
We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 42 of 56
22. In the matter of Lalit Popli v. Canara Bank &Others (2003) 3SCC 583 the Apex Court while dealing with the case of civil nature, in the following para, held as under:-
13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion.
Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45,47 and 73.
Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon.
Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act.
Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, the court has power to compare the writings and decide the matter (See Murari Lal v. State of M.P.)
104. In a case titled State of Maharashtra Etc. Vs Sukhdeo Singh And Anr. 1992 AIR 2100, the Hon'ble Supreme Court of India has held as follows upon evidentiary value of Expert witness.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 43 of 56120. But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. Before a court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the courts are wary to act solely on the evidence of a handwriting expert; that, however, PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 44 of 56 does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the court will not act on the expert's evidence. In the end it all depends on the character of the evidence of the expert and the facts and circumstances of each case.
In Ram Narain v. State of U.P., [1973] 2 SCC 86 this Court was called upon to consider whether a conviction based on uncorroborated testimony of the handwriting expert could be sustained. This Court held:
"It is no doubt true that the opinion of handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert."
A similar view was expressed in the case of Bhagwan Kaur v. Maharaj Krishan Sharma, [1973] 4 SCC 46 in the following words:
"The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, by wary to give too much weight to the evidence of a handwriting expert." In Murari Lal v. State of M.P., [1980] 1 SCC 704 this Court was once again called upon to examine whether the opinion evidence of a handwriting expert needs to be substantially corroborated before it can be acted upon to base a conviction. Dealing with this oft repeated submission this Court pointed out:
"Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person `specially skilled' `in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion in unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that `a fact is said to be PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 45 of 56 proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
After examining the case law this Court proceed to add:
"We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion- evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight."PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 46 of 56
What emerges from the case law referred to above is that handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger- prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case of its own merits what weight it should attach to the opinion of the expert.
105. It is settled proposition of law that the opinion if expert is only advisory in nature and not conclusive and court is not bound by the opinion of the expert. As a rule of caution, the opinion of expert witness must always be regarded with greater care, more so in case of opinion given by Handwriting expert. The court has to see the reasons given by the expert for forming the opinion and instruments-methods used for comparing the disputed signatures with specimen signatures. The court should consider all other available evidence and circumstances of the case while relying upon the report of Expert witness.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 47 of 56106. The contentions of respondent no. 3 regarding suspicious circumstance surrounding the execution of the Will, in question has been dealt with in the succeeding paras.
107. It is admitted case of the petitioner that late Smt. Swaran Chopra was the only surviving legal heir of the deceased. In the Will in question, the deceased has not given any property to his wife/ Smt. Swaran Chopra. No reason for exclusion of his wife from receiving his property, has been given, in the Will by the deceased. It is also admitted case of the petitioner that the relations between the deceased and his wife were cordial. All the movable and immovable properties have been bequeathed to Smt. Kusum Malhotra. Even no provision for residence or maintenance of late Smt. Swaran Chopra, like life interest, in the properties of the deceased, has been made in the Will in question. It is mentioned in the Will that "I expect and have full faith in Kusum Malhotra that she shall continue to treat and look after my wife as she is doing today." The petitioner has not given any explanation or justification for which, the deceased excluded his wife from inheriting his estate. The fact of exclusion of late Smt. Swaran Chopra from inheritance by the deceased, without mentioning any reason in the Will in question, despite having cordial relation with his wife, has made the Will in question suspicious and the petitioner has failed to dispel this suspicion.
108. In the Will in question, it is mentioned that Smt. Kusum Malhotra is cousin sister of the deceased and he had always treated her as his daughter but the petitioner/PW-1 has PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 48 of 56 deposed in his examination in chief that Smt. Kusum Malhotra is his sister-in-law and deceased is his wife's Massi's husband. So as per testimony of petitioner/PW-1 Smt. Kusum Malhotra is not cousin sister of the deceased. The petitioner has not given any explanation as to why wrong relationship of the deceased with Smt. Kusum Malhotra is mentioned in the Will in question. The mentioning of wrong relationship of the deceased with Kusum Malhotra, in the Will in question has also made the Will in question suspicious.
109. The petitioner has not filed any document or any photograph of the deceased with petitioner or with Smt. Kusum Malhotra or with any of his family member, in order to prove his wife's or his sister in law's any relation with the deceased. The respondent no. 3/Kusum Malhotra has also not stepped into the witness box to depose about her relations with the deceased. As per petitioner, the deceased related to him through his wife Sweety but no witness from the family of his wife has been examined by the petitioner to prove the relationship of the deceased with his wife.
110. The petitioner has also not mentioned about the relation of Smt. Kusum Malhotra with the deceased, in the petition. The petitioner has only mentioned in the petition that the deceased used to treat Smt. Kusum Malhotra as his daughter. If Smt. Kusum Malhotra were cousin of the deceased then the relationship of Smt. Kusum Malhotra with the deceased would have been mentioned in the petition by the petitioner. This fact also make the Will suspicious.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 49 of 56111. Petitioner is one of the attesting witness of the Will in question and entire property has been bequeathed, in the Will, by the deceased to Smt. Kusum Malhotra, who is sister in law of petitioner. The petitioner has played prominent rule in execution of the Will in question and main beneficiary in the Will, is his sister in law. This fact also raises doubt on the due execution of Will in question.
112. Smt. Kusum Malhotra, who is the sole beneficiary, in the Will in question, has not examined herself as a witness and she has withheld herself from examination in court, without any just reason, so adverse inference is also drawn against the petitioner and Smt. Kusum Malhotra.
113. Petitioner/PW-1 has admitted that he had made a police complaint dated 13.03.2013, against respondent no. 3, to the police and he has not mentioned about the existence of Will in question, in the said complaint. If Will in question were existed before 13.03.2013 then petitioner would have mentioned about this Will, in complaint dated 13.03.2013. No reason has been given by the petitioner for not mentioning the Will in question, in complaint dated 13.03.2013. This fact has also made the Will in question suspicious.
114. In the Will in question, the signatures of the deceased, on each page of the Will, are in Hindi as well as in English language which is not normal. Generally, a person will sign the document either in Hindi or in any other language known to him but will not sign the same in both languages. No reason has PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 50 of 56 been given for putting signatures on the Will by the deceased, in two languages. PW-1 has deposed that he does not know why the deceased had signed the Will in two languages. PW-2 has deposed that he was surprised when the deceased put his signatures, on the Will, in both languages. PW-1 further deposed that he has no knowledge that the deceased used to sign in Hindi language. PW-1 has not denied the suggestion that the deceased used to sign only in Hindi language. The handwriting & finger print expert/RW-4 has lifted specimen signature of the deceased from the bank records and found that the signatures of the deceased are only in Hindi language and he did not find signatures of the deceased, on any document, in Bank record, in English language. So, it is not proved that the deceased, also used to sign in english language. No document signed by the deceased in english language has been filed on record by the petitioner. The petitioner has not disclosed any reason for signing the Will in question, by the deceased, in two languages. The above said facts create doubt about the genuineness of the signatures of the deceased, on the Will in question and the same has not been removed by the petitioner.
115. RW-4/Sh. Deepak Jain, handwriting expert has been examined in court and he gave his report Ex. RW4/1. As per his report Ex. RW-4/1, the disputed Hindi signatures of the deceased marked Q-1 to Q-3, on the Will in question are not written by one and the same person Sh. Ramesh Chopra. He further opined that the identification of the disputed English Signatures marked Q-4 to Q-6, can be established even without having any comparative signatures of the contemporary period as these PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 51 of 56 signatures are the product of traced forgery, so the disputed English signatures marked Q-4 to Q-6, cannot be the genuine signatures of Sh. Ramesh Chopra.
116. No handwriting expert has been examined on behalf of petitioner to rebut the report of RW-4.
117. Respondent no. 3 was allowed to examine handwriting expert/Sh. Deepak Jain, by the court vide order dated 15.12.2017. Vide order dated 01.02.2018, this court directed the handwriting expert/Sh. Deepak Jain to visit two banks I.e State Bank of India, DDA Shopping Centre, Lal Market, Paschim Vihar Delhi and State Bank of India, Jawalaheri, Paschim Vihar, Delhi, for comparing the disputed signatures of late Sh. Ramesh Chopra with the original record available with the banks. Thereafter, the handwriting expert/RW-4 visited the above said banks and took the specimen signatures of the deceased from the record of the above said banks.
118. During cross-examination of RW-4, the petitioner has not disputed the specimen signatures, taken by the handwriting expert/RW-4 from the record of the above said banks.
119. The handwriting expert has given his report indicate reasons regarding above said conclusion and same of the relevant paras are mentioned as follows:
"12. An examination of both disputed and comparative signatures shows that the disputed signatures are written with drawn and laboured movement of hand and lack rhythm whereas the comparative signatures are written with freedom and PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 52 of 56 fluency in the motion of pen and hand.
13. The comparative signatures are written with better executional skill than that of the disputed signatures, wherein pen scope is restricted and executional skill is low in the disputed signatures, but pen scope is angular and the executional sill is medium in the comparative signatures.
14. The manner of writing and making of the strokes of the disputed and comparative signatures shows un- equal development of handwriting as well as difference in the freedom, fluency and continuity in the motion of pen and hand with which both these sets of signatures are written.
15. The disputed signatures are written with finger movement with slow speed of writing, whereas the comparative signatures are written with wrist movement with medium speed of writing.
16. The disputed and comparative signatures are written with forward angle of slant to the line of writing and with ascending alignment of the writing line, but it due to free hand forgery involved as both these writing habits are also prone to the forgery being visible.
17. There are superficial similarities in the form of the letters in between the disputed and comparative signatures, but these similarities are only in the form, not in the formation, therefore, cannot be termed as 'Fundamental Similarities', as the other writing characteristics are fundamentally different in between the disputed and the comparative signatures, hence these similarities in the form of the letter can be discarded being not basic in nature. The fact that there are similarities only in the form of the letter in between both the sets of signatures is clear from the observations mentioned above.
18. After examination and comparison of both the sets of the signatures, inter-se and in comparison to each others, I observed that there are fundamental difference in all the general and personal writing characteristics to prove their different authorship which are neither superficial nor incidental and if there is any similarities, that is not basic in nature, so can be discarded.
19. An inter-se comparison of the disputed signatures shows that there is a close resemblance in the formation of letters and strokes with regard to size, curves, angles, spacing of and between the letters and strokes, directional approach of the strokes inter-se in between them. It is worthwhile to mention here that the disputed signatures are PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 53 of 56 substantially superimposing to each other, which is a most suspicious circumstances showing their forged nature. This fact alone is sufficient to conclude that the disputed signatures are not written in a normal routine of life.
20. I have also performed how the disputed signatures are superimposing each other when come in contact one upon the other with the aid of their dia-positive plates. It is pertinent to mention here that there is some departure in the superimposed character of these signatures which may be accidental or intentional.
21. When the disputed signatures compared further inter-se, they show un-natural, suspicious and striking similarities in the design of letters, which only suggests that the forger took some genuine signatures of the alleged person as a model signature for preparing/forging these signatures by some tracing process.
22. The fact of superimposition in the given set of the signatures itself is self sufficient to prove that these signatures have been prepared by some tracing process and are the forged signatures. A traced forgery, as the name implies, is the result of an attempt to transfer to the fraudulent document an exact/substantial facsimile of a genuine signature by some tracing process. In such circumstances, there is no need of comparing the disputed signatures marked Q-4 to A-6 with the comparative signatures of the alleged person.
120. This court has also compared the disputed Hindi signatures of the deceased with his specimen signatures. With naked eyes, it can be observed that there is rhythm and flow in writing the specimen signatures but there is no such rhythm and flow in writing the disputed signatures.
121. The handwriting expert/RW-4 has mentioned the reasons in detail, in his report Ex. RW-4/1, regarding reaching to the conclusion that the disputed signatures Q1 to Q3 are not written by late Sh. Ramesh Chopra and that the disputed English signatures Q4 to Q6 are the product of traced forgery. The court PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 54 of 56 is convinced with the reasons given by the RW-4, in his report Ex. RW-4/1. There is no reason to disbelieve the report Ex. RW-4/1. Therefore, this court is concurred with the report of handwriting expert that the disputed signatures on the Will in question are not made by the deceased.
122. PW-1 has deposed that in his presence deceased did not ask Smt. Swaran Chopra to become attesting witness of Will Ex. PW-1/2. PW-1 further deposed that there was no reason for which deceased/testator did not make his wife as attesting witness to the Will Ex. PW-1/2. Smt. Swaran Chopra was a literate lady and was working as Principal of Government School, so if she were present at the time of execution of Will, it would have been signed by her as a witness. No reason has been given by the petitioner for not making her witness in the Will in question. It creates doubt about the presence of late Smt. Swaran Chopra, at the time of execution of the Will in question.
123. PW-1 has deposed in his examination in chief that late Smt. Swaran Chopra was virtually blind. RW-3/Sh. A.K. Gupta (Doctor) has deposed that Smt. Swaran Chopra used to visit her clinic for regular/routine check up sine 2011 & she was not suffering from any serious disease and also not suffering from any eye disease from year 2011 to 2012 and he exhibited Medical Certificate of Swaran Chopra as Ex. RW-3/Y-1 and Ex. RW-3/Y2. During cross-examination, PW-1 deposed that he has not filed any document to show that Smt. Swaran Chopra was almost blind. This fact also raised doubt upon the case of petitioner as to why he has deposed false facts.
PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 55 of 56124. In view of the foregoing discussions, it is held that Will in question does not bear the signatures of the deceased. It is also held that the Will in question is surrounded by various suspicious circumstances which have not been dispelled by the petitioner and petitioner has failed to prove that the Will in question is a valid, legal and genuine Will of the deceased late Sh. Ramesh Chopra, accordingly, issue no. 1 is decided against the petitioner and in favour of the respondent no. 3.
FINDING ON ISSUE NO. 22. Whether the petitioner is entitled to the grant of Probate in respect of the aforesaid Will dated 12.08.2006, as prayed for? OPP
125. In view of the findings on issue no. 1, given herein above, it is held that the petitioner is not entitled for the grant of Probate in respect of the Will in question. Accordingly issue no. 2 is decided against the petitioner and in favour of the respondent no. 3.
Relief
126. In view of findings on issue no. 1 & 2, the petition filed by the petitioner stands dismissed. No order as to cost. File be consigned to record room after due compliance.
Digitally signed SHIV by SHIV KUMAR KUMAR Date: 2025.02.21 16:48:14 +0530 Announced in the open court (Shiv Kumar ) on 21st February, 2025 District Judge-02 (West) Tis Hazari Courts Delhi. PC No. 15980/16 Parveen Sachdeva Vs State & Ors. Page 56 of 56