Delhi District Court
Gopal Krishan Khera vs State Ors on 17 May, 2024
Gopal Krishan Khera Vs. State & Ors.
DLST010002392011
IN THE COURT OF DISTRICT JUDGE-02,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC NO. 5929/2016
FILING No. 7780/2011
CNR No. DLST01-000239-2011
In the matter of:-
Sh. Gopal Krishan Khera
S/o Late Sh. S.N. Khera
R/o E-207, 221 Lajpat Nagar-I
New Delhi-24.
....Petitioner
Versus
i) State
ii) Sh. Jagmohan Khera
S/o Late Sh. Surinder Nath Khera
R/o E-221, Lajpat Nagar-1,
New Delhi.
iii) Sh. Chander Prakash Khera
R/o E-207, 221, Lajpat Nagar-I
New Delhi-24.
PC No. 5929/2016
CNR No. DLST01-000239-2011
Page 1 of 84
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Gopal Krishan Khera Vs. State & Ors.
iv) Smt. Gulshan Kalra
W/o Sh. V.K. Kalra
R/o 32/61, West Patel Nagar,
New Delhi.
v) Smt. Sudershan Malhotra,
W/o Late Sh. K.L. Malhotra
R/o RZ-U/35, Uttam Nagar,
New Delhi
vi) Smt. Asha Rani Chawla
W/o Lt. Sh. Kishan Lal Chawla
R/o C-Block, Gali No. 11,
H. No. 243, Bhajan Pura,
Delhi.
vii) Smt. Kamla Juneja
W/o Lt. Sh. Naresh Juneja
R/o Naresh Medical Stores
Village Khatauli, Distt.
Muzaffar Nagar, UP.
....Respondents
Date of Institution : 01.04.2011
Date of reserving the judgment : 23.04.2024
Date of pronouncement : 17.05.2024
Decision : Petition Dismissed
REVOCATION PETITION UNDER SECTION 383 OF
INDIAN SUCCESSION ACT
PC No. 5929/2016
CNR No. DLST01-000239-2011
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Gopal Krishan Khera Vs. State & Ors.
JUDGMENT
1. Vide this judgment, I shall decide the application filed by Sh. Jagmohan Khera under Section 383 for revocation of probate issued by the then Ld. ADJ, Delhi vide order dated 21.08.2008.
BRIEF FACTS
2. The brief facts of the case are that the applicant filed an appeal against the order dated 21.08.2008 before the Hon'ble High Court vide FAO NO 407/2008 titled as Sh. Jagmohan Khera Vs. State and Ors. That during the pendency of appeal in the month of May/June 2009 when the applicant praying in the Bankey Bihari Temple in the vicinity one of his father's friend namely Sh. D. C. Kalra met him and during dialogue, the applicant informed him that he was very much disturbed due to litigation filed by his elder brother for the possession of the property. Then Sh. D.C. Kalra disclosed that his father executed a Will in his and one Sh. Shyam Sunder Sabharwal's presence. They are the attesting witness of the Will and in that Will each and every share of the property were defined by him. He further disclosed that copy of the Will is still in his possession. Sh. D.C. Kalra then took the applicant herein to his home and showed the photocopy PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 3 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
of the Will dated 19.12.2000 executed by his father and by going through the contents of the Will everything became crystal clear.
2.1. After knowing the pendency of the litigation between the brothers, Sh. D.C. Kalra moved an Intervention Application vide C.M. No. 9041/2009 in the said FAO NO 407/2008 and the Hon'ble Ms. Rekha Sharma was pleased to issued notice to the parties for 26.04.2010 and later on the case was adjourned for 11.08.2010. On 11.08.2010 the said CM No. 9041/2009 came up for hearing before Hon'ble Mr. Justice Siddharth Mridul and the Hon'ble Mr. Justice was pleased to advice the said Sh. D. C. Kalra to take appropriate proceeding in accordance with law and the said application was dismissed as withdrawn with leave and liberty to take appropriate proceeding in accordance with law. In the said C.M. No. 9041/2009 Sh. D. C. Kalra pleaded that he has been a good friend of Sh. S.N. Khera, testator of the Will. They both were known to each other for more than 50 years from Pakistan where they lived prior to the partition. After partition they both came to India and started living in the same locality in Lajpat Nagar-I in New Delhi and their friendship continued. Sh. Surender Nath Khera had visited PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 4 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
the house of the applicant on the 19th of December 2000 and had executed a will in his presence and in the presence of Shri Shyam Sunder Sabharwal. The said will was notarized on the same day i.e. 19.12.2000 from Sh. Surinder Kumar, Notary Public, Delhi. The Will dated 19.12.2000 devolves bequeath the property of Late Sh Surinder Nath Khera i.e. property bearing No. E-207 adjacent to E-208, Lajpat Nagar- 1, New Delhi devolves on the younger and the eldest sons of Sh. Surinder Nath Khera i.e. Chander Prakash Khera and Shri Gopal Khera. The other property bearing No. E-221 adjacent to E-222 Lajpat Nagar-1, New Delhi is bequeathed to his second son Sh. Jagmohan Khera. The testator wished that after his death his property bearing No. 207 and 221 in Lajpat Nagar-1, New Delhi be divided in two separate portions to his sons as mentioned above. The testator had further declared this Will dated 19.12.2000 is to be his last Will and had cancelled all other Wills/documents whether registered or unregistered executed by him prior to that date. 2.2. In the said Will, Late Sh. Surender Nath Khera had specifically mention that "I specially want to mention here that during my illness time, my elder and younger son had got my signatures by tactical means on some blank papers, PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 5 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
which could cause the misuse of my movable and immovable property, in any manner, after my death". On the basis of the said Will dated 19.12.2000, the property No. E-221, Lajpat Nagar-1 in question has not been devolved on the plaintiff to the exclusion of all others as has been pleaded by plaintiff in his plaint pending adjudication before this Hon'ble Court. That the said Will dated 19.12.2000 has been duly signed by Late Sh. Surender Nath Khera, father of the parties and further has been witnessed by two independent witnesses and the same was executed by Late Sh Surinder Nath Khera in his sound disposing mind. The testator has further declared the Will dated 19.12.2000 is to be his last will and has cancelled all other Will/documents whether registered or unregistered executed by him prior to that date. During the course of proceedings in appeal in FAO No. 407/2008, the counsel of the appellant submits before the Hon'ble Court about the new Will, which was later in time and executed by the father of the applicant/defendant herein and during that proceedings the Hon'ble Mr. Justice Mool Chand Garg allowed the applicant to file proper application for revocation of the probate granted in favor petitioner herein. It is further stated that the applicant herein is also going to file a probate petition PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 6 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
for grant of letter of probate as per Will dated 19.12.2000. Hence, it is prayed that the order dated 21.08.2008 may be recalled in view of the last Will dated 19.12.2000 of Late Sh. Surender Nath Khera.
REPLY
3. Reply to the application was filed by the non- applicant Sh. Gopal Krishan Khera. It is stated in the reply that present revocation petition is not maintainable in the present probate petition in respect of Will dated 11.03.1999 executed by Sh. S.N. Khera, of which the probate was granted by the court of Sh. Ravinder Dudeja, the then ADJ, Delhi, after holding a detailed enquiry and dealing all the objections, vide its judgment dated 21.08.2008 and the Letter of Administration was granted, by Sh. V.P. Vaish, Ld. ADJ, Delhi vide its Order dated 17.02.2009 under Section 290 of the Indian Succession Act in favour of Sh. Gopal Krishan Khera. It is submitted that the petition under section 383 can only be moved/filed for the revocation of the certificate which is granted by the court under Section 372 of the Indian Succession Act and not for grant of succession. It is also submitted that the applicant Sh. Jagmohan Khera had a petition for grant of probate in respect of the alleged Will PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 7 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
dated 19.12.2000 but the said petition was not filed as required under provisions of Section 276, 280 and 281 of the Indian Succession Act.
3.1. It is stated in the reply that the present application is being filed by Sh. Jag Mohan Khera with malafide intentions just to cover up his lacuna. It is further submitted that the alleged Will dated 19.12.2000 is forged and fabricated, which has been manufactured and the alleged Will does not bear the signatures of late S.N. Khera. Hence, the petition filed by Shri Jag Mohan Khera liable to be dismissed on this sole ground. That Shri Jag Mohan Khera has not come clean hands and has suppressed the material facts from this Hon'ble Court. It is submitted that Shri Gopal Krishan Khera, petitioner herein filed a probate petition bearing No.141/2001 (Old) 19/2006 (New) on the basis of said registered Will dated 11.3.1999 executed by Shri Surender Nath Khera and the said petition was allowed vide judgment dated 21.8.2008 by the court of Shri Ravinder Dudeja, ADJ, Delhi, however, in view of said judgment, the petitioner paid the court fee of Rs.73000/- and the court of Shri V.P.Vaish, ADJ, Delhi vide its order dated 17.2.2009 was pleased to grant Letter of Administration under Section 290 the of the Indian PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 8 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Succession Act in favour of petitioner. Smt. Sudarshan Malhotra filed false and frivolous objections in the petition, but their objections were declined by the Ld. Trial Court. Thereafter Shri Jag Mohan Khera had filed an appeal before the Hon'ble High Court of Delhi being FAO No.407/2008 against the judgment dated 21.08.2008, but the said appeal was withdrawn by him vide order dated 03.03.2011. The order passed by the court of Shri Ravinder Dudeja, Ld.ADJ, Delhi became final and binding upon the parties concerned. It is further submitted that Shri Jagmohan Khera S/o Shri Surender Nath Khera, Shri Praveen Manchanda S/o Late Karamchand Manchanda and Shri Vimal Khanna in collusion and connivance of each other have manufactured/fabricated a Will dated 11.09.1992 allegedly executed by Shri Surender Nath Khera and filed the same before the Ld. Court. Sh. Jagmohan Khera and one of the sister namely Smt. Sudarshan Malhotra failed to prove the existence of the said forged and fabricated Will dated 11.09.1992 allegedly executed by late Shri Surender Nath Khera and ultimately probate was granted in favour of the petitioner Shri Gopal Krishan Khera by the court of Shri Ravinder Dudeja, Ld. ADJ, Delhi. It is submitted that present application is liable to be dismissed as PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 9 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
he has given false averment/declaration in his application and he is liable to be prosecuted under Section 193 of Indian Penal Code. Sh. Jagmohan Khera has also not disclosed about filing of the probate petition No.186/2011 before this Hon'ble Court in respect of alleged photocopy of Will dated 19.12.2000, which has been forged, fabricated and manufactured by him in connivance and collusion of two persons namely Shri Diwan Chand Kalra S/o Shri Tola Ram and Shri Shyam Sunder Sabharwal S/o Shri K.L. Sabharwal. The alleged photocopy of Will dated 19.12.2000 is again an attempt of forgery and perjury committed by Shri Jag Mohan Khera in collusion and connivance with Shri Diwan Chand Kalra and Shri Shyam Sunder Sabharwal with a view to deprive the petitioner herein to reap the fruits of Will dated 11.03.1999 which has been provided by the court of law after long trial by considering all the objections. It is further submitted that the collusion of Shri Jagmohan Khera along with Shri Diwan Chand Kalra and Shri Shyam Sunder Sabharwal is itself clear that Shri Diwan Chand Kalra moved an application bearing C.M.9041/2009 before the Hon'ble High Court of Delhi but has not filed the annexures as mentioned in the said application and ultimately the said PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 10 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
application was also withdrawn on behalf of Shri Diwan Chand Kalra by his Advocate on 11.08.2010. It is also submitted that the forgery committed by Shri Jag Mohan Khera in collusion and connivance with the aforesaid persons is very much clear from the facts that Uthala of Late Shri Surender Nath Khera was held on 10.1.2001 at Shree Bankey Behari Mandir Committee (Regd), Lajpat Nagar, New Delhi which is situated in front of the house of Shri Diwan Chand Kalra. It is further stated that if there was any alleged Will dated 19.12.2000 allegedly executed by Shri Surender Nath Khera, then Shri Diwan Chand Kalra must have produced the same in the said Uthala or he has produced the same during the pendency of the said probate petition. It is further submitted that legal heirs of late Shri Surender Nath Khera are litigating since last more than a decade after the death of their father and surprisingly Shri Diwan Chand Kalra is ignorance of the litigations between the parties. Even otherwise, Shri Jag Mohan Khera was disowned by Late Shri Surender Nath Khera vide public notice published in daily newspaper Daily Pratap on 03.12.2000, therefore, no question arise to execute the alleged photocopy of Will dated 19.12.2000. It is further submitted that Shri Jagmohan Khera PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 11 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
filed objections in the No.141/2001 on probate petition 18.12.2001 and also adduced evidence and appeared as objector witness before the Hon'ble Court of Shri Ravinder Dudeja, ADJ, Delhi. Shri Jag Mohan Khera filed objections thereby stating in page 2 that thereafter late Shri S.N.Khera never executed any Will. More so over on 11.3.1999 when the disputed Will was alleged to be executed, Shri S.N. Khera was not mentally sound due to old age near about 80 years and was bed ridden and urine and stool were passed by him on the bed unconsciously without his sense.' Therefore, from the aforesaid plea taken by Shri Jag Mohan Khera, though not admitted, it is submitted that since the year 1999, Shri S.N. Khera, father of the petitioner and respondents was not having sound disposing mind hence, question arise to no execute any Will dated 19.12.2000 and it is clear that the alleged Will was got manufactured, fabricated and manipulated by Sh. Jag Mohan Khera the said publication. 3.2. It is further submitted that publication notice was issued on a 03.12.2000 whereby Late S.N. Khera had disowned and severed all his relations with Shri Jag Mohan Khera, then how and under what circumstances, the alleged Will was executed after two weeks of the publication. That PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 12 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Shri Jag Mohan Khera has not filed the original copy of alleged Will dated 19.12.2000 and with malafide intentions has taken u-turn thereby alleging that the original Will is in possession of the petitioner herein whereas as per contents of the intervening application bearing CM No.9041/2009 in FAO No.407/2008, Shri Diwan Chand Kalra had prayed that he may be allowed to intervene in the matter and to produce the Will dated 19.12.2000, therefore, the plea of Shri Jagmohan Khera and Shri Diwan Chand Kalra are contradictory submitted to that from the other and they are hand in glove and the contents are also on similar line. That Shri Jag Mohan Khera are litigating after the death of Shri Surender Nath Khera and the petitioner filed a suit for injunction bearing new Suit No.229/2002 against Shri Jag Mohan Khera and the said suit was decreed by the court of Shri Vinod Yadav, SCJ cum RC (West) vide its Order dated 07.09.2009 whereby the Hon'ble Court has decided the Issue No.2 in favour of the petitioner thereby holding the petitioner herein owner of the property in question. It is also submitted that Shri Jagmohan Khera also filed partition and declaration a suit for bearing Suit No.317/2003 and the same was dismissed by the court of Shri Sunil Chaudhary, the then PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 13 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Civil Judge, Delhi vide order dated 19.04.2004. That the petitioner also filed a suit for possession bearing Suit No.136/2011 against Shri Jagmohan Khera, which is pending in the court of Shri Ajay Pandey, Ld.Civil Judge, Delhi and in the said suit, Shri Jagmohan Khera moved two applications i.e. one under Order 18 Rule 17 and another application under Order VI Rule 17 CPC and the said applications were disposed of by Ld. Civil Judge, Delhi, but Shri Jag Mohan Khera has no where mentioned about the existence of alleged Will dated 19.12.2000 in those applications. REPLICATION:
4. Replication filed on behalf of applicant to the reply filed by the non-applicant wherein he denied the allegations made in the reply and reiterated the facts stated in the petition.
ISSUES:
5. On the basis of the pleadings, following issues were framed vide order dated 28.02.2013 :-
"1. Whether respondent no.2/applicant is entitled for grant of revocation in respect of Will dated 11.03.1999?PC No. 5929/2016
CNR No. DLST01-000239-2011 Page 14 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
2. Whether Will dated 19.12.2000 is legally and validly executed?
3. Whether the objections filed on behalf of respondents are valid and maintainable.
4. Relief."
EVIDENCE ADDUCED:
6. On 01.06.2018, a prayer was made for clubbing the present revocation petition and the separate probate case PC No. 5928/16 in case titled 'Jagmohan Khera Vs. State & Ors.' on the ground that same evidence was ordered to be led in both the cases. The same was not opposed by the opposite counsel and consequently the verbal request for common evidence was allowed. The common evidence was led in these two cases. In the present revocation petition, the applicant examined himself as R2W1 and the non-applicant Sh. Gopal Krishan Khera examined himself as PW1. Since the common evidence were led so the evidences led in probate case 5928/16 shall also be taken into consideration.
In PC 5928/16, the applicant herein examined total three witnesses i.e. PW1, PW2 and PW3. Perusal of PW1 and R2W1 shows that their examination-in-chief and cross examination are same in all aspects except the serial number PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 15 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
given to the witness. In the present case, it is given Sl. No. R2W1 and in the probate case, it was given Sl. No. PW1. In the probate case, non-applicant examined two more witnesses, which were given Sl. No. RW2 and RW3. In this way, since there was an order of common evidence in both the cases, so applicant and non-applicant examined their three different witnesses respectively i.e. PW1/R2W1, PW2, PW3 for applicant herein and PW1, RW2 and RW3 for non- applicant herein. It is again clarified that witness PW1 in the abovesaid PC 5928/16 is different to PW1 in the present revocation petition. In the present revocation petition, PW1 is non-applicant and in PC No. 5928/16, PW1 is applicant herein. Accordingly, applicant examined total three witnesses to prove Will dated 19.12.2000. He examined himself as R2W1/PW1, examined PW2 Sh. Shyam Sunder Sabharwal being attesting witness and one Sh. Inder Kumar Kalra as PW3 being son of another attesting witness.
7. Applicant Sh. Jagmohan Khera/R2W1 (PW1 in PC 5928/16) tendered his affidavit of evidence as Ex.R2W1/A and relied upon the following documents:-
i) Photocopy of the reply filed by L&DO as Mark A.
ii) Photocopy of RTI reply dated 22.04.2016 as Mark B. PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 16 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
iii) Circular dated 27.04.2012 issued by office of Divisional Commissioner. Delhi as Mark C.
iv) Photocopy of High Court order dated 05.08.2016 in CRP 114/16 as Mark D.
v) Photocopy of receipt dated 12.8.2014 issued by department of Delhi Archives as Mark E.
vi) Photocopy of non judicial E stamp, allotment letter dated 31.03.1969, lease deed dated 31.03.1969, receipt of compensation dated 13.05.1975 alongwith the translation, copy of revised ground rent dated 13.05.1975, statement of Ajay Bajaj, LDC in the office of L&DO recorded on 15.09.2005 before Ld. District Judge, conveyance deed dated 27.04.2000 as Mark F (colly).
vii) Photocopy of Will dated 11.03.1999 as Mark G.
viii) Photocopy of evidence recorded on 10.8.2004 in suit no.121/2013 of Gopal Krishan as Mark H.
ix) Photocopy of evidence recorded on 10.8.2004 in suit no.121/2013 of Gopal Krishan as Mark I.
x) Copy of letter dated 11.9.2001 addressed to L&DO by Gopal Krishan Khera as Mark J.
xi) Photocopy of ration card no.207502 in the name of Sh.
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S.N. Khera without photograph duly attested by gazetted officer Mr. Vijay Kalra as Mark K.
xii) Photocopy of ration card no.207502 in the name of Sh. S.N. Khera containing photograph of Gopal Kishan Khera duly stamped by Ration Office, Delhi Government as Mark L (objected to by Ld. Counsel for the respondent no.2).
xiii) Photocopy of plaint dated 25.4.2003 in suit titled Gopal Krishan Khera Vs Jagmohan Khera bearing no.121/2003 which is now marked as Mark M. 7.1. During cross-examination dated 01.06.2018, R2W1 (PW1 in PC 5928/16), he deposed as under:
"I do not remember whether the allegations levelled by me in Ex.PW1/A in case titled Gopal Kishan Khera Vs State & Ors. were mentioned by me in my application for revocation of probate.
Attention of the witness has been drawn towards the application U/s 383 for Revocation of Probate. The same is now marked as Ex.PW1/DX.
After reading the contents of the application, the witness states that the allegations mentioned in Ex.PW1/A were not mentioned by him in his application U/s 383 for Revocation of Probate case titled Gopal Kishan Khera Vs State & Ors. It is correct that the allegations levelled by me in para nos. 3 to 20 of my affidavit Ex.PW1/A in case titled Jagmohan Khera Vs. State & Ors were not mentioned by me in my probate petition. Vol. At the time of filing of petition I was not aware about the allegations mentioned by me in my affidavit. I have not mentioned in my affidavit that I came PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 18 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
to know the facts narrated in the affidavit later on. I have filed the first appeal against the decree of possession before the Court of Sh. Lalit Kumar, ADJ, Saket Courts, New Delhi. It is correct that after dismissal of my first appeal I had challenged the decree before the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India. It is correct that my second appeal and SLP were also dismissed by above said Courts.
Q. I put it to you that in the memo of appeal before Ld. ADJ you have alleged that the suit property is an ancestral property and Gopal Krishan Khera had suppressed all these facts. However, the Ld. ADJ had rejected your above said ground and dismissed the appeal. What do you have to say? Ans. My above said grounds were not considered by Ld. ADJ and my appeal was dismissed.
Q. I put it to you that after dismissal of first appeal by Ld. ADJ you have again alleged the same grounds in your second appeal before Hon'ble High Court of Delhi. However, Hon'ble High Court of Delhi had rejected your above said ground and dismissed the appeal. What do you have to say?
Ans. It is correct that the appeal was dismissed but I do not remember the plea taken by my lawyer in the appeals and review petition.
I have seen the judgment dated 29.6.2015 passed by Hon'ble High Court of Delhi in RSA 183/2015. The same is now marked as Ex.PW1/DX2. This judgment was passed against me.
Q. I put it to you that after dismissal of second appeal by Hon'ble High Court of Delhi, you have again alleged the same grounds in your SLP before Hon'ble Supreme Court of India. However, Hon'ble Supreme Court of India had rejected your above said ground and dismissed the SLP. What do you have to say?
Ans. SLP was dismissed. However, my grounds were not rejected. Vol. Since my probate petition was pending.PC No. 5929/2016
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It is wrong to suggest that Hon'ble Supreme Court had rejected the grounds taken by me in my SLP and nothing has been mentioned in the final order with regard to the pendency of probate petition.
I have seen the SLP filed by me before the Hon'ble Supreme Court of India and the order passed in the said SLP the photocopy of order and SLP are now exhibited as Ex.PW1/DX3 & 4.
Q. I put it to you that in SLP you have raised questions of law and grounds which are similar to the allegations levelled by you and your affidavits in both the above cases pending before this Court?
Ans. It is wrong to suggest.
I had not filed the original copy of Will dated 11.9.1992 as the same was not in my possession. It is correct that I have not placed on record the original Will dated 19.12.2000. Vol. The same is not in my possession. It is wrong to suggest that I had forged the photocopies of the above said Wills and due to the said reason I had not filed the originals of the said Wills on the judicial record. It is wrong to suggest that the suit property was self acquired property of late Sh. Surender Nath Khera. It is wrong to suggest that late Sh. Surender Nath Khera had executed a registered Will dated 11.3.1999. It is wrong to suggest that Gopal Krishan Khera had not committed any fraud with any authority or concerned courts and is legally entitled to transfer the suit property on the basis of the Registered Will executed by late Sh. Surender Nath Khera in his favour. It is wrong to suggest that the Will and GPA both dated 11.3.1999 are genuine documents and were executed by late Sh. Surender Nath Khera. It is wrong to suggest that when the above said documents were signed and executed Sh. Surender Nath Khera was having good health and in sound disposing mind. It is wrong to suggest that Surender Nath Khera had executed the above said documents in favour of Gopal Krishan Khera at his free Will and without any pressure. It is wrong to suggest that no PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 20 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
voter identity card or ration card were forged by Gopal Krishan Khera and the same are genuine documents. It is further wrong to suggest that the L&DO had rightly transferred the suit property in favour of Gopal Krishan Khera after verifying genuineness of the Will dated 11.3.1999. It is wrong to suggest that I had not filed any complaint with the police prior to filing the present probate petition.
It is wrong to suggest that I have filed the probate petition on the basis of forged and fabricated Will. It is wrong to suggest that after dismissal of my objection in the probate petition I have forged the Will dated 19.12.2000. It is further wrong to suggest that the allegations mentioned by me in my affidavits in both the above cases are beyond pleadings or that the said grounds have already been rejected uptill the Hon'ble Supreme Court of India. It is wrong to suggest that I am deposing falsely."
8. In applicant's evidence, Sh. Shyam Sunder Sabarwal was examined as PW2, who is a summoned witness. He deposed as under:
"I am a summoned witness. I do not know anything about the Will dated 19.12.2000 nor I have ever seen the document before but this document was prepared in my presence. I recognize the signature of Sh. Surender Nath Khera on the Will at point A to E. The said will dated 19.12.2000 bears my signature at point X. I also identify the signature of Sh. D.C. Kalra at point Y. The Will had already been prepared when I reached the spot. It was thereafter signed by Sh. Surender Nath Khera, thereafter by Sh. Diwan Chand Kalra and lastly, by me. Besides all of us there was one advocate also present whose name I do not remember. He affixed his stamp on the Will.PC No. 5929/2016
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At this stage, Ld. Counsel for the petitioner wants to exhibit the Will. However, Ld. Counsel for the respondent no.2 has objected the same by contending that before photocopy can be exhibited, petitioner has to lead evidence to show that the original document has been lost or not in the possession of the petitioner. In response, Ld. Counsel for the petitioner has placed reliance on the judgment titled as Shir Prem Chandra Jain Vs Shri Sri Ram, CM(M) 1764- 66/2005. Ld. Counsel for the respondent prays for some time to cite contrary judgments. Consequently, at this stage the photocopy of the Will dated 19.12.2000 is marked as Mark PW2/1 for identification. Question of whether the photocopy can be exhibited shall be decided after arguments are addressed on this issue on the next date of hearing."
8.1. During his cross-examination on 02.07.2019, he deposed as under:
"The Will dated 19.12.2000 Ex. PW3/1, which I referred earlier in my previous examination in chief, is the same document, executed by Surender Nath Khera. I identify my signature at point X. Court Question:
The Testator had gone through the Will and understood its contents.
(The above Court question is objected to by Ld. Counsel for respondent No.2/Objector on the ground that question is leading. Heard. The objection is overruled for the reason that the question has not been put in a leading form and the witness has been inquired from on this aspect)."
8.2. During his further cross-examination on 01.10.2019, PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 22 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
PW2 deposed as under:
"I know Jagmohan Khera for the last 2-3 years. I do not know Gopal Kishan Khera. For the last 2-3 years I came to know from Sh. Jagmohan Khera that both Gopal Kishan Khera and Jagmohan Khera are real brothers and son of Late Sh. S.N. Khera. Late Sh. S.N. Khera had never disclosed to me that Gopal Kishan Khera and Jagmohan Khera were his sons. I am distributor of DMS Milk and Milk Products. 1 do not know when Late Sh. S.N. Khera had expired. Even approximately, I cannot tell in which month/year Late Sh. S.N. Khera had expired. Vol. Late Sh. S.N. Khera was having relation with my father and my father expired in the year 2006, further after 2006, we were having no relations with Late Sh. S.N. Khera. Late Sh. S.N. Khera and my father used to meet each other till 2006. My father and Sh. S.N. Khera used to meet each other in Park or in Senior Citizen Society. We had also seen our father meeting Late Sh. S.N. Khera till 2006.
In fact, my father had to go for signing Ex.PW3/1. However, he fell ill and he requested me to go for the same. It was in the month of December, 2000, again said I do not remember the year. However, it was during winter season. I do not remember about the time when my father had told me to go for signing of Ex.PW3/1. I had gone to the house of Sh. Kalra which is opposite the temple. I had reached the house of Sh. Kalra, the Will was already prepared and the same was not prepared in my presence. I had signed at only one place in the said Will. I have not seen the original of Ex.PW3/1 in the Court file. Vol. I had just signed the same at that time and came back. I am not aware about the whereabouts of the original of Ex.PW3/1.
I left the home of Sh. Kalra within 10-15 minutes, as the Will was already signed by others. Again said, PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 23 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
they signed in my presence. It is wrong to suggest that no such Will (Ex.PW3/1) was ever executed by Late Sh. S.N. Khera or that Late Sh. S.N. Khera had not signed in my presence.
I had never visited the house of Late Sh. S.N. Khera during his life time. I am not aware how many people were residing in the house of Late Sh. S.N. Khera with him. I am not aware Late Sh. S.N. Khera was residing with Gopal Kishan Khera. I am not aware whether Late Sh. S.N. Khera was not having cordial relationship with the family of Jagmohan Khera. I am not aware that due to strained relationship between Late Sh. S.N. Khera and Jagmohan Khera, Late Sh. S.N. Khera had disowned his son Jagmohan Khera by way of public notice published in newspaper the "The Daily Pratap" dated 3.12.2000.
I had not attended the cremation and last rites of Late Sh. S.N. Khera. My father might not had attended the last rites. I do not know whether my father had expired prior to Late Sh. S.N. Khera or Late Sh. S.N. Khera had expired prior to death of my father. After December, 2000, I had never met Late Sh. S.N. Khera.
My father was not acquainted with the children of Late Sh. S.N. Khera, as they both used to meet each other in the park or in the Senior Citizen Society. I never disclosed to anyone that I had appended my signatures on Ex.PW3/1. As far as I remember, I had not executed any affidavit at the instance of Sh. Jagmohan Khera. It might be possible that on 16.5.2013, I had executed an affidavit to be filed before the Court.
Attention of the witness has been drawn towards affidavit dated 16.5.2013, witness states that he identifies his signature at point A & B. The said affidavit is exhibited as Ex.PW3/RX1.PC No. 5929/2016
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I had signed Ex.PW3/RX1 on the asking and at the instance of Sh. Jagmohan Khera. It is correct that I know Sh. Jagmohan Khera and met him in the year 2013. vol. He is doing Govt. job. I do not remember where he is working. It might be possible that I had met Sh. Jagmohan Khera 6 months one year prior to the year 2013. Vol. I do not remember the exact date. The house of Late Sh. S.N. Khera is at the distance of about 10-15 minutes by foot.
When I reached the house of Kalra, the Will was already prepared. As the Will was already prepared, therefore, I am not aware how much time was taken for its preparation. I am not aware, who prepared and typed the aforesaid Will or where it was typed. At that time, besides me, Late Sh. S.N. Khera and Sh. Kalra and one Notary Public was present in the house of Sh. Kalra.
I do not remember, whether I had stated in Ex.PW3/RX1 " It was thereafter signed by Sh. Surender Nath Khera, thereafter, by Sh. Diwan Chand Kalra and lastly, by me." Witness is confronted with Ex.PW3/RX1 where it is not so recorded.
I do not remember, whether I have stated in Ex.PW3/RX1, "The Testator had gone through the Will and understood its contents". The witness is confronted with Ex.PW3/RX1 where it is not so recorded.
Sh. Jagmohan Khera had told me about the litigation between himself and his brother Gopal Kishan Khera. I am not aware about since when they are litigating with each other. I am not aware who had placed on record the photocopy of Will dated 19.12.2000 i.e. Ex.PW3/1. I am not aware when this document was photocopied. Same is my answer with regard to the person who had got it photocopied. I had seen Ex.PW3/1 for the first time in the Court PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 25 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
during my evidence. (My answer above is in relation with photocopy of Will dated 19.12.2000 placed on record.) Mr. Jagmohan Khera had not disclosed to me that in previous litigation, he had placed on record a photocopy of Will dated 11.09.1992, alleged to be executed by late Sh. S.N. Khera or that the same was declared forged by the Court. There is no specific reason for me not to disclose to any one about Ex.PW3/1. Jagmohan was aware about Ex.PW3/1 and I had disclosed about Ex.PW3/1 to him 5-6 years ago.
After signing Will, I had never met Late Sh. S.N. Khera. I am not aware when he had expired. I am not aware whether late Sh. S.N. Khera was bedridden prior to his death or that was not able to go out of home two months prior to his death. I am not aware that during the said period of illness he was not able to go out of his home due to his poor medical Will and understood its contents". The witness is confronted with Ex.PW3/RX1 where it is not so recorded.
Sh. Jagmohan Khera had told me about the litigation between himself and his brother Gopal Kishan Khera. I am not aware about since when they are litigating with each other. I am not aware who had placed on record the photocopy of Will dated 19.12.2000 i.e. Ex.PW3/1. I am not aware when this document was photocopied. Same is my answer with regard to the person who had got it photocopied. I had seen Ex.PW3/1 for the first time in the Court during my evidence. (My answer above condition. I do not know that Sh. S.N. Khera expired on
09.01.2001.
The Notary Public had only affixed his stamp and signature on the Will dated 19.12.2000. No other formality was done by the said Advocate.
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It is wrong to suggest that Will dated 19.12.2000, is a forged document or that the signature of late Sh. S.N. Khera on the said Will were traced/scanned from any other document. It is wrong to suggest that late Sh. S.N. Khera had not signed the Will dated 19.12.2000. It is wrong to suggest that neither D.C. Kalra nor me had signed the Will dated 19.12.2000 as an attesting witness. It is wrong to suggest that late Sh. S.N. Khera had not signed any document, including the alleged Will dated 19.12.2000, in my presence or in the presence of any other person. It is wrong to suggest that late Sh. S.N. Khera had not affixed his signatures at point A to E on Ex.PW3/1 or that the same were forged by Sh. Jagmohan Khera. It is wrong to suggest that no occasion had arisen for late Sh. S.N. Khera to read and understand the Will dated 19.12.2000, as he had never executed any such alleged Will. It is wrong to suggest that I at the instance of Jagmohan Khera had deposed falsely or that I had never appended my signatures on Will dated 19.12.2000. It is wrong to suggest that neither late Sh. S.N. Khera nor Sh. D.C. Kalra had signed the Will in my presence or that the said Will is a forged document which was manufactured by Sh. Jag Mohan Khera much much after the death of late Sh. S.N. Khera. It is wrong to suggest that I am deposing falsely."
9. PW-3 is Sh. Inder Kumar Kalra, who is also a summoned witness. He deposed as under:
"I have been summoned by the petitioner Jag Mohan Khera.
I have seen Mark PW2/1 (document is taken on record as Ex.PW3/1 subject to all objections of respondent no.2 including objections as to admissibility and mode of proof.PC No. 5929/2016
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Vide separate order the objections are kept open for consideration at the appropriate stage. The exhibition of document is without prejudice to all the rights and contentions of either side.) I have seen the signature at point Y. The same appears to be signature of my father late Sh. Diwan Chand. (I am not sure). He used to sign in the same manner.
My father died on 7.11.2011. I have not brought any specimen original signature of my father. Vol. The same must be available with the Bank.
He had an account with SBI, Lajpat Nagar Branch."
9.1. During his cross-examination on 01.10.2019, he deposed as under:
"I know Mr. Gopal Kishan Khera and Mr. Jagmohan Khera for the last 50 years, as they are my neighbours. Both are real brothers. I am aware about the dispute between the two brothers. Vol. Due to above said reason today I have come to Court. My father Sh. Diwan Chand Kalra was also known to Khera family. I am not aware whether my father was aware about the dispute between the two brothers. The dispute between two brothers started some time in 1998. Late Sh. S. N. Khera and my late father were having friendly relation. My father was also acquainted with both the sons of late Sh. S.N. Khera. My father used to visit the house of Late Sh. S.N. Khera. Late Sh. S.N. Khera had expired in January, 2001. The last rites and kriya ceremony etc of Late Sh. S.N. Khera was attended by my father. I do not know whether after the death of Late Sh. S.N. Khera my father used to meet Jag Mohan Khera and Gopal Kishan Khera. Again said my father used to meet Sh. Jag Mohan Khera.PC No. 5929/2016
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I have never seen the original of Ex.PW3/1, i.e. photocopy of Will dated 19.12.2000. I have seen Ex.PW3/1 for the first time in the Court. I have no knowledge about the whereabouts of the original of Ex.PW3/1. I am not aware whether the original of Ex.PW3/1 is in existence or not. I am not sure whether signature at point 'Y' on Ex.PW3/1 were of my father or not. Vol. He used to sign in the same manner.
It is correct that after the death of Late Sh. S.N. Khera both the brothers were litigating with each other with regard to the Will executed by Late Sh. S.N. Khera. I do not know whether the other family members were aware about the dispute between the brothers.
I do not know whether Jagmohan Khera used to visit my father to take advice from him with regard to above said litigation. My father might be aware about the dispute between the brothers with regard to the Will executed by Late Sh. S.N. Khera. My father had never discussed anything related to Jagmohan Khera and Gopal Kishan Khera with me. Same is my answer with regard to my other family members. I am not aware whether the Court had passed judgment in favour of Sh. Gopal Kishan Khera. I am not aware whether in the said litigation Jag Mohan Khera had filed photocopy of a forged Will dated 11.9.1992. I am not aware whether Court had refused to take cognizance over the said forged Will dated 11.9.1992 or that rejected the same.
I do not remember whether I had met Late Sh. S.N. Khera in December, 2000. It might be possible that Late Sh. S.N. Khera had expired on 09.01.2001. Q. I put it to you that Late Sh. S.N. Khera during his last days, i.e. between December, 2000 and 09.01.2001, was ill and bedridden and due to said reason he was not going out of his house. What do PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 29 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
you have to say?
Ans. It is correct. Again said I do not know. I am not aware about the dispute between Sh. Jag Mohan Khera and Late Sh. S.N. Khera. I am not aware whether Late Sh. S.N. Khera had disowned his son Jagmohan Khera by way of public notice published in newspaper the "The Daily Pratap" dated 3.12.2000.
It is correct that Late Sh. S.N. Khera was residing with Sh. Gopal Kishan Khera.
I have been summoned by the Court and not called by Jag Mohan Khera. I had signed a document given by Sh. Jag Mohan Khera long back ago. I am not aware of the said document and its contents. Vol. It might be filed in the Court.
Attention of the witness is drawan towards the judicial record of case titled "Gopal Kishan Khera vs. State & Ors" and "Jagmohan Khera vs. State & Ors"
and requested to trace out above said document. The witness states that he cannot trace the document, as both the files are very bulky and it would not be possible for him to trace the same as he is 73 years old.
It is wrong to suggest that I am deposing falsely at the instance of Jagmohan Khera."
10. Thereafter, petitioner's evidence was closed on 01.10.2019 and matter was listed for respondents evidence.
11. In respondents evidence, Sh. Gopal Krishan Khera was examined in the present petition as PW1. During his examination on 19.11.2019, he deposed as under:
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"Sh. Surender Nath Khera was my father. My father expired on 9.1.2001. My father had executed a registered Will dated 11.3.1999. The above said Will was executed by my father in my favour. On 11.3.1999, my father's health condition was perfectly fine and he had sound mind. He had executed the Will dated 11.3.1999 in sound disposing mind after understanding the consequences of executing Will in my favour.
After the death of my father, I and Jagmohan Khera had disputes which were pending in the Courts. Due to our disputes police also used to come at our residents on our complaints against each other. The people residing in the vicinity were also aware about our disputes, as they also used to witness our confrontation. Mr. D.C. Kalra and Mr. Shyam Sunder Sabharwal had also witnessed our disputes which started immediately after the death of our father. They both were also aware about our Court cases with regard to probate of Will dated 11.3.1999 filed by me against Jagmohan Khera & Ors.
My father was not having cordial relationship with Jagmohan Khera and his family members. Jagmohan Khera and his wife used to fight and abuse my father by stating, "buddhe mere naam Will kar". My father used to tell to Jagmohan Khera that he will not bequeath anything to Jagmohan Khera and his family members, as they used to torture him and never served even a glass of water. My father till his death was not in talking terms with Jagmohan Khera and his family members. Due to misbehaviour of Jagmohan Khera and his family my father had disowned Jagmohan Khera from his properties by way of publication in Urdu newspaper dated 3.12.2000 namely "Daily Pratap". My father had published the abovesaid notice in Urdu newspaper as he used to read Urdu newspaper. Except the registered Will dated 11.3.1999, my father had not executed any other Will. The photocopies of Wills dated 11.9.1992 and 19.12.2000 were not executed by my father and the same was forged by Jagmohan Khera.PC No. 5929/2016
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I reply upon the registered Will dated 11.3.1999 & other documents duly proved in the Probate Petition titled "Gopal Krishan Khera vs State & Ors" - petition No. 141/2001 (currently registered as 19/2011 and listed today).
(The witness is permitted to rely upon the documents already proved in the original probate proceedings in order to avoid the duplicacy/repetition of exhibition of documents)"
12. During cross-examination on 19.11.2019, Sh. Gopal Krishan Khera/PW1 in the present petition was deposed as under:
"We all the family members were residing in the property No.207,221, Lajpat Nagar-l. Vol. We were occupying the different portions.
The property was not cemented and was constructed upto first floor only. I was occupying the ground floor during the life time of my father. The respondent no.2 was living on ground floor as well as on first floor in some portions. My father used to look after his official work himself. I never helped him in any documentation relating to or done by my father.
I was recruited with DSIDC. I had been posted to Election Office during election times. It is correct that Election Office was a part and parcel of Deputy Commissioners office. I did not have any connection or dealing with the department dealing with Ration Cards."
12.1. During his further cross-examination dated 01.02.2020, he deposed as under:
"On 11.3.1999, I was at home. I do not know where was my father on 11.3.1999. It is wrong to suggest that my PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 32 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
father was ill and mentally disturbed on 11.3.1999 and he was at home through out the day. It is wrong to suggest that my father had never executed any Will dated 11.3.1999 or that he had never visited any Sub Registrar office for the execution of the same. It is wrong to suggest that the Will dated 11.3.1999 was forged and fabricated by me. It is wrong to suggest that the Will dated 11.3.1999 was never registered and the registration particulars thereof had been wrongly shown by me.
I was alone in the house on 11.3.1999, I am not aware about others. I do not remember whether there was holiday in my office or I had taken the leave on the said day. After the death of my father my younger brother namely Sh. Chander Prakash (since deceased) had told me about the Will dated 11.3.1999. I do not remember the date when my brother had told me about the Will. However, I came to know about Will dated 11.3.1999 when Sh. Jagmohan Khera was planning to sell off the house. I came to know about his intention, when number of property dealers have visited our house. I do not remember the name of those property dealers. After the death of my father, my younger brother Chander Prakash gave me the original registered Will dated 11.3.1999. I do not know what role was played by Chander Prakash in execution of the said Will. After coming to know about the intentions of Sh. Jagmohan Khera to dispose off the property, I filed a probate case in the year 2001 for probate of the Will dated 11.3.1999. I had also obtained injunction order against Sh. Jagmohan Khera restraining him from selling the property. I might have averred in the injunction suit about the malafide intentions of Sh. Jagmohan Khera.
Q. How many cases were filed in District Courts between you and Sh. Jagmohan Khera after the demise of your father between 2001-2012?
Ans. During the above said period, I had filed probate petition, suit for permanent injunction, suit for possession PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 33 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
on the basis of certified copy of registered will dated 11.3.1999, as the original will was filed on judicial record of probate petition. Sh. Jagmohan Khera had filed suit for partition on the basis of photocopy of Will dated 11.9.1992 and the same was dismissed by Sh. Sunil Chaudhry, Civil Judge. Further he filed suit for injunction and the same was also dismissed by the Hon'ble Court. He had filed false and frivolous complaint against me with various department, i.e. police, Vigilance Department, Sub Registrar Office etc. As my father had not executed the alleged Will dated 11.9.1992 and due to said reason the fact of execution of alleged Will is not there in the Will dated 11.3.1999. Vol. The Wills dated 11.9.1992 and 19.12.2000 were not executed by my father and the same were forged by Sh. Jagmohan Khera.
My father never shared to me the documents prepared by him during his life time. The signature of my father on Wills dated 11.9.1992 and 19.12.2000 are not identical with the genuine signature of my father on registered Will dated 11.3.1999. It is wrong to suggest that the signatures on Will dated 11.3.1999 are forged or that due to said reasons the said signatures are not identical with the signatures on Wills dated 11.9.1992 and 19.12.2000. It is wrong to suggest that the Wilks dated 11.9.1992 and 19.12.2000 bears the genuine signatures of my father and the said Wills were duly executed by him during his life time.
Q. Whether during the life time of your father any Court case or written complaint were made between your father and Jagmohan Khera.
Ans. My father had het hied any Court case of written complaint against Jagmohan khera during his life time . Vol. Jagmohan Khera and his wife jhadoo leker aathe the and used to pressurise my father to transfer the house in their name by saying buddhe mere naam makan kar. I do not remember when above said words were uttered by PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 34 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Sh. Jagmohan Khera and his wife. The above said word were uttered by Sh. Jagmohan Khera and his wife in my presence. My father had not made any complaint against above said utterings. I had also not made any complaint in this regard. I had not averred above said words of Sh Jagmohan Khera and his wife in my injunction suit which was firstly instituted. It is wrong to suggest that Sh. Jagmohan Khera and his wife had never uttered the above said words or that I had concocted the above said allegations.
Q. Whether during the life time of your father any Court case or written complaint were made between you and your brother Jagmohan Khera?
Ans. No. I had not filed any Court case or written complaint against Jagmohan Khera during the life time of my father.
I had been divorced only once. I have not remarried. On 11.3.1999, I was divorcee. I only got married with Neeta with whom I got divorce during Court proceedings. It is wrong to suggest that I am having quarrelsome nature or I used to fight with my father and my wife or that due to said reason my wife divorced me. I do not have biological child. Vol. I have adopted son of my younger brother late Sh. Chander Prakash Khera. I do not remember the date when I had adopted the son of my younger brother. However, it was by way of registered adoption deed. I do not remember the month or the year of the said adoption. It is wrong to suggest that after the death of my father I had adopted the son of my younger brother or that due to said reasons my younger brother connived with me for preparation of forged and fabricated Will dated 11.3.1999. One registered power of attorney was also executed by my father on 11.3.1999 in my favour.
I was not posted in Deputy Commissioner Office (South) in March, 1999. In March, 1999, I was posted with DSIIDC office. Again said Connaught Place. It is PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 35 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
wrong to suggest that I was posted in D.C/SDM office (South) in March, 1999. It is wrong to suggest that taking advantage of my position in Govt. Department, I had prepared false and fabricated Will dated 11.3.1999 by affixing the stamps and seal which are within my easy reach.
I do not remember the dates when police was called by us. However, immediately after the death of my father, i.e. in the year 2001, disputes arose between us. I am not in possession of any document in this regard. It is wrong to suggest that no quarrel took place between me and Jagmohan Khera or that police had never come to our house. Sh. D.C Kalra and Shyam Sunder had never become witness to the police complaint. Mr. Jagmohan Khera was calling the property dealers for selling the house and due to said reason the dispute had arisen between us. I have not specifically mentioned about police complaint in my injunction suit.
Q. Have you stated portion Mark A to A of your examination in chief dated 19.11.2019 in injunction suit? Ans. I have stated in my injunction suit that my brother Jagmohan Khera is trying to sell the property and sought injunction against him.
I have not specifically mentioned portion Mark A to A in my injunction suit. It is wrong to suggest that Jagmohan Khera as well as his family members were having cordial relationship with his/your father. It is wrong to suggest that Jag Mohan Khera and his wife had never abused or fought with late Sh. S.N. Khera or that had never uttered any abusive words. It is wrong to suggest that Jagmohan Khera and his family members always given due respect and regards to late Sh. S.N. Khera. I cannot produce any witness or proof to show that Jagmohan Khera or his family members ever abused my father. It is wrong to suggest that the wife of Jagmohan Khera had always treated Sh. S.N. Khera as her own father and always taken utmost care to him.
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I came to know about the publication in Urdu newspaper dated 3.12.2000 namely, Daily Pratap, as the said newspaper was also received by us in our home. My father used to read Daily Pratap Urdu newspaper. I do not know Urdu language. It is wrong to suggest that no such declaration was ever published by my father. I have read the Will dated 11.3.1999. It is wrong to suggest that lease deed dated 1982 as mentioned in Will dated 11.3.1999 was never registered in the office of Sub Registrar. No inquiry with regard to bogus EPIC card of Vukul Khera and my involvement therein was conducted by electoral registration officer. Vol. sh. Jagmohan Khera forging the documents on his own had lodged a false complaint in the police station and police had filed case before juvenile court which was dismissed. I cannot produce the copy of the order. It is not mentioned in the order of Juvenile Court that Sh. Jagmohan Khera had forged the documents.
It is incorrect to suggest that I have falsely and wrongfully claimed or stated that Sh. Jagmohan Khera had forged any documents. It is also incorrect to suggest that I have deliberately deposed to the above fact in order to mislead the court or gain any sympathy. It is incorrect to suggest that the said statements are defamatory or slanderous.
I have seen Ex.PW1/X1 (objected to) [objection kept open for consideration]. It is incorrect to suggest that the report concludes against me having submitted any false information. It is incorrect to suggest that I am habitual of making any false assertions, declaration or forging any documents. It is incorrect to suggest that the Will dated 19.12.2000 is the last and final testament drawn by my father during his life time and the property is required to be appropriated in terms thereof. It is incorrect to suggest that my father had never executed any Will dated 11.3.1999.
I do not know Sh. Balbir Chauhan. It is incorrect to suggest that Sh. Balbir Chauhan is my friend. I cannot PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 37 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
say whether he is a property dealer.
It is incorrect to suggest that I am deposing falsely.".
13. Sh. Sankar Singh, M.T.S., Office of Sub-registrar-7, INA Vikas Sadan, New Delhi was examined as RW-2. During his examination, he deposed as under:
"I am presently posted as M.TS. in the Office of Sub- registrar-7, INA Vikas Sadan, New Delhi. I have brought the original record of the Will dated 11.03.1999, executed by Sh. Surender Nath Khera S/o Sh. Girdhari Lal R/o E- 207, 221, Lajpath Nagar-1, New Delhi. The said Will was registered on 11.03.1999 vide registration no. 1491, Additional book no. 3. Vol. No. 125 on pages 81-83. I have seen the certified copy of the said Will in the judicial record and it is the correct certified copy of the said will. The certified copy of the judicial file is Ex. RW-2/1. I have also brought a copy of the said will today alongwith the covering letter signed by Sub-registrar-7. The covering letter and the copy of the will are exhibited as Ex. RW-2/1A (colly bearing the signatures of the Sub-registrar-7 at point A. (The original record and the certified copy and the photocopy are shown to the Ld. Counsel for the petitioner for comparison). (The witness is an official witness who has produced the record before the Court in his official capacity. Therefore, as per Section 139, Indian Evidence Act, the witness cannot be cross- examined unless and until he is called as a witness.)"
14. RW3 is Sh. B.N. Srivastava, who is a handwriting expert. During his examination dated 28.03.2023, he deposed as under:
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"1. I am working as handwriting expert for over 50 years and have received training in the Science from an expert of Delhi Late M.K. Mehta during the year 1967-1968. I also done one year certificate Course in Forensic Science from University of Delhi in the year 1970. I have given opinion/evidence in around 4000 cases, in different Courts of Law in Delhi, Haryana, Punjab etc.
2. In this case I examined the disputed signatures of Sh. Surinder Nath Khera reading as S.N. Khera on two unregistered Will dated 11.09.1992 and 19.12.2000 and compared the disputed signatures with deed of conveyance dated 10.06.1996. registered Will dated 11.03.1999 and one pension document dated 22.12.1998. The disputed signatures have been marked D-1 to D-8 and the comparative signatures at A-1 to A-11. In my opinion the disputed signatures on the two unregistered Wills D-1 to D-8 have not been written by the writer of the comparative signature Mark A-1 to A-11. The reasons for opinion are given in my report dated 22.01.2023, which is exhibited along with annexures as Ex.RW3/A (colly) (running into 22 pages), which bears my signature on each page at point A. All the disputed and comparative signatures have been examined from photocopies. The marking done on the photographs are in my handwriting.".
14.1. During his cross-examination, RW3 deposed as under:
"1. I have not prepared any record of examination of 4000/- case examined by me nor I had submitted any such record before any Court. I do not know the qualification of Sh. M.K. Mehta (since deceased) (Vol. He wrote a book which is approved on Hon'ble High Court of Delhi). It is wrong to suggest that I never examined 4000 cases. It is wrong to suggest that Sh. M.K. Mehta (since deceased) was not qualified in Forensic Science. (Vol. During that period it was not Forensic Science, he was a handwriting expert).
2. I had been approached by Mr. Gopal Krishan Khera for PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 39 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
giving the report Ex.RW3/A (Colly). I was supplied document i.e. two Wills, Conveyance Deed, registered Will and pension document, as mentioned in my record. These were photocopies. Again said I cannot whether they were photocopies or certified copies. It is correct that I have not annexed the documents supplied by Sh. Gopal Krishan Khera to me in my report Ex.RW3/A (colly). (Vol. I took photographs of those documents and they are attached with the report). I never checked from the Sub-Registrar Office whether the Wills produced before me were registered or not registered. I was told about the registration of the Will by Sh. Gopal Krishan Khera. It is correct that I was told about the disputed and comparative signature by Sh. Gopal Krishan Khera. I did ask him for the originals but Sh. Gopal Krishan Khera told me that the originals were not available with him.
3. I did compare the comperative signatures inter se and this is written in my report. It is wrong to suggest that there is difference in the photocopy and original signatures.
4. Que: Whether the photocopy signature are as good as the original signatures?
Ans: It is nearly same. since writing charactersties and formation of the letters can be studied.
5. Que: Is it correct that there is difference in thickness strokes between the genuine signatures and forged signatures?
Ans: It may be in some cases.
6. Photographs were taken by Canon Camera SLR with 50 mm lens.
7. Que: Is it correct that with the passage of time the difference in the signatures of the executrix is bound to appear?
Ans: There is some minor natural variation in the writing of every individual. However, no fundamental variations takes place.
8. Que: What do you mean by fundamental variations?PC No. 5929/2016
CNR No. DLST01-000239-2011 Page 40 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Ans: Fundamental Variation means different type of formation of letter.
9. Que: While taking photogarphs of the documents, to what extent you have made photographic enlargment in respect to D-1 to D-3, A-1 to A-11?
Ans: I have prepared the photographic enlargement with 'scale on them.
10. Que: Is it correct that there is difference in photographic enlargement of D-1 and A-12? Ans: Both the enlargement are almost nearly on the same scale.
11. Signatures have been enlarged for nearly 9 times. The scale referred by me is at point A in D-1 and point B in A-1 is nearly of the same size.
12. The scale printed in the D-1 is 12 whereas in A-1 it is
14.
13. Que: 1 put it to you that the scale of signature referred as 'D' series (disputed signatures) and signature at 'A' series are different?
Ans: Use of scale is carried out to keep the ratio of enlargement of the signature on the same size.
14. For examination of documents I used mini microscope magnifying lenses and geometrical instrument and this fact is mentioned in my report. I am having old mini microscope, its details are not known to me. I do not know its magnifying power. I had used D and Divider for checking the angles. The slant of initial letter S is forward in A-1 as well as D-1.
15. Que: Had you calculated the width of the strokes of disputed and the admitted signatures? Ans: The exact measurement of the width is not required to be done.
16. Que: What are basis of your opinion that D-1 to D-8 had been written with slow speed and flow? Ans: The speed and skill of the disputed signatures are PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 41 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
apparently poor.
17. Que: I put it to you that in the absence of original no opinion with regard to signature written with slow speed and flow can be furnished?
Ans. It is wrong to suggest.
18. The entire report given by me is based on my personal observation on the basis of my expertise. I had been paid for giving the report Es RW3/A by Sh. Gopal Krishan Khera. It is wrong to suggest that I have given a false report. It is wrong to suggest that a case was filed or/is pending against me in relation to filing a false report.
19. Que: What are the basis of your opining "the disputed signatures have been written with low degree finger movement but combined action of wrist and finger was found in comparative signatures"?
Ans: On examination under magnifying lenses, I found the strokes of the disputed signatures were of poor quality and so I observed that they have been written with low degree of finger movement.
20. It is wrong to suggest that I have furnished a false report at the behest of Sh. Gopal Krishan Khera. It is wrong to suggest that 1 an deposing falsely.".
15. Thereafter RE was closed vide order dated 28.03.2023 and matter was listed for final arguments.
16. I have heard the arguments of Ld. counsels for both the parties and perused the record carefully.
17. Time now to deal with the issues.
Issue No.2: Whether Will dated 19.12.2000 is legally and validly executed.
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18. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. 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". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
"Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
"Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
"Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
"Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 43 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason (such as intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. 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 as under:
"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 PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 44 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
the Will, or it shall be signed by some other person in his presence and by his direction.
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
"(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
21. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 45 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 46 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
22. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"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 ease 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 63 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 PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 47 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
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 surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
"5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 48 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
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."
23. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC)
443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). 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 signature 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 PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 49 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
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 indication 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 suspicion 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 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. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
24. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 50 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v. Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
"(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 51 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
does not create any such hiatus. [Paerey Lal v. Rameshwar Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
25. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
26. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 52 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as Cheeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
27. The applicant's herein narrative is that probate in respect of Will dated 11.03.1999 allegedly executed by his father in favour of his brother/non-applicant herein was granted vide order dated 21.08.2008. Applicant herein filed an appeal against that order before the Hon'ble High Court of PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 53 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Delhi. During the pendency of the appeal in the month of May/June, 2009 when he was praying in Bankey Bihari Temple in the vicinity, one of his father's friend namely Shri D.C. Kalra met him and during dialogue Sh. D.C. Kalra disclosed about the Will dated 19.12.2000 executed by the father of the applicant in his favor as a last valid Will. Sh. D.C. Kalra disclosed that a copy of the Will dated 19.12.2000 was still in his possession. After knowing the pendency of litigation between both the brothers, Sh. D.C. Kalra, who was an attesting witness to the Will dated 19.12.2000, himself moved an intervention application in the abovesaid appeal before the Hon'ble High Court of Delhi. This application was dismissed as withdrawn with leave and liberty to take appropriate proceedings in accordance with law. Accordingly, the present revocation petition and a separate probate petition on the basis of Will, dated 19.12.2000 have been filed by the applicant herein. Will dated 19.12.2000 has been attested by Sh. D.C. Kalra and Sh. Shyam Sunder Sabharwal.
28. On 01.06.2018, a prayer was made for clubbing the present revocation petition and the separate probate case PC No. 5928/16 in case titled 'Jagmohan Khera Vs. State & Ors.' on the ground that same evidence was ordered to be led in PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 54 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
both the cases. The same was not opposed by the opposite counsel and consequently the verbal request for common evidence was allowed. The common evidence was led in these two cases. In the present revocation petition, the applicant examined himself as R2W1 and the non-applicant Sh. Gopal Krishan Khera examined himself as PW1. Since the common evidence were led so the evidences led in probate case 5928/16 shall also be taken into consideration. In PC 5928/16, the applicant herein examined total three witnesses i.e. PW1, PW2 and PW3. Perusal of PW1 and R2W1 shows that their examination-in-chief and cross examination are same in all aspects except the serial number given to the witness. In the present case, it is given Sl. No. R2W1 and in the probate case, it was given Sl. No. PW1. In the probate case, non-applicant examined two more witnesses, which were given Sl. No. RW2 and RW3. In this way, since there was an order of common evidence in both the cases, so applicant and non-applicant examined their three different witnesses respectively i.e. PW1/R2W1, PW2, PW3 for applicant herein and PW1, RW2 and RW3 for non- applicant herein. It is again clarified that witness PW1 in the abovesaid PC 5928/16 is different to PW1 in the present PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 55 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
revocation petition. In the present revocation petition, PW1 is non-applicant and in PC No. 5928/16, PW1 is applicant herein. Accordingly, applicant examined total three witnesses to prove Will dated 19.12.2000. He examined himself as R2W1/PW1, examined PW2 Sh. Shyam Sunder Sabharwal being attesting witness and one Sh. Inder Kumar Kalra as PW3 being son of another attesting witness.
EFFECT OF NON-FILING OF ORIGINAL WILL
29. Original Will dated 19.12.2000 was never produced before the court. Only a copy of Will dated 19.12.2000 was filed and relied upon by the applicant.
30. Sections 237, 238 and 239 of Indian Succession Act, 1925 deal with the provisions regarding probate of copy of the Will. These provisions deal with specific circumstances when either the Will has been lost or misled or has been destroyed by wrong or accident and not by any act of testator or when the Will is in possession of a person residing out of state in which application for probate is made, who has refused or neglected to deliver it up then the probate may be granted even on the copy of the Will.
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31. As per Section 238, probate may be granted of its contents if it can be established that Will has been lost or destroyed and no copy has been made nor the draft preserved.
32. Section 240 provides that where no Will of deceased is forthcoming but there is reason to believe that there is a Will in existence, letters of administration may be granted, limited until the Will or an authenticated copy of it is produced.
33. However, in the present case, it is not the case of the applicant that original Will has been lost or misled or has been destroyed by wrong or accident or in the possession of a person residing out of Delhi, who has refused or neglected to deliver it up. The applicant herein simply relied upon a copy of a Will. Nothing disclosed about the original Will. There is also no disclosure regarding original Will in the present revocation application under Section 383 of Indian Succession Act for rejection of probate, filed on behalf of the applicant. In the abovesaid probate case bearing PC No. 5928/16 an application under Section 267 of the Indian Succession Act, 1925 for direction to the respondent No.2/3 therein to produce original Will dated 19.12.2000 was filed on 24.11.2011. It was submitted in the application that PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 57 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
original of the Will dated 19.12.2000 was in possession and control of Sh. Gopal Krishan Khera/Respondent No.2 therein or in possession of Sh. C.P. Khera/respondent No.3 therein. Only a general allegation has been made regarding the possession of original Will with respondents No.2/3 in the above stated case PC No. 5928/16. Reply on behalf of the respondents therein was filed on 16.02.2012 and it was specifically denied that original Will dated 19.12.2000 was in possession and under control of respondent No.2/3. The stand of respondents therein in the reply to the application was that since no Will dated 19.12.2000 exists, therefore, no question arose that the original of the same was in the custody of respondent No.2/3.
34. Perusal of Section 267 shows that District Judge may order any person to bring into court testamentary papers which may be shown in possession or under control of such person or there is reason to believe that such person has the knowledge of said paper.
35. Perusal of the record shows that non-applicant was never ordered by the court to produce the Will dated 19.12.2000. It was nowhere showed by the applicant herein that Will dated 19.12.2000 was in the possession or under the PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 58 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
control or in the knowledge of non-applicant. Perusal of para 3 of the replication filed by the applicant shows that original will dated 19.12.2000 was in custody and possession of Sh. Gopal Krishan Khera/non-applicant herein. However, nothing was stated to show the circumstances under which the original Will allegedly came into possession of Sh. Gopal Krishan Khera. During his examination as R2W1, the applicant did not give any explanation regarding the existence of the original Will dated 19.12.2000.
36. During his cross-examination dated 01.06.2018, applicant/R2W1 Jagmohan Khera answered that it is correct that he had not placed on record original Will dated 19.12.2000. He further answered voluntarily that the same was not in his possession. He further answered the suggestion by stating that it is wrong to suggest that he had forged the photocopy of this Will and due to the said reason he has not filed original of the said Will on the judicial record.
37. During the examination-in-chief of PW2/Shyam Sunder Sabharwal dated 07.07.2018, Ld. counsel for the applicant herein wanted to exhibit the Will. However, Ld. counsel for the opposite party objected the same by contending that before photocopy can be exhibited, petitioner PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 59 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
has to lead evidence to show that the original document has been lost or not in the possession of the petitioner. Thereafter, at that stage, photocopy of Will dated 19.12.2000 was marked as Mark PW2 for identification. It was specifically noted in the examination itself that the question whether photocopy can be exhibited shall be decided after arguments addressed on this issue on the next date and further examination was deferred. Thereafter, the witness was again recalled for his further examination-in-chief on 02.07.2019. That day, the Will was simply exhibited as Ex.PW3/1. The examination conducted on the next date of hearing does not reflect anything regarding arguments and the decision of the court on the issue whether the photocopy can be exhibited or not.
38. However, it is a settled law that exhibit number or mark number of a document is only for its identification purpose and merely putting exhibit number does not reflect that the document has been proved. The document still needs to be proved as per law.
39. During his cross-examination on 01.10.2019, PW-2 categorically answered that he was not aware about the whereabouts of the original of Ex.PW3/1. He answered that he was not aware, who prepared and typed the Will or where PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 60 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
it was typed. He also answered that he was not aware who had placed on record photocopy of Will dated 19.12.2000 i.e. Ex.PW3/1. He also answered that he was not aware when this document was photocopied and who had got it photocopied.
40. PW3 Sh. Inder Kumar Kalra, who is son of another attesting witness of Will dated 19.12.2000 Ex.PW3/1, answered during his cross-examination that he has never seen the original of Ex.PW3/1 and he had no knowledge about the whereabouts of the original of Ex.PW3/1. He further answered that he was not aware whether original of Ex.PW3/1 was in existence or not.
41. The whereabouts of the original was neither mentioned in the revocation application nor it was answered by any of the applicant's witnesses even when the question regarding existence and whereabouts of the original Will dated 19.12.2000 was specifically asked in their cross- examination.
42. Section 70 of the Indian Succession Act, 1925 provides as under:
"70. Revocation of unprivileged Will or codicil. - No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 61 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same."
43. Conjoint reading of the abovesaid Sections 70, 237, 238 and 239 of the Act, 1925 shows that whenever any reliance is placed on photocopy of the Will, it has to be proved that either the original has been destroyed by wrong or accident and not by any act of testator or it exists and is with a person residing out of the State in which application for probate is made and who has refused or neglected to deliver it up.
44. In case titled Narender Singh Chawla Vs. State, MANU/DE/2658/2014, the Hon'ble High Court of Delhi has held as under:
"8. I may note that the objectors did not file before the court below original of the Will dated 6.11.1987. In my opinion, this itself is sufficient to reject the case of the objectors based upon the Will dated 6.11.1987, inasmuch as, a photocopy of the Will cannot be relied upon, because , a Will can be revoked even if it is shown to be duly executed, if the said Will is destroyed by the testator by a deliberate act whether of tearing up or of burning etc. Courts are therefore extremely reluctant to reply upon a photocopy of a Will, unless clinching evidence is led to show that the original of the Will was not destroyed by the testator by his deliberate act. In the present case, the only contention of the objector was that the original of the PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 62 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Will dated 6.11.1987 was with one Sh. Joginder Singh, son-in-law of the deceased testator Sardar Singh, however, the said witness was not brought into the witness box on behalf of the objectors/appellants to establish the contention with respect to the original Will dated 6.11.1987 existing and not being destroyed by a deliberate act of the testator. For the sake of completion of narration, I may state that issues with respect to limited grants of a copy or draft of an original Will are provided for in Sections 237 to 240 of the Indian Succession Act, 1925 and in which provisions it is stated that the Will can be revoked by a deliberate act of the testator by destroying the Will."
45. In case titled 'Ashwani Kumar Aggarwal Vs. B.K. Mittal, MANU/DE/2128/2014', the Hon'ble High Court of Delhi has held as under:
"4. The above resume of the facts of this case show that Section 237 of the Act squarely applies in this case and the ingredients thereof are not proved for granting probate of a copy of the Will. I may note that Courts are deliberately hesitant to grant probate of a photocopy of the Will inasmuch as Will as a document can be revoked by destroying the same in any manner and absence of the original can strongly mean that the Will was revoked. Therefore, once the original Will is not on record, there has to exist on record such amount of credible evidence to show that the original of the Will was never destroyed by an intentional act of the testator or if the original Will is still available the same is lost or misplaced or the original is with a person who is deliberately not producing the same. In the absence of evidence in this regard, and that too credible evidence which the Court can believe, Courts do not grant probate of copies of the Will except in the circumstances which are specified in Sections 238 to 240. In my opinion, this limited aspect of original PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 63 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Will not being on record and no evidences led for granting copy of the Will as per Section 237, is enough to allow the appeal and set aside the impugned judgment of the probate Court dated 7.1.2012."
46. In view of the abovesaid settled law and statutory preposition it is incumbent upon the person who is relying on the basis of photocopy of Will to lead cogent evidence that original Will has been lost/misplaced/destroyed by wrong or accident and not by any act of the testator or with the person who is refusing or neglecting to deliver it up.
47. At first, opportunity was available with the applicant at the stage of pleadings to show the reasons due to which the original could not be produced and he had to rely upon the photocopy of the Will. Thereafter, he again got the opportunity during the examination of his witnesses. However, this opportunity was not availed. The applicant and the witnesses appeared on behalf of applicant again did not disclose the existence of the original Will even when the same was specifically asked during their cross-examination.
48. In my considered opinion this limited aspect of original Will not being on record and no evidence was led for granting copy of the Will as per Section 237 is enough to PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 64 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
disallow the present application for revocation of judgment of the probate court dated 21.08.2008. It is a trite law that even permission to lead secondary evidence cannot take away the effect of substantive provision of Section 237 of the Act and unless the requirements of Section 237 of the Act are satisfied. Since requirement of Section 237 are not satisfied, probate of a copy of the Will, including the photocopy of the Will cannot be granted and accordingly revocation of previous Will dated 11.03.1999 also cannot be allowed on the basis of the copy of the Will dated 19.12.2000. ON IDENTIFICATION OF SIGNATURES OF TESTATOR AND ATTESTING WITNESSES ON THE WILL.
49. PW-2 identified the signatures of the testator Surender Nath Khera, another attesting witness Sh. D.C. Kalra and himself at Point A to E, Point Y and at Point X respectively on the Will dated 19.12.2000 Ex.PW3/1. However, his veracity was tested during his cross examination dated 01.10.2019. During his cross-examination, he answered that Late Sh. S.N. Khera and his father used to meet each other till 2006 and they used to meet each other in Park or in Senior Citizen Society. He further answered that they had also seen their father meeting till 2006. However, admittedly, the date of death of the testator is 09.01.2001.
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50. When admittedly the date of death of the testator is 09.01.2001 then by no stretch of imagination the testator could be seen by PW2 till the year 2006 while meeting with father of PW2. It shows that either PW2 had never seen the testator Sh. S.N. Khera or he deliberately falsely deposed regarding attestation. In whatever case his deposition could not be relied upon and of no value.
51. During his cross-examination dated 01.10.2019, PW2 answered that he knew Jagmohan Khera/applicant herein for the last 2-3 years. During his cross-examination on the same date, he also answered that it might be possible that on 16.05.2013, he had executed an affidavit to be filed before the court. He also answered the suggestion that it is correct that he knew Jagmohan Khera/applicant herein and met him in the year 2013. He further answered that it might be possible that he had met Jagmohan 6 months to 1 year prior to the year 2013 and also he had met and knew Sh. Jagmohan Khera prior to the year 2013. At one place, he answered that he knew the applicant from last 2-3 years and at another place he answered that the affidavit might be possibly executed on 16.05.2013 i.e. more than 6 years before the date of cross- examination. These answers are contradictory to each other PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 66 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
and mutually destructive.
52. Cross-examination dated 01.10.2019 of PW2 also shows that he was not sure about the date of execution/signing of the Will Ex.PW3/1. He said that his father was having relation with the testator and he had to go for signing the Will Ex.PW3/1 as his father felt ill and he requested him to go for the same. He answered that it was in the month of December, 2000 when he went for signing. However, he again said that he did not remember the year. He also answered that he did not remember about the time when his father had told him to go for signing the Will Ex.PW3/1. He answered that when he reached the house of another attesting witness Sh. D.C. Kalra, the Will was already prepared and the same was not prepared in his presence. He answered that he had signed at only one place on the said Will. The Will was signed at the house of another attesting witness Sh. D.C. Kalra. He also answered that he left the home of Sh. D.C. Kalra within 10 to 15 minutes as the Will had already been signed by others. He again said that they signed in his presence.
PW-3 was examined being son of another attesting witness Sh. D.C. Kalra. He identified the signature of Sh.
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D.C. Kalra at Point A on the Will Ex.PW3/1 by answering that same appears to be signature of his father Sh. Diwan Chand (D.C. Kalra). He further deposed that he was not sure. He further deposed that Sh. D.C. Kalra used to sign in the same manner. He deposed that he had not brought any specimen of his father and same must be available with the bank and his father had an account with SBI Lajpat Nagar Branch. During his cross-examination dated 01.10.2019, he answered that he was not sure whether signature at Point Y were of his father i.e. Sh. D.C. Kalra or not. He voluntarily answered that D.C. Kalra used to sign in the same manner.
Accordingly, the attestation of the Will Ex.PW3/1is also not proved as per law of evidence as PW2 made material and substantial improvement on the aspect of preparation and attestation of the Will in question. These improvements are contradictory and mutually destructive. No explanation was given about the abovesaid substantial improvements and accordingly the testimony of PW2 stands discredited. PW-3 is not an attesting witness himself, however, he was examined being son of another attesting witness Sh. D.C. Kalra. He was not sure regarding the signatures of attesting witness Sh. D.C. Kalra at Point Y on the Will Ex.PW3/1 as it PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 68 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
is said so during his cross-examination. It was also not stated by him if he had seen his father/D.C. Kalra while doing signatures or writing. So, he also did not disclose the basis of his being familiar with the signatures/handwriting of D.C. Kalra. He disclosed about the bank account of D.C. Kalra and deposed that the specimen signatures may be taken for comparison from the concerned bank. However, applicant herein did not take any steps for comparison of signature of the attesting witness to prove the attestation as per provisions of Indian Evidence Act. It is also pertinent to mention here that as per deposition of PW3 dated 19.12.2019, D.C. Kalra/attesting witness expired on 07.11.2011. Perusal of the record shows that the present revocation application was filed on 01.04.2011 and if applicant remained vigilant enough and had complied with the court directions on the given dates by that time, the attesting witness could have been examined by the applicant.
53. In view of the abovesaid discussion, material on record and analysis of examination of applicant's witnesses, I am of the considered opinion that applicant failed to prove the proper attestation on the Will Ex.PW3/1.
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SOUND AND DISPOSING STATE OF MIND AND FREE WILL OF THE TESTATOR
54. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has observed that propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signatures on the document of his own free will.
It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signatures as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
55. Applicant examined PW2 Sh. Shyam Sunder PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 70 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Sabharwal in the capacity of one of the attesting witness of the Will dated 19.12.2000 Ex.PW3/1. PW2 appeared before the court on 07.07.2018 and deposed his examination in chief. His evidence was not tendered on affidavit. However, during his cross-examination, affidavit dated 16.05.2023 of Sh. Shyam Sunder Sabharwal filed on behalf of the applicant Sh. Jagmohan Khera was put before the witness and on identification of PW2 Sh. Shyam Sunder Sabharwal, the affidavit was exhibited as Ex.PW2/RX1. Nowhere in the affidavit or in his examination-in-chief, anything regarding sound disposing mind and free will of the testator was deposed. However, examination-in-chief of PW2 dated 02.07.2019 shows that PW-2 answered one court question by stating that the testator had gone through the Will and understood its contents. The court question was objected by the opposite counsel on the ground that question was leading. However, objection was overruled for the reason that question had not been put in a leading form and witness had been inquired from on this aspect. However only answer of the witness is found to be on record and court question was not found to be recorded. Nothing had further been explained by the witness regarding understanding of the testator while PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 71 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
going through the Will and before putting his signature on the Will.
56. During his cross-examination, dated 01.10.2019 witness answered that he was not aware whether the testator was bed ridden prior to his death or that he was not able to go out of home as to much prior to his death. He further answered that he was not aware that during the said period of illness the testator was not able to go out of his home due to his poor medical condition.
57. Applicant also examined one another witness namely Sh. Inder Kumar Kalra being son of another attesting witness namely Sh. D.C. Kalra. His evidence was also not tendered through affidavit of evidence and he deposed directly during his examination-in-chief. Nothing about sound disposing mind and free will of the testator was deposed by him during his examination-in-chief. During his cross-examination dated 01.10.2019, a specific suggestion was put to the witness PW3 that testator Late Sh. S.N. Khera during his last days i.e. between December, 2000 and 09.01.2001 (date of death), was ill and bed ridden and due to the said reason, he was not going out of his house. Witness answered that it is correct. However, he again said that he did not know. The applicant PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 72 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
examined himself as R2W1 and he also tendered his evidence by way of affidavit Ex.R2W1/A. He also did not depose anything even in his affidavit R2W1/A or in his examination- in-chief regarding the sound disposing mind and free will of the testator. During his cross-examination dated 01.06.2018, he answered that it was wrong to suggest that when the Will dated 11.03.1999 (on which probate was granted by vide order dated 21.08.2008) was signed and executed by testator Sh. Surender Nath Khera, he was having good health and in sound disposing mind. Nothing regarding sound and disposing mind and free will of the testator at the time of execution of the Will dated 19.12.2000 was stated/deposed by the applicant or any of the witnesses on his behalf either in the pleadings or in their evidences.
58. In view of the abovestated discussion, material on record and analysis of examination of the applicant's witnesses, I am of the considered opinion that applicant failed to prove sound and disposing state of mind and free will of the testator at the time of execution of the Will in question.
CONTRADICTORY STAND OF THE APPLICANT/ RESPONDENT NO.2 ON SOUNDNESS AND PHYSICAL HEALTH OF THE TESTATOR AT THE TIME OF PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 73 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
EXECUTION OF TWO WILLS IN QUESTION
59. While relying upon Will dated 19.12.2000, the applicant's (Jagmohan Khera) stand is that the Will was executed by testator Late Sh. Surendra Nath Khera in his sound disposing mind. However, to the contrary, the applicant herein, while filing his objections in the main probate case No. 141/2001 in case titled 'Gopal Krishan Khera Vs. State & Ors.' submitted in para 1 at page No.2 of his objections that "More so over on 11.3.1999 when the disputed WILL was alleged to be executed, Sh. S.N. Khera was not mentally sound due to old age near about 80 (eighty) years and was bed ridden and urine and stool were passed by him on the bed unconsciously without his sense.". This stand of the applicant regarding mental and physical health of the testator at the time of execution of earlier Will dated 11.03.1999 is contrary to the stand qua the execution of the subsequent Will executed in the year 2000. The applicant did not produce any evidence to explain that when the testator was of not sound mind and was also bedridden on 11.03.1999 then how he became able to execute the subsequent Will dated 19.12.2000 in his sound disposing mind at the house of PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 74 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Sh. D.C. Kalra. No evidence regarding medical treatment of the testator Late Sh. Surender Nath Khera, to prove that after execution of earlier Will dated 11.03.1999, the testator got improved and became mentally and physically fit so that he could execute the subsequent Will on 19.12.2000 in his sound disposing mind while visiting the house of some another person, was produced.
60. No other ground was taken by the applicant in his application under Section 383 of Indian Succession Act for revocation of the probate granted vide order dated 21.08.2008 except the ground of subsequent Will dated 19.12.2000 by the testator in his favour.
EFFECT OF WILL IN FAVOUR OF ONE OF THE LEGAL HEIR
61. At the time of final arguments, Ld. counsel for the applicant argued that Will dated 11.03.1999 is suspicious due to the reason that vide that Will the entire share was bequeathed by the testator in favour of the single legal heir.
62. Deprivation of the natural heirs through the Will should not be raised any suspicion because whole idea behind PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 75 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
the execution of the Will is to be interfered in the normal line of succession.
63. In case titled 'Ved Mitra Verma Vs. Dharam Deo Verma, 2014 15 SCC 578, the Hon'ble Apex Court has held that execution of Will in favour of one of his sons and exclusion of the other children was in itself not a suspicious circumstance. The property being self-acquired, it is the Will of the testator that has to prevail.
64. In case titled Uma Devi Nambiar and Ors. Vs. T.C. Sidhan (dead) MANU/SC/1026/2003, the Hon'ble Apex Court spoke in para 16 that the natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of offspring. There must be real, germane and valid suspicious circumstances and not fantasy of the doubting mind. If the propounder succeeds in removing the suspicious circumstances, the Court has to give the effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relatives.
65. In case titled K.L. Malhotra Vs. Sudershan Kumari & Anr., 149 (2008) Delhi Law Times 783, it has been held PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 76 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
that disproportionate nature of a bequest is not a suspicious circumstance for the reason that the whole idea behind the execution of a Will is to alter the natural line of succession. It has been further held in the case that a court of probate does not make a Will of its own. The court is not the testator. Its function is to see if the Will propounded by the propounder was duly made and executed by a capable testator. In order to do that if the court of probate has to sit in the arm-chair of the testator, it has also to sit there with the mind of the testator keeping in mind the surrounding circumstances and context of the testator's family and other environment very much in the forefront in its deliberations.
EFFECT OF DISCREPANCY IN DETAILS OF LEASE DEED CITED IN THE WILL DATED 11.03.1999
66. During final arguments, Ld. counsel for the applicant also argued that details of the lease deed has been wrongly cited in the Will dated 11.03.1999 which makes the Will suspicious. He argued that conveyance deed of the year 1969 bears different registration details while the Will dated 11.03.1999 bears details of the lease deed of the year 1982.
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Ld. counsel for the non-applicant argued that in the year 1982 again a fresh lease deed qua the same property was executed in favour of the testator by the Land & Building Department, so the Will dated 11.03.1999 bears the details of this latest document of the year 1982.
67. An official witness from the office of L.&D.O, Nirman Bhawan, New Delhi was examined as PW4 on 15.09.2005 in the main probate petition, which was filed on the basis of Will dated 11.03.1999 by the non-applicant herein, who filed a copy of lease deed in favour of testator Sh. Surinder Nath Khera. The copy of the lease deed was exhibited as Ex.PW4/1. The witness deposed that as per office record, on 12.05.1982 that property was given on lease to Sh. Surinder Nath Khera and property was effected free hold on 27.04.2000 in the name of Sh. Surinder Nath Khera. Accordingly, this issue of lease deed has already been taken care of in the main probate case also.
68. Moreover, this plea of mentioning of allegedly wrong details of the lease deed also does not found any mention in the application for revocation. The issue of discrepancy of the details of lease deed in Will dated 11.03.1999 was found to be stated in the affidavit of evidence PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 78 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
Ex.PW1/A as filed by the applicant Jagmohan Khera while deposing as R2W1. The attention of the witness was drawn towards the application under Section 383 of Indian Succession Act for revocation of probate and application was marked as Ex.PW1/DX1 during his cross-examination dated 01.06.2018 and thereafter R2W1/Sh. Jagmohan Khera answered that the allegation mentioned in Ex.PW1/A was not mentioned by him in his application under Section 383 of Indian Succession Act for revocation of probate case titled 'Gopal Krishan Khera Vs. State & Ors.
69. It is settled law that no evidence could be led beyond pleadings. It is not a case in which there was any error in the pleadings (Reliance is placed upon case titled 'Srinivas Raghavendrarao Desai (Dead) by LRs Vs. V. Kumar Vamanrao @ Alok & Ors', 2024 LiveLaw (SC) 194).
70. Again, the scope of revocation of certificate shall have to be considered as per Section 383 of the Indian Succession Act, 1925. Section 383 of Indian Succession Act, 1925 is reproduced as under:
"383. Revocation of certificate. - A certificate granted under this Part may be revoked for any of the following causes, namely:-
(a) that the proceedings to obtain the certificate were defective in substance;PC No. 5929/2016
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(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;
(c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
(d) that the certificate has become useless and inoperative through circumstances;
(e) that a decree or order made by a competent Court in a suit or other proceedings with respect to effect comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked."
71. Even if the allegations of applicant is considered as correct just for the sake of arguments that contents of the lease deed have wrongly been mentioned in the Will dated 11.03.1999, then also at the maximum it may be a case of suspicious circumstance. But this fact cannot be considered as any of the ground as mentioned in Section 383 of the Indian Succession Act, on which revocation of certificate may be allowed.
CLARIFICATION ON REGISTRATION OF WILL DATED 11.03.1999
72. During the proceedings of the present case, the PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 80 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
applicant also took a plea that the Will dated 11.03.1999 was shown to be a registered document, however, the fact is that this Will remained unregistered as he got response from Sub- Registrar, wherein it was disclosed that no such Will was registered at a particular number.
An application under Order VI Rule 17 CPC was filed by the applicant (Jagmohan Khera) seeking amendment of the petition on this ground being a subsequent development. Ld. counsel for the non-applicant (Gopal Krishan Khera) argued the application by submitting that witness PW1 i.e. UDC from the Officer of Sub-Registrar-VIII has proved the registration of the Will dated 11.03.1999 in the main probate petition. He further submitted that because of incomplete information/data, the abovesaid response from Sub-Registrar Office regarding non-registration of the Will dated 11.03.1999 was received by the applicant. However, the amendment application was dismissed. Liberty was granted to the non-applicant (Gopal Krishan Khera) to summon the witnesses from concerned Sub-Registrar Office. Non- applicant (Gopal Krishan Khera) examined RW2/Sh. Sankar Singh from the Office of Sub-Registrar-VII, who brought the original record of the Will dated 11.03.1999 and a certified PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 81 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
copy of the same was further exhibited as RW2/1A.
OPINION OF HANDWRITING EXPERT EXAMINED BY NON-APPLICANT
73. Non-applicant (Gopal Krishan Khera) also examined one handwriting expert as RW3, who tendered his report dated 22.01.2023 as Ex.RW3/A. The witness was examined for his opinion on two registered Wills dated 11.09.1992 and 19.12.2000 as relied upon by the applicant (Jagmohan Khera). The disputed signatures on these Wills were compared with deed of conveyance dated 10.06.1996, registered Will dated 11.03.1999 and one pension document dated 22.12.1998. The handwriting expert/RW3 opined that disputed signatures upon abovesaid two Wills dated 11.09.1992 and 19.12.2000 were not put by the writer of the comparative signatures. As per report of RW3, the signatures on Wills relied upon by the applicant were not put by the same person who signed the abovesaid conveyance deed, registered Will dated 11.03.1999 and pension document. Throughout his cross-examination, the deposition of RW3 remained unshakable.
74. In view of the abovesaid discussions, evidence and PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 82 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
material on record, it cannot be stated that Will dated 19.12.2000 is validly and legally executed. Hence, issue No.2 is accordingly decided against the applicant.
Issue No.1: Whether respondent no.2/applicant is entitled for grant of revocation in respect of Will dated 11.03.1999?
75. As issues no. 2 has already been decided against the applicant, so I am of the considered opinion that applicant is not entitled for grant of revocation of Will dated 11.03.1999. Accordingly, issue no. 1 is decided against the applicant.
Issue No.3: Whether the objections filed on behalf of respondents are valid and maintainable.
76. In my considered opinion this issue is liable to be struck off in exercise of power under Order XIV Rule 5 CPC, 1908 as issue no.1 and 2 have already been decided against the applicant. Accordingly, issue no.3 is hereby struck off in exercise of power under Order XIV Rule 5 CPC.
Issue No.4: Relief
77. In view of the finding given qua issues no. 1, 2 and PC No. 5929/2016 CNR No. DLST01-000239-2011 Page 83 of 84 Dr. Yadvender Singh/DJ-02/South/Saket/ND/17.05.2024 Gopal Krishan Khera Vs. State & Ors.
3, the present revocation petition is dismissed.
78. The copy of the Will Ex.PW3/1 shall remain part of judicial file.
79. Main case file bearing PC No. 19/2006 in case title 'Gopal Krishan Khera Vs. State Ors.' be returned back to Record Room (Civil), Tis Hazari.
Pronounced in the open Court on this 17th day of May 2024 (DR. YADVENDER SINGH) DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
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