Delhi District Court
Smt Rama Rani vs Tilak Raj on 8 December, 2015
Rama Rani v Tilak Raj CS No. 389/09
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE -06: CENTRAL : DELHI.
CS No. 389/09
Smt Rama Rani
D/o Late Sh. Ganesh Dass,
W/o Sh Gulshan Singh,
C-6/394, Yamuna Vihar,
Delhi - 110053 ....... Plaintiff
Versus
Tilak Raj,
S/o Late Sh Ganesh Dass,
R/o K-3/18A,
Gali No. 20A, West Ghonda,
Delhi - 110053. ......Defendant
Unique case I.D No. : 02401C0679122008
Date of Institution : 06.05.2008.
Date of Reserving Judgment : 03.12.2015.
Date of Judgment : 08.12.2015.
JUDGMENT
SUIT FOR PARTITION AND PERMANENT INJUNCTION
1. In this suit for Partition and Permanent Injunction, the plaintiff and defendant are consanguine sister and brother respectively. This is sister's suit against the brother seeking relief of partition of property no. K- 3/18A, Gali no. 20A, West Ghonda, Delhi-53 measuring 50 sq. yds (hereinafter referred as the 'suit property') as shown in the site plan (ExPW1/1). Both are legal heirs of their father late Sh Ganesh Dass who died on 3.3.2006. His wife Smt. Raj Kumari pre-deceased to him on Result: Suit Decreed. Page 1 of 21 Rama Rani v Tilak Raj CS No. 389/09 30.9.2005. Sh Ganesh Dass had purchased the suit property out of his own funds. As per the plaintiff, Sh Ganesh Dass died intestate. It is averred that after his death, the suit property devolved upon the suit parties in equal share. The plaintiff expressed her wish for devision of property by metes and bounds, however, the defendant refused. It is averred that he even did not attend the last rites of minor son of plaintiff who died 15 days prior to filing of the suit. Accordingly, the plaintiff has explained cause of action. She has valued the suit for partition for Rs. 9 lacs. She is not in possession of the suit property. She seeks Preliminary Decree of partition of suit property regarding her half share and appointment of local commissioner. She also seeks Permanent Injunction restraining the defendant, his agents etc from creating any third party interest in the suit property. She also prays for costs.
2. The defendant was served with summons for settlement of issues and filed written statement. The averments in the suit are denied. It is not denied that Sh Ganesh Dass was the owner of the property, however, it is denied that he died intestate. It is claimed that deceased Sh Ganesh Dass in his life time had executed a Will dated 13.2.2006 whereby which he bequeathed the entire suit property in favour of the defendant. The Will is said to have been executed in the presence of not only the plaintiff but also two witnesses namely Sh Rajesh and Sh S.C. Bhutalia.
3. The replication is filed which is primarily a re-assertion and reiteration of the facts of suit plaint as correct and also constitutes denial of the averments made in the written statement. The plaintiff denies that the Result: Suit Decreed. Page 2 of 21 Rama Rani v Tilak Raj CS No. 389/09 deceased executed any Will and claims that the same is forged and he never signed on the alleged Will at his own.
4. From the pleadings of the parties, following issues were settled on 16.11.2009 viz;
1. Whether father of both of parties has already transferred his property by way of Will in favour of plaintiff of hence suit property can not be transferred ? OPD.
2. Whether plaintiff is entitled for decree of partition and permanent injunction ?
3. Relief.
5.In evidence, the plaintiff has examined herself as PW 1 and filed her affidavit in evidence as ExPW1/A. She has deposed in accordance of pleadings and has relied on site plan ExPW1/1, copy of death certificates of Sh Ganesh Dass as ExPW1/2 and that of Smt. Raj Kumari as ExPW1/3. She was duly cross examined.
5.1. The plaintiff also examined Sh Milap Chand, Executive Assistant, Kangra Co-operative Bankk, Jagat Puri, Delhi as PW 2. He was summoned to produce the account opening form of Account no. 7338 in the name of Sh. Ganesh Dass, Smt. Raj Kumari and plaintiff and the I.D proof of said account holders. Same is ExPW2/1. This witness was also cross examined. 5.2. The last witness as PW 3 is Sh D.K Sharma, MLC Incharge, Hindu Rao Hospital who was summoned to produce the record of admission of Sh Ganesh Dass as patient. He was admitted on 10.2.2006 at 10.30 p.m. The copy of his admission cum summary record is ExPW3/A collectively (20 Result: Suit Decreed. Page 3 of 21 Rama Rani v Tilak Raj CS No. 389/09 pages). The patient left the hospital as LAMA (left against medical advise) on request of defendant on next date i.e 11.2.2006 at 11.50 a.m. This witness was also cross examined. No other witness was examined by the plaintiff.
6.The defendant in his evidence examined himself as DW 1 and his affidavit is ExDW1/A. He has deposed in accordance of his written statement. He was duly cross examined.
6.1. The defendant also examined one of the attesting witness Sh Rakesh Sharma as DW 2. He proved the Will ExDW2/1 and deposed that he is the attesting witness to the said Will of late Sh Ganesh Dass bearing his signature at point X and the other attesting witness (PW3) as well as the plaintiff herein. He says that all of them signed in presence of each other after the Will was signed by the testator. This witness was also duly cross examined. He identified the signature of the deceased testator as well as his thumb impression on the Will at points Y and Z respectively. 6.2. The last witness of the defendant is attesting witness Sh. Subhash Chand Bhutani who is DW 3. He has also deposed in accordance of pleadings and has also proved the Will ExDW2/1. His testimony is on the lines of the testimony of DW 2. He was also duly cross examined.
7. I have heard Sh L. C Singhla, ld counsel for plaintiff and Ms. Kusum Gupta, ld counsel for defendant. I have also gone through the record very carefully. My issue wise findings are as under:
Issue no. 1. Whether father of both of parties has already transferred his property by way of Will in favour of plaintiff of Result: Suit Decreed. Page 4 of 21 Rama Rani v Tilak Raj CS No. 389/09 hence suit property can not be transferred ? OPD.
8.The onus of this issue was on the defendant. There appears to be a typographical error. The word 'transferred' in the issue is to be read as 'partitioned'. The same directly pertains to the execution and validity of the Will in question regarding which it is a claim of the plaintiff that same is a forged document on which she never signed otherwise also, this claim that the deceased was not in sound disposing state of mind to even execute the said Will as he was suffering from third stage of Cancer at the relevant time that is upto the date of his death.
8.1. For appropriate appreciation of law on the subject, I must set it out as the other law point that shall follow will have bearing on the decision given on the aspect involved in decision of this issue.
Section 63 (C) of The Indian Succession Act,1925 requires that 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 been 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 of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator. But the law does not necessarily require that more than one witness be present at the same time, or that a particular form of attestation is necessary.
As per section 68 of the Indian Evidence Act, 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 Result: Suit Decreed. Page 5 of 21 Rama Rani v Tilak Raj CS No. 389/09 an attesting witness alive, and subject to the process of the court, capable of giving evidence.
It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the probate court. The probate court do not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance placed on 2008 (4) SCC 300 Krishan Kumar Vs. Rajinder Singh Lohra & ors. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the subject Will which may be lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 titled Vella Swamy Servai Vs. L. Shivraman Servai.
In a full bench judgment of the Hon'ble Apex Court reported in (1959) Supp. 1 SCR 426 titled H. Venkatachala Iyengar Vs. B. N. Thimmajamma, the Hon'ble Apex Court has discussed the entire gamut of law relating to the discharge of the onus of proving the Will while dwelling into sections 45,47,67 & 68 of Indian Evidence Act, 1872 and sections 59 & 63 of the 1925 Act and observed :
"Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it Result: Suit Decreed. Page 6 of 21 Rama Rani v Tilak Raj CS No. 389/09 shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will ? Did he understand the nature and effect of the dispositions in the Will ? Did he put his signatures to the Will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
The Hon'ble court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of dispositions and put his signatures to the document of his own freewill. It has been 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 the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
The Hon'ble Apex Court has further discussed the circumstances, which may be termed as suspicious circumstances surrounding the Will and held that there may be circumstances where the signatures of the testator may be Result: Suit Decreed. Page 7 of 21 Rama Rani v Tilak Raj CS No. 389/09 shaky, doubtful or the condition of testator's mind may appears to be feeble and debilitated so as to raise a legitimate doubt as to mental capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble court has succinctly held that :
"It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
9.It has been further held that an active participation of the propounder or the fact that the propounder has taken a prominent part in the execution of the Will and that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence. The ratio of H. Venkatachala Iyengar's case (supra) was later relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out the various prepositions :
"1). Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.Result: Suit Decreed. Page 8 of 21
Rama Rani v Tilak Raj CS No. 389/09
2). Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
3). Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4). Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, and 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 reason, for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5). It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the Result: Suit Decreed. Page 9 of 21 Rama Rani v Tilak Raj CS No. 389/09 question as to whether an instrument produced before the Court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6). If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the Will, such pleas have to be proved by him but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
In Uma Devi Nambiar Vs. T. C. Sidhan, III (2004) SLT 754, the division bench of the Hon'ble Supreme court has further held that a Will is generally executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that 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 especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of Result: Suit Decreed. Page 10 of 21 Rama Rani v Tilak Raj CS No. 389/09 succession and so, natural heirs would be debarred in every case of the Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
10. A Probate Court is a Court of conscience. This is a civil suit for Partition and Injunction. However, while dealing with the Will ExDW2/1, the Court shall bear in mind the above proposition of law. If the defendant is to be believed then this is not the case of intestate succession but of a testamentary succession.
10.1 In order to prove that the deceased transferred his property in plaintiff's favour by way of testamentary succession then the Court shall be guided by the law on execution and registration of Will. In the present case, it has not come on record that the beneficiary/defendant had participated in preparation and execution of the Will. At the same time, the defendant has not pleaded in his written statement regarding the attending circumstances as to when and where the Will was typed and executed. First reflection on the above has come only in the cross examination of PW 1 at page 2 of the cross examination dated 29.7.2010, the following suggestion is placed viz;
"It is wrong that I met my father along with S.C Butani and Rakesh Sharma on next day i.e 12.2.06 or that he expressed his desire before Sh S.C. Butani and Rakesh Sharma to bequeath his property in favour of my brother. It is wrong to say on 13.2.2006 I alongwith S.C Butani and Rakesh Sharma went to Silampur to get a Will Result: Suit Decreed. Page 11 of 21 Rama Rani v Tilak Raj CS No. 389/09 prepared or that my father got typed a Will from a typist there."
11. This would imply that as per the defendant, the plaintiff and the other two attesting witnesses had gone to Seelampur for preparation of Will of the deceased. This suggestion also implies that PW 1's father who is also the father of defendant was also present at Seelampur as evident from the above suggestion to the effect that father of parties got the Will typed from a typist at Seelampur.
11.1. In contrast to the above, DW 2 and DW 3 are not deposing in chief as to at which place the Will was prepared and executed. From the cross examination of DW 2, it is apparent that they had gone elsewhere for preparation of the Will. It was a place where an advocate Sh Sharad Gupta read over the contents of ExDW2/1 to DW 2. To be more specific, the Will was got typed on its stamp paper in the chamber of said Sh Sharad Gupta in his presence.
11.2. Similarly, DW 3 is also silent about the place where the Will was typed and executed. However, it can be gathered from his cross examination that even he had gone to some place else for preparation of the Will. The entire reading of his testimony would clarify that he had reached with Sh Ganesh Dass at the office situated at Seelampur at 5 p.m where Sh Ganesh Dass purchased the stamp paper. Advocate Sh Sharad Gupta was present there. The Will was got typed by Sh Sharad Gupta on a computer from a typist.
11.3. Both these witnesses have not categorically submitted as to where the Result: Suit Decreed. Page 12 of 21 Rama Rani v Tilak Raj CS No. 389/09 signatures on the Will were appended. The defence is also silent as to where it was done. However, a conjoint reading testimony of DW1 & DW 2 and in particular, the testimony of DW3 projects that on the date of the preparation of the Will and its execution i.e 13.2.2006 the testator Sh Ganesh Dass himself was present at Seelampur.
11.4. I have already pointed out that by virtue of judgments in Vella Swamy's case (supra); Shashi Kumar Banerjee's case (supra) and Jaswant Kaur's case (supra). The suspicious circumstance, attending to due execution of Will are to be dispelled by the propounder of the Will which in this is case the defendant. I have also pointed out that this defendant does not specify in the written statement as to where the Will was typed and where it was executed. Admittedly, the address on the back page of first page of the Will is not the correct address of the deceased testator. The stamp paper was purchased from the stamp vendor at Seelampur as evident from the endorsement thereupon on 13.2.2006. As per DW 2, it was blank. The scribe is not before the Court. The Will is not registered but notarised. The Notary public is not before the Court. At the same time, the registration of Will is not necessary. DW 2 is silent as to whether Sh Ganesh Dass was present at Seelampur. According to DW 3, he was.
12. Careful scrutiny of the Will would reveal that i.e. not only thumb marked but bearing signature of one Sh Ganesh Dass at first, second and third pages. On the third page, there are two similar signatures of Sh Ganesh Dass and only one has been identified. In between these two signatures is the thumb mark. The presence of two signatures and the fact that a minute Result: Suit Decreed. Page 13 of 21 Rama Rani v Tilak Raj CS No. 389/09 indication of the place by way of a 'small dash mark' is made at first, second and third page of the Will, which this Court has today encircled in red colour at point XX1, XX2 and XX3 on three pages of the Will, signifies that the said 'Dash mark' is a pointer to indicate that the Executor has to sign at or above these three Dash marks. Otherwise there is no reason for putting such indication on a document which is typed simultaneously and is to be signed soon after the same is typed. This implies that Sh Ganesh Dass must have put his signature not at Seelampur but at some place else. This opinion/finding is based on preponderance of probabilities.
13. This also explains as to why Sh Ganesh Dass's signatures appear on the last page at two places. It also explains as to why none of the witness of defendant have bothered to explain the above or to identify the second signatures of Sh Ganesh Dass. This testimony is to be seen in the light of cross examination of DW 1 at page 2 which I shall quote a little later in this judgment.
Although the plaintiff has summoned the record clerk from the hospital concerned to prove the fact that the deceased was hospitalized on 10.2.06 and 11.2.06 vide document ExPW3/A, however, this fact is otherwise not disputed by DW 1 in his cross examination. I shall now quote his words herein below;
"After discharge from the hospital on 11.2.2006 my father remained at home till his death and had not gone anywhere else."
14. The date of execution of the Will is 13.2.2006. The admitted date of Result: Suit Decreed. Page 14 of 21 Rama Rani v Tilak Raj CS No. 389/09 death of deceased is 3.3.2006 i.e. few days after the execution of the Will. Thus, if the testator remained at the house of DW 1 after discharge from the hospital till the time of his death, he could not have gone to Seelampur to either purchase the stamp paper on which the Will was typed and have it typed and executed at Seelampur.
15. The above is a grave suspicious circumstance which itself demolishes the defence categorically making it fatal to its case. Further more, DW 1 states in his cross examination that he found the Will of his father when he was cleaning his house after four months of his death. If the same is correct, then the witness should have either deposed in his further cross examination or as a defendant in his written statement about the circumstances when the Will was brought to his knowledge. Moreover, it does not appeal to common sense that when his father was got discharged from the hospital against medical advise admittedly at his instance and was thereafter confined at his house till death then, how the deceased could have left the house and travelled to Seelampur on 13.02.2006.
16. Thus, the execution of the Will is riddled with such doubts that render the possibility of its valid execution as highly questionable.
17. For the above reasons, I am not inclined to accept the testimony of the attesting witnesses. In the result, the reliance of the defendant on the above Will is of no help to him. It can not be said to have been proved in accordance of Section 63 (C) of the Indian Succession Act 1925 and Section 68 of the Indian Evidence Act 1872. Reliance is placed on case law cited above in H. Venkatachala Iyengar case (supra) and Jaswant Result: Suit Decreed. Page 15 of 21 Rama Rani v Tilak Raj CS No. 389/09 Kaur's case (supra).
18. In the result, it can not be said that the deceased had transferred the suit property by way of this Will in favour of defendant and hence, the suit property can not be partitioned. The issue is decided against the defendant and in favour of the plaintiff.
Issue no. 2. Whether plaintiff is entitled for decree of partition and permanent injunction ?
19. In view of findings on issue no. 1, it has to be held that defendant is under a legal obligation towards the plaintiff qua her legal right in the suit property. There is sufficient evidence on record to hold that third party interest may be created therein. The plaintiff is therefore, entitled to the relief of Permanent Injunction as prayed for. The issue is decided in favour of the plaintiff and against the defendant.
Issue no. 3. Relief.
20. In view of findings on issues no. 1 & 2 above, the suit of the plaintiff is decreed to the effect that a Preliminary Decree of partition by metes and bounds is passed in favour of the plaintiff and defendant in respect of the suit property bearing No. K-3/18A, Gali no. 20A, West Ghonda, Delhi-53 measuring 50 sq. yds as shown in the site plan ExPW1/1 to the effect that the plaintiff alongwith defendant is entitled to the half share (1/2) each in the suit property.
21. It is apparent that since no useful purpose would be served in ordering the parties to suggest mode of partition by metes and bounds as the defence set up by the defendant is towards the exclusive claim of the suit property Result: Suit Decreed. Page 16 of 21 Rama Rani v Tilak Raj CS No. 389/09 by virtue of Will ExDW2/1 which defence has not been found sustainable, hence, vide a separate order, an Advocate/local commissioner has been appointed in terms of the directions therein.
22. A decree of Permanent Injunction is also passed against the defendant and in favour of the plaintiff, restraining the defendant, his agents, associates etc from disposing, alienating or creating any third party interest in the suit property bearing No. K-3/18A, Gali no. 20A, West Ghonda, Delhi-53 as shown in the site plan ExPW1/1.
23. Preliminary decree sheet be prepared accordingly.
Announced in open Court. (Manish Yaduvanshi)
Dated: 08.12.2015. ADJ-06(Central)Delhi
Result: Suit Decreed. Page 17 of 21