Delhi District Court
Smt. Angoori Devi vs Sh. Daleep Singh on 16 May, 2015
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL DISTRICT
JUDGE01, (WEST), TIS HAZARI COURTS, DELHI
CS No. : 297/14
In the Matter of :
1. Smt. Angoori Devi
W/o Late Sh. Hoshiar Singh
2. Smt. Sunita Kumari
W/o Late Sh. Bijender Kumar
S/o Late Sh. Hoshiar Singh
3. Kumari Annu
4. Kumari Ruby
Both Daughters of
Late Sh. Bijender Kumar
5. Master Paras
S/o Late Sh. Bijender Kumar
All R/o House no. 403, Saini Mohalla
Village and Post office Nangloi, Delhi - 41
.........Plaintiffs
Vs.
1. Sh. Daleep Singh
CS No. : 297/2014 1/22
S/o Late Sh. Nathu @ Nathu Singh
R/o House no. 404, Saini Mohalla
Village and Post Office Nangloi, New Delhi - 41
2. Smt. Shanti Devi
W/o Sh. Chand
Village and Post Office, Dessore Kheri
Thana and Tehsil Bahadur Garh,
District Jhajjar, (Haryana)
3. Sh. Ramesh
4. Sh. Naresh
5. Sh. Mukesh
6. Sh. Satish
7. Sh. Suresh
All sons of Late Smt. Dhan Devi
W/o Late Sh. Sant Ram and Daughter of
Sh. Nathu @ Nathu Singh
All Residents of :
Village and post office Turuk Pur,
Thana and Tehsil Sonepat
District Sonepat (Haryana)
8. Smt. Bimla Devi
W/o Daleep Singh
CS No. : 297/2014 2/22
Village and Post Office Nangloi, New Delhi
.........Defendants
Date of Institution : 13.08.2009
Date of Taking over of
charge in this court : 24.01.2015
Date of Arguments : 08.05.2015 & 15.05.2015
Date of Judgment : 16.05.2015
JUDGMENT
1. This is a suit for partition and possession filed by plaintiffs against the defendants. The plaintiffs are claiming partiion and possession of the suit premises through lineal descendants of late Sh. Nathu Ram @ Nathu Singh . Plaintiffs no. 1 & 2 are daughter in law and great daughter in law of late Sh. Nathu Ram @ Nathu Singh and plaintiffs no. 3 to 5 are children of plaintiff no.2 who are minor and therefore are being represented by plaintiff no.2 being their mother and natural guardian. As stated, late Sh. Nathu Ram @ Nathu Singh was blessed with four children namely Late Sh. Hoshiar Singh, Late Smt. Dhan Devi, Sh. Daleep Singh (defendant no.1) and Smt. Shanti Devi (defendant no.2). Late Smt. Dhan Devi is survived by defendants no. 3 to 7 whereas her only daughter namely Smt. Kanta Devi has already expired. The plaintiffs as stated are legal heirs of Late Sh. Hoshiar Singh S/o Late Sh. Nathu @ Nathu Singh who died on 20.10.1991 and his son Sh. Bijender Kumar also died on 21.3.2006. Plaintiff no.1 is widow of late Sh. Hoshiar Singh and plaintiff no.2 is her daughter in law who was blessed with three children i.e. plaintiff no. 3 to 5. During his life time, Late Sh. Nathu Singh, as CS No. : 297/2014 3/22 stated, had purchased a piece of land bearing plot no. 278B, carved out of Khasra no. 22/10, admeasuring 160 sq. yds ( 45 ' x 32'), BlockH, Adhyapak Nagar, situated at Village and Post office Kamruddin Nagar, Nangloi, Delhi, out of his own funds from late Sh. Sukhan. Late Sh. Nathu Singh died intestate without leaving any will somewhere in 1996 and after his death, the abovesaid piece of land became the ancestral property for all the parties to the suit and thus each of them are entitled to have a share in the same according to his/her position in the pedigree. As stated, the said piece of land was lying vacant and was unconstructed, therefore all the parties are in constructive possession of the same. The plaintiffs have been requesting all the defendants since long to partition the said plot according to the respective shares of each of the legal descendant of late Sh. Nathu @ Nathu Singh but the defendants kept dillydallying the issue on one pretext or other followed by flat refusal and defendant no.1, as stated, rather is exercising undue control and influence over the said piece of land despite the same being the ancestral property of the parties to present suit. Plaintiff no. 1 also lodged a complaint against defendant no.1 at P.S. Nagloi in pursuance to which defendant no.1 was asked to show the documents of property but he never showed the same and rather started threatening the plaintiff no.1 to keep mum and not to ask for documents. Legal notice dated 2.6.2009 was also served upon the defendants but the defendants neither replied the said notice nor took any steps to partition the said property/land, hence, the plaintiffs were constrained to file the instant suit against the defendants. CS No. : 297/2014 4/22
2. Initially the suit was filed only against seven defendants and wife of defendant no.1 i.e. Smt. Bimla Devi was not made a party to the suit. However, vide order dated 8.9.2011, the application under order 1 Rule 10 CPC moved on behalf of defendants was allowed and wife of defendant no.1 i.e. Smt. Bimla Devi was impleaded in the array of parties as defendant no.8.
3. In response to the suit of the plaintiff, defendant no.1, defendant no.8 and defendants no. 2 to 7 filed separate written statements but took the common defence. It was denied that Late Sh. Nathu Ram died intestate without leaving any will. It was stated that in fact, during his life time, Late Sh. Nathu Ram had executed a will dated 6.1.1993 in favour of defendant no. 8 which was duly registered in the office of Sub Registrar, Delhi and therefore the plaintiffs have no right or authority to claim that the suit property has become ancesteral property of the parties. It was further stated that the plaintiffs had not made any request to the defendants for partition of the suit property as the plaintiffs are fully aware that the deceased Nathu Ram had already executed a will in favour of defendant no.8. No complaint as stated was ever lodged by the plaintiff no.1 against the defendants as well as no compromise was ever effected between the parties with respect to the suit property. The property in question as stated is under ownership and possession of defendant no.8 and therefore the suit filed by plaintiffs is liable to be dismissed.
4. Separate replications were filed by the plaintiffs in response to the written statements of defendants wherein contents of plaint were reiterated CS No. : 297/2014 5/22 and reaffirmed and those of written statements were denied by the plaintiffs.
5. From the pleadings of parties, following issues were framed vide order dated 06.11.2012: (1) Whether late Sh. Nathu Ram had executed a will dated 6.1.1993 in favour of wife of defendant no.1 i.e. defendant no.8 with respect to the suit property? If so, its effect. OPD (2) Whether the plaintiff has no right, title or interest in the suit property? OPD (3) Whether the suit has been properly valued for the purposes of court fees and jurisdiction? OPP (4) Whether the plaintiff is entitled for the relief of partition, as prayed for ? OPP (5) Whether the plaintiff is entitled for the relief of possession, as prayed for? OPP (6) Relief
6. In evidence, plaintiffs no.1 & 2 examined themselves as PW1 and PW2 respectively and reiterated the contents of their plaint, whereas defendants no.1 and 8 were examined as DW1 and DW2 respectively who relied upon will Ex. DW2/1. DW3 was Record Clerk from office of Sub Registrar who brought the summoned record and stated that the copy of will filed on judicial record is correct as per their record, whereas DW4 Sh. Ajay Kumar was an attesting witness to the will.
7. I have heard the arguments as well as perused the record. Issue CS No. : 297/2014 6/22 wise findings are as under:
8. Issue no.1: The plaintiffs have claimed their share in the property in question having been inherited from the lineal ascendant of both the parties namely Sh. Nathu Ram @ Nathu Singh . In terms of the case of plaintiffs, Late Sh. Nathu Singh @ Nath Ram was the sole and absolute owner of the piece of land in question who died intestate, thereby all the legal heirs became entitled to their equal shares in the said property. Per contra, it was the claim of all the defendants that Sh. Nathu Singh @ Nathu Ram had executed a will dated 6.1.1993 in favour of wife of defendant no.1 i.e. defendant no.8 with respect to the suit property, thereby she became the absolute owner of the said property and the plaintiffs as well as the other defendants were left with no right or interest in the suit property originally belonging to late Sh. Nathu Singh @ Nathu Ram.
9. Two of the plaintiffs were examined as PW1 and PW2 . Both of them stated about late Sh. Nathu Ram having expired intestate and denied the existence of any will executed by late Sh. Nathu Singh @ Nathu Ram. It was also stated by them that the alleged will dated 6.1.1993 even if in existence was forged and fabricated document procured by exercising undue influence and misrepresentation as late Sh. Nathu Singh @ Nathu Ram was not of sound disposing mind at the time of execution of alleged will. Therefore plaintiffs are entitled to seek partition of the said piece of land for their respective shares. It was admitted by PW1 and PW2 in the cross examination that the suit property was purchased by Late Sh. Nathu Singh @ Nathu Ram CS No. : 297/2014 7/22 from his own earnings and none of them had paid any money for purchase of the said plot, thereby acknowledging the property in question being the self acquired property of Late Sh. Nathu Singh @ Nathu Ram and his right to execute the will with respect to the said property, though both PW1 and PW2 denied the execution of said will in favour of defendant no.8 Smt. Bimla Devi by Late Sh. Nathu Singh @ Nathu Ram.
10. PW1 though denied that her father in law had been residing with DW2 Smt. Bimla Devi till the time of his death, however in response to the question put to DW2, she stated " It is correct that my father in law was living with me till the time he expired ", subsequent to which no further suggestion was given to DW2 that this statement given by her was wrong, whereby this fact was deemed to be acknowledged by the plaintiff's side. DW1 and DW2 specifically denied that the will Ex. DW2/1 was obtained by pressurizing late Sh. Nathu Singh @ Nathu Ram or that he was not in proper state of mind at the time of execution of the will, though both of them admitted that he was suffering from some ailments for 5/6 years prior to his death.
11. It was argued by Ld. counsel for plaintiffs that both DW1 and DW2 have admitted in their cross examination that late Sh. Nathu Singh was suffering from ailments before his death who was 8085 years of age at the time of his death in the year 1994, therefore crippling effect and natural consequences of impairment of mental faculty resulting from such advance age coupled with various ailment cannot be over looked. It was also submitted that the defendants have neither stated nor pointed out any CS No. : 297/2014 8/22 circumstance nor it is their case that the relationship of plaintiffs were strained with the testator, therefore there was no reason for the testator to exclusively bequeath the entire plot in favour of Smt. Bimla Devi i.e. defendant no. 8 by way of will. However, the admission elicited by the counsel for plaintiff himself in cross examination of DW2 that her father in law had been staying with her till the time he expired with further denial of the suggestion that his father in law was having cordial relations with plaintiff's family, answers the said argument put forth by Ld. counsel for plaintiff. DW1 and DW2 though have admitted the testator having been suffering from ailments but no question was put to any one of them that the deceased was suffering from any such disease which could or had effected the mental faculties of the testator, whereas DW1 and DW2 categorically denied the suggestion that testator was not in proper state of mind. From the side of plaintiffs, they themselves failed to bring on record any such evidence or documents to show the indisposing state of mind of testator at the time of execution of the will. Reliance is placed upon 149 (2008) DLT 783 titled as K.L. Malhotra Vs. Sudarshan Kumari & Anr. wherein it was held that " as the wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in highest degree, position or to the same extent as before the illness in order to enable him to validly make his will. Section 59 of the Indian Succession Act, CS No. : 297/2014 9/22 requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property, memory to remember the relations and persons normally having claims on his bounty and has also a judgment ".
12. The factum of sound disposing mind of the executor of will was rather confirmed by DW4 who is a attesting witness to the execution of the will. According to him, the testator had executed a will in favour of Smt. Bimla Devi without any force, pressure, coercion or undue influence and Sh. Nathu Singh @ Nathu Ram had put his thumb impression and signatures in presence of DW4 as deposed by him which was duly registered in the office of Sub Registrar. It was also deposed by DW4 that the aforesaid will was read over in vernacular to the executant by the Advocate Sh. H.S. Mehta in his presence. According to him, in cross examination, the will was executed in the year 1992 but he did not remember the exact date and month of the execution of the will . Based upon the abovesaid statement, it was argued by Ld. counsel for plaintiff that DW4 has stated about the execution of will in year 1992 whereas it was dated 6.1.1993 which casts a doubt with respect to DW4 having witnessed the execution of will. Ld. Counsel for plaintiff referred to AIR 1949 Bombay 266 Vishnu Ramkrishna Wani Vs Nathu Vithal Wani, wherein it was observed that " the execution of a will does not merely mean the signing of it by the testator or putting the thumb impression on the document but it means all the formalities required and laid down by CS No. : 297/2014 10/22 section 63 of Indian Succession Act . Therefore if one of the attesting witnesses who is permitted under section 68 of Indian Evidence Act to prove the execution of the will fails to do so, then his evidence has to be supplemented by the other attesting witness being called to prove the due execution of the will. If the attesting witness denies or does not recollect the execution of the documents, its execution may be proved by other evidence . This is a sort of a safeguard introduced by the legislature where it is not possible to prove the execution of the will by calling attesting witnesses though alive. Section 68 of the Indian Evidence Act is not permissive or enabling. It lays down the necessary requirements which the court has to observe in order that a document can be held to be proved. The principle underlying the section is that the execution of the will must be proved by at least one attesting witness, that it is only an attesting witness who is entitled to prove the execution of the will. It is a concession that the Legislature has made. If that concession does not result in complying with the mandatory requirements of section 68, the only proper method is to call the other attesting witness, so that both the attesting witnesses are before the court and the due execution of the will is proved by the two attesting witnesses which are necessary before a will can become a valid document ". In terms of record, though the will is dated 6.1.1993 but since year 1993 had just begun, therefore, in these circumstances, the non remembrance of the exact date by this witness in absence of any other circumstance to discredit his testimony, shall not be considered sufficient to discard his entire testimony. CS No. : 297/2014 11/22
13. It was further argued by Ld. counsel for plaintiffs that the cross examination of DW4 makes it clear that he was not well acquainted with the testator and he could not have personal knowledge about the health, mental soundness and competence of Late Sh. Nathu Singh @ Nathu Ram as well as real state of affairs existing at the family front of Sh. Nathu Ram @ Nathu Singh who was also not aware of the age of testator at the time of execution of the will. As further argued, in terms of admission of DW4, his father too was present at the time of execution of will but he did not prefer to become a witness to the will, which also casts doubt on the case of defendants.
14. DW4 has specifically deposed in cross examination that he did not know Nathu Sing personally and was also not aware of his family details but as stated, he knew late Sh. Nathu Singh as Sh. Nathu Singh used to visit his father and was friend of his father . DW4 further stated that his father was a doctor who had asked him to witness the will. The will was drafted in the office of Sub Registrar as deposed by DW4 and at the time of execution of will , besides him, his father and late Sh. Nathu Ram @ Nathu Singh were present. The will was drafted by some advocate whose name he did not remember. Further according to him, late Sh. Nathu Ram knew to sign only and except signing, he was unable to read and write and the will was read over to late Sh. Nathu Ram in vernacular and he had put his signatures in presence of DW4 and the other witness. Thereafter they had gone to Sub Registrar office. In these circumstances, merely because father of the attesting witness told him to become witness instead of he himself having CS No. : 297/2014 12/22 witnessed the will, itself cannot be any reason to discard the testimony of DW4 on this aspect, who otherwise seemingly is a neutral person having no bias in favour of beneficiary or against the person who has been deprived of any right due to execution of the will.
15. Further the presence of attesting witness is only to ensure the execution of the same by the testator in presence of witnesses and as has been decided by higher courts, unlike other documents, the will speaks from the death of the testator. Therefore in dealing with the provisions of wills, the court will start with the same inquiry as in the case of other documents. The initial burden is always on the propounder to prove due execution, attestation and sound disposing state of mind of the testator. So in matter of wills or settlement, any plea of undue influence and/or falsity, forgery has to be sustained by the person who takes up the plea. It cannot be laid down as a matter of law that because the witness did not state in court that they signed the will in presence of the testator, there was no due attestation. Thus if a witness owing to inadvertence fails to say that he had attested the document in the presence of the testator and narrates the consequences which leads to no other inference but one that he had put his signature in the presence of the testator, then this omission on the part of the witness would not invalidate the will. In a case where attesting witness is produced and he/she gives clear and cogent testimony regarding execution, one should require very strong ground to repel the effect of such testimony . It will not do to talk airily about suspicious circumstance. Where testimony is not seriously impaired in cross CS No. : 297/2014 13/22 examination, something more than suspicion is necessary to discredit the testimony of attesting witnesses who may be of inferior status to make a convincing argument based on the social status of such person.
16. Further in (2003) 12 SCC 35 Bhagat Ram and Anr. Vs. Suresh and Ors. , it was observed by Hon'ble Apex Court that " to be an attesting witness, it is essential that the witness should have put his signatures animo attestendi i.e. for the purpose of attesting that he has seen the executant signing or have received from him a clear acknowledgment of his signatures "
17. It was further argued by Ld. counsel for plaintiff that it is settled principal of law that in order to prove that the will had been duly and properly executed by the testator, it has to be proved that the same was executed out of his free will and volition and without any force , coercion from anyone and the testator was of sound disposing mind able to understand and that there were no such circumstances pointing out towards the force or compulsion being exercised upon the testator at the time of execution of will.
18. It may be noted that it was specifically denied by DW1 and DW2 that Late Sh. Nathu Ram was not in sound and disposing state of mind at the time of execution of will. Further, DW4 who was an attesting witness to the will has also denied the suggestion that late Sh. Nathu Ram at the time of execution of will was not of sound disposing mind or that the will was got executed by executant under force, compulsion, mis representation exercised by defendant no.1 and his wife or that the will was not executed by executant CS No. : 297/2014 14/22 out of his own sweet will . Ld. Counsel for plaintiffs also placed reliance upon Perumal Vs. Alagammal @ Pappathi 20121LW636, wherein it was observed that " the person propounding will had got to prove that the will was duly and validly executed and that could not be done by simply proving that the sign on will was that of testator but must also prove that the attestations were also made properly as required by section 63 of the Act. As noted, plaintiff was very much present at the time of scribing of will as well as at the time of execution of will by the testator therefore it was observed that the presence of plaintiff i.e. beneficiary at the time of execution of will should necessarily be taken as one of the suspicious circumstances ". In the instant matter, DW1 and DW2 were neither aware of the execution nor existence of any such will executed by their father in favour of DW2 . DW4 has also not stated about the presence of defendant no.1 or his wife at the time of execution of the will which also supports the contention of defendant no.1 that they were not even aware of the execution of the will in favour of wife of defendant no. l i.e. Smt. Bimla Devi and got to know about this fact only whey they searched and scrutinized the documents left by late Sh. Nathu Ram after his death. Therefore there could not have been any reason to apply force, undue pressure or misrepresentation by defendant no.1 and his wife upon the executant when they themselves were not aware of execution or existence of any such will in their favour. Other legal heirs i.e. both the daughters of the deceased (and their legal heirs) have also not disputed or denied the existence and genuineness of execution of will in favour of CS No. : 297/2014 15/22 defendant no.8 . In terms of their written statements filed on record, the suit property is not the ancestral property and therefore the plaintiffs have no right to ask for partition and share in the suit property after the same having been bequeathed in favour of defendant no.8 by late Sh. Nathu Ram during his life time.
19. As already noted, DW4 has categorically deposed about execution of will by late Sh. Nathu Ram @ Nathu Singh on 6.1.1993 and putting of signatures on the same by testator in presence of DW4 who also himself had put his signatures at the time of execution of said will and the plea regarding no photographs of said witness appearing on the will has been answered by DW3 who stated that the photographs of the witnesses are not affixed on the will or in the records and the photographs of the witnesses are taken in the office of SubRegistrar itself. DW4 had not brought any identity proof of being the same person who had witnessed the will and as argued by Ld. counsel for plaintiffs, the identity of such witness being in question, it was obligatory upon this witness to bring the identity proof after seeking deference of the cross examination particularly when the address of this witness was different from what he had given at the time of execution and attestation of the will.
20. In terms of record, this witness was summoned on the application moved by defendants. Though DW4 stated that he has come to depose before this court at the instance of defendant no. 1, but there cannot be any denial that the summons were issued upon this witness subsequent to which he CS No. : 297/2014 16/22 appeared before the court. The summons were sent upon the address of DW4 at D 730, Nai Basti, Nagloi, Delhi 41 which is the same address as mentioned in the will Ex. DW2/1 and is contrary to the plea put forth by Ld. counsel for plaintiff. Though it is also correct that he had not brought any ID proof to show that he was the same person but no suggestion was ever put to this witness that he was not the same Ajay Kumar who was a witness to the execution of said will and rather the suggestion given to this witness seem to be supporting the case of defendant only regarding the existence of said will whereby this witness was suggested regarding the ill health and not of sound disposing mind of the testator at the time of execution of will or that it was executed under force, compulsion and undue pressure etc. and not out of his own volition or that the contents of the will were not explained to late Sh. Nathu Ram , thereby existence and execution of will itself was acknowledged from the side of plaintiffs and only the mode of execution was put under challenge.
21. Non examination of any other attesting witness to the will is also not fatal to the case of defendants. As was observed by Hon'ble Apex Court in Anita Khosla Vs. State 2010 173 DLT 290 and Janki Narayan Bhoir Vs. Narayan Namdeo Kadam AIR 2003 SC 761 " only one witness is sufficient in order to determine the validity of a will and it is not obligatory for both the witnesses to a will to come and and testify in order to determine the genuineness of will ". It is also not the case that the attesting witness has denied or has not been able to recollect the execution of the documents when CS No. : 297/2014 17/22 only there would be requirement to prove the execution by other evidence as was noted in the authority (supra) as relied upon by Ld. Counsel for plaintiffs. The attesting witness has specifically deposed about the mode of execution of will and also the fact that the contents of the will were read over and explained to the testator who signed and put his thumb impression in presence of attesting witness which will was also got registered in presence of attesting witness at the office of Sub Registrar.
22. With regard to valid attestation of the will, it was submitted by Ld. counsel for defendants that the other attesting witness to the will was advocate Sh. H.S. Mehta himself who was also scribe of the will. His presence has been referred by DW4 also who appended his signatures as witness no.2 on the will Ex. DW2/1. As was held by Hon'ble High Court of Delhi in 92 (2001) DLT 274 titled as Baldev Raj Vs. Man Mohan & Ors.
" it is not universal rule that a scribe cannot be treated as an attesting witness. The scribe may be an attesting witness of the will but it must be shown that the scribe put down his signatures for the purposes of attesting the documents and that he appeared before the Sub Registrar at the time of registration of the will in whose presence, the will was read out and the executant acknowledged correctness thereof ". In the instant matter also, as is apparent from the will Ex. DW2/1, Advocate H.S. Mehta put his signatures at s.no.2 as attesting witness whose signatures are also appearing on the back side of will below the signatures of attesting witness Ajay Kumar. The will is also duly registered and as such, it cannot be inferred that there is any legal CS No. : 297/2014 18/22 infirmity in the will.
23. There is also a reference in the deposition of PWs regarding a complaint made in police station in the year 2008 when a quarrel had taken place between the parties and a compromise was arrived at between them and in the said compromise, as alleged DW1 had admitted the shares of the plaintiffs in the suit premises. Though a suggestion was also put to DW1 regarding the compromise arrived at between the parties in the police station on the said complaint, however no such document was put to DW1 in his cross examination regarding his alleged admission about the shares of the plaintiff in the suit property nor the same was so stated by PW1 herself in her deposition.
24. It was also argued on behalf of defendants that Late Sh. Nathu Ram died in year 1994 whereas the son of plaintiff no.1 died in year 2006 but neither any objection was raised by son of plaintiff no.1 nor any suit was filed by him till he was alive despite having the information about the existence of will in favour of defendant no.8. Both DW1 and DW2 stated about the information having been given to the plaintiff regarding the will but as admitted by plaintiffs themselves, no suit was ever filed seeking cancellation of the said will.
25. In Uma Devi Nambiar Vs. T.C. Sidhan , III ( 2004) SLT 754, the division bench of Hon'ble Supreme Court has observed 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 shore CS No. : 297/2014 19/22 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 proposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the will ".
26. Though it is not from the record but during the course of arguments, it was admitted by both the parties that other properties of Late Sh. Nathu Ram @ Nathu Singh had already been partitioned in equal shares between the plaintiffs and defendant no.1 and the suit property is the only property which had been bequeathed in favour of defendant no.8 by her father in law who had been residing with her till the time of his death. The daughters of the deceased have also supported the claim of the defendant no. 8 regarding the genuineness of the will executed by their father in her favour . There cannot be anything unusual for a person to bequeath the property in favour of a person who had taken care of him during his life time. No CS No. : 297/2014 20/22 suspicious circumstance has been proved on record by the plaintiffs to raise doubt regarding the authenticity of will which was a registered document and execution of the same and the sound disposing mind of the testator has been duly proved by DW4 on record. DW3 who is record clerk from Office of SubRegistrar also stated about the registration of will based upon the record brought from the office of Sub registrar. The will in terms of record was registered in the office of Sub Registrar on 6.1.1993 executed by Sh. Nathu Ram S/o Sh. Fateh Singh in favour of Smt. Bimla Devi W/o Sh. Dalip Singh. There is no material from which the court may infer that the deceased testator did not know the contents of the will or was not in sound disposed capacity when he executed the will, thereby the execution of will by Late Sh. Nathu Ram in favour of Smt. Bimla Devi stands proved on record. This issue is accordingly decided in favour of defendants and against the plaintiffs.
27. Issue no.2 : In view of the findings on issue no.1, since it already stands established that the property in question was bequeathed by late Sh. Nathu Singh @ Nathu Ram in favour of defendant no.8 Smt. Bimla Devi vide registered will dated 6.1.1993, therefore plaintiffs are left with no right, title or interest in the suit property. This issue is accordingly decided against the plaintiffs and in favour of defendants.
28. Issue no. 3: The property in question has been valued by the plaintiffs at Rs. 16 Lacs and the share of plaintiffs has been valued at Rs. 4 Lacs being 1/4th of the share. However, as stated, the plaintiffs are in constructive possession of the suit property, therefore, for the purposes of CS No. : 297/2014 21/22 court fee, the suit has been valued at Rs. 200/. No objection has been put forth on record by the defendants pointing out any infirmity in the said valuation made by the plaintiffs. Hence, this issue is decided against the defendants and in favour of the plaintiffs.
29. Issue no. 4 & 5 : In view of the findings on issue no. 1 & 2, since the plaintiffs have no right, title or interest in the suit property, therefore they are held not entitled for the relief of partition or possession of the suit property. Both these issues are accordingly decided in favour of defendants and against the plaintiffs.
30. Relief: In view of the discussion made herein above, instant suit filed by plaintiffs is dismissed with no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in Open Court
on 16.05.2015 ( SAVITA RAO )
Additional District Judge01(West)/Delhi
CS No. : 297/2014 22/22