Delhi District Court
Sh. Gupta Bahadur vs The State on 3 November, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ: ADJ:
SOUTH WEST: NEW DELHI.
PC No. 30/10
In the matter of :-
Sh. Gupta Bahadur
son of Sh. Nek Bahadur
R/o VPO Bijwasan
New Delhi.
...Petitioner
Versus
1. The State
Through
Deputy Commissioner (South-West)
Old Tax Terminal Building
Kapashera
New Delhi
2. Delhi Development Authority
Through its Vice Chairman
INA, Vikas Sadan
New Delhi
3. Smt. Gyan Wati
Widow of Sh. Surje
4. Sh. Jai Kishan
5. Sh. Rajbir
6. Sh. Pawan
7. Sh. Mahender
8. Sh. Monu Singh
9. Smt. Vimla
10. Smt. Sunita
...Respondents
Filed on : 07.09.2010
Reserved on : 03.11.2011
Decided on : 03.11.2011
PC No. 30/10 Page 1/17
J U D G M E N T :-
1. This is a petition under Section 278 of the Indian Succession Act, 1925 for the grant of Letters of Administration in respect of the property of late Sh. Surje son of late Sh. Nek Ram.
2. The petitioner has stated that Sh. Surje who was a resident of village and Post Office Kakrola, New Delhi was the owner of agricultural land comprising in khasra No. 110/1 ad-measuring 4 bigha 12 biswa situated in the revenue estate of village Kakrola, New Delhi.
3. Said land was acquired for the purpose of Planned Development of Delhi vide award No. 1/93-94 dated 02.04.93 under scheme of large scale acquisition / development and disposal of land in Delhi.
4. It is further stated that in lieu of the acquisition of the above said land, the Land and Building Department recommended to the DDA for allotment of an alternative plot ad-measuring 80 sq. yards in the name of Sh. Surje vide file No. F.31(50)/62/94-L&D/Alt. dated 11.08.06.
5. Petitioner has stated that late Sh. Surje during his life time had executed his last will on 05th July, 2009 at New Delhi in the presence of two witnesses namely Sh. Kishan son of Sh. Net Ram R/o Village Kakrola, New Delhi and Sh. Rajesh son of Sh. Sat Bhan R/o Plot No. 27, Block-C, Rang Puri, Vasant Kunj, New Delhi in favour of the petitioner.
6. It is further stated that the said witnesses also signed the said will as attesting witnesses in the presence of late Sh. Surje and in the presence of each other.
7. Petitioner has stated that by virtue of will dated 05.07.09, late Sh. Surje bequeathed his above noted alternative plot which was yet to be allotted by the DDA at that time in favour of petitioner.
8. It is stated that DDA held a draw of lots on 05.02.10 and an alternative plot ad-measuring 66 sq. meters (80 sq. yards) was allotted in the name of Sh. Surje being plot No. 49, Pocket-7, Block-B, Sector-23, Dwarka, New Delhi PC No. 30/10 Page 2/17 vide file No. F.22(70)/2006/LSB(R)/3409.
9. Petitioner claims that he inherited the said plot on the death of Sh. Surje on 11.10.09 on the basis of will dated 05.07.09.
10. The petitioner has further stated that Sh. Surje had executed his last will with his own free consent and without any outside pressure, force, coercion or allurement and in his full senses, good health and sound disposing mind.
11. Therefore, the petitioner has prayed for grant of Letters of Administration in favour of the petitioner in respect of the will dated 05.07.09 executed by Sh. Surje and has prayed for directions to the DDA neither to hand over possession of the plot to the legal heirs of late Sh. Surje nor to record mutation in favour of legal heirs nor execute the lease deed in respect of the plot of late Sh. Surje till the disposal of present petition.
12. Petition is verified by one of the two attesting witnesses namely Sh. Rajesh son of Sh. Sat Bhan.
13. Notice of this petition was issued to the respondents and citation was ordered to be published in newspapers 'Hindu' and 'Veer Arjun'. Notice was also issued to the collector to file the valuation report. Notice was also displayed on the notice board of this court. Both the newspapers where citation was published are on the record. Valuation is also filed by the collector.
14. Objections were filed by the legal heirs of late Sh. Surje who are respondent No. 3 to 10 in this probate petition.
15. Objectors have taken an objection that the petitioner is propounding a forged and fabricated document as the will of late Sh. Suraj Bhan @ Surje and he is liable to the prosecuted and punished under Section 340 of Cr.P.C for forging a document and using a forged document as genuine in legal proceedings i.e for committing offences under Section 467,468 & 471 of IPC.
16. The objectors have denied execution and attestation of the document propounded as the will of late Sh. Suraj Bhan @ Surje. Objector's case is that the deceased had died intestate and the answering respondents are his natural PC No. 30/10 Page 3/17 heirs entitled to succeed to his estate.
17. It is the case of objectors that the petitioner was a complete stranger to late Sh. Suraj Bhan who has left behind his widow, sons and daughters and could not have willed his only substantial asset to a complete stranger and left all his above said natural heirs penniless without even assigning any reason in the alleged will for such a drastic measure. The persons who acted as witnesses are also complete strangers to Sh. Suraj Bhan and the rest of his family. Sh. Suraj Bhan was happily married and was devoted to his wife and children. He had no reason to bequeath his property to a total stranger.
18. It is stated by the objectors that on the face of it, the document being propounded as a will has been printed out as a form with blanks which have been subsequently filled. It is likely that the thumb impressions of late Sh. Surje may have been taken either on blank papers or on the form with blank spaces by some property dealer or tout on the pretext of helping late Sh. Surje deal with the DDA in relation to the plot in question which is being propounded as his will.
19. Objectors have stated that the day the alleged will has been falsely claimed to have come into existence late Suraj Bhan was seriously ill and was being attended to day and night by his wife and his sons. On the day of the alleged execution of the document being propounded as his will, late Suraj Bhan was not in a position even to leave his bed nor did he possess a disposing mind. It would have been impossible for complete strangers to the family to visit him, to have read over and explained to him the document being propounded or to get the said document thumb marked by him and attested by witnesses.
20. On merits, all the averments made in the probate petition have been denied by the objectors.
21. The petitioner has filed replication and has denied all the allegations of the objectors. The petitioner has stated that late Sh. Suraj Bhan had sold his property involved in the present petition and apart from the will he has also executed the other usual documents of transfer i.e agreement to sell etc after PC No. 30/10 Page 4/17 receiving the full and final consideration amount from the petitioner.
22. Respondent No. 2, DDA has also filed a reply opposing the probate petition. It is stated that Sh. Monu Singh / respondent No. 8 had applied for mutation of plot in his name and since the mutation was not finalized therefore, the allotment letter dated 08.06.10 was issued in the name of Sh. Surje. It is further stated that Sh. Gupta Bahadur / petitioner vide letter dated 02.07.10 applied for mutation of plot in his name on the basis of copy of will. Since Sh. Monu Singh and Sh. Gupta Bahadur both had applied for mutation of plot in question, therefore, DDA requested them to settle the matter from competent court of law and then approach DDA for mutation of plot. Rest of the averments made in the petition are denied by DDA.
23. On 01.03.2011, following issues were framed:-
(1) Whether the testator executed the will in question in sound disposing mind and in accordance with law? OPP (2) Relief.
24. On behalf of petitioner two witnesses were examined. PW-1 was petitioner himself. PW-2 was Sh. Rajesh son of Sh. Satya Bhan who was one of the two attesting witnesses of the will.
25. In evidence by way of affidavit, the petitioner deposed similar facts as were deposed by him in the claim petition.
26. The petitioner exhibited will in question as Ex.PW1/1 and death certificate of Sh. Surje as Ex.PW1/2.
27. In his cross-examination, the petitioner stated that he has studied till 5th class. He was originally inhabitant from Nepal but is residing in Delhi for the last 25 years. He stated that he is working in 'Vijay Estate' in Sector-11, Dwarka, New Delhi. He stated that proprietor of Vijay Estate is Sh. Vijay Kumar. He stated that he is earning Rs. 50,000/- per month. However, he was neither paying Income Tax nor was having any PAN card. He was having a bank account in HDFC bank where he was having Rs. 15,000/- in his bank account. He stated that he had met the testator for the first time in his office 'Vijay Estate' in the year 2009 and at that PC No. 30/10 Page 5/17 time will in question was executed in his favour. He stated that he had met testator in the year 2005 also and had discussed regarding alternate plot with him at that time. He admitted that he was not knowing Sh. Surje prior to 2005 and had met him once or twice between 2005 and 2009 when Sh. Surje gave him the recommendation letter.
28. He stated that he has never visited the house of Sh. Surje and Sh. Surje had also not visited his house but used to meet him at his office. He stated that he came to know about the death of Sh. Surje through his son. He stated that he does not know which of the legal heirs of the testator are married / unmarried.
29. PW-1 stated that he does not know the cause of death or disease suffered by Sh. Surje which caused his death. He further deposed that hand written particulars were filled up by one Sh. Sandeep who is witness to agreement to sell executed by Sh. Surje. He stated that the will in question was got typed by Sh. Surje himself and he did not know from where Sh. Surje got the will typed.
30. PW-1 stated that he does not know how much land of Sh. Surje was acquired and what was the date of its acquisition. He stated that except for transaction for alternate plot he had no other relation with Sh. Surje and the contents of the will were filled up by consulting the recommendation letter.
31. PW-1 did not know vocation of Sh. Surje or that Sh. Surje had no other source of income except agriculture. The suggestion that in the guise helping Surje obtain the compensation for his land acquired by the Govt. and in helping him to obtain the alternative plot he and his associate had taken thumb impression on several papers and had subsequently forged them to prepare a will as well as agreements and receipts was denied.
32. PW-2 Sh. Rajesh son of Sh. Sat Bhan stated that he is one of the two attesting witnesses of the will dated 05.07.09. The testator with some other person came to the office of petitioner and the person who had accompanied Sh. Surje had read over and explained the contents of the will in vernacular language to the testator. After fully understanding the contents of the will, the testator put his PC No. 30/10 Page 6/17 thumb impression on the will in his presence. He deposed that he and Sh. Kishan, the second attesting witness of the will had attested the will on the request of testator in the presence of testator. He stated that the petitioner was having good health and sound disposing mind at the time of signing / executing the will which he executed out of his free will, without any compulsion, pressure, force or coercion.
33. In cross-examination PW-2 stated that he knows the petitioner for the last 4 to 5 years and he had met with Sh. Surje once in the office of Sh. Gupta Bahadur. He stated that petitioner is a property dealer. He deposed that on 05.07.09, only will in question was executed which was brought by Sh. Surje himself.
34. The witness further stated that petitioner and testator had no blood or other relation between them. He stated that the other attesting witness of the will was Sh. Kishan who was son of testator.
35. On behalf of respondents no evidence was led.
36. Arguments were addressed by Sh. Sumit Tomer, learned Counsel for petitioner and Sh. Mukul Sharma, learned Counsel for the objectors. DDA was represented by its learned Counsel Sh. Arvind Gupta.
37. Counsel for the petitioner argued that as per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in presence of the testator.
38. Referring to the testimony of PW-1 and PW-2, it was argued that the above requirements of law are fulfilled and petitioner is therefore entitled for the relief prayed in this petition.
39. So far as the objections of the objector that the sole beneficiary of the will is an outsider of the family and therefore there are suspicious PC No. 30/10 Page 7/17 circumstances, counsel for petitioner has relied upon 'Krishna Kumar Birla versus Rajender Singh Lodha & Ors.' (2008) 4 Supreme Court Cases 300 and referred to para 187 which is as under:-
"187. The submission that RSL is an outsider and the bequest is unnatural does not appeal to us. Such a question can not be determined at this stage. Why an owner of the property executes a will in favour of another is a matter of his / her choice. One may by a will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the will. If it is found to be valid, any further question as to why did she do so would be completely out of its domain. A will may be executed even for the benefit of others including animals..."
40. On the other hand, counsel for objectors has argued that the petitioner is a part of a gang of forgers, encroachers and property dealers, who, in connivance and conspiracy with certain corrupt Govt. officials have made it their business to deprive the ignorant oustees of the compensation and benefits of alternative plots. The modus operandi of Gupta Bahadur and other members of his gang has been to approach the persons whose land has been acquired and in the guise of helping them with the formalities of obtaining compensation and other benefits make them put their signatures and / or thumb impressions on blank papers and forms and then to use these document to institute false claims and suits against such helpless persons or their heirs.
41. Counsel for objector has argued that petitioner was a complete stranger to Sh. Suraj Bhan and could not have willed his only substantial asset to a complete stranger and left all his natural heirs resource less, without even assigning a reason in the alleged will for such a drastic measure.
42. He has argued that so called attesting witness was a stranger to Sh. Suraj Bhan and the rest of his family. It is further argued that the document being propounded as a will has been printed out as a form with blanks which have PC No. 30/10 Page 8/17 been subsequently filled.
43. In sum and substance the argument of counsel for objectors is that there are suspicious circumstances shrouding the execution of the will. Suspicious circumstances are not explained by petitioner. Therefore, this court should not return a finding that conscience of the court is satisfied viz-a-viz execution of the will. It was argued that the petitioner should have examined the second attesting witness as the first attesting witness was a total stranger and relied upon 'Janki Naryan Bhoir versus Narayan Namdeo Kadam' (2003) 2 SCC 91. Objectors have also relied upon the recent judgment of Hon'ble Supreme Court in the case of 'Suraj Lamp & Industries Pvt. Ltd. Versus State of Harayana & Anr' dated 11.10.11 in SLP Civil No. 13917/9, 'Meenakshiammal (dead) through LRs & Ors. Versus Chandra Sekran & Anr': (2005) 1 SCC 280 and 'Daulat Ram & Ors versus Sodha & Ors.' (2005) 1 SCC 40. Counsel for objector has argued that the Petitioner never discharged the onus adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. Therefore, it was argued that onus had never shifted on the objector to bring evidence to challenge the will. Therefore, non-examination of any witness by objector will not cause any prejudice to the case of objectors.
44. On the basis of pleadings of parties, evidence on record and arguments addressed by learned counsels for parties, issue-wise findings are as under:-
45. ISSUE No.1 Unnatural disposition:- Testator was bhumidar of agricultural land measuring 4 bigha 12 biswa in village Kakrola which was acquired for the Planned Development of Delhi.
46. Besides receiving compensation for the acquisition of the land, the testator was entitled to allotment of alternative plot.
47. Testator has 7 legal heirs who are his widow, 5 sons and two married daughters. Beneficiary is totally a stranger to the family. The beneficiary PC No. 30/10 Page 9/17 stated that he had never visited the house of testator and similarly testator also never visited the house of beneficiary. The beneficiary did not know which of the legal heirs of the testator are married / unmarried. The beneficiary had met the testator for the first time in the year 2009 on the occasion when the will in question was executed in his favour.
48. Petitioner is the sole beneficiary in the will. No reason is given in the will to deprive the natural legal heirs of the testator from the estate of testator. Normally, a Hindu male will not prefer an outsider and thereby ignore interests of his sons in the matter of succession to his estate.
49. In the will in question, there is no provision made for widow, 5 sons and 2 married daughters of the testator. It is not anyone's case that relations of testator and his sons / family were strained. It is not petitioner's case that sons of testator were so well of and well placed in life that they did not need the estate of testator.
50. As per collector, the worth of plot in question is Rs. 50 lacs. The disposition claimed by petitioner cannot be the result of the testator's free will and mind. Only a will which is executed without volition of the testator can have consequences of leaving the entire family without any relief in the said will.
51. Petitioner has failed to dispel this suspicious circumstance.
52. Illiterate testator:- The fact that the testator has put his thumb impression on the will shows that the testator was an illiterate person who could not read and write Hindi language leave aside knowing English language in which present will is drafted. Petitioner as well as the attesting witness have remained contented by deposing that the will in question was got typed by Sh. Surje himself and they did not know from where Sh. Surje got the will typed. No evidence has come on record regarding who prepared the will and whether the same was prepared on the instructions of testator or not.
53. The consistent case of the petitioner and the attesting witness that the testator had brought the will himself is also disbelieved by the fact that even the PC No. 30/10 Page 10/17 name of testator, his father's name, his address and particulars of beneficiary were also left blank in the will. If the will was got drafted on the instructions of testator, personal particulars like his name, his father's name, his address and personal particulars of beneficiary would not have been left blank to be filled up at a subsequent stage.
54. Witness stranger to testator:- The will shows that there are two attesting witnesses. The first witness is one Sh. Jai Kishan son of Sh. Nek Ram. He is shown as resident of village Kakrola. The father's name of the testator is also late Sh. Nek Ram. This witness appears to be shown as brother of testator. This witness should have been examined by the petitioner to inspire confidence of the court.
55. On the other hand, the petitioner has examined second attesting witness Sh. Rajesh who is not a relation of testator and was not a co-villager of the testator. PW-2 candidly deposed that he had met the testator once in the office of petitioner. That shows that PW-2 was a total stranger and an unlikely choice for the testator to request him to attest the will as one of the two attesting witnesses.
56. Petitioner has not dispelled the doubts of the court as to why the testator requested a total stranger to be the attesting witness of his will. The doubts are further strengthened by the fact that the petitioner has failed to summon and examine the first attesting witness who is shown as brother of testator.
57. No evidence that will was understood by testator:- The attesting witness, PW-2 has stated that the testator had come with some other person to the office of petitioner and the person who had accompanied Sh. Surje had read over and explained the contents of the will in vernacular language to the testator.
58. The identity of the person who had accompanied the testator has remained conspicuously absent in the evidence of petitioner. Therefore there is nothing on record to show that the contents of the will were read over and explained to the testator because neither the petitioner nor the attesting witness affirmed that he had read over and explained the contents of the will to the testator. In the case PC No. 30/10 Page 11/17 of Joseph Antony vs. AJ Francis AIR 2006 SC 1895, it is held as under: -
"Para 21. The last and perhaps the most significant aspect of this matter is the failure of the appellant to examine the Ld. Advocate who is said to have drafted the Will on the instructions of the testatrix and the non examination of Sub-Registrar before whom the Will is said to have been presented for registration. Both the said witnesses could have conclusively proved the facts relating to the preparation, execution and registration of the Will. In the absence of any evidence, we are unable to ascertain as to whether the Will was read over and explained to the testatrix before she is said to have executed and presented the same for registration."
59. In present probate petition, non-examination of the person who read over and explained the contents of the will to the testator is fatal to the case of petitioner.
60. Petitioner has deposed that one Shri Sandeep who is also an attesting witness of agreement to sell had filled up the blanks in the will. If that is so, petitioner should have examined the said Sh. Sandeep. However, for reasons best known to the petitioner, the petitioner has not preferred to examine said Sh. Sandeep.
61. Active participation by beneficiary:- The fact that the will was allegedly executed in the office of beneficiary and the only attesting witness examined by the petitioner was a known person of petitioner for last 5 to 6 years also raises doubts over the genuineness of the will.
62. In the case of Gurdial Kaur Vs. Kartar Kaur, AIR 1998 SC 2861, the Hon'ble Supreme Court held that:-
"Para 4 The law is well stated that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and PC No. 30/10 Page 12/17 understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicious circumstance."
63. In the case of Niranjan Umesh Chandra Joshi Vs. Mrudula Jyoti Rao and Ors: AIR 2007 SC 614, it was held that:-
"Para 32 The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated."
64. In case of Anil Kak vs. Kumari Sharada Raje : AIR 2008 SC 2195 it is held in para 52 as under :-
"Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and / or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine."
65. In the case of B. Venkatachala versus B.R Thimma Jamma AIR 1959 SC 443 it is held that:-
"Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, 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 PC No. 30/10 Page 13/17 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 signatures 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 the legitimate suspicions before the document can be accepted as the last will of the testator".
66. In the case of 'Jaswant Kaur versus Amrit Kaur: 1977 (1) SCC 369 it is held that:-
"In cases where the execution of the will is shrouded in suspicion, its prove ceases to be a simple lis between the plaintiff and defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will'.
67. In a case where the will is surrounded by suspicious circumstances it would not be treated as the last testamentary disposition of the testator (Bharpur Singh versus Shamsher Singh: AIR 2009 SC 1766).
68. Petitioner claims that the testator had also executed agreement to sell PC No. 30/10 Page 14/17 etc. in his favour and that is why the will was also executed.
69. A perusal of probate petition shows that it is totally silent with regard to any agreement to sell etc signed by testator in favour of petitioner. Only when the objectors stated in their written statement that it is likely that the thumb impressions of late Surje have been taken on blank papers, the petitioner disclosed in the replication that testator had executed usual documents of transfer i.e agreement to sell etc after receiving the full and final consideration amount from the petitioner.
70. The objectors had filed an application under Order XI Rule 12, 13 and 14 of CPC for the directions to the petitioner to make discovery on oath of all the documents in his power and possession in relation to the plot of land mentioned in the will including all documents in the nature of power of attorney, agreement to sell, receipts, sale deed or any other description and also sought directions for producing all such documents before the court.
71. The petitioner opposed this application stating that agreement to sell, receipt, sale deed etc have no relevancy for disposal of present petition as the same are not related to matter in reply.
72. However, when this court directed the petitioner to place the above said documents only then the petitioner filed the following documents on record:-
1. Agreement to sell: This agreement to sell is dated 25.05.05 and is executed between petitioner and testator as per which sale consideration for sale of alternative plot was Rs. 5 lacs. It is noted in the agreement that entire consideration has been received by testator vide a separate receipt. This agreement to sell is attested by one Sh. Kiran, Sh. Sandeep Lakra and Sh. Vijay Kumar.
2. Receipt: This receipt is dated Nil allegedly executed by testator in favour of Vijay Kumar. As per this receipt testator agreed to sell his alternative plot for Rs. 4 lacs to Sh. Vijay Kumar and states that Rs. 3,50,000/- are received by the testator and balance is only Rs. 50,000/-.
3. Receipt: This receipt is dated Nil allegedly executed by testator in favour of PC No. 30/10 Page 15/17 Vijay Kumar. As per this receipt testator received the entire payment except Rs. 10,000/- from Sh. Vijay Kumar.
4. Allotment letter dated 08.06.10 for alternative plot.
5. Payment receipt with DDA of Rs. 08,07,000/-.
6. Payment receipt with DDA of Rs. 1,24,150/-.
7. Payment receipt with DDA of Rs. 03,10,400/-.
8. Recommendation letter dated 11.08.06.
73. Perusal of above noted documents show that there is a contradiction in as much as agreement to sell dated 25.05.05 is between testator and petitioner which states that the testator has received Rs. 5 lacs from the petitioner but receipts dated Nil show that the testator has received sale consideration from Sh. Vijay Kumar and not from Sh. Gupta Bahadur, the petitioner. Moreover, the sale consideration is also varying in the agreement to sell and receipt. Whereas in the former sale consideration is Rs. 5 lacs but in the later the sale consideration is Rs. 4 lacs.
74. Be that as it may, no notice can be taken of above said documents as neither the petitioner has pleaded that the testator had entered into agreement to sell the alternative plot nor the petitioner has proved agreement to sell and payment of sale consideration which may have impelled testator to execute the will in favour of petitioner. Neither in the evidence of PW-1 and PW-2 it is deposed that there was any agreement for the sale of alternative plot in favour of petitioner nor the so called sale documents were proved and exhibited. Petitioner did not examine any attesting witness of the so called sale documents. Therefore, the agreement to sell etc are ignored for the purposes of disposal of present probate petition.
75. Therefore, Issue No. 1 is decided against the petitioner and in favour of objectors because the petitioner has not dispelled suspicious circumstances surrounding the will.
76. ISSUE No. 2 : Relief No relief can be given to the petitioner as issue No. 1 is decided PC No. 30/10 Page 16/17 against him. The petition is therefore dismissed. File be consigned to record room. Announced in the open Court on the 3rd day of November, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI PC No. 30/10 Page 17/17