Delhi District Court
Sushila Devi (Senior Citizen) vs Suresh Chand Sharma Anr on 19 August, 2025
IN THE COURT OF SH. SACHIN SOOD
DJ-01, CENTRAL, THC, DELHI
CS NO. 13994/2016
CNR NO. DLCT01-001770-2014
SMT. SUSHILA DEVI
W/O LATE JAWAHAR LAL SHARMA
R/O 223-224, GALI KANYA PATHSHALA
TELIWARA, SADAR BAZAR,
DELHI-110006 .....PLAINTIFF
VERSUS
1. SURESH CHAND SHARMA
SON OF LATE RAM SWAROOP
2. SMT. GANGASHREE
W/O SURESH CHAND SHARMA
BOTH R/O 227, GALI KANYA PATHSHALA
TELIWARA, SADAR BAZAR,
DELHI-110006 .....DEFENDANTS
DATE OF INSTITUION : 22.04.2014
DATE OF RESERVING : 11.08.2025
DATE OF JUDGMENT : 19.08.2025
JUDGMENT
1. The present suit has been filed by the plaintiff seeking the relief of possession in respect of the property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 along with the decree of permanent injunction and damages/mesne profits @ 15000/- per month with interest @15% per annum together with cost, pleading inter alia as under:-
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 1/38
(i) That defendant no.1 is the brother-in-law and defendant no. 2 is the sister- in-law of the plaintiff.
(ii) That Smt. Katori Devi, aunt (bua) of defendant no. 1 was the absolute owner of property bearing no. 223-224, admeasuring 30 sq yds and property bearing no. 227 admeasuring 40 sq yds both situtated at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi which was a self acquired property and acquired through registered sale deeds.
(iii) That Smt. Katori Devi, aunt (bua) of defendant no. 1 was issue-less and was a widow.
(iv) Plaintiff's husband namely Sh. Jawahar Lal Sharma was residing with Smt. Katori Devi since his childhood. The marriage of the late husband i.e. Sh. Jawahar Lal Sharma was solemnized by Smt. Katori Devi.
(v) The plaintiff as well as her husband were taking proper care of Smt. Katori Devi and she was also treating the plaintiff's husband as her own son. The plaintiff as well as her husband were treating Smt. Katori Devi as their mother- in-law/mother respectively.
(vi) Defendant no. 1 was earlier residing in his native village and somewhere in the year 1971 came to Delhi and requested Smt. Katori Devi to permit him to reside in a portion of her property for some period as he was not having any accommodation to live and that considering her relations with the defendant no. 1, Smt. Katori Devi allowed the defendant no. 1 to live in a portion in the property bearing no. 227, Gali Kanya Pathshala, Teliwara, Sadar Bazar, Delhi-06.
(vii) That during her lifetime, Smt. Katori Devi had executed a Will dated 07.08.1972 thereby interalia bequeathing her aforesaid two properties in favour of the plaintiff's husband and defendant no. 1.
(viii) That Smt. Katori Devi till her death, lived with plaintiff and her husband and both of them took proper care of Smt. Katori Devi and she was very happy with the services rendered by the plaintiff and her husband.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 2/38
(ix) That Smt. Katori Devi executed her last and final Will dated 08.11.1996 duly registered in the office of Sub-Registrar, Delhi thereby bequeathing her properties in favour of the husband of the plaintiff exclusively.
(x) That unfortunately, Smt. Katori Devi died on 04.04.1997 and after her death, on the request of the defendant no. 1, the husband of the plaintiff also permitted the defendants to live in the suit property as a permissive user/licensee without any use and occupation charges out of love and affection towards them.
(xi) That unfortunately, the husband of the plaintiff died on 08.03.2006 leaving behind the plaintiff and other legal heirs however, the oher legal heirs released/relinquished their respective shares in favour of the plaintiff vide reliquishment deed dated 02.02.2012 duly registered in the office of Sub- Registrar, Delhi and on the basis of said relinquishment deed, the plaintiff became the absolute owner of the properties, which were bequeathed by Smt. Katori Devi in favour of the husband of the plaintiff.
(xii) That considering her fiduciary relations with the defendants, the plaintiff also allowed the defendant to live in the suit property as a licensee without any charge.
(xiii) That on 12.04.2014, the plaintiff came to know that the defendants want to sell/transfer create third party and/or part possession of the suit property illegally and unlawfully without any right, title or interest whatsoever. Upon coming know, plaintiff contacted the defendants and requested them to vacate the suit property and hand over the peaceful vacant possession to her but the defendants extended threats to the plaintiff that they will sell/transfer/create third party interest and part with possession of the suit property and the plaintiff may do whatever she wants. The plaintiff lodged a complaint with the police station Bara Hindu Rao, Delhi on 12.4.2014 but the police did not take any action. The plaintiff also lodged complaint with ACP & DCP on 14.4.2014 but to no avail.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 3/38
(xiv) That the defendants have no right, title or interest whatsoever in the suit property but their intentions became dishonest and malafide and they want to grab the suit property illegally and unlawfully.
(xv) That as the plaintiff has revoked/cancelled the permission granted to the defendants to live/ occupy the suit property, hence, the status of the defendants in the said premises is merely as that of illegal/ unauthorized trespasser/ occupant.
(xvi) That the defendants were allowed to use the said premises as a permissive user purely on license basis without any charges. The defendant have no right, title or interest in the suit property and they are liable to pay Rs. 15,000/- per month to the plaintiff towards the use and occupation charges as per the prevailing rent in the locality.
(xvii) The cause of action for filing the suit arose on 12.04.2014 when the plaintiff came to know that the defendant want to sell/transfer the suit property which also arose when the plaintiff requested the defendants to vacate the suit property but the defendants extended threats. The cause of action also arose when the plaintiff reported the matter to the police. The cause of action still subsisting and continuing as the defendant is adamant in his illegal designs. Accordingly, it was prayed that a decree for possession, permanent injunction, damages, cost etc.,be passed in favour of the plaintiff. Amended written statement of the defendants
2. The defendants, by way of preliminary objections has taken the plea that the present suit based upon the WILL dated 08.11.1996 executed by late Smt. Ram Katori Devi is completely motivated false and frivolous and is an attempt to illegally oust the defendants from the suit property. As per the defendants, the Will dated 08.11.1996 is a forged and fabricated document and is surrounded by suspicious circumstances.
3. The defendants have contended that in terms of the admitted Will dated 07.08.1972, left by Late Smt. Ram Katori Devi, a bequest was made by her in respect of all her five properties in unequivocal and unambiguous manner whereby house no. 223-224, Gali Kanya Pathshala, Teliwara, Delhi-06 was CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 4/38 bequeathed to the late husband of the plaintiff i.e. Sh. Jawahar Lal Sharma. In terms of the said Will, house bearing no. 227, Gali Kanya Pathshala, Teliwara, Delhi-06 was bequeathed by her in favour of defendant no. 1 and out of the remaining three properties, two properties viz. B-79, Khasra no. 1086, Block A, Khureji Khas, Preet Nagar, Shahdara and Khasra no. 1, etc 64/2, Ghonda Chauhan Nagar, Shahdara was bequeathed to Smt. Savitri Devi i.e. sister of defendant no. 1 and the Late husband of the plaintiff i.e. Sh. Jawahar Lal Sharma. As per the said Will, property bearing no. R-23, Block A, Preet Nagar, Khureji Khas, Shahdara was bequeathed to Late Sh. Kishore Bhai, Husband of Smt. Savitri Devi.
4. As per the defendants, defendant no. 1 alongwith his wife i.e. defendant no. 2 has been continuously holding and enjoying the suit property as its rightful and legal owner since the year-1971 in terms of the bequest made by Late Smt. Ram Katori Devi in terms of her Will dated 07.08.1972 to the knowledge of the plaintiff.
5. That the Plaintiff's Late husband Shri Jawaharlal Sharma did not ever raise any objection during his lifetime with respect to ownership and peaceful enjoyment of the suit property by the Defendant No. 1 in accordance with the scheme of the admitted first and last Will dated 07.08.1972 executed by Late Smt. Ram Katori Devi.
6. That the Will dated 08.11.1996 allegedly executed by Late Smt. Ram Katori Devi is not a valid, genuine and enforceable Will and is surrounded by following/various suspicious circumstances with respect to the execution and attestation of the said Will:
(i) That the relations of the defendants with the Late Smt. Ram Katori Devi were always close and cordial during her lifetime who used to live with each of her all three nephews viz late Shri Jawahar Lal Sharma, Shri Suresh Chand Sharma and Smt. Savitri Devi separately in his/her respective residence accommodation at different times with her own choice during her lifetime.
That Smt. Ram Katori Devi was continuously residing with the defendants is evident from the fact that in the year-1995, a suit was instituted by one Sh. CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 5/38 Jorawar Singh against defendant no. 1 and Smt. Ram Katori Devi alleging unauthorized construction being raised in the suit property. It is further submitted that only around the last week of her life, when she visited the home of the plaintiff's late husband, she took her last breath there. As per the defendants, there were no good or sufficient reasons which would have impelled Smt. Ram Katori Devi to change her first and last Will dated 07.08.1972 or to have executed Will dated 08.11.1996 after a long period of 24 years from the date of the execution of her Will dated 07.08.1972 i.e. five months before her demise thereby excluding defendant no. 1 and Smt. Savitri Devi from the benefits of her estate. Thus, as per the defendants, since there was no change in circumstances, the revocation of the Will dated 07.08.1972 and the execution of Will dated 08.11.1996 exclusively in favour of the plaintiff's husband is highly unnatural, improbable and unfathomable.
(ii) That as per the defendants, there was no substantial change in the financial condition in the position of the plaintiff, the defendants or Smt. Savitri Devi which could have impelled Late Smt. Ram Katori Devi to change the bequest made by her vide her Will dated 07.08.1972 so as to bequeath the properties bequeathed to husband of defendant no. 1 and Smt. Savitri Devi in favour of the Late husband of the plaintiff. Thus, as per the defendants, the bequest made in favour of the late husband of the plantiff vide Will dated 08.11.1996 is highly unnatural, improbable and unfathomable.
(iii) That it is further the case of the defendants that the alleged Will dated 08.11.1996 did not see the light of the day for the long period of 14 years from death of Late Smt. Ram Katori Devi on 04.04.1997 until Shri Sachin Sharma, son of the Plaintiff, his wife Mrs Priya Sharma, and the Plaintiff raised their claim over the suit property sometime around February 2011 when on the basis of the said Will, the Defendants objected to the validity and genuineness of the said Will. As per the defendants, the plaintiff started harassing the Defendants to illegally oust them from the suit property by extending threats and bringing over several prospective buyers at different times to show the suit property claiming them to be the rightful owner of the suit property on the basis of the CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 6/38 said Will. It is further submitted that the trouble and harassment caused to the Defendants by the attitude of the son of the Plaintiff, his wife and the Plaintiff was so much that the Defendants were constrained to file a complaint against Shri Sachin Sharma, his wife Mrs. Priya Sharma, and the Plaintiff for harassment, criminal conspiracy, threat to life and liberty on 20.03.2012 in the P.S Bara Hindu Rao. It is further submitted that following the said complaint, an undertaking dated 03.04.2012 was signed before the Sub-Inspector, Sanjiv Kumar, wherein the Plaintiff's son Shri Sachin Sharma agreed not to harass the Defendants thereafter saying that he had no forged Will, and the Defendant No. 1 agreed to forgive him for his misbehavior.
(iv) That as per the defendants, no petition has ever been filed with respect to the alleged Will dated 08.11.1996 for the grant of probate/letters of administration is another indicator that the said Will is surrounded by the suspicious circumstances.
(v) Without prejudice to the above, it is further submitted that Late Smt. Ram Katori Devi, at the time of executing the alleged Will dated 08.11.1996 was not in good health and sound disposing state of mind to understand the nature of the disposition which was clearly unnatural, improbable and unfair in the light of relevant circumstances. As per the defendants, at the time of her death, Smt. Ram Katori Devi was ill who further submits that the Will dated 08.11.1996, was executed by Smt. Ram Katori Devi under coercion, undue influence, fraud and mis-representation.
(vi) That there is no reason given in the alleged Will dated 08.11.1996 to alter the disposition made vide admitted first and last Will dated 07.08.1972 and that the only mention of I want the above said will revoke or cancel and Sh. Suresh Chand Sharma and Savitri Devi with no concern of above said will qua the reason unambiguously shows that the alleged Will dated 08.11.1996 is surrounded by suspicious circumstances.
(v) That there is no endorsement made on the alleged Will dated 08.11.1996 in Hindi signed by Late Smt. Ram Katori Devi showing that the Hindi translation of the Will had been read over and explained to her who signed the document CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 7/38 after understanding the contents of the said Will and being satisfied that it had been prepared and drafted as per her instructions keeping in mind that Late Smt. Ram Katori Devi was not conversant with English language.
(vi) That the alleged Will dated 08.11.1996 has not been attested in accordance with the law as apparently both the attesting witnesses viz. Plaintiff being the spouse of the beneficiary Late Sh. Jawahar Lal Sharma and Sh. D.P Singh being the deed writer are non-independent witnesses and names of Late Smt. Ram Katori Devi and Sh. D.P Singh are not even typed as testatrix and witness respectively in the said Will.
(vii) That the alleged Will dated 08.11.1996, when seen in the light of the admitted first and last Will dated 07.08.1972 contains incorrect and incomplete recital of essential facts like description of properties, names and/or residential address of persons including testatrix, beneficiary and witness which are described as follows :-
(a) That the property bearing no. 223-224, Gali Kanya Pathshala, Teliwara, Delhi-06 in the alleged Will dated 08.11.1996 is mentioned to be of area 30 sq yds and on the other hand, in the admitted first and last Will dated 07.08.1972, the said property is mentioned to be of area 32 sq yds.
(b) That the suit property bearing no. 227, Gali Kanya Pathshala, Teliwara, Delhi-06 in the alleged Will dated 08.11.1996 is mentioned to be of area 30 sq yds and on the other hand, in the admitted first and last Will dated 07.08.1972, the said property is mentioned to be of area 40 sq yds.
(c) That the mention of And bank account in Punjab National Bank, Chawari Bazar, Delhi-06 and including moveable and immovable properties" in the said alleged Will dated 08.11.1996 is not complete and clear.
(d) That the alleged Will dated 08.11.1996 has mention of three properties only whereas the admitted first and last Will dated 07.08.1972 has mention of five properties.
(e) That the name of testatrix in the alleged Will dated 08.11.1996 is typed as Smt. Ram Katori Devi only and that on the other hand, in the admitted first and last Will dated 07.08.1972, the name of testatrix is typed as Smt. Ram Katori CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 8/38 Devi i.e. her complete name and also that the word "testator" instead of "testatrix" is used in the alleged Will dated 08.11.1996.
(f) That the residential address of Late Smt. Ram Katori Devi in the alleged Will dated 08.11.1996 is mentioned as R/o 55, Gali Kedar Nath, Chawari Bazar, Delhi-06 and also that in the admitted first and last Will dated 07.08.1972, her residential address is mentioned as R/o 55-A, Gali Raja Kedar Nath, Bazar Chawari, Delhi.
(g) That the name of plaintiff's late husband as beneficiary in the alleged Will dated 08.11.1996 is typed as Jawar Lal and Shri Jawar Lal Sharma .
(h) That the residential address of the plaintiff's Late husband as beneficiary in the alleged Will dated 08.11.1996 is mentioned as R/o 55, Gali Kedar Nath, Chawari Bazar, Delhi-06 which interestingly is also mentioned therein as the residential address of Smt. Ram Katori Devi through admittedly he had been living at the property bearing no. 223-224.
(i) That the residential address of the plaintiff as witness in the alleged Will dated 08.11.1996 is mentioned as R/o 55, Gali Kedar Nath, Chawari Bazar, Delhi-06 which interestingly is also mentioned therein as the residential address of Smt. Ram Katori Devi through admittedly the plaintiff had been living with her late husband at the property bearing no. 223-224.
(j) That the death certificates of Late Smt. Ram Katori Devi and plaintiff's late husband produced with the plaint are surrounded by various suspicious circumstances for containing incorrect recital of essential facts.
(k) That in the death certificate of Late Smt. Ram Katori Devi, the date of death and date of registration of her death are mentioned to be the same i.e. 04.04.1997 which is quite unnatural.
(l) That in the said death certificate, the age of Late Smt. Ram Katori Devi is mentioned to be 90 years though according to admitted first and last Will dated 07.08.1972, it should be approximately 86 years as at the time of execution of the said Will dated 07.08.1972, Late Smt. Ram Katori Devi was approximately 62 years old.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 9/38
(m) That in the death certificate of plaintiff's late husband Sh. Jawahar Lal Sharma, the name of his father is incorrectly mentioned as Late Nathu Ram which is rather the name of the husband of Late Smt. Ram Katori Devi.
(n) That the plaintiff has deliberately suppressed the fact that the defendant no. 1 had spent substantial money for construction upon the suit property sometime around May 1995 which led to a suit as filed by one Sh. Jorawar Singh in the same year falsely claiming himself to be the owner of the neighbourhood property bearing no. 228 and falsely alleging unauthorized construction being raised in the suit property against Late Smt. Ram Katori Devi. It is further submitted that the filing of the said suit in the year-1995 also establishes the fact that Late Smt. Ram Katori Devi had been continously residing with the defendants during the last couple of years of her life.
(o) That the plaintiff has deliberately suppressed the fact that the said property stands duly mutated in the name of the defendant no. 1 in the records of the MCD vide certificate of mutation dated 07.06.2011 and the defendant no. 1 has been paying property tax, electricity bills, water bills and phone bills since he came in possession of the suit property.
(p) That the plaintiff has no right, title or interest whatsoever in the suit property to bring the present suit. It is further submitted that the plaintiff being the attesting witness of the Will dated 08.11.1996 allegedly executed in favour of her Late Husband Sh. Jawahar Lal Sharma as beneficiary would not inherit the suit property in accordance with the law.
(q) That the present suit is hopelessely barred by limitation as it has been filed after a long and unexplained period of 17 years from the death of Late Smt. Ram Katori Devi on 04.04.1997 and hence liable to be dismissed.
(viii) On merits, it has been submitted by Late Smt. Ram Katori Devi had love and affection towards her all three nephews viz Late Sh. Jawahar Lal Sharma and also that the present suit is hopelessely barred by limitation as it has been filed after a long and unexplained period of 17 years from the death of Late Smt. Ram Katori Devi on 04.04.1997 and hence is liable to be dismissed.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 10/38
(ix) It is further submitted that the defendant no.1 alongwith defendant no. 2 has been in actual continued possession of the suit property even after the death of Late Smt. Ram Katori Devi on 04.04.1997. It is further more submitted that the defendant no.1 alongwith defendant no. 2 has been continously and peacefully holding and enjoying the entire suit property as a rightful and legal owner with the due authority bestowed by Late Smt. Ram Katori Devi.
(x) That the admitted Will dated 07.08.1972 was the first and last Will executed by Late Smt. Ram Katori Devi and the alleged Will dated 08.11.1996 is a forged and fabricated document and is surrounded by various suspicious circumstances.
REPLICATION
7. The plaintiff filed her replication denying each and every allegation levelled by the defendant in his written statement denying that the defendant is residing, holding and enjoying the suit property as a rightful and legal owner with the due authority bestowed by Late Smt. Ram Katori Devi on him in accordance with the scheme of admitted first and last Will dated 07.08.1972 as alleged and it is further submitted that the Will dated 07.08.1972 was revoked/cancelled on execution of last Will dated 08.11.1996 therefore the defendant has no right, title or interest in the suit property. It is further denied that the plaintiff's Late Huband Sh. Jawahar Lal Sharma did not ever raise any objection during his life time with respect to ownership and peaceful enjoyment of the suit property by the defendant no. 1 in accordance with the scheme of the admitted first and last Will dated 07.08.1972. It is denied that the will dated 08.11.1996 is not a valid, genuine and enforceable Will and is surrounded by various suspicious circumstances. It is further denied that the relation of the defendant with Late Smt. Ram Katori Devi were always close and cordial during her lifetime or that she used to reside with each of her three nephews or that there were no sufficient reasons impelling Smt. Ram Katori Devi to change her first executed Will dated 07.08.1972. It was submitted that the Will dated 08.11.1996 was executed by Late Smt. Ram Katori Devi with her own choice and it was denied CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 11/38 that the said Will did not see the light of the day for long and unexplained period of 14 years from the date of demise of Smt. Ram Katori Devi. Rest of the contents of the written statement were specifically denied. ISSUES
8. Vide order dated 14.09.2016, the court had framed the following issues for adjudication :-
1. Whether the suit is barred by law of limitation? OPD
2. Whether Late Smt. Ram Katori Devi executed any Will on 08.11.1996? If so, whether it was validly executed? OPP
3. Whether the plaintiff is entitled for recovery of possession of suit property i.e. property bearing no. 227, Gali Kanya Pathshala, Teliwara, Sadar Bazar, Delhi-110006, admeasuring 40 sq. Yds as shown in red colour in site plan? OPP
4.Whether the plaintiff is entitled for permanent injunction for restraint of defendants from selling, transferring, creating any third party interest or parting with possession of the suit property? OPP
5. Whether the plaintiff is entitled for damages/mesne profits from defendants? If so, at what rate, for which period and from which of the defendants? OPP
6. Relief.
EVIDENCE
9. The plaintiff, in order to prove her case had examined four witness including herself. The plaintiff entered into the witness box as PW-1 and deposed as PW1/A. She relied upon the documents i.e. S.No. Exhibits Documents
1. PW1/1 Photocopy of ID proof.
2. PW1/2A Receipts of house taxes.
to PW1/2D
3. PW1/3 Property shown in red colour in site plan.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 12/38
4. PW1/4 Certified copy of Will dated 07.08.1972.
5. PW1/5 Will dated 08.11.1996.
6. PW1/6 Death certificate of Ram Katori Devi.
7. PW1/7 Death certificate of Jawahar Lal Sharma.
8. PW1/8 Relinquishment deed.
9. PW1/9 & Complaint with ACP and DCP PW1/10 on 12.04.2014 and 14.04.2014 respectively.
10. PW1/11 Certificate issued dated 08.09.1954
10.The said witness was duly cross-examined by the counsel for the defendants on subsequent dates.
11.Sh. D.P Singh, Advocate entered into the witness box as PW-2 and was duly cross-examined by the counsel for the defendants on subsequent dates.
12.Sh. Parveen Kumar Rana who was a summoned witness was examined as PW-3 and had brought the summoned record i.e. the original summoned record i.e. relinquishment deed dated 01.02.2012 executed by Smt. Mamta W/o Sh. Ashok Kumar and ors in favour of Smt. Sushila Devi W/o Late Sh. Jawahar Lal Sharma which was registered at Sub-Registrar I, Kashmeri Gate vide registration no. 1017 in book no. 1 Volume no. 4222 on pages 52-58 registered on 02.02.2012. The said witness was also duly cross-examined by the counsel for the defendants.
13.Sh. Ramesh Rawat was examined as PW-4 who was a summoned witness and had stated that he had no record of Late Smt. Ram Katori Devi who was working as teacher at Arya Girls Senior Secondary School, Teliwara, Delhi-06 and had further submitted that record was available only 20 years from the retirement of employees/teacher. He further stated that Late Smt. Ram Katori Devi was working as an Assistant Teacher. Report dated 03.09.2019 issued by Ms. Asha Chhabra, Principal Arya Girls Senior Secondary School, Teliwara, CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 13/38 Delhi-06 was exhibited as PW4/A. The said witness was duly cross-examined by the counsel for the defendants.
14.The defendant, in order to prove his case had examined two witnesses including himself. The defendant was examined as DW-1 and entered into the witness box as DW1/A and had relied upon the following documents :-
S.No. Exhibits Documents
1. DW1/1 Certified copy of
the Will dated
07.08.1972.
2. Mark Site plan of the
DW1/A suit property.
3. DW1/3 Original summons
dated 23.05.1995
issued in the suit
filed by Jorawar
Singh.
4. Mark Copy of the plaint
DW1/B dated 20.05.1995
filed by Jorawar
Singh.
5. Mark Copy of the order
DW1/C dated 12.09.1996
passed in suit filed
by Jorawar Singh.
6. DW1/6 Original letter
dated 07.06.2011
issued by MCD.
7. DW1/7 Original three
(Colly) challans dated
04.05.2011,
31.05.2012 and
29.05.2013 issued
by MCD.
8. DW1/8 Two telephone
(Colly) bills dated
16.07.1999 and
28.04.2004.
9. Mark The complaint
DW1/D made by
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 14/38
defendant against
son of plaintiff
dated 20.03.2017
with PS. Bara
Hindu Rao.
10. Mark Copy of
DW1/E understanding
dated 03.04.2012.
15.The said witness was duly cross-examined by the counsel for the plaintiff on subsequent dates.
16.Sh. Naresh Kumar was examined as DW-2 and entered the witness box as DW2/A. The said witness was duly cross-examined by the counsel for the plaintiff on subsequent dates and vide order dated 26.07.2023, DE was closed. ANALYSIS AND FINDINGS Issue no. 1. Whether the suit is barred by law of limitation? OPD
17.The onus to prove the said issue was upon the defendant. The present suit has been filed by the plaintiff seeking the relief of possession, permanent injunction, damages/mesne profits alleging that the defendants have been permitted to live in the suit property as permissive users/licensees without any use and occupation charges, out of love and affection, after the demise of Smt. Ram Katori Devi w.e.f 04.04.1997. As per the plaintiff, the plaintiffs are the absolute owners of the suit property and since the defendants being her licensee, were intending to sell/transfer and create third party rights and interest in the property, request was made to them on 12.04.2014 to vacate the suit property and handover the peaceful vacant possession but to no effect. The plaintiff also made a police complaint on 12.04.2014 and as per the plaintiff, the permission granted to the defendants was revoked by the plaintiff and accordingly, the present suit was maintained claiming possession, permanent injunction and damages/mesne profits.
18.As per the defendants, the defendants have been bequeathed the suit property vide registered Will dated 07.08.1972 executed by Smt. Ram Katori Devi who consequent upon her demise are the absolute owners of the suit property in CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 15/38 terms of the bequest made by Smt. Ram Katori Devi. As per the defendants, the alleged Will dated 08.11.1996 saw the light of the day only in February-2011 when the plaintiff raised their claim over the suit property for the first time. As per the defendants, the suit is barred by limitation since the same has been filed after a period of 17 years from the date of the demise of Smt. Ram Katori Devi on 04.04.1997. The defendants, in support of the contention that the suit is barred by limitation has placed reliance upon the judgment passed in the matter of Pratap Singh and anr vs. State and anr 2010 (118) DRJ 534 and also upon the judgment of the Hon'ble Apex Court in the matter of Kunwarjeet Singh Khandpur vs. Kirandeep Kaur and ors. to contend that the present suit is governed by Article 137 of the Limitation Act and since the plaintiff has not filed any probate petition seeking grant of the probate, the present suit is barred by limitation.
19.As stated in the foregoing paras, the present suit has been filed by the plaintiff alleging that the defendants are in permissive possession of the property who despite the permission having been revoked, have continued to stay in the suit property and are trying to create third party rights and interest in the suit property. Since as per the plaintiff, the defendants being her licensees and were trying to alienate, create third party rights or interest in the suit property and had failed to vacate the same despite requests made by the plaintiff consequent upon the revocation of the license on 12.04.2014, the present suit for possession has been maintained by the plaintiffs. The present suit which has been filed on 22.04.2014 based upon the cause of action which as per the plaintiff arose on 12.04.2014 cannot be said to have been filed beyond the period of limitation. The reliance placed by the defendant on the judgments as stated in the foregoing paras is clearly misconceived as the present suit has been filed by the plaintiff seeking the relief of possession, permanent injunction, damages/mesne profits etc., and not for the grant of the probate. Accordingly, the present issue is decided in favour of the plaintiff and against the defendants.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 16/38 Issue no. 2. Whether Late Smt. Ram Katori Devi executed any Will on 08.11.1996? If so, whether it was validly executed? OPP
20. The onus to prove the said issues was upon the plaintiff. She is also the propounder of the will dated 08.11.1996. It is the case of the plaintiff that Smt. Ram Katori Devi was the aunt of the husband of the plaintiff, defendant no. 1 and Smt. Savitri Devi. Smt. Ram Katori Devi was a widow and was issue-less.
21.The plaintiff's husband was residing with Smt. Ram katori Devi since his childhood. The marriage of the late husband i.e. Sh. Jawahar Lal Sharma was solemnized by Smt. Katori Devi. Smt. Ram Katori Devi was treating the husband of the plaintiff as her own son. Defendant no. 1 was earlier residing in his native village and somewhere in 1971 came to Delhi and requested Smt. Katori Devi to permit him to reside in a portion of her property for some period as he was not having any accommodation to live and that considering her relations with the defendant no. 1, Smt. Katori Devi allowed the defendant no. 1 to live in a portion in the property bearing no. 227, Gali Kanya Pathshala, Teliwara, Sadar Bazar, Delhi-06. Smt. Katori Devi was the absolute owner of the following properties i.e.
(a) Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 40 sq yds.
(b) Property bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006.
(c) Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji Khas Preet Nagar, Shahdara, Delhi.
(d) House bearing Khasra no. 1, etc, 64/2, Ghonda Chauhan, Bangar Ilaka, Shahdara, Delhi admeasuring 100 sq yds.
(e) House bearing Plot no. R-23, Block A, Preet Nagar, Khureji Khas, Shahdara, admeasuring 200 sq yds.
22. That Smt. Ram Katori Devi, at the age of 62 years, vide her Will dated 07.08.1972 bequeathed the aforesaid five properties in the following manner :-
(a) Property bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 and Property bearing no. 227, CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 17/38 Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 40 sq yds was bequeathed in favour of the husband of the plaintiff and defendant no. 1. Vide the aforesaid Will, Smt. Ram Katori Devi granted only life interest in favour of the husband of the plaintiff and bequest was infact made in favour of his children.
(b) Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji Khas Preet Nagar, Shahdara, Delhi and House bearing Khasra no. 1, etc, 64/2, Ghonda Chauhan, Bangar Ilaka, Shahdara, Delhi admeasuring 100 sq yds were bequeathed in favour of Smt. Savitri Devi, W/o Sh. Kishore Bhai.
(c) House bearing Plot no. R-23, Block A, Preet Nagar, Khureji Khas, Shahdara, admeasuring 200 sq yds was bequeathed in favour of Sh. Kishore Bhai, S/o Sh. Subedar.
23. That Smt. Ram Katori Devi thereafter expired on 04.04.1997. The husband of the plaintiff also expired on 08.03.2006. It is the case set-up by the plaintiff that besides the aforesaid Will dated 07.08.1972, Smt. Ram Katori Devi had also executed another Will dated 08.11.1996 in respect of properties bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006, Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 40 sq yds and house bearing no. D-25, admeasuring 100 sq yds, situated at Shashtri Park, Ghonda Chauhan, Bangar Ilaka, Shahdara, Delhi. Vide the Will dated 08.11.1996, Smt. Ram Katori Devi had revoked/cancelled the bequest made by her in favour of Sh. Suresh Chand Sharma(defendant no. 1) and Smt. Savitri Devi. It was specified in the Will dated 08.11.1996 that Sh. Suresh Chand Sharma and Smt. Savitri Devi would have no concern with respect to her earlier Will dated 07.08.1972 and after her demise, Sh. Jawahar Lal Sharma (Late Husband of the plaintiff) would be the exclusive owner of the aforesaid three properties.
24. That as per the plaintiff, the husband of the plaintiff thus was vested with the absolute ownership of the suit property ( property bearing No 227) who permitted the defendants to stay in the suit property as licensee. Plaintiff also granted the permission to the defendants to stay in the suit property. The CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 18/38 husband of the plaintiff expired on 08.03.2006 and as per the plaintiff, on 02.12.2012, the relinquishment deed was executed by the other Lrs of the husband of the plaintiff in favour of the present plaintiff who thereafter became the absolute owner of the properties bequeathed by Late Smt. Ram Katori Devi. The plaintiff, thus, on coming to know that the defendants are intending to sell/transfer the suit property under their possession having no rights thereto have filed the present suit for possession contending that she has revoked the permission granted to the defendants to stay in the suit property who thus has prayed the relief for possession, permanent injunction, damages/mesne profits togetherwith costs.
25. Thus, in order to be entitled to the reliefs as claimed in the present suit, the plaintiff is required to prove that vide the subsequent Will dated 08.11.1996, the plaintiff has become the absolute owner of the suit property to which effect, issue no. 2 has been framed by the Court and upon which the other reliefs as prayed for vide issues no. 3, 4, 5 and 6 are dependent.
26. The plaintiff thus in order to assert her claims as prayed for in the suit was required to prove that the Will dated 08.11.1996 has been validly executed by the deceased Smt. Ram Katori Devi with her free will and in sound disposing state of mind and the deceased was aware about the contents of Will, at the time of signing it and that the same is beyond the pale of any suspicion.
27. In order to prove her case, the plaintiff has examined PW-1 (herself being an attesting witness), PW-2 (the other attesting witness to Will dated 08.11.1996) and PW-3 (UDC from the office of Sub-Registrar I, Kashmere Gate).
28. Before analysing the aforesaid testimonies of PW-1 and PW-2, it would be relevant to discuss various statutory provisions as well as relevant case law which govern the wills and their proof as follows :-
The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 and the said section is reproduced as under:
Section 2(h):- 'Will' means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 19/38 Section 59 of Indian Succession Act, states that every person of sound mind (not being a minor) may dispose of his property by Will.
Section 61 of Indian Succession Act states that a Will obtained by fraud coercion or importunity is void and the section 61 reads as under: Sec. 61. Will obtained by fraud, coercion or importunity- A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"Section 63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
"Section 68 of Indian Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 20/38 specifically denied.
29. The principles for proving the Will have been well settled, in catena of judgments by Hon'ble Supreme Court of India as well as by Hon'ble Delhi High Court. Some of the judgments have been mentioned below to appreciate the law, applicable on the facts of the present case.
30. In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down the following propositions:
(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 21/38 the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:
viii.Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 22/38 with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will findings ll under which he receives a substantial benefit, etc.
31. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Hon'ble Supreme Court of India has discussed the settled principles governing mode of proof of a Will before a probate court and the same are reproduced as under:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The findings onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 23/38 circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
32. In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court of Delhi made reference to FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid testament of the testator. These are as under:
I. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 24/38 IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw& Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 25/38
33. In the light of Legal principles as carved out in catena of Judgments by the Hon'ble Superior Courts and some of them as discussed above, it is obligatory for the plaintiff to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the testator:
(ii) That the testator while executing the Will was in sound and disposing state of mind:
(iii) That the testator had executed the Will with his own free will, meaning thereby that he was a free agent when he executed the Will and he was aware about the contents of Will at the time of signing the Will.
(iv) The plaintiff has to prove that the Will in question is the last Will of the testator.
(v) The plaintiff has to remove all the suspicious circumstances, surrounding the execution of the Will.
(vi) For proving the Will, at least, one attesting witness of the Will, if alive, must be examined in the Court as per section 68 of the Indian Evidence Act.
(vii) The attesting witnesses must fulfill the requirement of Section 63 (C) of Indian Succession Act.
34. In the present manner, it is first required to be analysed as to whether PW-1 and PW-2 are able to prove the execution of the will dated 08.11.1996 in terms of the provisions of Section 63 (C) of the Indian Succession Act, 1925. PW-1 has testified on the lines of the plaint as filed by her. She has specifically stated that Smt. Ram Katori Devi executed her last and final Will dated 08.11.1996 which was registered in the office of sub-registrar. PW-1 was duly cross- examined by the counsel for the defendants. She has propounded the Will dated 08.11.1996 (Ex. PW1/5).
35. In her cross-examination, PW-1 has admitted that Sh. Ram Katori Devi was having good relations with her niece Smt Savitri Devi and her husband. She has further admitted that Smt. Ram Katori Devi initially had been treating Sh. Jawahar Lal and defendant no. 1 without any discrimination. She also admitted CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 26/38 that Smt. Ram Katori Devi used to visit her self acquired properties during her lifetime. She also admitted that at the time of the demise of Smt. Ram Katori Devi, she was aged between 85-88 years and also that Smt. Ram Katori Devi expired due to illness since she was suffering from Pneumonia. She also admitted that she has not seen Smt. Ram Katori Devi ever signing in English who was 8th class pass and used to teach students of 4 th and 5th class. She has further admitted that Smt. Ram Katori Devi used to write letters and correspondences in Hindi Language. It was further admitted that she alongwith her husband and Smt. Ram Katori Devi went to the office of sub registrar on 08.11.1996 for the execution of the Will. It was also admitted that her husband had met advocate D.P Singh at the sub-registrar office. She has shown her ignorance to the existence of any person by the name of P.D Bhardwaj and has clearly stated that she is not aware as to whether any person by the name of Sh. P.D Bhardwaj was present at the time of execution of the Will.
36. PW-1 in clear terms has stated that Advocate DP Singh was sitting in open and the typist who typed the Will was sitting separately however, she could not remember how far away the typist was sitting. It was further admitted by PW-1 that Smt. Ram Katori Devi had affixed her thumb impression as well as signatures at the place where the said Will was typed. It has clearly admitted by PW-1 that her signatures were affixed on the Will at the place where the same were typed. She could not disclose as to at what place in the compound of sub registrar office Advocate D.P Singh had signed the said Will or out of the two attesting witnesses, who signed first. She has further stated that her husband did not inform her as to how much expenses were borne in the preparation and execution of the Will dated 08.11.1996.
37. PW-1 in her cross-examination, although has admitted that the other two properties which are not mentioned in the list of properties bequeathed by Late Smt. Ram Katori Devi vide her Will dated 08.11.1996 i.e. property bearing no. B-79, Khajuri Khas, Delhi and R-23, Preet Vihar, Delhi were owned by Smt. Ram Katori Devi in which as per her, Smt. Savitri Devi had no share after the demise of Smt. Ram Katori Devi and the said two properties too were devolved CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 27/38 upon her husband under the Will dated 08.11.1996. She has volunteered that even the third property which is located in trans-yamuna at Shashtri Park also devolved upon her husband. She, however, has contradicted herself by stating that she is not aware about the properties at Khajuri Khas and Preet Vihar or that as to in which manner the said two properties also devolved upon her husband.
38. PW-2 who was also the attesting witness of the Will dated 08.11.1996 in his examination-in-chief has deposed that Smt. Ram Katori Devi had approached him for the preparation and registration the Will regarding Property bearing no. 223-224, admeasuring 30 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006, Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 30 sq yds both situated at Gali Kanya Pathshala, Teliwara, Sadar Bazar, Delhi-110006 and house bearing no. D-25, admeasuring 100 sq yds, situated at Shashtri Park, Ghonda Chauhan, Bangar Ilaka, in Khasra no. 1 etc., /64/2/1, Shahdara, Delhi and also the bank account with Punjab National Bank and including immovable and movable properties in favour of Sh. Jawahar Lal Sharma. He has further deposed that Smt. Ram Katori Devi had revoked and cancelled her earlier registered Will. He has further deposed that he prepared the Will of Late Smt. Ram Katori Devi and the same was executed on 08.11.1996 in his presence where he has put his stamps and signatures as a witness of the said Will. As per him, Smt. Sushila Devi was the other witness to the new Will.
39. In his cross-examination, he has deposed that the plaintiff and her late husband had accompanied Smt. Ram Katori Devi to the registrar's office for registering the Will. He has stated that Smt. Ram Katori Devi approached him through his client whose name he do not remember. He has clearly admitted that the age of the executant of the Will has not been mentioned and has stated that he had prepared a hand draft of the Will and thereafter it was got typed by the typist. He has categorically admitted that the typist who types the Will sits at a distance from his seat. He has also categorically stated that he has put his signatures on the Will at his seat and the other witness also signed the Will at CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 28/38 his seat. He also admitted that Smt. Ram katori Devi had only told him about the properties mentioned in Ex. PW1/5 and has not mentioned about the other properties as mentioned in the previous Will.
40. The testimonies of PW-1 and PW-2 in the present case are at variance with each other. As per the testimony of PW-1, Smt. Ram Katori Devi had affixed her thumb impression as well as signatures at the place where the same were typed i.e. in front of the typist who was sitting at a distance from Advocate D.P Singh i.e. PW-2.
41. The plaintiff (PW-1) also affixed her signatures at the place where the same were typed i.e. before the typist. PW-2, thus, could not have witnessed the affixing of the thumb impression by Smt. Ram Katori Devi or affixation of his signatures on the Will dated 08.11.1996 in the presence of Smt Ram Katori Devi since the said impression as well as signatures were appended by Late Smt. Ram Katori Devi before the typist which was at a distance from where advocate D.P Singh was sitting on table and chair. In any case, the testimony of the attesting witnesses is inconsistent since as per their testimonies, one attesting witness has not seen Smt. Ram Katori Devi putting her thumb impression as well as her signatures upon the alleged Will dated 08.11.1996. In the present case, the plaintiff through the testimonies of PW-1 and PW-2 has not been able to establish that the mandatory requirement of Section 63(c) of the Indian Succession Act, 1925 has been fulfilled in the present case. Thus, the plaintiff has failed to prove that the Will dated 08.11.1996 has been legally and validly executed by Smt. Ram Katori Devi.
42. In a judgment titled as Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead Through Lrs.) Civil Appeal no. 2435 of 2010, decided on 20 November, 2023, the Hon'ble Supreme Court of India has observed as follows:-
20. Trite to state, mere registration of a Will does not attach to it a stamp of validity and it must still be proved in terms of the above legal mandate. In Janki Narayan Bhoir vs. Narayan Namdeo Kadam 1, this Court held that the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with to prove a Will and the most important point is that the Will has to be CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 29/38 attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that it was duly and validly executed and that cannot be done by simply proving that the signature on (2003) 2 SCC 91 the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These principles were affirmed in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others 2.
43. In the case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. (Supra), the Hon'ble Apex Court has deduced the following principle regarding signing of Will by the testator in the presence of both attesting witnesses as per section 63 of the Indian Succession Act and the same are as under; - iii A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) ...........
(b) ...........
(c) Each of the attesting witnesses must have seen the testator
sign or affix his mark to the Will findings or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
44. In a case titled Geeta Devi Goel Vs State, Test case 75/2008 decided on 19.01.2011, the Hon'ble High Court of Delhi has held as under:
8."A bare perusal of Section 63(c)of Indian Succession Act would show that a Will is required to be attested by two or more witnesses and each of them must have seen the Testator sign or affixing his mark to the Will or should have seen some other person signing the Will in the presence and under the directions of the Testator or should have received a personal acknowledgment from the Testator with respect to his signature or mark or signature of the another person who signs the Will in the CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 30/38 presence and under the direction of Testator and it is also necessary that each witness should sign the Will in the presence of the Testator. This, however, is not the requirement of law in India that both the attesting witnesses should also sign in the presence of each other".
45. In a case titled Gopal Krishan & Ors. Vs Daulat Ram & Ors. Civil Appeal No. (S) 13192 of 2014, decided on 02.01.2025, the Hon'ble Supreme Court of India has held as follows:
Section 63 of the Indian Succession Act, 1925 runs thus:-
"63. Execution of unprivileged Wills.--
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
(emphasis supplied) As seen above, Section 63(c) enumerates five distinct situations:
A is the testator of the Will in question. B and C have signed the Will. For B and C to qualify as attestors,-
Situation 1:
Each of them has to have seen A sign the will or put his mark on it; OR Situation 2:
They should have seen some other person, let's say D sign the will in the presence of and on the direction of A;
OR Situation 3:
They ought to have received a personal acknowledgment from A to the effect that A had signed the Will or has affixed his mark thereon; With the use of the conjunctive, 'and' one further stipulation has been provided:
\B, C, D or any other witness is required to sign the Will in the presence of A however it is not necessitated that more than one witness be present at the same time.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 31/38 The statutory language also clarifies that B and C, the attestors, are not required to follow any particular prescribed format.
13. The language of Section 63(c)of the Act uses the word 'OR'. It states that each Will shall be attested by two or more witnesses who have seen the Testator sign or affix his mark on the Will OR has seen some other persons sign the Will in the presence and by the direction of the Testator OR has received a personal acknowledgment from the Testator of his signature or mark etc. What flows therefrom is that the witnesses who have attested the Will ought to have seen the Testator sign or attest his mark OR have seen some other persons sign the Will in the presence of and on the direction of the Testator. The judgment relied on by the learned Single Judge in the impugned judgment, i.e., Kanwaljit Kaur (supra) holds that the deposition of the attesting witness in the said case had not deposed in accordance with Section 63(c) of the Act, where two persons had undoubtedly attested the Will, but the aspect of the 'direction of the testator' was absent from such deposition. In the considered view of this Court, the Learned Single Judge fell in error in arriving at such a finding for the words used in the Section, which already stands extracted earlier, read -"or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a...". That being the case, there is no reason why the 'or' employed therein, should be read as 'and'.
After all, it is well settled that one should not read 'and' as 'or' or vice- versa unless one is obliged to do so by discernible legislative intent. Justice G.P Singh's treatise, 'Principles of Statutory Interpretation' tells us that the word "or" is normally disjunctive while the word "and" is normally conjunctive. Further, it is equally well settled as a proposition of law that the ordinary, grammatical meaning displayed by the words of the statute should be given effect to unless the same leads to ambiguity, uncertainty or absurdity. None of these requirements, to read a word is which is normally disjunctive, as conjunctive herein, are present.
46. The Hon'ble Supreme Court of India in a case titled Dhani Ram (D) Thr. Lrs.
vs Shiv Singh, Civil Appeal No. 7172 of 2009, decided on 06.10.2023, has held as follows:
"22. We may also refer to Janki Narayan Bhoir vs. Narayan Namdeo Kadam, wherein this Court held that, to prove that a Will has been executed, the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with. It was pointed out that the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 32/38 received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that the Will was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These observations were affirmed and quoted with approval by this Court in its later judgment in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others 3.
23. Viewed in the context of the legal requirements and the law laid down by this Court, we find that neither of the attesting witnesses in this case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove the Will. Though Lok Nath Attri claimed that Leela Devi affixed her signatures in the Will in their presence, which was vehemently denied by the other attesting witness, Chaman Lal, the fact remains that Lok Nath Attri also did not state that he affixed his signatures in the Will in the presence of Leela Devi. This is one of the compulsory requisites of Section 63(c) of the Succession Act."
47. Besides, the aforesaid, the plaintiff being the propounder of the Will dated 08.11.1996 through the testimonies of PW-1 and PW-2 was also required to prove that the Will as executed by Late Smt. Ram Katori Devi did not suffer from any suspicious circumstances and that the same also satisfies the test of judicial conscience. In the present case, the will dated 08.11.1996 as propounded by the Plaintiff is surrounded by various suspicious circumstances which can be gauged by the following facts and reasons.
A. Smt. Katori Devi was the absolute owner of the following properties i.e.
(a) Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 40 sq yds.
(b) Property bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006.
(c) Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji Khas Preet Nagar, Shahdara, Delhi.
(d) House bearing Khasra no. 1, etc, 64/2, Ghonda Chauhan, Bangar Ilaka, Shahdara, Delhi admeasuring 100 sq yds.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 33/38
(e) House bearing Plot no. R-23, Block A, Preet Nagar, Khureji Khas, Shahdara, admeasuring 200 sq yds.
B. That Smt. Ram Katori Devi at the age of 62 years, vide her Will dated 07.08.1972 bequeathed the aforesaid five properties as follows :-
(a) Property bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 and Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 40 sq yds was bequeathed in favour of the husband of the plaintiff and defendant no. 1. Vide the aforesaid Will, Smt. Ram Katori Devi granted only life interest in favour of the husband of the plaintiff and bequest was infact made in favour of his Lrs.
(b) Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji Khas Preet Nagar, Shahdara, Delhi and House bearing Khasra no. 1, etc, 64/2, Ghonda Chauhan, Bangar Ilaka, Shahdara, Delhi admeasuring 100 sq yds were bequeathed in favour of Smt. Savitri Devi, W/o Sh. Kishore Bhai.
(c) House bearing Plot no. R-23, Block A, Preet Nagar, Khureji Khas, Shahdara, admeasuring 200 sq yds was bequeathed in favour of Sh. Kishore Bhai, S/o Sh. Subedar.
C. Vide her subsequent Will dated 08.11.1996 (Ex. PW1/5), Smt. Ram Katori Devi bequeathed Property bearing no. 223-224, admeasuring 30 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006, Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 30 sq yds both situated at Gali Kanya Pathshala, Teliwara, Sadar Bazar, Delhi-110006 and house bearing no. D-25, admeasuring 100 sq yds, out of Khasra no. 1 etc/64/2/1, situated at Shashtri Park, Ghonda Chauhan Khadar, Ilaka Shahdara, Delhi in favour of the husband of the plaintiff. Vide the Will dated 08.11.1996, Smt. Ram Katori Devi had revoked/cancelled the bequest made by her in favour of Sh. Suresh Chand Sharma(defendant no. 1) and Smt. Savitri Devi. It was specified in the Will dated 08.11.1996 that Sh. Suresh Chand Sharma and Smt. Savitri Devi would have no concern with respect to her earlier Will dated 07.08.1972 and after her demise, Sh. Jawahar Lal Sharma CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 34/38 (Late Husband of the plaintiff) would be the exclusive owner of the aforesaid three properties.
48. Perusal of the Will dated 07.08.1972 goes to show that vide the aforesaid Will, Smt. Savitri Devi had been bequeathed two properties i.e. Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji Khas Preet Nagar, Shahdara, Delhi and House bearing Khasra no. 1, etc. 64/2, Ghonda Chauhan, Bangar Ilaka, Shahdara, Delhi admeasuring 100 sq yds were bequeathed in favour of Smt. Savitri Devi, W/o Sh. Kishore Bhai.
49. Thus, on one hand, Smt. Ram Katori Devi, vide her earlier Will dated 07.08.1972 had bequeathed two properties to Smt. Savitri Devi who without mentioning about the other property i.e. property bearing Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji Khas Preet Nagar, Shahdara, Delhi has altogether excluded Smt. Savitri Devi from her earlier executed Will vide her subsequently executed Will dated 08.11.1996. PW-1 in her cross-examination has admitted that Sh. Ram Katori Devi was having good relations with her niece Savitri Devi and her husband, hence, there was no reason for Smt. Ram Katori Devi to exclude Smt. Savitri Devi from her Will dated 08.11.1996 (Ex. PW1/5) and that too without cancelling the bequest made in her favour with respect to the second property bequeathed to her vide her previous will dated 07.08.1972. Thus the aforesaid fact in itself is sufficient to demonstrate that Smt. Ram Katori Devi at the time of execution of the Second Will Dated 08.11.1996 was not in a sound disposing mind and neither was she aware of the bequest being made by her or cancelling the earlier bequest having been made by her vide Will Dated 07.08.1972.
50. Besides the aforesaid, the husband of the plaintiff who was merely granted life interest vide previous will dated 07.08.1972 and bequest was infact made in favour of his Children/ Lrs, was granted absolute ownership of the three properties i.e. Property bearing no. 223-224, admeasuring 30 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006, Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 30 sq yds both situated at Gali Kanya Pathshala, Teliwara, Sadar Bazar, CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 35/38 Delhi-110006 and house bearing no. D-25, admeasuring 100 sq yds, out of Khasra no. 1 etc/64/2/1, situated at Shashtri Park, Ghonda Chauhan Khadar, Ilaka Shahdara, Delhi vide the alleged subsequently executed will dated 08.11.1996. The Plaintiff has failed to establish any change in circumstances which prompted Smt Ram Katori Devi to alter her earlier bequest in as much as not only granting the Plaintiff the absolute ownership of House Bearing No223-224, admeasuring 30 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 instead of the life interest but also the ownership of other two houses by completely excluding Defendant No 1 and Smt Savitri Devi.
51. In the alleged subsequently executed Will dated 08.11.1996, the areas of the properties is at variance with the areas of properties as mentioned in her earlier executed WILL dated 07.08.1972. In the Will dated 07.08.1972, property bearing no. Property bearing no. 223-224 at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 was stated to be admeasuring 32 sq yds. However, in the subsequently executed of the said property is said to be 30 sq yds. Similarly, the area of the property bearing no.227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 was stated to be admeasuring 40 sq yds. However, in the subsequently executed Will, was stated to be admeasuring 30 sq yds. This fact also goes to show the feeble mind of the Testator at the time of alleged execution of the subsequent Will dated 08.11.1996.
52. The will executed by Smt. Ram Katori Devi on 07.08.1972 has been executed by her in Hindi whereas the subsequently executed Will dated 08.11.1996 (Ex. PW1/5) has been allegedly executed by her in English where even the signatures as appended by Smt. Ram Katori Devi are at variance with her admitted signatures on the earlier executed Will dated 07.08.1972. PW-1, in her cross-examination has clearly admitted that Smt. Ram Katori Devi used to write letters and correspondences in Hindi Language and also that she used to sign in Hindi. Since, Smt. Ram Katori Devi in terms of the aforesaid testimony was comfortable with the Hindi Language and has thus executed her Will dated 07.08.1972 in Hindi Language, there was no reason for her to have executed the subsequent Will in English Language. It is not the testimony of any of the CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 36/38 attesting witnesses that she was read over or explained the draft of the will dated 08.11.1996 or that she understood the bequest being made by her in derogation to the bequest earlier made by her.
53. PW-1 in her entire examination-in-chief or in her cross-examination has not mentioned about any change in the circumstances which prompted Smt. Ram Katori Devi to have executed the subsequent Will thereby excluding defendant no. 1 or Smt. Savitri Devi from the bequest having been made by her vide her first Will dated 07.08.1972.
54. PW-1 in her cross-examination has clearly admitted that she alongwith her husband had actively participated in the execution of the subsequently executed Will dated 08.11.1996. It has been admitted by PW-1 that she alongwith her husband and Smt. Ram Katori Devi went to the office of sub registrar on 08.11.1996 for the execution of the Will. She has further stated that her husband did not inform her as to how much expenses were borne in the preparation and execution of the Will dated 08.11.1996. Given the fact that at the time of execution of the subsequent Will dated 08.11.1996, Smt. Ram Katori Devi was aged 85-88 years as admitted by PW-1 and also given the fact that without any change in the circumstances having been established by the plaintiff, it cannot be said that the exclusion of defendant no. 1 or Smt. Savitri Devi with whom Smt. Ram Katori Devi was enjoying good relations, was with the free consent of Smt. Ram Katori Devi who at the time of execution of the subsequent Will dated 08.11.1996 was residing with the plaintiff and her husband who had taken an active part in its execution.
55. Thus, in the considered opinion of the court, the Plaintiff has failed to satisfy the judicial conscience of the court who has failed to satisfy the court the reasons for the execution of the subsequent will dated 08.11.1996. The Plaintiffs have further failed to explain the inherent contradictions in the subsequently executed alleged will dated 08.11.1996 or the reasons for Smt Ram Katori Devi to have executed the subsequent will in favour of her husband to the exclusion of Defendant No 1 and Smt Savitri Devi where the Plaintiff and her late husband have taken an active part in its execution. Given CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 37/38 the fact that the dispositions made in the subsequent will are inherently contradictory, unnatural, improbable and unfair also reflect that the subsequent will dated 08.11.1996 was not executed with free and sound disposing mind. The Plaintiff has failed to remove all these suspicious circumstances has thus failed to prove that the will dated 08.11.1996 was executed by Smt Ram Katori Devi validly and with a free disposing mind. The plaintiff being the propounder of the Will neither could prove that the Will dated 08.11.1996 (Ex. PW1/5) was validly executed in accordance with the mandate of Section 63 (c ) of the Indian Succession Act nor could the Plaintiff dispel the suspicious circumstances surrounding the Will dated 08.11.1996 (Ex. PW1/5). Accordingly, the present issue is decided against the plaintiff and in favour of the defendant.
FINDINGS ON ISSUE NO 3-5
56. Since the reliefs as claimed vide Issue no. 3, 4 and 5 were dependent upon the findings returned qua Issue no. 2, the same are also accordingly decided against the plaintiff and in favour of the defendants.
57. Accordingly, the present suit is hereby dismissed.
58. No order as to costs.
59. Decree sheet be prepared accordingly.
60. File be consigned to record room after necessary due compliance.
Announced in the Open Court on Sachin Sood
19.08.2025 DJ-01, Central,
THC, Delhi
Digitally
signed by
SACHIN SACHIN
Date:
SOOD
SOOD 2025.08.19
16:44:36
+0530
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 38/38