Delhi High Court
Budh Singh vs Raghubir Singh & Ors on 11 September, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th September, 2015
+ RFA No.69/1980
BUDH SINGH ..... Appellant
Through: Mr. Manish Kumar with Mr. Pulkit
Choudhary, Advs.
versus
RAGHUBIR SINGH & ORS. ..... Respondents
Through: Mr. A.C. Gambhir and Mr. Lalit Gambhir, Advs. for R-1(V).
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. This appeal, under Section 96 of the Code of Civil Procedure (CPC), 1908 impugns the judgment and decree dated 15th December, 1979 of the Court of Shri R. Dayal, Additional District Judge, Delhi of dismissal of civil suit no.47/1979 (Old No.297/1973) filed by the deceased appellant Shri Budh Singh against his deceased brothers Shri Raghubir Singh (Respondent no.1), Shri Balbir Singh (Respondent no.2), Shri Kishan Singh (Respondent no.3) and his sisters namely Smt. Shanti (Respondent no.4) and Smt. Manti (Respondent no.5) for partition of immovable properties.
2. The appeal came up first before this Court on 5th March, 1980 when while admitting the same, ex parte ad interim order of stay of dispossession RFA No.69/1980 Page 1 of 33 was passed and which was on 10th July, 1980 made absolute till the decision of the appeal. The appeal has remained pending in this Court for the last 36 years owing to the time taken in service of the respondents and thereafter in substitution of the legal heirs of the appellant and the respondents no.1,2&3, all of whom died in the interregnum and in service of notice of the appeal on them vide another interim order dated 9th September, 1987, the respondents were restrained from transferring, leasing or otherwise parting with possession of the suit properties or any part thereof and which order also has continued in force till now. In this long span of time, some of the legal heirs substituted of the original parties also started dying and steps for substitution of their legal heirs also took time. On 10 th September, 2015, applications for substitution of the legal heirs of one of the legal heirs of the deceased respondent no.1 and for condonation of 1248 days delay in applying therefor and 140 days delay in re-filing of the application had come up before this Court. It appears that over a period of time, though service of all the respondents and of all the legal heirs of the deceased respondents no.1,2&3 was completed, they / their Advocates also lost interest in the matter. On 10 th September, 2015, only the counsel for the legal heirs of the appellant and the counsel for one of the legal heirs namely Shri Mahavir Singh (who also has RFA No.69/1980 Page 2 of 33 died and whose legal heirs were for substitution on 10th September, 2015) of the deceased respondent no.1, appeared. Though the counsel for the legal heirs of the said Shri Mahavir objected to the substitution on the ground of long delay on the part of the legal heirs of the appellant in applying therefor, but the delay was condoned and the substitution permitted on the condition of the counsels arguing the appeal on that date itself. On request of the counsels, the matter was posted to today. The counsel for the legal heirs of the appellant and the counsel for the legal heirs of Shri Mahavir Singh, being one of the legal heirs of the deceased respondent no.1 Shri Raghubir Singh, have been heard. None appears for the other respondents / their legal heirs who are proceeded against ex parte.
3. The deceased appellant instituted the suit from which this appeal arises pleading that:-
(a) Shri Zaharia Mal, father of the appellant and his three brothers (Respondents no.1,2&3) and his two sisters (Respondents no.4&5) died in the year 1967 leaving, besides the parties to the suit, his widow Smt. Bakhtawari Devi; RFA No.69/1980 Page 3 of 33
(b) Smt. Bakhtawari Devi also died thereafter leaving the appellant / plaintiff and the respondents / defendants as her only legal heirs;
(c) the said Shri Zaharia Mal at the time of his death was the owner of :
(i) House bearing old Municipal no.2294, New
Municipal no.4055, situated in Gali Jain Girls
Higher Secondary Shool, Pahari Dhiraj, Sadar
Bazar, Delhi;
(ii) House bearing old Municipal no.3107, New
Municipal no.3902 situated near Khari Kuan, Gali Mandir Wali, Pahari Dhiraj, Sadar Bazar, Delhi;
and;
(iii) House bearing old Municipal no.3260, New Municipal no.4050 situated at Gali Jain Girls Higher Secondary School, Pahari Dhiraj, Sadar Bazar, Delhi;
RFA No.69/1980 Page 4 of 33
(d) on the demise of Shri Zaharia Mal and Smt. Bakhtawari Devi, the appellant / plaintiff and the five respondents / defendants became owners of the aforesaid three properties with a share of 1/6th each;
(e) that the appellant / plaintiff was in actual possession of part of the house bearing new Municipal No.4054 (supposedly incorrect ) and in joint possession of the other properties; and,
(f) that though the appellant / plaintiff sought partition but the same was denied.
Accordingly, the relief of partition by metes and bounds of the aforesaid three properties and of putting the appellant / plaintiff in separate possession of his 1/6th share thereof was claimed in the suit.
4. The respondents / defendants no.1, 2 &3 being the brothers of the appellant / plaintiff filed a joint written statement:
(i) denying that Shri Zaharia Mal died in the year 1967 and pleading instead that he died on 18th August, 1968;
(ii) pleading that Shri Zaharia Mal left a validly executed and registered last Will dated 23rd March, 1967 whereunder, after RFA No.69/1980 Page 5 of 33 his death Smt. Bakhtawari Devi and the respondents / defendants no.1,2&3 were the beneficiaries under the Will and the appellant / plaintiff was excluded from any right or interest in the properties left by Shri Zaharia Mal;
(iii) pleading that after the death of Smt. Bakhtawari Devi the respondents / defendants no.1,2&3 are the only owners of the said properties;
(iv) denying that the appellant / plaintiff was in joint possession of any other property except property no.4054;
(v) pleading that the first two of the aforesaid properties were in exclusive possession of the respondents / defendants no.1,2 respectively and the third of the aforesaid properties was in joint possession of the appellant / plaintiff and the respondent / defendant no.3 Shri Kishan Singh; and,
(vi) that the respondent / defendant no.3 Shri Kishan Singh was the sole and absolute owner of the said property no.4054 and had rightly filed a suit for recovery of possession of the portion thereof in occupation of the appellant / plaintiff. RFA No.69/1980 Page 6 of 33
5. The respondents / defendants no.4&5, being the sisters of the appellant / plaintiff, filed a joint written statement supporting the respondents / defendants no.1,2,&3 and also pleading the Will of Shri Zaharia Mal.
6. The appellant / plaintiff filed replications denying the Will and contending that even if the Will of Shri Zaharia Mal was to be accepted, he still had 1/6th share in the properties in as much as under the said Will, on the demise of Shri Zaharia Mal, Smt. Bakhtawari Devi became the absolute owner of the properties and on the demise of Smt. Bakhtawari Devi the appellant / plaintiff and the five respondents / defendants being her only legal heirs, having 1/6th share each therein. It was further pleaded that the alleged Will "is a spurious document and was got executed from Shri Zaharia Mal deceased when he was not in disposing mind".
7. Vide order dated 14th December, 1973 in the suit, the following preliminary issue was framed:-
"(1) Whether the plaintiff is entitled to the decree as claimed in the suit even if the Will is taken to be valid?"
RFA No.69/1980 Page 7 of 33
8. The learned Additional District Judge before whom the suit was pending, vide judgment and decree dated 10th January, 1974 decided the aforesaid preliminary issue in favour of the appellant / plaintiff. It was held that under the Will aforesaid it was mentioned that after the death of Shri Zaharia Mal his wife Smt. Bakhtawari Devi would be the absolute owner of the entire property - movable or immovable and would have absolute right to transfer the property in any way she likes and nobody will have objection to the sale of the property by Smt. Bakhtawari Devi; however it was also mentioned in the Will that the appellant / plaintiff and / or his children would not have any right in the property and after the death of Smt. Bakhtawari Devi the respondent / defendant no.1 Shri Raghubir Singh will get house no.4054, the respondent / defendant no.2 Shri Balbir Singh will get house no.3902 and the respondent / defendant no.3 Shri Kishan Singh will get shop no.4 as mentioned in the Will; that since under the Will Smt. Bakhtawari Devi was to become the sole owner of all the properties, the stipulation in the Will with respect to bequest after the demise of Shri Zaharia Mal was of no avail and the appellant / plaintiff being one of the six natural heirs of Smt. Bakhtawari Devi had inherited 1/6th share in all the properties aforesaid. Accordingly, a preliminary decree for partition of the properties was passed. RFA No.69/1980 Page 8 of 33
9. The respondents / defendants no.1,2&3 preferred RFA No.102/1974 to this Court against the preliminary decree aforesaid for partition of the properties which was decided by a judgment dated 11 th August, 1977 of the Division Bench of this Court. This Court held that the Will aforesaid of Shri Zaharia Mal conferred an absolute title on Smt. Bakhtawari Devi in respect of movables only and conferred a life estate of Smt. Bakhtawari Devi in respect of immovable properties and thus the stipulation in the Will with respect to the position after the death of Smt. Bakhtawari Devi, was valid. Accordingly, the judgment and preliminary decree of partition passed on the basis of preliminary issue aforesaid was set aside and the suit remanded to the Additional District Judge to adjudicate the valid execution of the Will. It was however observed that the construction of the Will having been done, would not be attempted again by the Trial Court and the Trial Court after deciding the issue regarding the execution, attestation and validity of the Will, will dispose of the suit in the light of the interpretation of the Will given by the High Court.
10. The learned Additional District Judge, post remand of the suit from the High Court, vide order dated 20th January, 1978 framed the following issues:-
RFA No.69/1980 Page 9 of 33
"(1) Whether the plaint has been properly valued for the purposes of court fee and jurisdiction, if not what is the correct value?
(2) What is the date of death of Zaharia Mal? OPP
by the parties
(3) Whether the Will dated 23.3.67 has been
executed validly by Zaharia Mal and has been
validly attested and is valid?
(4) Relief."
11. The appellant / plaintiff besides examining himself examined three other witnesses. The respondents / defendants besides examining the respondent / defendant no.2 Shri Balbir Singh examined the two attesting witnesses to the Will. The appellant / plaintiff examined himself again in rebuttal evidence.
12. The learned Additional District Judge vide impugned judgment and decree dated 15th December, 1979 has held that:-
A. though the respondents / defendants no.4&5 (sisters) had filed a written statement but thereafter did not appear and were proceeded against ex parte;
B. the suit had been properly valued for the purposes of court fee and jurisdiction;
RFA No.69/1980 Page 10 of 33 C. though the appellant / plaintiff pleaded that Shri Zaharia Mal died in the year 1967 but did not produce any evidence that the death occurred in the year 1967; rather he admitted in his cross examination that the death occurred on 18th August, 1968; D. the document propounded by the respondents / defendants as the Will of Shri Zaharia Mal was presented before the Sub Registrar at Kashmere Gate for registration on 23rd March, 1967 and purported to bear the impression of Shri Zaharia Mal and was purported to be witnessed by Shri Devi Saran and Shri Sunder Singh, Advocate;
E. in the said Will, the appellant / plaintiff was excluded from succession for the reason of being disobedient and the testator Shri Zaharia Mal being not satisfied with the appellant / plaintiff‟s character and being displeased with him; it was also mentioned in the Will that the appellant / plaintiff used to speak in an offensive language against his parents;
F. of the three witnesses examined by the respondents / defendants no.1,2&3, the respondent / defendant no.2 Shri Balbir Singh did RFA No.69/1980 Page 11 of 33 not depose anything about the execution of the Will; his version was that the Will was not executed in his presence and he came to know of it later on when Shri Zaharia Mal told him about it and of having not bequeathed anything to the appellant / plaintiff on account of strained relations of the appellant / plaintiff with Shri Zaharia Mal;
G. that Shri Devi Saran, one of the purported attesting witness to the Will examined as DW-3 had deposed:
(i) that Shri Zaharia Mal had come to Kashmere Gate on 23rd March, 1967 where the Will was scribed and presented for registration;
(ii) that Shri Zaharia Mal was not accompanied by
anyone else;
(iii) that he was known to Shri Zaharia Mal because he and the respondent / defendant no.2 Shri Balbir Singh used to work as peons in the Deputy Commissioner‟s office;
RFA No.69/1980 Page 12 of 33
(iv) that Shri Shiv Dayal, petition writer scribed the Will on behalf of Shri Zaharia Mal in his presence and in the presence of Shri Sunder Singh, Advocate;
(v) that after the Will was scribed, the same was read over to Shri Zaharia Mal by Shri Shiv Dayal and then it was thumb marked by Shri Shri Zaharia Mal in the presence of himself and the other witness after admitting the contents to be correct;
(vi) thereafter Shri Sunder Singh and he signed the Will in the presence of all the persons present; and,
(vii) Shri Zaharia Mal was of sound disposing mind.
H. that Shri Sunder Singh, Advocate who was examined as DW-2 proved his attestation on the Will by giving similar evidence as Shri Devi Saran and claimed that though Shri Zaharia Mal was not earlier known to him but he identified him on the basis of Shri Devi Saran and had also independently satisfied himself about the identity of Shri Zaharia Mal from the documents of RFA No.69/1980 Page 13 of 33 title relating to the three houses subject matter of Will. He further deposed that Shri Zaharia Mal had informed that it was on account of his unhappiness with the appellant / plaintiff that he was excluding the appellant / plaintiff from the Will; I. that though the appellant / plaintiff had deposed/tried to prove that Shri Zaharia Mal on account of his age and illness was not in a position to go to Kashmere Gate Courts all alone but his evidence fell short of proving that;
J. that though the appellant / plaintiff deposed that the Will had been forged in collusion with the respondent / defendant no.2 Shri Balbir Singh and the witness Shri Devi Saran, but on another date deposed that he did not know if Shri Zaharia Mal had executed a Will on 23rd March, 1967;
K. that though the appellant/plaintiff deposed that Shri Zaharia Mal was not in a position to move, but the witnesses examined by him did not support the same;
L. one of the witnesses Shri Kehar Singh examined as PW-2 who was living at a distance of about one furlong from the house in RFA No.69/1980 Page 14 of 33 which Shri Zaharia Mal was living, deposed that Shri Zaharia Mal remained ill for one and a half or two years before his death and during his illness he had once visited, about three or four months prior to his death and though Shri Saharia Mal could not walk but, otherwise was well; the said witness also in cross examination stated that he was not sure whether Shri Zaharia Mal could walk or not and could come out of the house or not; thus according to this witness of the appellant / plaintiff himself, Shri Zaharia Mal was of having a sound disposing mind even three or four months prior to his death;
M. thus the deposition of the appellant / plaintiff that Shri Zaharia Mal was not having a sound state of mind as on 23rd March, 1967 could not be believed;
N. another witness namely Shri Ram Sarup examined by the appellant / plaintiff and who was related to Shri Zaharia Mal, though stated that Shri Zaharia Mal had been ill for three/four years before his death and that for two years before his death he was not in a position to walk but with respect to the state of mind of Shri Zaharia Mal, deposed that it was as per his age RFA No.69/1980 Page 15 of 33 and he could understand matters relating to his welfare and in cross examination admitted having spoken to Shri Zaharia Mal two months prior to his death;
O. another witness examined by the appellant / plaintiff namely Shri Ram Kishan as PW-4 living in a house adjacent to the house where Shri Zaharia Mal was living, deposed that Shri Zaharia Mal was weak and could walk only with a stick bending his back till about one month prior to his death, though for about two or three years prior to his death, used to confine himself only to the house; he also stated that the appellant / plaintiff had no quarrel with his parents but admitted that the respondent / defendant no.1 Shri Raghubir Singh served Shri Zaharia Mal more than other brothers and that Shri Zaharia Mal and the respondent / defendant no.1 Shri Raghubir Singh were living in the same house while the appellant / plaintiff lived in another house;
P. that thus the evidence suggested that the appellant / plaintiff was not looking after his father during his illness; RFA No.69/1980 Page 16 of 33 Q. that the appellant / plaintiff in his own cross examination admitted that it was the respondent / defendant no.1 Shri Raghubir Singh who got Shri Zaharia Mal admitted to Willingdon Hospital and that he himself could not give the date, month or year of admission in the hospital or the name of the doctor under whose treatment Shri Zaharia Mal remained; R. that the appellant / plaintiff in his evidence also admitted that it was the respondent / defendant no.1 Shri Raghubir Singh who used to look after the medical needs of the father;
S. that thus the appellant / plaintiff had failed to show that Shri Zaharia Mal, on the date of execution of the Will, was not of sound mind; rather the witnesses of the appellant / plaintiff had admitted that Shri Zaharia Mal had a sound state of mind even few months prior to the date of his death;
T. that the appellant / plaintiff in his cross examination admitted that he had no enmity with his brothers respondents / defendants no.1,2&3; it was therefore not understandable why the three brothers would collude against the appellant / plaintiff; RFA No.69/1980 Page 17 of 33 U. that the evidence of the respondent / defendant no.2 Shri Balbir Singh that Shri Zaharia Mal excluded the appellant / plaintiff from succession on account of strained relationships of the appellant / plaintiff with his parents is thus believable; V. that there was no merit in the challenge of the appellant / plaintiff to the testimony of Shri Sunder Singh, Advocate on the ground of his being a witness to a large number of Wills / documents and not maintaining any record thereof; merely because Shri Sunder Singh, Advocate was not appearing in the Courts and fighting the cases was not reason to disbelieve / discard his evidence;
W. that the receipt Ex.PW1/1 for Rs.600/- executed by the respondent / defendant no.1 Shri Raghubir Singh in favour of the appellant / plaintiff also did not throw any doubt as to genuineness of the Will;
X. that the appellant / plaintiff had failed to prove any suspicious circumstances surrounding the making of the Will;
RFA No.69/1980 Page 18 of 33 Y. that the respondents / defendants had proved that the Will had been properly executed by Shri Zaharia Mal and was properly attested by the two witnesses namely Shri Sunder Singh and Shri Devi Saran and;
Z. accordingly the Issue No.3 supra was decided in favour of the respondents / defendants and against the appellant / plaintiff. Axiomatically, the appellant / plaintiff was held to have no share in the properties forming the estate of Shri Zaharia Mal and the suit for partition was dismissed.
13. The counsel for the plaintiff / appellant has argued:-
(i) that considering that Shri Zaharia Mal on the date of execution of the Will was admittedly 90 years of age and further considering that one of the attesting witnesses to the Will was admittedly a colleague in the office of the respondent / defendant no.2 Shri Balbir Singh, one of the beneficiaries of the Will, the learned Additional District Judge erred in holding the document to be the Will of Shri Zaharia Mal;
RFA No.69/1980 Page 19 of 33
(ii) that at 90 years of age, Shri Zaharia Mal could not possibly have himself visited the Office of the Sub Registrar, Kashmere Gate;
(iii) that though the respondent / defendant no.2 Shri Balbir Singh in his deposition stated that Shri Zaharia Mal had also made certain Police complaints against the appellant / plaintiff but no such Police complaints were proved;
(iv) that though the respondent / defendant no.2 Shri Balbir Singh in his evidence also stated that the appellant / plaintiff in the presence of Shri Ram Sarup and Shri Ram Kishan had spoken badly to Shri Zaharia Mal but Shri Ram Sarup and Shri Ram Kishan, examined by the appellant / plaintiff himself, did not support so;
(v) that thus, no reason had been proved by the respondents / defendants who had propounded the Will for exclusion by Shri Zaharia Mal of the appellant / plaintiff from his estate; RFA No.69/1980 Page 20 of 33
(vi) that both the attesting witnesses to the Will were strangers to Shri Zaharia Mal and which itself is a suspicious circumstance;
and,
(vii) that the respondents / defendants did not produce the Deed Writer Shri Shiv Dayal who was claimed to have scribed the Will.
14. Per contra, the counsel for the legal heirs of Shri Mahavir Singh, one of the legal heirs of the deceased respondent / defendant no.1 Shri Raghubir Singh, argued:-
I. that one of the attesting witnesses to the Will, namely Shri Devi Saran could not be said to be a stranger to the deceased Shri Zaharia Mal being an office colleague of the respondent / defendant no.2 Shri Balbir Singh, son of Shri Zaharia Mal; II. that Shri Devi Saran had also deposed of having visited Shri Zaharia Mal on an earlier occasion;
III. that both the attesting witnesses had also deposed of Shri Zaharia Mal having himself instructed the said Shri Shiv Dayal, the Deed Writer;
RFA No.69/1980 Page 21 of 33 IV. that neither the appellant / plaintiff, nor any of his witnesses even deposed that the thumb impression on the duly registered Will is not of Shri Zaharia Mal;
V. that in fact the appellant / plaintiff did not even dispute the thumb impression being that of Shri Zaharia Mal inasmuch as if had done so, would have examined expert evidence; VI. that the only evidence of the appellant / plaintiff is of Shri Zaharia Mal owing to his age being not capable of going alone to the Office of the Sub Registrar at Kashmere Gate; and, VII. that the appellant / plaintiff did not even know the date of death of the father and therefrom it is evident that he was totally alienated from the father and was merely surmising that his father Shri Saharia Mal could not have gone alone to Kashmere Gate.
15. The Trial Court record is found to contain the document purporting to be the original registered Will of Shri Zaharia Mal. The same is scribed in hand in Urdu language with the endorsement of registration thereof being also in Urdu language save for the signatures of Shri Devi Saran in Hindi RFA No.69/1980 Page 22 of 33 and Shri Sunder Singh, Advocate and the Registering Officer in English language. No translation in Hindi or English of the said Will is found on record. Neither counsel could also produce any Hindi or English translation of the Will. They explained that since the finding on the construction of the language of the Will has attained finality vide judgment supra in RFA No.102/1974 earlier preferred by the respondents / defendants, they did not feel the need thereof. The said document is found containing a thumb impression, purportedly of Shri Zaharia Mal.
16. I may at the outset record that the appellant / plaintiff in the plaint, filed approximately five years after the death of Shri Zaharia Mal, did not make any mention of the respondents / defendants having set-up any Will of Shri Zaharia Mal and though made a bare mention of the respondent / defendant no.3 Shri Kishan Singh having earlier filed a suit for possession against the respondent / appellant. Though the copy of the plaint in the said suit for possession has not been produced but it can safely be assumed that the respondent / defendant no.3 Shri Kishan Singh in the plaint in the said suit must be claiming exclusive title to the property on the basis of the Will aforesaid and the appellant / plaintiff thus prior to the institution of the suit from which this appeal arises must have known of the Will. In my opinion, it RFA No.69/1980 Page 23 of 33 was incumbent upon the appellant / plaintiff to, in the plaint, make a challenge to the Will set-up by the respondents / defendants. Only if the appellant / plaintiff had done so could the respondents / defendants in the written statement have dealt with the grounds on which the appellant / plaintiff was challenging the Will.
17. Even after the respondents / defendants in their written statement pleaded the Will, the only plea with respect thereto of the appellant / plaintiff in the replication was of the same being a spurious document and having not been executed by Shri Zaharia Mal as he was not of a sound disposing mind. The appellant / plaintiff at that time appeared to be pegging his claim more on the language of the said Will claiming to be having 1/6 th share in the properties even if the Will were to be valid.
18. What thus follows is that the only ground on which the appellant / plaintiff in the pleadings disputed the Will, was of Shri Zaharia Mal being not in a sound disposing mind at the time of execution thereof. The appellant / plaintiff then, in the pleadings, did not take the plea of Shri Zaharia Mal at that time being not in a position to go to the Office of the Sub Registrar or of any collusion between the respondent / defendant no.2 Shri Balbir Singh and the witnesses to the Will.
RFA No.69/1980 Page 24 of 33
19. I am of the view that though the onus to prove the Will may be on the propounder thereof but a challenger to the Will is required to, in the pleadings, specifically plead the grounds on which a challenge is sought to be made to the Will so as to let the propounder of the Will know the grounds on which the Will is contested, to be in a position to lead evidence to dispel such grounds. A challenger to the Will cannot be allowed to, without taking any pleading or any specific grounds of challenge, spring surprises and at the stage of arguments contend that this has not been proved or that has not been proved.
20. Considered in this light, the challenge by the appellant / plaintiff to the Will of his father Shri Zaharia Mal is only on the ground of Shri Zaharia Mal on the date of execution thereof being not in a sound disposing mind.
21. This ground, I am afraid, the appellant / plaintiff has utterly failed to establish. Rather, the evidence of the appellant / plaintiff himself belies Shri Zaharia Mal on the date of execution of the Will being not in a sound disposing mind.
22. The respondent / defendant no.2 Shri Balbir Singh appearing as DW-1 in his cross examination, in response to a query whether any hot words were RFA No.69/1980 Page 25 of 33 ever exchanged between the appellant / plaintiff and Shri Zaharia Mal, answered in the affirmative and further deposed that the same were exchanged in the presence of Shri Ram Sarup, Shri Ram Kishan, Shri Mangal Singh and another Shri Budh Singh residing in the Mohalla. Though the respondents / defendants did not examine any of the said persons but the appellant / plaintiff in his rebuttal evidence examined Shri Ram Sarup and Shri Ram Kishan as PW-3 and PW-4 respectively and both of them deposed that Shri Zaharia Mal never told them of any ill will towards the appellant / plaintiff and claimed to have met Shri Zaharia Mal and talked to him till about 2/3 months before his death. In my view, the factum of Shri Zaharia Mal meeting and talking to the said two witnesses till about 2/3 months prior to his own death belies the case of the appellant / plaintiff of Shri Zaharia Mal being of unsound mind.
23. The appellant / plaintiff in his own evidence in affirmative did not depose of Shri Zaharia Mal being not in a position to understand at any time before his death. When he examined himself again in his rebuttal evidence, he did depose that for 2 or 2½ years prior to his death Shri Zaharia Mal was not in a position to understand anything. In his cross examination, he expressed inability to produce any medical record with respect to soundness RFA No.69/1980 Page 26 of 33 of mind of Shri Saharia Mal and stated that he used to remain semi- conscious and was suffering from "Hydrocele for about ten years" but could not give the name of any doctor attending to his father or even the date / month / year enter his father was admitted in the hospital. However all the other witnesses of the plaintiff who claimed to be meeting Shri Zaharia Mal regularly though stated that he remained ill for 1½ to 3 years before his death, claimed to have talked to Shri Zaharia Mal. None of them deposed of Shri Zaharia Mal being of unsound mind at any time prior to his death.
24. The appellant / plaintiff thus failed to prove the ground of unsoundness of mind on which he contested / challenged the Will.
25. Though Shri Zaharia Mal was undoubtedly of very old age but there can be no presumption of his having lost his senility owing thereto. It was for the appellant / plaintiff to prove so. The Supreme Court, in Ramabai Padmakar Patil Vs. Rukminbai Vishnu Vekhande (2003) 8 SCC 837 held that the fact that the deceased was unable to walk does not lead to an inference that his mental faculties had been impaired or that he did not understand the contents of the document which he was executing. RFA No.69/1980 Page 27 of 33
26. Though the appellant / plaintiff did not plead the ground of Shri Zaharia Mal being unable to himself go to the Office of the Sub Registrar at that advanced stage for registration of the Will but on enquiry during the hearing I was told that Shri Zaharia Mal was living at Pahari Dhiraj, Sadar Bazar, Chandni Chowk, Delhi. Being familiar with the city, I can say that it was well-nigh possible for Shri Zaharia Mal to, even at that age, take a cycle rickshaw, which is the most common mode of transport in that locality, from the front of his house to go to the Office of the Sub Registrar, Kashmere Gate.
27. I have during the hearing asked the counsel for the appellant / plaintiff, whether the appellant / plaintiff admittedly living in a separate house from his father in his evidence deposed of visiting the father regularly or of in his evidence having examined any doctor or other person to depose about the mental condition of the father at the contemporaneous time. The reply of the counsel for the appellant / plaintiff was in the negative.
28. As far as the argument of the counsel for the appellant / plaintiff of both the witnesses to the Will being strangers to the deceased Shri Zaharia Mal and being known to one of the beneficiaries is concerned, though again no such ground was taken in the pleadings and without which, as aforesaid, RFA No.69/1980 Page 28 of 33 the same cannot be urged but I may record that the hard reality of life is of persons of implicit faith of beneficiaries of the Will only being chosen as witnesses to the Will to obviate the possibility of defeating the purpose of making of the Will. No credence thus can be given to this ground as well. Supreme Court, in Madhukar D. Shende Vs. Tarabai Aba Shedage (2002) 2 SCC 85 held that merely because of being classmates of the propounder of the Will, it could not be said that the two attesting witnesses would be interested in obliging their classmate to the extent of falsely deposing in the Court and their evidence cannot be rejected as that of an interested witness.
29. As far as the argument, of there being no reason for the deceased Shri Zaharia Mal to exclude the appellant / plaintiff being one of the sons from his estate is concerned, again though the appellant / plaintiff did not specifically plead so and though the respondents / defendants also cannot be said to have established so in their evidence, but in my opinion, the very purpose of making a Will is to exclude one of the several natural heirs all of whom will inherit in the absence of the Will. In the present case, not only the appellant / plaintiff but his sisters have also been excluded from the estate. It has also come in the cross examination of the appellant / plaintiff during his evidence in affirmative that the two houses other than the house in which the RFA No.69/1980 Page 29 of 33 appellant / plaintiff was / is residing were / are two storeyed, constructed on 1000 sq. yds. each while the house in which the appellant / plaintiff was / is residing was admitted by the appellant / plaintiff himself to be constructed over 40 sq. yds. only and having kuchcha construction and of which also the appellant / plaintiff was only in part possession. The disparity maintained by Shri Zaharia Mal in his lifetime also between the appellant / plaintiff and the other two sons is thus evident. Not only so, though the appellant / plaintiff claims that the father was of unsound mind for 2 / 2½ years prior to his demise but the appellant / plaintiff in his cross examination during his evidence in affirmative denied knowledge of the affairs of the father during his lifetime also. Inference is obvious that either the father himself or the two brothers were dealing with the properties to the exclusion of the appellant / plaintiff. It thus cannot be said that only on the ground of the appellant / plaintiff being the only son excluded from the estate, a suspicious circumstance can be said to arise. The appellant / plaintiff as per his own version was excluded from the enjoyment of the properties of the father during the lifetime of the father also. Supreme Court, in S. Sundaresa Pai Vs. Sumangala T. Pai (2002) 1 SCC 630 held that uneven distribution of assets amongst children cannot by itself be taken as a circumstance causing RFA No.69/1980 Page 30 of 33 suspicion surrounding execution of Will. Similarly, in Rabindra Nath Mukherjee Vs. Panchanan Banerjee (1995) 4 SCC 459 it was held that the whole idea behind execution of a Will is to interfere with the normal line of succession and thus the circumstance of deprivation of a natural heir should not raise any suspicion. Similarly in Ramabai Padmakar Patil supra also, it was held that a Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir and thus the same, without anything more cannot be held to be a suspicious circumstance specially in a case where bequest is made in favour of an offspring. Reference in this regard can also be made to Uma Devi Nambiar Vs. T.C. Sidhan (2004) 2 SCC 321.
30. Non-examination by the respondents / defendants of the scribe / Deed Writer of the Will cannot also be said to be fatal. Both the witnesses to the Will examined by the respondents / defendants have deposed of the deceased Shri Zaharia Mal having instructed the Deed Writer in their presence and in the face thereof it was not necessary for the respondents / defendants to multiply the witnesses by examining the scribe as well. Moreover, the whole argument of the appellant / plaintiff is of Shri Sunder Singh, Advocate also having deposed at the instance of the other attesting witness who was a RFA No.69/1980 Page 31 of 33 colleague of the respondent /defendant no.2 Shir Balbir Singh and even if the scribe working in the same complex had been examined, the argument vis-à-vis his disposition would have been the same. Supreme Court, in Ramabai Padmakar Patil supra held that mere non examination of the Advocate who was present at the time of preparation and registration of Will and of the typist who typed the Will, cannot by itself be a ground to discard the same.
31. I also do not find any merit in the argument, of the evidence of Shri Sunder Singh, Advocate being of no avail for the reason of his admission of having attested more than 500 documents. It is again a hard fact that several lawyers confine their arena of law practice to the offices of Registrars of Documents and only perform the work of facilitating the registration of documents. In the absence of any other plea and evidence, their evidence cannot be discredited solely on this ground.
32. Else, I find the impugned judgment of the learned Additional District Judge to be a well reasoned one and do not find any ground to interfere therewith. This Court in Jagdish Lal Bhatia Vs. Madan Lal Bhatia 2008 (100) DRJ 98 has held that if there is nothing unnatural about the Will and the evidence adduced satisfies the requirement of proving the Will, the Court RFA No.69/1980 Page 32 of 33 would not return the finding of "not proved" merely on account of certain assumed suspicion or supposition.
33. There is thus no merit in the appeal. Dismissed, however no costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J SEPTEMBER 11, 2015 „pp‟..
(Corrected and released on 19/10/2015) RFA No.69/1980 Page 33 of 33