Delhi District Court
Ravi Singh Thakur vs The State on 23 April, 2024
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE-02 (WEST DISTRICT),
TIS HAZARI COURTS DELHI.
Probate Case No.- 15863/16
CNR No. DLWT01-000129-2016
Ravi Singh Thakur
( now deceased through LR's)
1. Sh. Davinder Pal Singh
S/o late Sh. Ravi Singh Thakur
R/o House No. L-82, Gali no. 7,
New Mahavir Nagar,
New Delhi-110018
2. Smt. Shashi Bala
( Now deceased)
through LR's
a. Sh. Satvir Singh Pundir ( Husband)
S/o Late Sh. Baldeo Singh.
b. Ms Manushi Pundir
D/o Satvir Singh Pundir
c. Sh. Jayant Pratap Singh
S/o Sh. Satvir Singh Pundir
All R/o flat No. 178,
Ground floor, Pocket-A
Sarvhit apartments, Sector-17,
Dwarka, Delhi-110075
3. Smt. Renu Rathore
W/o Sh. Pradyumn Rathore
R/o A-292, Vivekanand Marg,
Sector-8, Dwarka, Delhi-110077.
4. Smt. Seema Chauhan
W/o Sh. Pradeep Chauhan
H. No. D-146, Raj Nagar, Part-2
Near Mamta Bakery,
Palam, Delhi-110045
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 1/42
5. Smt. Sanyogita Kapoor
W/o Sh. Kamal Kapoor,
R/o WZ-32-D, Street No. 18,
New Mahavir Nagar,
New Delhi-110018
...Petitioners
Versus
1. The State
2. Smt. Darshan
W/o late Sh. Ran Singh
3. Sh. Naresh Kumar
S/o late Sh. Ran Singh
4. Sh. Madan Singh
S/o late Sh. Ran Singh
5. Sh. Raj Kumar
S/o late Sh. Ran Singh
6. Smt. Kamlesh
D/o late Sh. Ran Singh
7. Smt. Rajesh
D/o late Sh. Ran Singh
All R/o V.P.O Luhari Jatu,
RakhanPana, P.S. Bawani Khera,
District Bhiwani, Haryana.
......Respondents
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, 1925 FOR GRANT OF PROBATE/
LETTERS OF ADMINISTRATION IN RESPECT OF THE
WILL DATED 03.06.1992 EXECUTED BY LATE SH. RAN
SINGH S/O SHRI UMRAO SINGH.
Date of institution of the case : 28.01.2016
Date of for judgment reserved : 04.04.2024
Date of pronouncement of judgment: 23.04.2024
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 2/42
JUDGMENT
1. Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 of the Indian Succession Act, 1925, whereby which the petitioners have sought grant of Probate/letter of administration on the basis of Will dated 03.06.1992 executed by testator Late Shri Ran Singh.
CASE OF THE PETITIONER, AS PER HIS PETITION
2. The present petition was filed by Late Sh. Ravi Singh Thakur but during trial, he expired and his legal heirs have been impleaded as petitioners in the present case being Lrs of late Sh. Ravi Singh Thakur vide order dated 06.11.2017.
3. Briefly stated, it is averred in the petition that erstwhile petitioner Late Sh. Ravi Singh Thakur had purchased a plot bearing no. 117, Block-B, ad measuring 200 sq. yards, out of Khasra No. 45/5, situated at Village Hastsal, now known as Vikas Nagar Extension, New Delhi (hereinafter referred to as 'suit property') from Late Sh. Ran Singh S/o Shri Umrao Singh (hereinafter referred to as ' the deceased') for a consideration amount of Rs. 40,000/ and the deceased had executed a General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession letter dated 03.06.1992 and a registered Will dated 03.06.1992.
4. It is further averred in the petition that the respondent no. 2 is the wife and respondent no. 3 to 6 are the PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 3/42 children of the deceased, Sh. Ran Singh.
5. It is further averred in the petition that the deceased was the exclusive owner in respect of the plots bearing no. 114, 115, 116, 117, 126 and 127 ad-measuring 950 Sq. yards, of Khasra No. 45/5, situated at Village Hastsal, now known as Vikas Nagar Extension New Delhi as the same were purchased by him from his funds and transfer title documents were also executed by the erstwhile owners in his name. It is further averred that by virtue of above said documents, the deceased was the exclusive owner and in possession of the said plots.
6. It is further averred that the deceased Ran Singh had sold the plot no. 126 to one Jasbir Singh S/o Shri Daya Nand and sold the plot no.114 to one Jai Prakash S/p Bishwambhar Dayal S/o Shri Daya Nand and had executed General Power of Attorney, Agreement to Sell, Affidavit, Receipt, possession letter dated 03.06.1992 and a registered Will dated 03.06.1992 in their favour.
7. It is further averred that the deceased, during his life time with his sound state of mind executed Will dated 03.06.11992 in favour of petitioner in respect of plot bearing no.117, Block -B, ad-measuring 200 Sq. yards out of Khasra no. 45/5 situated at Village Hastsal, now known as Vikas Nagar Extension, New Delhi whereby he bequeathed the above said plot in favour of the petitioner. It is averred that after the death of deceased, the petitioner has become the exclusive owner of the above said plot.
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 4/428. It is further averred that on 20.07.2014, the petitioner unfortunately lost all the original documents of the suit property, however even after great search, he could not find those documents in the entire house.
9. It is further averred in the petition that the petitioner through his counsel Sh. B.B. N Deo got published a public notice dated 23.08.2014 in the Indian Express and Jansatta Newspapers and still has not been able to find those documents, unfortunately does not even has the copy of the said documents dated 03.06.1992.
10. It is further averred that thereafter the petitioner also tried to contact the testator Sh. Ran Singh, however, it was transpired that unfortunately, the testator has already expired on 11.01.2012. The one of the attesting witness Sh. Bhim Sain has also expired. It is further averred that the Will dated 03.06.1992 was drafted by Sh. Anil K Sharma, who is also one of the attesting witness of the said Will.
11. It is further averred that all the family membrs of the deceased acted upon the said Will as everyone has been in the knowledge about the factum of execution of Will dated 03.06.1992 by the deceased.
12. By way of this petition, the petitioner has prayed for issuance of Probate/ letters of administration in respect of Will and testament dated 03.06.1992 qua the plot no. 117 in question.
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 5/4213. Upon filing the present petition, notice of the petition was issued to all the respondents. Citation for general public was published in the daily newspaper "Rashtriya Sahara" dated 20.02.2016. Notice was also served upon the State as well as upon the respondents.
14. No objections have been received to the petition, from any person of general public despite publication of the citation in newspaper, however, respondent no 2 to 7 have appeared and have filed their objections to the petition of the petitioner.
15. Valuation report regarding property bearing no. 117, Block-B, Village Hastsal, Now known as Vikas Nagar Extn. New Delhi has been filed by Executive Magistrate, Patel Nagar, valuing the same as Rs. 77,25,564/- ( Seventy Seven Lacs Twenty Five Thousand Five Hundred Sixty Four only).
16. Initially, the petitioner has made only respondent no. 2 to 6 as a respondent but, thereafter, he has filed amended memo of parties in which he has made respondent no. 7, Sh. Rajesh as party.
CASE OF RESPONDENT NO.2 to 6 AS PER THEIR REPLY.
17. It is denied by respondent no. 2 to 6 that petitioner had purchased the suit property from Sh. Ran Singh, for a consideration of Rs 40,000/- or that the deceased had executed a GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 6/42 dated 03.06.1992 and a registered Will dated 03.06.1992. Hence, it is contended that the contents of para no. 1 of the petition are wrong, baseless and concocted. It is further contended that the erstwhile petitioner, who was working as a property dealer with late Sh. Ran Singh, had forged this Will and any other documents, if any.
18. It is further averred that the deceased petitioner, Late Sh. Ravi Singh Thakur had never been in the possession of the plot and late Sh. Ran Singh was the owner of plot had executed the title documents in favour of respondent no. 5, Raj Kumar S/o Ran Singh, R/o VPO Luhari Jata, Rakhaan Pana, P.S. Bawani Khera, Distt. Bhiwani, Haryana, on 18.11.1994.
19. It is further specifically denied that during the life time, the deceased had executed a Will dated 03.06.1992 in favour of the deceased petitioner, Late Sh. Ravi Singh Thakur in respect of the suit property or the deceased had ever executed any titled documents in respect of suit property. It is further contended that the Will in question is a forged one and not bears the signature or thumb impression of late Sh. Ran Singh. It is specifically denied that on 20.07.2014, the petitioner had lost all the original documents of the suit property.
20. It is further contended that being a clever person, the petitioner got published a false information in the newspaper, through his counsel, simply to create documents in his favour and now he has been using all those false and fabricated documents to claim letters of administration in respect of suit property.
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 7/4221. It is further contned that petitioner was fully aware that Sh. Ran Singh had died on 11.01.2012 and he collected the death certificate of late Sh. Ran Singh and tried to occupy the plot illegally. The petitoner with malafide intention and with ulterior motive to grab the suit property filed the present petition.
22. It is further averred that deceased petitioner, Late Sh. Ravi Singh Thakur and Sh. Anil Kumar Sharma were working illegally, in connivance with each other, with ulterior motive to create dispute on the plot no. 117, Block-B, Vikas Nagar Extn, Hastsal, New Delhi, owned and possessed by the respondent no. 5 Sh. Raj Kumar S/o late Sh. Ran Singh.
23. It is further specifically deneid that one of the attesting witnesses Sh. Bhim Sain has also expired, the said wll was drafted by Sh. Anil K. Sharma, who is also an attesting witness. It is contended that petitioner Late Sh. Ravi Singh Thakur and Sh. Anil Kumar Sharma were working illegally, in connivance with each other, with ulterior motive to create distpute on the plot, forged the Will dated 03.06.1992, fradululently and reamined silent till the death of late Sh. Ran Singh, father of respondent no. 5, and not approached the deceased or the present respondents, before the death of late Shri Ran Singh and only alfter the death of Sh. Ran Singh, the petitioner started trying to occupy the suit property.
24. It is further contended that the petitoner for the very first time, in the year 2014 came with forged will and tried to PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 8/42 illegally enter into the plot in question.
25. On merit all the contents mentioned in the petition are denied by the respondent no.2 to 6 and they prayed that petition filed by the petitioner may be dismissed with exemplary costs.
CASE OF RESPONDENT NO. 7 AS PER HIS REPLY.
26. Respondent no. 7 filed separate objection to the present petition on the same line as of respondent nos. 2 to 6 and have taken the same objections.
27. Petitioner has also filed separate reply to the objections of respondent no. 2 to 6 & 7 and denied all the objections taken by them and reiterated and re-affirmed the contents mentioned in his petition.
28. On the basis of the pleadings, the following issues were framed vide order dated 09.08.2016.
1. Whether the Will dated 03.06.1992 executed by Late Sh. Ran Singh S/o late Sh. Umrao Singh is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP.
2. Whether the petitioner is entitled for probate/letters of administration on the basis of aforesaid Will, as claimed? OPP.
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 to 6 in the written statement/objections? OPR
4. Relief.
29. After framing of above-said issues, the parties were PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 9/42 directed to adduce evidence.
EVIDENCE ON BEHALF OF PETITIONER
30. In order to prove his case, petitioner has examined following five witnesses:
1. Sh. Ravi Singh Thakur/petitioner/PW-1.
2. Sh. Anil Kumar Sharma/attesting witness /PW-2
3. Sh. Vivek Yadav/ PW-3
4. ASI Harish Kumar/ PW-4.
5. Sh. BBN Deo/ PW-5.
31. PW-1: Sh. Ravi Singh Thakur, who is the petitioner in the present case, has tendered his evidence by way of affidavit Ex PW1/A and relied upon the following documents:
1. Ex. PW-1/1: Certified copy of Will dated 03.06.1992 registered on 04.06.1992.
2. Mark D (Colly): Copies of House Tax receipts.
3. Ex. PW-1/3 ( Colly): Copies of newspaper Indian Express dated 23.08.2014 and Jansatta dated23.08.2014 showing the publication at point A1-A2 and B1-B2.
4. Ex. PW-1/4: Original death certificate of testator Sh. Ran Singh.
5. Mark E: Copy of death certificate of witness Sh. Bhim Sain.
6. Mark A: Copy of Will dated 3.06.1992 in favour of Sh. Jasbir Singh.
7. Mark B: Copy of Will dated 03.06.1992 in favour of Sh. Om Dutt.
8. Mark C: Copy of Will dated 03.06.1992 in favour of Sh.PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 10/42
Jai Prakash
32. In his cross examination, PW-1 deposed that he knew Sh. Ran Singh 3-4 years prior to the purchase of the suit property and he had made the payment of Rs. 40,000/- in cash against receipt. PW-1 further deposed that the documents executed at the time of purchase are GPA, Agreement to Sell, Possession Letter and receipt and registered Will. All documents are Notarized except the Will. PW-1 further deposed that he does not remember the name of Notary. He did not know how many children does Sh. Ran Singh have and what is the qualification of Sh. Ran Singh.
33. PW-1 further deposed that the Will was drafted by Sh. Anil Kumar Sharma, Advocate. PW-1 further deposed that at the time of execution of documents, Late Sh. Ran Singh was accompanied with attesting witness, namely, Sh. Bhim Sen and Sh. Kabaz Singh and other persons whom he did not know. PW-1 further deposed that the documents, including the Will was read over to all. PW-1 further deposed that Sh. Bhim Sen, the attesting witness expired on 08.05.2005.
34. PW-1 admitted the suggestion that he had purchased the suit property from Ran Singh. PW-1 further deposed that he has not filed agreement to sell because he has lost the same. PW- 1 further deposed that he had taken the physical, legal possession of the suit property on the day of execution of the documents and paying the property tax since the possession. He does not have any other documents of physical possession of the suit property PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 11/42 except property tax documents. He denied all the suggestions given to him.
35. Sh. Anil Kumar Sharma, one of the attesting witnesses appeared in the witness box as PW-2 and tendered his affidavit in evidence as Ex PW-2/A. PW-2 has relied upon the documents already exhibited as Ex. PW-1/1, Mark A, Mark B and Mark C. He further deposed that all these documents bears his signatures at points X-1, X-2 and his stamp is at point X-3 and X-4.
36. PW-2 further deposed that the thumb impression of the testator Sh. Ran Singh is at point A on the Will Ex. PW-1/1. PW-2 further deposed that signature and thumb impression of witness Pt. Bhim Sain is at point B on Ex. PW-1/1. Similarly, Mark A, B & C also bear the thumb impression of testator Sh. Ran Singh at point A and signature and thumb impression of witness Pt. Bhim Sain are at points B on each Mark-A, B and C. PW-2 deposed that at the time of registration, testator Sh. Ran Singh, witness Pt. Bhim Sain and he had put their signatures and Sh. Ran Singh had put his thumb impression at points A, B and X respectively.
37. In his cross examination, PW-2 admitted the suggestion put on behalf of respondents that the present Will was drafted by him as well as attested by him as an attesting witness. PW-2 further admitted the suggestion put on behalf of respondents that the testator was in sound mind and health. Pt. Bhim Sain was also an attesting witness apart from him.
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 12/4238. PW-2 further deposed that he had read over the contents of the Will to the testator and the contents of the Will were as per the instructions of the testator. PW-2 further deposed that the present Will Ex. PW-1/1 was executed in favour of petitioner Late Sh. Ravi Singh Thakur. PW-2 denied the suggestion that no such Will was ever executed by the testator. PW-2 further deposed that the Will was registered in his presence.
39. Sh. Vivek Yadav, Junior Assistant, from the office of Sub-Registrar II, Basai Darapur, appeared as PW-3 and brought the summoned record pertaining to three registered Wills registered on 04.06.1992. PW-3 proved the registrations of the Wills dated 04.06.1992 in favour of Sh. Om Dutt, Sh. Ravi Singh Thakur and Sh. Jai Prakash by the deceased Late Sh. Ran Singh.
40. PW-3 further deposed that he has seen the certified copy of the Will registered vide registration no. 27704 which is already exhibited as Ex. PW-1/1 and compared the same with the record brought by him and proved it as Ex. PW-3/1. He also placed on record the copies of the remaining three Wills which are marked as Mark D, E, & F and copies of the same are already marked as Mark A to C on record.
41. ASI Harish Kumar, from the Crime Branch of Delhi appeared as PW-4 and proved the summoned record i.e. LR no. 413354/2014 dated 19.08.2014 duly verified by SHO, E-Police PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 13/42 Station, Crime Branch, as Ex. PW-4/A. He has also proved the certificate under Section 65-B Indian Evidence Act as Ex. PW- 4/B, to certify that the contents of the L.Rs record have been recorded on computer, on Delhi Police Website. The said lost report was lodged by Sh. Ravi Singh Thakur S/o Sh. Ramdhan Thakur.
42. Sh. BBN Deo, Advocate appeared as PW-5 and tendered his evidence by way of affidavit Ex. PW-5/A. He relied upon the document i.e. public notices published in Indian Express dated 23.08.2014 and Jan Satta dated 23.08.2014 showing the publication at point A1 and A2 and Jan Satta at point B1 and B2 which is already exhibited as Ex. PW-1/3 (colly).
43. PW-5 further deposed that he has brought his office copy of pubic notice dated 23.08.2014 sent to Jan Satta and Indian Express for publication and same is exhibited as Ex. PW- 5/1 which bears his signatures at point A ( objected to on the ground that this is the only photocopy and not original). He further deposed that public notice was sent in original for publication to the abovesaid newspaper and only photocopy was kept by him for the purpose of office record.
44. In his cross-examination, PW-5 deposed that he does not remember the name of the person who has approached him for the publication. He had not seen the copy of the Will. PW-5 further deposed that he had asked the party before getting the publication of public notice and can tell the name by seeing the record. After seeing the record, PW-5 stated that the publication PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 14/42 of notice was made on the instruction of Mr. Ravi Singh Thakur and at that time, affidavit of Ravi Singh was also taken but he cannot produce the said affidavit.
45. PW-5 further deposed that he had taken Rs. 1000/- for the preparation of public notice and publication charges were given separately by the Ravi Singh Thakur. He cannot produce any slip regarding taking amount from Ravi Singh Thakur for publication. PW-5 further deposed that he had seen the NCR report before getting publish the public notice but he had not kept the copy of NCR in his office record. PW-5 denied the suggestion that he had not seen the copy of NCR of the missing of document and also not obtain any affidavit from Sh. Ravi Singh Thakur or that due to said reason he cannot produce the copy of the said documents. PW-5 admitted the suggestion that in the public notice description and detail of the document is not mentioned or that before getting the publication of public notice, he did not use to verify the version of the party and the publication is done on the basis of the version of the party.
EVIDENCE OF RESPONDENT NO. 2 to 746. DW-1/Sh. Raj Kumar who is respondent no. 5, has tendered his evidence by way of affidavit Ex DW-1/A and has relied upon the original title documents i.e. GPA, Agreement to Sell, Affidavit, Receipt all dated 18.11.1994, executed by his father in his favour as Ex. DW-1/1 (Colly) ( running into six pages).
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 15/4247. In his cross-examination, DW-1 deposed that his date of birth is 05.08.1978. He is a farmer by profession. He has never done anything else apart from farming.
48. DW-1 further deposed that his father was the owner of 6 acres of land in their village. His father used to cultivate the said land and remained owner and in possession of the said land till his demise.
49. DW-1 further deposed that he did not file any ITR. He did not maintain any bank account. He given out his land on contract @ of Rs.20,000/- per acre per annum. He is owner of two acres after partition took place between their brothers.
50. DW-1 further deposed that he was 18 to 20 years in 1994. He was farming at that time. He was not owning any land in the year 1994. His father had purchased four plots in Vikas Nagar, Village Hastsal, Delhi. He did not know when it was purchased. His father had not sold any plot out of the four plots purchased. DW-1 denied the suggestion that plot no.114, B- Block, ad-measuring 200 sq. yds. Khasra No.45/5, Village Hastsal, Delhi was sold to Sh. Jai Prakash S/o. Bishambar Dayal, plot no.117, B-Block, ad-measuring 200 sq. yds. Khasra No.45/5, Village Hastsal, Delhi was sold to Sh. Ravi Singh Thakur by the deceased petitioner, plot no.126, B-Block, ad-measuring 200 sq. yds. Khasra No.45/5, Village Hastsal, Delhi was sold to Sh. Jasbir S/o. Sh. Dayanand and plot no.116, B-Block, ad- measuring 200 sq. yds. Khasra No.45/5, Village Hastsal, Delhi was sold to Sh. Om Dutt S/o. Sh. Shradhanand vide documents PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 16/42 dated 03.06.1992 and registered Wills in favour of the purchasers dated 04.06.1992.
51. DW-1 further deposed that he was 14 years old in the year 1992 and he was a student at that time and was also farming. DW-1 denied the suggestion that he was just 16 years old in the year 1994. DW-1 further deposed that he was a student in the year 1994 and was also farming. At that time, they were getting Rs.10,000/- per acre per year from the agricultural land belonging to his father.
52. In reply to a specific question that what was your financial capacity in the year 1994, DW-1 replied that he used to sow 6 acres of land which were in his ownership and additional 6 acres of land belonging to his Tayaji.
53. DW-1 further deposed that he has not filed any document in support of his above stated answer regarding the ownership of his six acres or sowing land belonging to his Tauji. However, he voluntarily deposed that his father gave him the money to purchase the property from him). He has written so in his objections. Again said, some money was given by his father and some money was arranged by himself. The witness is confronted with the objections filed by respondents no.2 to 7 where it is not written so.
54. DW-1 further deposed that he cannot bring any document to show that he was alone cultivating the six acres of his father land or six acres belonging to his Tayaji. DW-1 denied PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 17/42 the suggestion that he was not earning in the year 1994 or prior to that or that he was not financially capable to purchase the property. DW-1 denied the suggestion that he was not even legally capable to purchase the said property for being minor at that time. He denied the suggestion that he had forged and fabricated the documents Ex DW-1/1 in order to create false objections in the present case.
55. Witness was shown the objections dated 11.04.2016 filed on behalf of respondents no.2 to 6. DW-1 admitted the suggestion that it does not bear his signatures at any place or that it is not accompanied by his supporting affidavit. DW-1 further admitted the suggestion that objections in question have been signed by only Sh. Madan and the supporting affidavit has also been filed by Sh.Madan only. He denied the suggestion that the documents Ex. DW-1/1 (colly) were not filed with the objections filed on behalf of respondents no.2 to 6. DW-1 denied the suggestion that he has never filed any objections in the present matter.
56. DW-1 denied the suggestion that Sh. Ravi Singh Thakur had purchased the suit property on 03.06.1992 from his father Sh. Ran Singh or that Late Sh. Ravi Singh Thakur was in possession of the said plot since the date of purchase till his death and thereafter his LRs are in possession of the suit property. He further deposed that he has not filed any document to show that he is or was in possession of the suit property. DW- 1 denied the suggestion that he has not filed any such document as he was never in possession of the suit property or owner PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 18/42 thereof.
57. DW-1 further deposed that he did not know whether Sh. Ravi Singh Thakur was filing his property tax during his lifetime for the suit property or not. DW-1 further deposed that he has not filed any objection before South Delhi Municipal Corporation or MCD or any other authority against the payment of property tax by the deceased petitioner. He has not filed any criminal complaint against the petitioner.
58. In his further cross-examination, DW-1 deposed that they had never made any police compliant in regard to the forcible occupation of the plot attempted by the petitioner as stated in his affidavit in para no. 5 & 7. DW-1 admitted the suggestion that they have also not mentioned any date, month, or year regarding the facts mentioned in para nos. 5. 7 of his affidavit.
59. DW-1 further deposed that they have not filed any case against any of the purchasers to whom his father had sold plots, in his life time, the plots owned by him and that they have never taken any step to get mutated the plots in question or the other plots in their favour with MCD or any other department and denied the suggestions in this respect.
60. In his further cross-examination, DW-1 deposed that the documents Ex. DW-1/1 were executed in his favour in the year 1994 but he does not remember where those documents were prepared.
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 19/4261. DW-1 further deposed that he has not paid any property tax qua the suit property. Thereafter He denied all the suggestion put to him.
62. DW-2/Sh. Madan Singh, who is respondent no. 4, has tendered his evidence by way of affidavit Ex DW-2/A and he has relied upon the document which is already exhibited Ex DW-1/1 (OSR) in the evidence of DW-1.
63. In his cross examination, DW-2 deposed that he cannot tell the date of birth of DW-1/ Sh. Raj Kumar. He is his younger brother. He is two or three years younger to him. Again said he was six years younger to him. Mr. Raj Kumar is into farming. He further deposed that they three brothers have six acres of land. DW-1 has never done any business or job apart from farming. He further deposed that respondent no. 5 is earning around 2 to 2.5 lacs annually from farming. Raj Kumar was around 16 year old in 1994.
64. DW-2 further deposed that his father had bought four plots in Vikas Nagar Ext. Hastsal, Delhi, however, he cannot tell the number of any of them. He further deposed that he can not tell about the ownership or under whose possession the said plots are. He further deposed that they have never filed any case regarding above plots and he did not file any complaint against the deceased plaintiff when he tried to occupy the plot no. 117 B Bloc Vikas Nagar Ext. Hastsal, Delhi. He, voluntarily, deposed that they had tried to make him understand in brotherhood PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 20/42 Panchyat. DW-2 further deposed that he had not written about the above mentioned brotherhood Punchyat either in his objections or in his affidavit in evidence.
65. DW-2 further deposed that he did not know whether his father had sold plot no. 117 to one Ravi Singh Thakur S/o Sh. Ram Dhan on 03.06.1992 vide documents GPA, Agreement to sell, affidavit, receipt, possession letter dated 03.06.1992 and a registered Will, as it was not told to him by his father. DW-2 did not know whether his father had executed registered Wills dated 03.06.1992 in respect of the above mentioned plots in favour of respective buyers by duly appearing before the Ld Sub-registrar concerned.
66. DW-2 denied the suggestion that his father had sold all the above mentioned plots including plot no. 117 after taking consideration amount on 03.06.1992 or that after the said transaction his father was left with no right or interest in the said plots. He further denied the suggestion that he is aware that his father had sold the plot in question to Sh. Ravi Singh Thakur and now they have come up with false objections with malafide intentions. He further denied the suggestion that neither his father nor they have been in possession of plot no. 117, B Block, Vikas Nagar, Hastsal, Delhi after execution of documents dated 03.06.1992. He further denied the suggestion that he does not have any document regarding the possession of the plot in question. He further denied the suggestion that they have filed false objections or that the documents dated 18.11.1994 are forged and fabricated or these documents have been procured by PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 21/42 them in order to claim false ownership over the plot in question.
67. DW-2 further denied the suggestion that he was trying to take the advantage of the fact that the petitioner lost the documents pertaining to the plot in question. He further denied the suggestion that due to the loss of the documents, the petitioner was constrained to file the present petition regarding the Will in question or that after the execution of the documents dated 03.061992, the deceased petitioner had become the owner of the plot in question.
68. I have heard the final arguments from both sides and have gone through the entire case file.
69. CONTENTIONS OF THE PETITIONER.
(i) Ld counsel for the petitioners has argued that the petitioners have duly proved the Will in question by examining petitioner/PW-1 as well as PW-2/Sh. Anil Kumar Sharma, who is one of the attesting witness of the Will in question. He further argued that PW-2 has identified his signatures at Point X-1, X-2 and his stamp at point X-3 and X-4 on the Will Ex PW-1/1. He further argued that PW-2 has also identified the thumb impression of the deceased Late Sh. Ran Singh at Point A and other attesting witness Pt. Bhim Sen at Point B on the Will Ex PW-1/1. He further argued that PW-2 has proved that the deceased had thumb marked the Will, voluntarily, after fully understanding the contents of the Will and the deceased was in sound disposing mind at the time of execution of the Will.
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 22/42(ii) Ld counsel for the petitioners has further argued that the Will in question is a registered Will and presumption of genuineness is attached with the Will in question.
(iii) Ld counsel for the petitioner has further argued that petitioners are in possession of the suit property since the date of execution of the documents by the deceased in his favour.
(iv) Ld counsel for the petitioner has further argued that on 20.07.2014, the petitioner, unfortunately, lost all the original documents of the suit property, including Will in question and also lost NCR regarding lost of above-said documents. He further argued that notice was also got published by the petitioner through his counsel Sh. B.B.N. Deo.
CONTENTIONS OF RESPONDENT NO.2 to 7.
70. Ld. counsel for respondent no. 2 to 7 has argued that the father of the respondents have never sold the suit property to the petitioner. He further argued that the petitioner has failed to produce original documents of the suit property alleged to be executed by the father of the respondents. He further argued that the petitioners even have not filed photocopy of the documents except Will, executed by the father of respondents in favour of deceased petitioner Late Sh. Ravi Singh Thakur. He further argued that the erstwhile petitioner was working as a property dealer with the father of respondents and he forged the Will in question along with other documents. He further argued that PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 23/42 erstwhile petitioner Late Sh. Ravi Singh Thakur or his legal heirs had never been in possession of the suit property. He further argued that Late Sh. Ran Singh had executed titled documents of the suit property in favour of Respondent no. 5 and respondent no. 5 is the owner and in possession of the suit property.
71. It is further argued that the erstwhile petitioner, after coming to know the death of the father of the respondents tried to occupy the suit property illegally. It is further argued that Petitioners have failed to prove the Will in question. It is further argued that petitioners have failed to prove that the Will in question has been executed by the deceased, voluntarily, without any force and undue influence and bear the signature and thumb impression of the deceased.
STATUTORY PROVISIONS INVOLVED IN THE PRESNT CASE.
72. Before adjudicating the issues, I would like to discuss various relevant statutory provisions as well as case laws, on the point involved in the present case.
73. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean 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".
Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.
74. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 24/42 Succession Act, 1925, which reads 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 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".
75. 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 specifically denied.
76. In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 25/42 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 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 PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 26/42 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 emphasises 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."
77. In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles in order to prove the Will and the same are as under; -
i. This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 27/42 under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c) Each of the attesting witnesses must have 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 such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
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 with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 28/42 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 under which he receives a substantial benefit, etc.
78. In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court 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 custom 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.PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 29/42
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.
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.PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 30/42
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.
79. In the present petition, the petitioners are seeking Probate/letters of administration of the Will dated 03.06.1992 In such type of petition, the prime consideration is to find out and assess whether the Will, on the basis of which the petitioner is seeking Probate/letters of administration has been duly proved or not. Such Will has to be proved in accordance with the provisions contained in Indian Evidence Act as well as Indian Succession Act. In a proceeding for the grant of probate or for the grant of Letters of Administration with a Will annexed, the Court exercising testamentary jurisdiction is not concerned with title of property. In determining whether probate/letters of administration should be granted, the Court determines only upon the genuineness and due execution of the Will. Determinations on PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 31/42 issues of title are alien to probate proceedings. Even question whether property existed or not is also not to be considered by the probate court and court is only to see whether Will in question is genuine and validly executed or not. Reliance is place upon judgment of Hon'ble Apex Court titled Krishna Kumar Birla vs Rajendra Singh Lodha & Ors on 31 March, 2008 and in this judgment, it is held by Hon'ble Supreme Court that.
"The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will."
"A question of title arising under the Act cannot be gone into the proceedings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
ISSUE -WISE FINDING
80. My issue wise findings are as under:-
Issue no. 1 & 3
1. Whether the Will dated 03.06.1992 executed by Late Sh.
Ran Singh S/o late Sh. Umrao Singh is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP.
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 to 6 in the written statement/objections? OPR
81. Both these issues are interconnected and having mutual bearing, therefore both these issues are taken together. Onus to prove issue no. 1 is upon the petitioner and of issue no. 3 is upon respondents.
82. In order to prove issue no. 1 petitioner has examined Sh. Ravi Singh Thakur/petitioner/PW-1, Sh. Anil Kumar Sharma/attesting witness PW-2 , Sh. Vivek Yadav/ PW-3, ASI Harish Kumar/ PW-4, Sh. BBN Deo/ PW-5.
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 32/4283. PW-1/petitioner has deposed in his examination in chief that he has purchased the suit property from the deceased Sh. Ran Singh on 03.06.1992 for a consideration of Rs. 40,000/- and the deceased had executed a General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession letter dated 03.06.1992 in his favour.
84. PW-1 further deposed in his examination in chief that the deceased Late Sh. Ran Singh with his sound state of mind executed the Will dated 03.06.1992 in his favour and the said Will is duly registered with the Sub-registrar and the said Will is the last and final Will in respect to the suit property of the deceased.
85. PW-1 further deposed in his examination in chief that since 03.06.1992, he has been in continue possession of the suit property and he has been paying the property tax of the suit property since, 2004 as it was made compulsory by the Government.
86. The first contention of the respondents is that the Will in question is a forged and fabricated document and it does not bear the thumb impression of the deceased.
87. PW-1/Late Sh. Ravi Singh Thakur has stated in his examination in chief that the deceased has executed the Will in question in his sound state of mind.
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 33/4288. PW-2/Sh. Anil Kumar Sharma has deposed in his examination in chief that he had drafted the Will in question on the instruction of the deceased. He further deposed that the deceased after understanding the contents of the Will, put his thumb impression on the Will at Point A, thereafter, Pt Bhim Sen signed in Urdu at Point B on the Will and lastly, he signed the Will at Point X-1.
89. PW-2 has identified the thumb impression of deceased on the Will in question and has deposed that the deceased had put his thumb impression on the Will in his presence. The Will in question is a registered Will and presumption of genuineness of the proceedings conducted before sub-registrar is attached to the Will in question.
90. During the cross examination of PW-1 & PW-2, no suggestion has been put to the PW-1 & PW-2 that the Will in question does not bear the thumb impression of the deceased. The respondents have not examined any document expert to prove that the Will in question does not bear the thumb impression of the deceased or to prove that the Will in question is a forged and fabricated document. No evidence has been led on behalf of the respondents to prove the abovesaid fact. In the light of the abovesaid observations and testimonies of PW-1 & PW-2, it is held that the Will in question bears the thumb impression of the deceased and it is not a forged and fabricated document.
91. The next contention of the respondents is that the PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 34/42 deceased has sold the suit property to respondent no. 5 on 18.11.1994by way of GPA, Agreement to Sell, affidavit and receipt, so, the present Will is not legal & cannot be enforced.
92. I have perused that above-said documents attached by the respondents and exhibited by DW-1 as DW-1/1. The above-said documents are attested by Notary Public. The above- said documents have not been got registered.
93. The respondents have not examined any witness to prove the above said documents Ex DW-1/1. The documents Ex DW-1/1 (colly) have not been proved on behalf of the respondents.
94. It is settled law that GPA, Agreement to Sell, affidavit and Receipt do not confer any right, title or interest to the respondent no. 5, in the suit property. At the best, on the basis of agreement to sell, the respondent no. 5 could have file the suit for specific performance. The agreement to sell is of dated 18.11.1994 and the deceased Late Sh. Ran Singh died on 11.01.2012 but during his life-time, the respondent no. 5 has not filed any suit for specific performance. No sale deed of the suit property has been executed by the deceased in favour of respondent no. 5. The agreement to sell is not a conveyance deed. It does not transfer ownership right in favour of respondent no. 5. So, on the basis of agreement to sell and other above-said documents, the respondents cannot challenge the legality of the Will in question . Reliance has been placed on the following judgments passed by Hon'ble Supreme Court of India and PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 35/42 Hon'ble High Court of Delhi
1. Shakeel Ahmed Vs Syed Akhlaq Hussain Civil Appeal no. 1598 of 2023, decided on 01.11.2023.
2. Ganshyam Vs Yogendra Rathi Civil Appeal no. 7527-7528 of 2012 decided on 02.06.2023.
3. Munishamappa Vs M. Rama Reddy & Ors. Civil Appeal no. 10327 of 2011 decided on 02.11.2023.
4. Raj Kaur Vs Mitlesh & Ors, AIR on-line, 2021 DEL 850, decided on 05.05.2021 by Hon'ble High Court of Delhi
95. The third contention of the respondent is that the deceased has not executed titled documents in favour of the deceased petitioner, Late Sh. Ravi Singh Thakur. The petitioners has claimed that the deceased has executed GPA, Agreement to Sell, affidavit, Receipt, possession letter and Will in favour of Late Sh. Ravi Singh Thakur. This court being probate, court is only concerned with the legality & validity of the Will in question & has not to decide the title of the petitioners qua the property in question. Determinations on issues of title are alien to probate proceedings.
96. The petitioner has claimed that the deceased has executed Will of the suit property in his favour on 03.06.1992. It is settled law that the Will operates only after the death of the testator. The deceased who is testator of the Will dated 03.06.1992 have died on 11.01.2012 and the present case has been filed by the petitioner for issuance of probate/letters of administration, in respect of the Will of the deceased on 28.01.2016, after the death of the deceased. The erstwhile petitioner i.e. deceased Ravi Singh PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 36/42 Thakur is the sole beneficiary in the Will in question. So, he had the right to file present petition for issuance of probate/letters of administration.
97. The respondents have claimed that the deceased petitioner tried to occupy the plot illegally and forcefully in the year, 2012 but could not succeed. On the other hand, the petitioner has claimed that the deceased has given him the possession of the suit property after execution of the documents. DW-1, who is respondent no. 5, stated in his cross examination that they had not made any police complaint regarding attempt of petitioner to take forcible possession of the suit property from them. DW-1 has also not stated the date, month and year regarding the attempt made by the deceased petitioner to take forcible possession of the suit property rather in cross examination, DW-1 deposed that he came to know about the attempt of the petitioner to enter into the suit property when he received summons in the present petition.
98. DW-2 has deposed during cross examination that his father had bought four plots in Vikas Nagar Extension Hastsal, Delhi. DW-2 further deposed that he cannot tell about the ownership and under whose possession, the said plots are. He further deposed that he did not file any complaint against the deceased petitioner when he tried to occupy the plot in question.
99. The conduct of the defendants for not making any complaint against the deceased petitioner for attempting to take forcefully possession in suit property, is improbable. If deceased PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 37/42 petitioner had made any attempt to take forcible possession from the respondents then respondents would have lodged complaint against him or would have filed suit against the deceased petitioner. The respondents have not filed any documents to show the respondent no. 5 has ever been in possession of the suit property. DW-1 has also stated that they have never taken any step to get mutated the suit property in their names with MCD or any other department. He also deposed that he has not paid any property tax of the suit property. So, respondents have failed to prove that the deceased petitioner have made any attempt to take forcible possession of the suit property. The respondents have also not led any evidence to prove that they are in possession of the suit property.
100. The date of death of Sh. Ran Singh i.e. 11.01.2012 is admitted on behalf of all the parties.
101. The deceased petitioner has deposed that on 20.07.2014, he, unfortunately, lost all the original documents of the suit property. He further deposed that he got published public notice in newspapers "The Indian Express" and "Jansatta" Ex PW-1/3 (colly) through his counsel, BBN Deo. PW-4, ASI Harish Kumar has proved the lost report lodged by Late Sh. Ravi Singh Thakur Ex PW-4/A. Sh. BBN Deo has been examined as PW-5 and he proved the issuance of public notice in above-said newspapers at the instance of Late Sh. Ravi Singh Thakur. DW-1 has also admitted publication of public notice regarding lost of documents by deceased petitioner in his examination in chief. During cross examination of PW-1, the respondents have not denied the lost of PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 38/42 original documents of the suit property by the deceased petitioner and no suggestion to this aspect has been put to PW-1 on behalf of respondent. In view of the above-said observations, it is held that on balance of probabilities, the petitioners have succeeded in proving that the erstwhile petitioner Late Sh. Ravi Singh Thakur lost the documents of the suit property on 20.07.2014.
102. The Will in question is a registered Will. Petitioners have also examined PW-3, Sh. Vivek Yadav from the office of Sub-registrar, Basai darapur, who brought the record regarding the registration of the Will in question and proved the registration of Will with the sub-registrar.
103. PW-2 further deposed in his examination in chief that the deceased Late Sh. Ran Singh was in good health and sound state of mind at the time of execution and registration of the Will dated 03.06.1992.
104. PW-2, during his examination in chief, identified his signatures, thumb impression of deceased and signatures of other attesting witness, Pt. Bhim Sen on the Will in question.
105. During the cross examination of PW-2, Ld counsel for respondents has put suggestion to the PW-2 that "it is correct that the present Will drafted by me as well as attested by me as an attesting witness. It is correct that the testator was in sound mind and health". By way of abovesaid suggestion, the respondents have also admitted the drafting as well as attestation of the Will by PW-2. Respondents have also admitted that PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 39/42 testator was in sound mind and health.
106. PW-2 further deposed that he had read over the contents of the Will to the testator and the contents of the Will were as per instruction of the testator.
107. In view of the above said facts, testimonies and observation, it is held that the deceased has executed the Will in question, voluntarily, with his free consent and he was aware about the contents of the Will, at the time of its execution. PW-3 has proved the due execution of the Will in question as per Section 63 of Indian Succession Act. No other Will qua the suit property has been alleged or brought on record by the respondents. Therefore, it is also held that the Will in question in respect of suit property is the last, legal, genuine and valid Will of the deceased and it has been executed by the deceased in his sound disposing mind. The respondents have failed to prove that the Will in question is a forged and fabricated document and does not bear the thumb impression of the deceased. Accordingly issue no.1 & 3 are decided in favour of petitioner and against the respondents.
108. Findings on Issue no.2
2. Whether the petitioner is entitled for probate/letters of administration on the basis of aforesaid Will, as claimed? OPP.
109. It has already been held above that the Will dated 03.06.1992 executed by testator late Sh. Ran Singh qua the suit PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 40/42 property is legal, valid, genuine and last Will of the deceased.
110. In this petition, the erstwhile petitioner Late Sh Ravi Singh Thakur is the sole beneficiary qua the suit property in the Will in question. During trial, late Sh. Ravi Singh Thakur expired and his legal heirs have been brought on record. The legal heirs of Late Sh. Ravi Singh Thakur are his son and daughters and they are class-I legal heirs of deceased Sh Ravi Singh Thakur. The petitioners are seeking issuance of probate/letters of administration of the Will in question. However, the deceased petitioner as well as his legal heirs have not been appointed as an executor in the Will in question. As per Section 222 of Indian Succession Act, probate of the Will can be granted only to an executor appointed in the Will. Therefore, probate cannot be issued in favour of the petitioners. However, the petitioners being Class-I legal heirs of the deceased Sh. Ravi Singh Thakur, who is sole beneficiary in the Will in question, are entitled to receive letters of administration in respect of suit property mentioned in the Will dated 03.06.1992. Hence, issue no. 2 is decided in favour of the petitioners and against the respondents.
RELIEF
111. In view of above discussion and findings, the present petition is allowed and it is ordered that letters of administration in respect of suit property, as per Will dated 03.06.1992 be issued to the petitioners under the seal of this court in the form set forth in Schedule VII of Indian Succession Act, 1925, subject to following conditions:
PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 41/42(i) furnishing of requisite court fees on the value of the suit property.
(ii) and further subject to furnishing of administration-cum-surety bond to the amount of the value of the suit property.
112. Further, the petitioners are also directed to file the inventory of immovable property within six months and final statement of account within one year from the date of receipt of formal letters of administration. The formalities of issuance of Letters of Administration be completed within six months from the date of the judgment, as per Section 290 & 291 read with Section 317 of Indian Succession Act.
113. In the end, needless to emphasize that the question of title, share or ownership of immovable property mentioned here-in-above has not been decided by this Court.
114. File be consigned to the Record Room after making all the necessary compliance and due formalities.
Digitally signed SHIV by SHIV KUMAR KUMAR Date: 2024.04.23 16:43:04 -0500 Announced in the open court (Shiv Kumar ) on 23.04.2024 District Judge-02 (West) Court no. 127, THC, Delhi. PC No. 15863/16 Ravi Singh Thakur & Ors Vs State & Ors. Page 42/42