Delhi District Court
Suman Lata vs State on 21 March, 2024
Smt. Suman Lata Vs. State & Anr.
DLST010001882014
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC No. 5840/2016
Filing No. 4048/2014
CNR No. DLST01-000188-2014
In the matter of
SMT. SUMAN LATA
W/O SH. PAWAN KUMAR
R/O VILLAGE & PO MUKERIAN,
DISTRICT-HOSHIARPUR,
PUNJAB
ALSO AT:-
E-I/336-337,
MADANGIR,
NEW DELHI
...............Petitioner
Versus
1. STATE
(GOVT OF N.C.T. OF DELHI)
2. SH. PURUSHOTTAM LAL
S/O LATE AMARNATH
PC No. 5840/2016
CNR No. DLST01-000188-2014
Page 1 of 56
Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024
Smt. Suman Lata Vs. State & Anr.
3. SH. DHARAMPAL
S/O LATE AMARNATH
4. SH. PAWAN KUMAR
S/O LATE AMARNATH
5. SH.VISHAL
S/O LATE AMARNATH
6. SMT. GUDDI
D/O LATE AMARNATH
RESPONDENTS NO.2 TO 6 ALL RESIDENTS OF:-
HOUSE NO.202, GALI NO.2,
NEHRU NAGAR, DISTRICT-PATHANKOT,
PUNJAB.
7. SH. DEV RAJ
S/O LATE MUNSHI RAM
R/O HOUSE NO.160,
NEAR DEVA MANDIR, DEVA COLONY,
VILLAGE & PO-MUKERIAN,
DISTRICT-HOSHIARPUR,
PUNJAB.
8. SMT. KULJINDER KAUR
W/O SH. HARDEEP SINGH
R/O VILLAGE- POTIYA,
TEHSIL & PO-MUKERIAN,
DISTRICT-HOSHIARPUR,
PUNJAB.
9. SH. TARLOCHAN SINGH
PC No. 5840/2016
CNR No. DLST01-000188-2014
Page 2 of 56
Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024
Smt. Suman Lata Vs. State & Anr.
S/O LATE PIARA SINGH
10. SH. PRITAM SINGH
S/O LATE PIARA SINGH
BOTH RESPONDENT NO.9 & 10:-
R/O HOUSE NO.400,
SANT NAGAR, GARHI VILLAGE,
NEW DELHI-110065.
11. SMT. IQBAL KAUR
D/O LATE PIARA SINGH
W/O SH.SURINDER SINGH
R/O HOUSE NO.662/9A,
JAWAHAR COLONY, FARIDABAD, HARYANA.
12. SMT. GURBACHAN KAUR
D/O LATE PIARA SINGH
W/O SH. LAKHBIR SINGH
R/O HOUSE NO.Α/1779,
BACK SIDE SECOND FLOOR,
GREEN FIELD COLONY,
FARIDABAD, HARYANA.
13. SMT. INDERJEET KAUR
D/O LATE PIARA SINGH
W/O SH.BALJEET SINGH
R/O HOUSE NO.1647,
GALI NO.15,
GOVINDPURI,
NEW DELHI.
14. SMT. PARAMJEET KAUR
D/O LATE PIARA SINGH
PC No. 5840/2016
CNR No. DLST01-000188-2014
Page 3 of 56
Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024
Smt. Suman Lata Vs. State & Anr.
W/O SH. SURINDER SINGH,
R/O HOUSE NO.283/3,
GOVINDPURI,
NEW DELHI.
15. SH. RANJEET SINGH
S/O LATE SH. DAYAL SINGH
R/O HOUSE NO.5101,
GALI NO.4, HABIBPURA,
SULTAN WIND ROAD,
AMRITSAR, PUNJAB.
16. SH. PAWAN KUMAR
S/O LATE SITA RAM,
R/O VILLAGE & PO-MUKERIAN,
DISTRICT-HOSHIARPUR,
PUNJAB.
.............Respondents
Date of Institution : 18.02.2014
Date of reserving the judgment : 21.03.2024
Date of pronouncement : 21.03.2024
Decision : Dismissed
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT FOR GRANT OF
PROBATE/LETTER OF ADMINISTRATION IN
RESPECT OF THE ESTATE OF LATE MAHENDER
KAUR W/O LATE AMRIK SINGH, PURSUANT TO THE
WILL DATED 07.12.2011.
JUDGMENT
1. The present petition has been filed by the petitioner under PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 4 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
Section 276 of the Indian Succession Act to obtain probate/letter of administration in respect of the estate of Late Mahender Kaur pursuant to the Will dated 07.12.2011. The case of the petitioner, as per the petition, is as under:
1.1. That the petitioner is the wife of Sh. Pawan Kumar.
The husband of the petitioner/Sh. Pawan Kumar, son of Late Sita Ram, is the real cousin of Late Mahender Kaur. The petitioner is related to Late Mahender Kaur as the cousin daughter-in-law. The father-in-law of the petitioner namely Late Sita Ram was the real brother of Smt. Mahender Kaur. Out of the wedlock of Late Munshi Devi and Smt. Tan Devi, three sons namely Sh. Amar Nath (since deceased), Sh. Sita Ram (since deceased) and Sh. Dev Raj (son) and one daughter namely Smt. Mahender Kaur (since deceased), were born. Sh. Amar Nath died in the year 1992 living behind the respondents no.2 to 6 as his legal heirs. The respondents no.2 to 5 are the nephew of the petitioner, being the sons of Late Armar Nath, while respondent no.6 is the niece of petitioner being the daughter of the Late Amar Nath. The respondent no.7/Sh. Dev Raj is the real brother of the petitioner's father-in-law and respondent no.8 is the sister-in-law of the petitioner.
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 5 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
1.2. Smt. Mahender Kaur was also known as Smt. Mahinder Kaur, therefore, Smt. Mahender Kaur @ Mahinder Kaur is one and the same person. Smt. Mahender Kaur @ Smt. Mahinder Kaur got married to one Sh. Amrik Singh and they did not have any child. The petitioner's husband used to reside with Smt. Mahender Kaur since childhood and Smt. Mahender Kaur has brought up the petitioner's husband namely Sh. Pawan Kumar as her own son. Sh. Pawan Kumar was got married by Smt. Mahender Kaur and her husband.
1.3. During her lifetime, Smt. Mahender Kaur used to reside together with the petitioner and the petitioner used to take good care of Smt. Mahender Kaur. Petitioner along with her husband used to take proper care and attention of the deceased. Since the deceased had no issue, hence, Smt. Mahender Kaur used to treat the petitioner as his real daughter-in-law. The husband of Smt. Mahender Kaur @ Mahinder Kaur namely Sh. Amrik Singh used to run his own independent business as contractor in Delhi, who had purchased few immovable properties out of his own funds in Delhi. The deceased husband of Late Mahender Kaur @ Mahinder Kaur had purchased the property bearing No. E- 1/336-337, Madangir, New Delhi from Smt. Bhagwan PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 6 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
Kaur. That said properties bearing No. E-1/336 and E- 1/337, Madangir, New Delhi were originally allotted to two persons namely Chotte Lal and Laxmi Chand respectively. Sh. Amrik Singh was the sole and absolute owner of the above said properties bearing No.E-1/336-337, Madangir, New Delhi. The husband of Late Mahender Kaur had also purchased another property bearing No. CPO-102, Madangir, New Delhi- 110062. The properties bearing No. E-1/336-337, Madangir, New Delhi- 110062 were self- acquired property of Late Amrik Singh. That Late Amrik Singh, during his lifetime, had got constructed the ground, first and second floors portions on the total plot of the land admeasuring 50 sq. yds. forming part of the properties bearing No. E-I/336-337, Madangir, New Delhi. The husband of Late Mahender Kaur was thus the sole and absolute owner of the ground floor, first floor and second floor portion along with proportionate land underneath of the said properties bearing No.E- 1336-337, Madangir, New Delhi-110062. It is submitted that inadvertently the original title documents in respect of the abovesaid properties has been misplaced by Smt. Mahender Kaur who had lodged a complaint with the concerned police station at Delhi.
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 7 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
1.4. Late Amrik Singh pre-deceased his wife Late Mahender Kaur @ Mahinder Kaur. After the death of Late Amrik Singh, Smt. Mahender Kaur, being the sole surviving legal heir of Late Amrik Singh, became the sole and absolute owner of the aforesaid properties. However, Late Mahender Kaur @ Mahinder Kaur, during her lifetime, had already sold the said property bearing No. CPO-102, Madangir, New Delhi to someone. The husband of Smt. Mahender Kaur had also got opened few bank accounts jointly in the name of his wife namely Smt. Mahender Kaur and himself.
1.5. The petitioner and her husband used to take good care of both Late Amrik Singh and Late Mahender Kaur. Even after the death of Late Amrik Singh, the petitioner and her husband used to stay with Late Mahender Kaur @ Mahinder Kaur at her residence in Delhi and used to attend to the daily needs of Late Mahender Kaur @ Mahinder Kaur.
1.6. Late Mahender Kaur @ Mahinder Kaur died on 29.02.2012 at House No. E-1/336-337, Madangir, New Delhi. Smt. Mahender Kaur @ Mahinder Kaur died issue- less. Late Mahender Kaur was permanently residing at PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 8 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
property bearing No.E-1/336-337, Madangir, New Delhi. The petitioner and her husband were even present at the bed-side of Late Mahender Kaur at the time of her death. Late Mahender Kaur during her lifetime had executed a valid Will dated 07.12.2011 in favour of the petitioner and had also got the same registered with the concerned office of the Sub-Registrar-V, New Delhi as document No.6518 in Book No.3, Volume No. 1957 at pages No.165 to 167. Late Mahender Kaur @ Mahinder Kaur bequeathed all her right, title and interest in respect of all her movable and immovable properties in favour of the petitioner vide her Will dated 07.12.2011. At the time of execution of the Will dated 07.12.2011, the deceased was not having any other legal heirs. The Will dated 07.12.2011 was duly attested by two attesting witnesses namely Sh. Puran, s/o Sh. Kalu Ram and Sh. Krishna Gopal, s/o Sh. Fakir Chand respectively. At the time of execution of the said Will, , the deceased was in good senses and sound disposing mind and had executed the said Will without any force, coercion or pressure from any corner.
1.7. There is no other property/estate of the deceased other than those specified in said Schedule- 'A' filed along with the present petition. The WILL dated 07.12.2011 is PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 9 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
the last and final Will of the deceased and is the valid and proper in as much as the same was duly executed by the deceased in her sound disposing mind and at the time of execution of the said Will. The deceased was also physically fit.
2. Vide order dated 14.07.2014, the citation was directed to be issued as per law. Notice of the petition was directed to be issued to respondents. The citation was published in the newspaper "The Statesman".
3. Respondents No. 9 and 10 have filed objection/reply to the present petition. They opposed the present petition on the following grounds:-
3.1. The petition filed by the petitioner Suman Lata is based upon false and frivolous facts and the petitioner has not disclosed the true and complete facts to the court and the petition is liable to be dismissed. The petitioner has never resided at the address of E-I, 336-337, Madangir, New Delhi. The petitioner always resided in Mukeria District in Punjab. The petitioner had never been in possession of the said premises and in order to obtain the rights over the said property, the petitioner mentioned herself to be in the possession of the said property. The PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 10 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
petitioner malafidely did not not disclose the details of the legal heirs of the deceased Mahender Kaur in the petitioner earlier. It is submitted that the respondent Tarlochan Singh filed the petition before the Ld. Senior Civil judge, Delhi for grant of succession in respect of the bank account held by the said Mahender Kaur and in that petition Suman Lata filed an application under Order I Rule 10 CPC for being impleaded as a party and even in that application she did not disclose about the pendency of the present petition and it was only when an objection was taken by the respondent i.e. Tarlochan Singh as to non-filing of the probate petition. Then only petitioner Suman Lata was forced to disclose about the pendency of the present petition, it was then that application was filed by respondent and then only the petitioner Suman Lata filed an application for amendment of the present probate petition whereby impleading the other parties in the present case.
3.2. The Will of Mahender Kaur is a false and frivolous document. The same does not bear the signatures of Mahender kaur. The right hand of the testatrix was badly fractured near the arms and she was not in a position to put her signatures, and in the month of December, 2011 she was critically ill and before 07.12.2011 she used to keep PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 11 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
visiting the hospitals and in the month of November and/or December, 2011 first week, Doctors of Batra Hospital told that family members may only serve her and she may not alive for long and ultimately she died on 29.02.2012 at House No. 336/337, Madangir, New Delhi. The condition of the testatrix was such that due to injury in her backbone, she was not even able to move and was continuously dependent on oxygen mask and was completely bed ridden. The witnesses to the Will namely Puran and Krishan Gopal are false and frivolous witnesses. On 07.12.2011 or 8.12.2011, Smt. Mahender Kaur was not capable of understanding and was not in the state of executing any documents what to say of the Will. The money in the bank account was originally in the joint bank account of Amrik Singh. Sh. Amrik Singh died in the year 2006 and after the death of Sh. Amrik Singh, testatrix Mahender Kaur was being looked after by Sh. Tarlochan Singh and Pritam Singh who are the sons of elder brother, Amrik Singh (Piara Singh) and sister of Tarlochan Singh and Pritam Singh i.e. Gurbachan Kaur (daughter of late Piara Singh) and Smt. Mahender Kaur was being looked after by Tarlochan Sign and Pritam Singh and their wives, and Gurbachan Kaur and her children. The treatment of PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 12 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
Mahender Kaur was always being managed and financed by Tarlochan Singh and Pritam Singh and her last rites was also performed by them. The treatment of Amrik Singh was borne and looked after by the respondents no.9 and 10 and also all the Medical Bills of Smt. Mahender Kaur were paid by the respondents no.9 and 10 only. Even the last rites and expenses thereupon were made by the respondents no.9 and 10.
3.3. Upon the death of Amrik Singh, Smt. Mahender Kaur asked Tarlochan Singh and Pritam Singh to do the last rites of her husband Amrik Singh. She treated them as her children and so in case of any problem, it was only the respondents no.9 and 10 who were looking after her and even taking her to doctors and hospitals. The petitioner was never in possession or even residing with the deceased Smt. Mahinder Kaur. Smt. Mahender Kaur used to only sign and she could not read and write. The deceased Smt. Mahender Kaur had all love and affection to the respondent Tarlochan Singh and he has always looked after her like his mother without any greed. The petitioner Suman Lata and her husband were trying to take advantage of the fact that Smt. Mahender Kaur had no children and so have forged the said will. Hence, it is prayed that the present petition PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 13 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
may be dismissed.
4. The petitioner filed rejoinder to the objections of the respondents/objectors no. 9 and 10. In the rejoinder, the petitioner denied the contentions raised by respondents no. 9 and 10 and reiterated the averments made in the petition.
5. On the basis of the pleadings, following issues were framed vide order dated 25.05.2017:
"1. Whether the Will dated 07.12.2011 purported to have been made by Late Smt. Mahender Kaur is a genuine Will, having been signed by the purported testator in a sound physical and mental frame? OPP
2. Whether the petitioner is entitled to grant of letter of administration with Will dated 07.12.2011 annexed? OPP
3. Whether the Will dated 07.12.2011 has been forged and fabricated since purported testator Late Smt. Mahender Kaur was neither in a fit physical state nor fit mental state at the time when the Will in question is supposed to have been signed by her? OPR-9, 10 & 13
4. Relief."
6. The petitioner was asked to lead evidence. The petitioner PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 14 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
examined herself as PW1. She tendered her evidence by way of affidavit Ex.PW1/1. She has reiterated the facts stated in her petition. She has relied upon the following documents :
a) Copy of receipt of Shamshan Ghat as Mark A
b) Original Will dated 07.12.2011 of Smt. Mahinder Kaur as Ex.PW1/B.
c) Original death certificate of Smt. Mahinder Kaur as Ex.PW1/C.
d) Copies of 2 FDR's of Punjab National Bank, Bhikaji Cama Place and one of Oriental Bank of Commerce, Safdarjung Enclave which are collectively exhibited as Ex.PW1/D.
e) Copy of passbook as Mark B. 6.2. During the cross-examination on 14.02.2019, PW-1 deposed that she had given one address of Punjab and one address of Delhi. Punjab address is village Mukeria and Dist. Hoshiyarpur. She had given the Delhi address as 336-
337, Madangir. She deposed that she is not having any proof to show her address 336-337 Madangir. She voluntarily answered that she was turned out by respondent nos. 9, 10 and 13 from the Madangir address. She further deposed that she was turned out around March 2012 and PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 15 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
was residing at the Delhi address about 7-8 months prior to the death of the testatrix. She was residing with her husband and one of her son at the Delhi address. She further deposed that her other two sons were in Punjab.
6.3. She deposed that when she came to reside in Delhi before that the maid servant were residing with the testatrix. At that time, the maid servant living with her was Satyadevi. She deposed that Satyadevi was turned out by the testatrix after 10-12 days of her arrival. She was continuously residing for about 7-8 months and till her death. She deposed that her husband was also living for this period with her in Delhi. During this period the neighbours Hora, Puran Chand, etc. were visiting to the deceased. She was told by her bua saas (testatrix) that she was the owner of 336-337, Madangir. She deposed that there were no tenants in the said property. She had seen the electricity bill during those periods regarding the above property. The electricity bills were in the name of one Chotu Lal and Laxmi Chand. She deposed that those bills were deposited by her and the same were with her but when she was turned out from the Madangir property, the file containing the bills was left there. She deposed that on enquiry from her bua saas she was told that Chotu Lal and PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 16 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
Laxmi Chand are the persons from whom the property was purchased. She deposed that she had seen the title documents/purchase documents in respect of the Madangir property. The documents were initially in the name of husband of the testatrix and later on he got them transferred in the name of the testatrix.
6.4. She deposed that she is illiterate and can only sign, She did not know what documents were executed, however, the same were in Hindi. She deposed that her husband had probably seen the title/purchase documents. She deposed that when they came about 7-8 months before the death of the deceased the physical condition of the deceased was not good, she was seriously ill and she was on oxygen support since she had breathing problem. She further deposed that a doctor used to come and visit her bua saas in the property. The testatrix was also taken to Batra hospital for check up. She deposed that she and her husband only once visited the Batra hospital alongwith the testatrix which was a month prior to the death of the testatrix. She deposed that they are not having any medical papers since those had been retained by the objectors.
6.5. During her further cross-examination on PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 17 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
14.02.2020, she deposed that the name of her two sons are Anil Kumar, aged 21 years, and Anuj Kumar, around 25 years and both were born in Village Mukerian, Punjab. She deposed that her sons had done their schooling from Punjab they used to reside with her parents. She deposed that her voter ID card is of Mukerian, Punjab and she never had voter ID card of Delhi. She further deposed that her Aadhar card and PAN Card are also of Mukerian, Punjab and she is not having any ID card issued by any Government Department having address of Delhi. She deposed that the property no. E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi is not in her possession and she is not residing there at present since last eight years. She admitted that in February, 2018 also, she was neither residing nor in possession of property no. E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi. She answered voluntarily that the respondents had sold the said property and she was thrown out of the property. She depose that after few days of the death of Smt. Mahinder Kaur, the respondents forcibly dispossessed her from the property no. E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi.
6.6. She further deposed that she came to know about the will for which the present petition has been filed during PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 18 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
the life time of Smt. Mahinder Kaur itself. She also deposed that except the Will in question there is no other documents in her favour in respect of the property no. E- 1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi. She answered to the question 'Did you sign or make any writing regarding the property no.E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi' that she had not signed any document nor had made any writing regarding the property no. E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi. She deposed that she did not know if any document had been signed or any writing has been made by her husband Pawan Kumar regarding the property no. E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi. She deposed that her husband Pawan Kumar has not made any writing nor has signed any documents regarding the property no. E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi in her presence. She again said that she did not remember if her husband had signed any document or made any writing. She deposed that she had not lodged any complaint to the police when she was illegally dispossessed from the property no. E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi. She also deposed that the Will in question had come to her possession before the PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 19 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
death of Smt. Mahinder Kaur and thereafter, it had always remained in her possession. She answered to the question 'Whether the signature at point A on the document Ex. PW1/D1 are your signature' that she did not remember as to when she had made the said signature at point A. She further answered to question 'Whether the signature at point B on the document Ex. PW1/D1 are the signature of your husband Pawan Kumar' that she did not remember as to when her husband had made the said signature at point B. Her husband must be knowing if any application with the MCD had been filed for making mutation of the property no. E-1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi in her name.
6.7. She answered to the question 'Whether you had signed any application for mutation of the property no. E- 1/336-337, Madangir, Dr. Ambedkar Nagar, New Delhi in your name' that she had signed somewhere, however, she did not remember anything else. She deposed that she did not remember on whose asking and when she had signed the document for getting the mutation of the property in her name. She did not remember whether the document for mutation was signed before or after the death of Smt. Mahinder Kaur. She admitted that Smt. Mahinder Kaur had PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 20 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
been regularly visiting hospital for her treatment much prior from the date of her death and Smt. Mahinder Kaur had been regularly visiting hospital for her treatment during the period two to three years before her death. She answered voluntarily that testatrix was regularly taking medicines. She deposed that she was suffering from high sugar, breathing problem and back pain as she was not able to sit she was even on oxygen cylinder. She further deposed that she was usually treated at Batra Hospital and had died at home and not in any hospital. She also deposed that she was not taken to any hospital after her death. She answered voluntarily that the respondents did not use to look after Smt. Mahinder Kaur and she only used to look after her. She admitted that respondents used to take Mahinder Kaur to Batra Hospital. She also admitted that the medical expenses were borne by the respondents, however, Smt. Mahinder Kaur had paid the entire medical expenses by paying Rs. 4 lakhs. She sold her house for paying to the respondents which money she received after selling her property. She volunteered that she had also stated that she does not want to anything pending or any amount pending in so far as the respondents are concerned. She did not know where was her cremation performed.
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 21 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
However, she volunterred that it was performed at someplace in Delhi but she was not able to recall the name of place. She deposed that she had attended the cremation. She admitted that Sh. Pritam Singh/respondent no. 10 had conducted the last rite and had lit the pyre.
6.8. She further deposed that she got the electric connection in respect of the premises changed to her name during the life time of Smt. Mahinder Kaur on the basis of the Will in question. She deposed that the husband of Smt. Mahinder Kaur i.e. Amrik Singh had passed away in the hospital, however, she did not know the name of the hospital. She volunteered that she was present in the hospital. The respondents had also come to the hospital at that time. The cremation of Amrik Singh was done by Sh. Pritam Singh/respondent no. 10. She further volunteered that Smt. Mahinder Kaur said that let Pritam Singh make the cremation. She deposed that the original titled document of the property were lost during the life time of Smt. Mahinder Kaur. She further deposed that no complaint was lodged in respect of the the titled document by her or Smt. Mahinder Kaur. The titled document got lost after the death of Sh. Amrik Singh. She deposed that she knew Krishan Gopal and Puran since her marriage. She PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 22 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
volunteered that they used to visit Smt. Mahinder Kaur. She deposed that she and her husband are having cordial relation with Krishan Gopal and Puran. She deposed that she is not residing in the house of Krishan Gopal and Puran. She volunteered that she and her husband often visit their house and they even served meals to us. She admitted that Smt. Mahinder Kaur had undergone test and medical treatment of her brain at Batra Hospital. She volunteered that she had a fall, she was perfect mentally, the documents had been taken by the respondent. Her two suits were also taken by the respondents. She deposed that she had not lodged any complaint against the respondents for taking away the documents and her clothes, however, she did not know if her husband would have lodged any such complaint. She deposed that she come from Mukerian, Punjab to attend the court hearings.
6.9. She did not know to whom the property has been sold. She was not aware about its occupants as of now. She volunteered that there is a Mohmadan (Muslim) family and a police personnel but she did not know as to whether they are the owner or the tenants. She deposed that she had not filed any other case regarding the said property. She volunteered that she had filed a case for the money, PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 23 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
however, she did not know the details. She deposed that as far as she recalled, the testatrix had two bank accounts but she did not have their details. She volunteered that her husband must be aware. She deposed that she had never operated the said accounts or withdrew any money. She volunteered that her husband had gone to the bank for withdrawal but the respondents had filed their objection with the bank. She denied the suggestion that she and her husband had been residing with Smt. Mahinder Kaur. She further denied the suggestion that they did not take care of the deceased as mentioned in para no. 4 and 5 in the affidavit. She denied the suggestion that the document Mark A which is the receipt of Shamshanghat is false and forged or it is for this reason that she had not produced the original. She further denied the suggestion that the respondents have the original cremation ground receipt with them. She volunteered that the cremation ground receipt was forcibly taken away by the respondents during scuffle. She deposed that she did not report about any forcible snatching of the receipt, anywhere.
6.10. She denied the suggestion that the respondent no. 10 had performed the last rite or it is for this reason alone that the respondent have the original receipt available with PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 24 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
them. She further denied the suggestion that the respondents have all the original medical records of the testatrix available with them as it was the respondents who were getting the treatment done and taking care of the testatrix. She volunterred that the testatrix had informed her that she had already paid and she had asked for the documents but the same were not given by the respondents and the respondents had said that let the same remain in their possession. She did not know the exact date or even year or month of the payment of Rs. 4 lakhs to the respondents. She volunteered that it was pursuant to the sale of the house in the vicinity. She deposed that the house was on the opposite side of the premises where the testatrix used to reside but she cannot tell the address. The house was sold after the demise of Sh. Amrik Singh. She volunteered that she did not have money and was compelled to sell the house. She deposed that the sale must have been effected around 6-8 months prior to the demise of the testatrix. She did not have any documents of sale in her possession. She have not placed any such documents on record. She further deposed that the testatrix suffered a fractured in her right shoulder/upper arm. The testatrix had suffered the fracture while Sh. Amrik Singh was alive. The PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 25 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
testatrix had also suffered fracture in her leg and the fractured in her leg was suffered after the death of Sh. Amrik Singh. She admitted that by the time testatrix had suffered fractured in her upper leg/hip bone she was being treated for her fracture in her upper arm. She volunteered that testatrix was hit by a motorcycle while she was walking outside the house and she was absolutely bed ridden and could not perform her daily works and it was her who used to get her arm and help her for her daily needs.
6.11. She was bed ridden even at the time of her death. (vol. She was even on oxygen at that time). She was bed ridden for about 7-8 months prior to her death. (vol. She was administrated oxygen at home on regular basis. She denied the suggestion that the Will in question was never executed by the testatrix or the same is forged. She further denied the suggestion that testatrix did not have any capacity to execute the Will. She also denied the suggestion that the testatrix was not mentally or physically capable of making any rational decision or that she was mentally as well as physically impaired. She denied the suggestion that that the Will was never sought to be executed by her or that she did not intend to bequeath any property to the PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 26 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
petitioner. She denied the suggestion that the Will does not bear the signature of the testatrix. She further denied the suggestion that testatrix did not own all the property mentioned in schedule A of the petition. She denied the suggestion that she forged the will in connivance with her husband, in order to usurp the property of the testatrix. She denied the suggestion that she managed the signature of interesting witness or that the said witnesses have connived with her/her husband for forging/manipulating the said will.
6.12. The petitioner has also examined Sh. Krishan Gopal as PW-2. He is one of the attesting witness to the Will. He has tendered his evidence by way of affidavit Ex.PW2/A and deposed about execution of the Will. He denied his signature encircle in red colour marked as Mark A on Ex.PW1/D1. He deposed that he did not recognize the signature of Pawan Kumar so he could not say whether the encircled red Mark B was the signature of Pawan Kumar or not. He further deposed that he did not know as to when he signed his affidavit of evidence, however, he admitted his signatures on his affidavit at point A and B. He deposed that the signatures were put by him in the court on the asking of an Advocate Mr. Khanna, who was the counsel PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 27 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
for Suman Lata. He deposed that he did not know English. He did not know as to for what purpose his signatures were obtained on Ex.PW2/A. He did not know as to what is written in Ex.PW2/A as he could not read the same and he was not told about the contents. He denied the suggestion that he was a false witness of the Will. He denied the suggestion that he was intentionally not recognizing his signature at Mark A on document already Ex.PW/D1. He deposed that he can write in Hindi, however, he can not write in English. He deposed that the document Ex.PWI/D is in his handwriting. He voluntarily answered that it was got written in the Police Station Madangir. He further volunteered that his signatures were taken under pressure and forcibly. He deposed that at that time, the persons present in the Police Station were Bittoo, Suman Lata and Pawan etc. He did not know Ranjeet Singh whose name is written as serial no. 2 in Ex. PWI/D1, however, the name and address of Ranjeet Singh encircled and Mark C is written in his handwriting. He did not know as to on whose asking he wrote the name of Ranjeet Singh. He did not remember the date as to when he went to the Police station, however, Bittoo whose name is also Pawan Kumar, had called him at the Police Station on phone. His phone PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 28 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
number was with Pawan Kumar. Pawan Kumar is resident of Pathan Kot, Punjab. He denied the suggest that he is deposing falsely. He further denied the suggestion that Ex. PWI/D1 was written by him voluntarily in the H.No. E- 336-337, Madangir. The document was written by him in afternoon. He did not sign any other documents at the asking of Pawan Kumar. He knew Suman Lata and Pawan Kumar for the last 30-40 years. He knew them because they used to visit in house opposite to his house.
6.13. The petitioner also examined one summoned witness i.e. PW3 Sh. Shashank Yadav, Data Entry Operator, Sub-Registrar-V, Kalkaji, New Delhi. The witness had brought the summoned record i.e. record pertaining to Will dated 08.12.2011 of Ms. Mahender Kaur (since deceased) W/o Late Amreek Singh, registered with the office of Sub- Registrar (V) Kalkaji vide registration No. 6518 in Book No.3, Volume No. 1957, on pages 165 to 167 dated 08.12.2011. He had seen the original Will in the judicial file of this case and compared it with the records available with the Sub-Registrar the same was correct. The copy of the Will was exhibited as Ex.PW3/A. 6.14. Petitioner also examined Sh. Puran Chand as PW4.
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 29 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
He is the attesting witness to the Will. He tendered his affidavit of evidence Ex.PW4/A and deposed about execution of the Will. He deposed that the Will was drafted on 07.12.20211. He did not know what was written in his affidavit of evidence as he is illiterate. He further deposed that he knew Suman Lata who used to reside in front of his house. He deposed that now a days, she was residing at Punjab. He did not know since when she was residing in Punjab. He knew the husband namely Bittu and children of Suman Lata. He did not know the name of her children. She was having two children. He did not know where those children were born. He denied the suggestion that he was a false witness. He also denied the suggestion that his affidavit of evidence was got signed from him by counsel of Suman, he did not know anything else about this matter. He further deposed that house which was in front of his house had already been sold. He voluntarily answered that it might had been sold by sikhs, however, he did not know their name. He further deposed that in that house one Amrik Singh and his wife Mahender Kaur had died. He did not know who performed the last rites of Amrik Singh and Mahender Kaur.
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 30 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
7. All the witnesses were cross examined by Ld. Counsel for the respondents no.9, 10 and 13.
8. Petitioner's evidence was closed vide order dated 28.02.2023 and the matter was fixed for respondents' evidence.
9. In respondents' evidence, respondent no.9 has examined himself as RW1. He has tendered his evidence by way of affidavit Ex.RW1/A. 9.1. One Sh. Ayaan, Officer, Punjab National Bank, Branch Sarita Vihar, Delhi also examined as RW-2. He had brought the summoned record i.e. account details of account no. 3976000100005663 in the name of Ms. Mahinder Kaur along with details of the balance as on 29.02.2012 which was exhibited as Ex. RW2/1 (Colly. in 5 pages).
9.2. Sh. Gaurav Saini, Manager, Punjab & Sind Bank, Branch Kailash Colony, Delhi also examined as RW-3. He had brought the summoned record i.e. the account details of account по. 00441000010456 in the name of Ms. Mahinder Kaur along with details of the balance as on 29.02.2012. The details of the two FDs in the name of Ms. Mahinder Kaur is exhibited as Ex. RW3/1 (Colly in 5 pages).
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 31 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
9.3. Sh. Meghnath, Officer, Oriental Bank of Commerce now merged with Punjab National Bank, Branch Safdarjung Enclave, Delhi also examined as RW-4. He had brought the summoned record i.e. account details of account no. 03692010001390 in the name of Ms. Mahinder Kaur along with details of the balance as on 29.02.2012. FDR in the name of Ms. Mahinder Kaur is exhibited as Ex. RW4/1 (Colly in 6 pages).
10. Respondents' evidence was closed and the matter was fixed for final arguments.
11. I have heard the final arguments of Ld. counsels for all the contesting parties.
12. Time now to deal with the issues.
Issue No.1: Whether the Will dated 07.12.2011 purported to have been made by Late Smt. Mahender Kaur is a genuine Will, having been signed by the purported testator in a sound physical and mental frame? OPP
13. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. 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 PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 32 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
"Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
"Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it. "Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
"Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
14. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 33 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason (such as intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
15. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. "(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. "(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 34 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
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."
16. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 35 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
17. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 36 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :-- "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 ease 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 63 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 surround- ed by suspicious circumstances stand on PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 37 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
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 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 circumstance 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, PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 38 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
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."
18. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 39 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
19. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 40 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered;
but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v. Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)]. "(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 41 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v.
Rameshwar Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
20. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"68. Proof of execution of document required by law to be attested.--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 PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 42 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
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 the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
21. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as CHeeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 43 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
22. The petitioner's narrative is that Will dated 07.12.2011 (Ex.PW1/B) was executed by the testatrix Late Smt. Mahender Kaur in favour of the petitioner with respect to the property mentioned in the Will itself and had also got the same registered. The testatrix is the sister of father-in-law of the petitioner. The petitioner is beneficiary of the Will. The testatrix got married to one Sh. Amrik Singh. They did not have any child. Her husband died during her lifetime and testatrix/Late Smt. Mahender Kaur became the sole and absolute owner of the property of her husband. The petitioner and her husband used to take good care of the testatrix and her husband. Even after the death of Late Sh. Amrik Singh/husband of the testatrix, the petitioner and her husband used to stay and to take care of the testatrix.
23. On the other hand, contesting respondents no.9 and 10 took a stand that Will Ex.PW1/B is a false and frivolous document and this Will does not bear the signatures of Late Smt. Mahender Kaur and she was critically ill in December, 2011 and she used to keep visiting the hospital and due to injury in her backbone, she was not even able to move and was PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 44 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
continuously dependent on oxygen mask and was completely bedridden. Further, the two attesting witnesses i.e. Puran and Krishan Gopal are false and frivolous witnesses. In fact, on 07.12.2011/08.12.2011, Smt. Mahender Kaur was not able to understand and was not in the state of executing any documents what to say of the Will. After the death of her husband, Late Smt. Mahender Kuar was being looked after by Sh. Trilochan and Pritam Singh, who are the sons of elder brother of husband of Late Smt. Mahender Kaur. The wives of the respondents Sh. Trilochan and Pritam Singh and their sister Smt. Gurbachan Kaur and her children also took care of Late Smt. Mahender Kaur. They managed the finance and treatment of Late Smt. Mahender Kaur and her last rites were also performed by them. The last rites of Late Sh. Amrik Singh i.e. husband of Late Smt. Mahender Kaur were also performed by them. The petitioner did not disclose the correct details of the legal heirs of Late Smt. Mahender Kaur by filing the petition with malafide intention. The details of all the legal heirs was disclosed and they were impleaded as respondents in the present case at later stage when application for amendment of the present probate petition was filed by the petitioner. She was forced to file this amendment application, as objection was taken by the respondent Sh. Trilochan Singh in one another succession PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 45 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
petition filed by respondent Trilochan Singh as to non-filing of the probate petition by the petitioner herein qua the Will in question. It was only then that petitioner herein was forced to disclose the fact of filing of present petition qua the Will in question. The succession petition was filed in respect of bank account held by Smt. Mahender Kaur and in that petition, the petitioner herein filed an application under Order I Rule 10 CPC for impleadment as a party and even in that application, the pendency of the present petition was not disclosed.
24. In rejoinder, the petitioner denied the objections taken by the respondents/objectors No.9 and 10.
25. It is the duty of the propounder to prove the Will in question in accordance with the law.
26. In the present case, the petitioner examined herself as PW1. PW2 Krishn Gopal and PW4 Sh. Puran were examined in the capacity of the attesting witness of the Will. PW3 was official witness from Sub-Registrar Office-V, Kalkaji, New Delhi alongwith registration record of the Will dated 08.12.2011.
WHO LOOKED AFTER THE TESTATRIX DURING HER LAST DAYS
27. During her cross-examination on 14.02.2019, petitioner/PW1 answered that around 7-8 months before the PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 46 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
death of the testatrix, her physical condition was not good and she was seriously ill. She was on oxygen support since she had breathing problem. A doctor used to come and visit her at her residence. The testatrix was also taken to Batra Hospital for check up. She further answered that she and her husband visited Batra Hospital only once alongwith the testatrix. The visit was a month prior to the death of the testatrix. She answered that she had no medical papers in her possession since they had been retained by the objectors. In her cross-examination on 14.02.2020, PW-1 admitted that the testatrix had regularly visited hospital for her treatment prior to the date of her death. She answered voluntarily that the testatrix was regularly taking medicines. She answered that testatrix was suffering from high sugar, breathing problem and back pain as she was not able to sit and she was even on oxygen cylinder. She further answered that testatrix was usually treated at Batra Hospital and she died at her home and not in the hospital and she was not taken to any hospital after her death. She answered voluntarily that respondents did not use to look after the testatrix and only she used to look after her.
28. However, to the contrary, she further answered during her cross-examination that respondents used to take the testatrix to Batra Hospital. She also admitted the suggestion that the PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 47 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
medical expenses were borne by the respondents. She further answered that however, testatrix had paid the entire medical expenses by paying Rs.4,00,000/- to the respondents. However, proof of this payment was not given by the petitioner. She further admitted that the respondent no.10 had conducted the last rites of the testatrix and had lit the pyre. These answers show that during her cross-examination she admitted as well as denied the fact that respondents looked after the testatrix. She gave contradictory answers during her cross-examination regarding this fact. Her answers do not conclusively prove that the testatrix was looked after only by her and not by the respondents during testatrix's last days.
29. It is quite unnatural to the human behaviour that the petitioner and her husband visited the Batra Hospital only once with the testatrix, considering the version of petitioner herself that they were residing with the testatrix from last 7-8 months prior to her death and respondents did not look after the testatrix. Considering the medical condition of the testatrix, it can not even be presumed that she had visited Batra Hospital on her own and moreover this was not even the case of the petitioner. Then natural question arises that in these situations, who took the testatrix to Batra Hospital for her regular visits. The answer lies in the further cross-examination of the PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 48 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
petitioner/PW1 where she answered that respondents used to take the testatrix to Batra Hospital. This version of the petitioner herself shows that contesting respondents had cordial and close relationship with the testatrix. On the other hand, petitioner could not lead any evidence to prove her residence in Delhi with the testatrix. She also could not produce the medical treatment documents of the testatrix. It is natural that atleast the person who was residing with the deceased, would be in possession of some of the medical treatment documents of the deceased. But petitioner could not produce anything. These facts creates suspicious circumstances over the genuineness of the Will.
STATE OF MIND AND PHYSICAL FITNESS OF THE TESTATRIX AT THE TIME OF EXECUTION OF WILL
30. During her cross-examination on 14.02.2020, PW-1 admitted that the testatrix had been regularly visiting the hospital for her treatment from the last 2-3 years before her death. She also admitted that the testatrix had undergone tests and medical treatment of her brain at Batra Hospital. However, she answered voluntarily that the testatrix had a fall but she was perfect mentally, however, the documents had been taken by the respondents. She also answered voluntarily that her two suits (clothes) were also taken by the respondents. She answered that PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 49 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
she has not lodged any complaint against the respondents for taking away of her documents and clothings. She also answered that the testatrix suffered a fracture in her right shoulder (upper arm) during the lifetime of her husband. The testatrix also suffered fracture in her leg after the death of her husband. She answered that the testatrix remained bed-ridden about 7-8 months prior to her death and she was administered oxygen at home on regular basis. These depositions by petitioner herself are important to assess the mental and physical condition of the testatrix at relevant point of time to execute a legal and valid Will. These deposition puts clouds of doubt on the mental and physical fitness of the testatrix at the given point of time. In these circumstances, court needs to be more conscious while deciding the validity of the Will.
31. PW2 and PW4 also did not depose anything regarding the state of mind of the testatrix ever in their affidavits of evidences or during their cross-examination before the court. During his cross-examination on 03.06.2022, PW2 answered that he did not know the English language. PW-2 answered that he did not know as to for which purpose his signatures were obtained on affidavit Ex.PW2/A. PW4 answered during his cross- examination on 28.02.2023 that he was illiterate. Both the witnesses answered that they did not know what was written in PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 50 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
their respective affidavit of evidence. PW-2 even answered that he did not know as he could not read the same and he was not told about the contents. Both of these witnesses in their respective evidences nowhere mention anything about the state of mind of the testatrix at the time of execution of the Will in question. They also even did not depose anything about free will of the testatrix at the time of execution of the Will.
32. When even the petitioner herself had admitted during her cross-examination that the testatrix was medically treated for her brain and she remained bed ridden from last 7-8 moths prior to her death then she contradicted herself with her pleadings where she claimed in para 14 of the petition that at the time of execution of the said Will, the deceased was also physically fit. In these circumstances and considering the depositions of PW1, PW2 and PW4 and considering that testatrix died within three months of executing the Will while remaining bed ridden, the onus to prove the state of mind and physical fitness of the testatrix at the time of execution of the Will becomes more heavier on the propounder of the Will. However, nothing regarding the state of mind was deposed by any of the attesting witnesses of the Will. Any medical document to show the mental condition/state of mind and physical condition of the testatrix was also never produced/proved by the petitioner PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 51 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
despite her clear admission regarding medical treatment of the brain of the testatrix at Batra Hospital and medical condition of the testatrix around 7-8 months prior to her death as she also clearly admitted that testatrix remained bed-ridden even at the time of her death.
ATTESTATION
33. PW2 and PW4 appeared before the court and deposed in the capacity of the attesting witnesses of the Will (Ex.PW1/B). However, any of the witnesses nowhere identified signature of any of the attesting witnesses as well as of the testatrix on the Will either in their affidavit of evidences or during their examination as PWs.
34. As discussed above, in H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443, Hon'ble Supreme Court of India has held that the propounder to succeed and prove the Will is required to prove by satisfactory evidence that:
(i) the Will was signed by the testator;
(ii) the testator at the time was in a sound and disposing state of mind;
(iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 52 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
his own free will.
35. Section 63 of the Indian Succession Act provides regarding that execution of unprivileged Will. Clause (c) of Section 63 categorically provides regarding procedure of attestation of the Will. However, no particular form of attestation is necessary but still the requirement of Section 63
(c) needs to be fulfilled to prove the proper attestation.
36. In the present case, PW2 and PW4 merely deposed being an attesting witnesses but none of these witnesses depose anything regarding proper attestation of the Will as well as regarding state of mind, free Will, understanding of the testatrix at the time of the execution of the Will. Mere appearance of an attesting witness as petitioner's witness before the court is not enough to prove the essential requirements regarding genuineness of the Will.
37. Moreover, both the attesting witnesses at para 2 of their respective affidavits of evidences i.e. Ex.PW2/A and Ex.PW4/A categorically stated that they were witness to a Will registered with Sub-Registrar, Delhi with Book No. 13. However, perusal of the Will Ex.PW1/B shows that registration of the Will was recorded in Book No.3. No clarification was ever given by the petitioner or any of the attesting witnesses regarding this contradiction.
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 53 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
38. During final arguments in the present matter, Ld. counsel for the petitioner argued that attestation and soundness of the mind of the testatrix was never opposed by the respondents, so it was not needed to prove by the propounder of the Will. However, Ld. counsel for the petitioner was not correct in his submissions as objectors No.9 and 10 categorically alleged at Para 4 of their joint objection/reply that alleged Will of the testatrix is a false and frivolous document and this Will does not bear the signatures of the testatrix i.e. Mahender Kaur. In para 4, medical condition of the testatrix had been explained to show that the alleged Will is a false and frivolous document. Moreover, at para 5, even the attesting witnesses to the Will namely Sh. Puran and Krishan Gopal were categorically stated to be forged and frivolous witneeses on the ground that on 07.12.2011 or 08.12.2011, Late Smt. Mahender Kaur was not capable of understanding and was not in the state of executing any documents what to say of the Will. In these circumstances, petitioner was categorically required to prove that the Will was genuine and attesting witnesses were not false and frivolous and testatrix was in sound state of mind and she executed the Will after understanding the contents of the Will.
39. Ld. counsel for the petitioner also argued that as the Will is registered, so the genuineness of the Will may be presumed PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 54 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
by the court and validity and genuineness of the Will need not to be proved separately. This submission is not sustainable in view of settled law that mere registration of Will not enough to assign it validity [Dhani Ram (died) Through LRs & Ors. Vs. Shiv Singh, decided in Civil Appeal No. 8172 of 2009 on 06.10.2023 by Hon'ble Apex Court].
40. The onus to prove the issue no.1 was on the petitioner. However, in view of the abovesaid discussion, he fails to prove the same. Accordingly, Issue no.1 is decided against the petitioner.
Issue No.2: Whether the petitioner is entitled to grant of letter of administration with Will dated 07.12.2011 annexed? OPP
41. In view of the fact that issue no.1 has already been decided against the petitioner, so issue no.2 is also decided against the petitioner.
Issue no.3: Whether the Will dated 07.12.2011 has been forged and fabricated since purported testator Late Smt. Mahender Kaur was neither in a fit physical state nor fit mental state at the time when the Will in question is supposed to have been signed by her? OPR-9, 10 & 13"
42. In my view, this issue is liable to be striked off in exercise PC No. 5840/2016 CNR No. DLST01-000188-2014 Page 55 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024 Smt. Suman Lata Vs. State & Anr.
of power under Order XIV Rule 5 of CPC, 1908 because at first it is the propounder of the Will who needs to prove the Will in question in accordance with the law. Onus to prove issue No.1 and 2 was on the petitioner. Issue No. 1 and 2 have already been decided against the petitioner.
43. In view of the aforesaid, this issue is struck off in exercise of power under Order XIV Rule 5 of CPC, 1908.
Issue no.4: Relief.
44. In view of the findings given qua issues no.1 and 2, this petition is dismissed, leaving the parties to bear their own cost.
45. The original Will shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925.
Pronounced in the open Court on this 21st day of March, 2024.
(DR. YADVENDER SINGH) ADDL. DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
PC No. 5840/2016CNR No. DLST01-000188-2014 Page 56 of 56 Dr. Yadvender Singh/ADJ-02/South/Saket/ND/21.03.2024