Delhi District Court
Mr. Mahesh Chander Monga vs Delhi State on 5 July, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
(Old Case)
PC-40/11/06
In the Matter of:
Mr. Mahesh Chander Monga,
s/o Sh. Davinder Kr. Monga,
r/o WZ-103, Meenakshi Garden,
Najafgarh Road, New Delhi.
.................. Petitioner
VERSUS
1. Delhi State
2. Sh. Davinder Kumar Monga
@ Natha Ram
s/o late Sh. Kirpa Ram
3. Sh. Satish Kumar
s/o Sh. Davinder Kumar Monga
4. Sh. Parveen Kumar
s/o Sh. Davinder Kr. Monga
Respondent no. 2 to 4
r/o Wz-A-4A, Ram Dutt Enclave
New Delhi.
5. Smt. Kamlesh Rani
wd/o late Sh. Amarjit
r/o WZ-867, Village Tihar, New Delhi.
6. Smt. Seema
d/o late Sh. Amarjit
w/o Sh. Chander Prakash
r/o A-1/89, Nand Ram Park, Uttam Nagar, New Delhi.
7. Smt. Kanchan
d/o late Sh. Amarjit
w/o Sh. Mukesh
r/o D-38A, Kiran Garden, Uttam Nagar, New Delhi.
PC- 40/11/06 Page:-1/37
8. Smt. Rekha @ Apple
d/o late Sh. Amarjit
w/o Sh. Amit
r/o 13/64, Subhash Nagar, New Delhi.
9. Smt. Shakuntala Rani
w/o Sh. Goverdhan Lal,
r/o DDA Flats/SFS, flat no. 348, IInd Floor, Pocket-1,
Sector-V, Dwarka, New Delhi.
10. Smt. Swaran Kanta @ Swarna
w/o late Sh. Sat Pal,
d/o late Sh. Kirpa Ram,
r/o D-38-A, Kiran Garden, Uttam Nagar, New Delhi.
................ Respondents
Date of Institution: 20.2.06
Date of Assignment to this court: 13.9.12
Date of Arguments: 27.5.14
Date of Decision: 5.7.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 276 of Indian Succession Act 1925 for grant of letter of administration in respect of the estate of deceased Sh. Kirpa Ram in view of Will dated 19.2.03. The brief facts of the case as narrated in the petition are that Sh. Kirpa Ram was married with Smt. Ram Rakhi and out of the said wedlock two sons and two daughter were born. It was stated that Sh. Kirpa Ram s/o Sh. Ram Chand, grandfather of the petitioner was the absolute and exclusive owner of built up immovable property no. 45-WZ-103, Plot no. 45 PC- 40/11/06 Page:-2/37 Khatoni no. 53/198/1, situated in the area of village- Tihar and the colony is known as Meenakshi Garden, Najafgarh Road, New Delhi-110018 having purchased the same vide a registered sale deed dated 8.5.1954. As stated the aforesaid property is consisted of ground floor and first floor only and the total area of the property is 290 sq. yds. The total construction on the ground floor comprises of four shops, four rooms, two kitchen, one bathroom, one bathroom cum W.C and open space. On the first floor of the property there are two pacca room and one kacha room. In the front of the two pacca room there is a balcony covered with galvanized iron sheet and the remaining portion is an open roof. It was stated that present the Delhi Metro Railway station has been constructed and as such boundary of the property has been disturbed. It was stated that the petitioner was married in the year 1987 and as the irony of fate he was having no cordial relation with his parents, the respondent no. 2 and other family members prior to marriage and even thereafter. It was stated that the petitioner and his wife was harassed and tortured a lot by respondent no. 2 to 4 and by other faily members while he was living in the property bearing no. WZ-103, Meenakshi Garden, New Delhi. As stated apprehending serious injury to him as well as to his wife from the hands of his family members, the PC- 40/11/06 Page:-3/37 petitioner alongwith his wife started living separately in rented accommodation at Tihar Village, New Delhi. It was stated that Sh. Kirpa Ram was initially doing the business of selling cloth on bicycle as a hawker and after some time he became the member of the Teh Bazari association as such he started selling cloth in a weekly bazar in teh bazari and whatever income he was earning from the business and rental income from the shop, portion of the property was being deposited in the bank account. It was stated that as learnt by the petitioner that there was huge bank balance in the said bank account. As stated it was further learnt that before his death the amount was withdrawn from the bank and the same was pocketed by the respondent no. 2 to 4, all alone while in fact petitioner was also entitled to a share being the ancestral money. It was stated that Sh. Kirpa Ram was illiterate and could only sign in Urdu language. As stated he was self made man and upto 1993-94 he regularly did his aforesaid business of selling clothes and thereafter he started leading a retired life. As stated the behaviour and conduct of respondent no. 2 was not cordial with his parents. It was stated that grandparents of the petitioner were willing that respondent no. 2 and his family including the respondents no. 3 and 4 not to remain in occupation of any portion of the property in question PC- 40/11/06 Page:-4/37 and as such time and again called upon them to vacate and hand over the vacant possession of the portion in their occupation but all the requests and protest made by the grand parents of petitioner yielded no result. Respondent no. 2 as stated was quarreling and was causing harassment to his father and in order to buy peace the grandfather of the petitioner gave substantial amount in cash to respondent no. 2 and writing was written by later dated 10.3.1988 vide which respondent no. 2 gave in writing thereby expressly stating that neither he nor any member of his family shall have any right with regard to the movable or immovable property of Sh. Kirpa Ram. The said writing was signed by respondent no. 2. As stated in pursuance to the said settlement and after receipt of the money in cash, the respondent no. 2 alongwith his family members who were living with him shifted their residence from property in question to property bearing no. WZ-A-4A, Ram Dutt Enclave, New Delhi and as such till date are living there. It was stated that since 1988 to 1993 the respected grand parents of the petitioner remained all alone in the property and there was none to look after them at that old age and as such on the asking of grand parents the petitioner alongwith his wife shifted to the property in March,1993 and started living there. It was stated that Sh. Kirpa Ram executed a Will dated PC- 40/11/06 Page:-5/37 28.2.1987 and according to the said will the entire property in question was bequeathed to his wife and thereafter to his another son namely Amarjeet. As stated in the said Will it was expressly mentioned that his son Davinder Kumar is totally disobedient and quarrelsome person and he even beat him on 5.12.1983 for which report was lodged in the police station. It was further stated that in the last months of the year 1998 Sh. Satish Kumar claimed that Sh. Kirpa Ram had executed a Will on 30.11.95 whereby ownership right with regard to the entire property was bequeathed in equal share to him and Mahesh Chander Monga. It was further told by him that as per the said Will Sh. Mahesh Chander Monga was in possession of major portion of the residential accommodation and as such Satish Kumar Monga by giving 90 days notice shall call upon Mahesh Chand to partition the property and in case of any hindrance by Mahesh Chand with regard to the partition in that event he will stand to loose all his legal right in the property. However, as a matter of fact in the year 1995 Sh. Satish Kumar was not at all in possession of any portion of the property and he came in possession of the portion of the property forcibly only in the year 1997 and FIR was registered against him. It was stated that in the said Will there were two attesting witnesses namely Satish Kumar Sharma and Vinod PC- 40/11/06 Page:-6/37 Kumar who were known to the respondent no. 2 to 4 and the petitioner never heard or seen them or visiting to Sh. Kirpa Ram. It was stated that further Satish Kumar claimed to be in possession of Will dated 23.3.99 executed by Sh. Kirpa Ram according to which the entire property was bequeathed in equal half share each between him and the petitioner. In the said alleged Will respondent no. 2 appeared as an attesting witness. However Sh. Kirpa Ram vide deed of cancellation dated 19.2.03 duly registered with the office of the Sub Registrar cancelled both the Will dated 30.11.1995 and 23.3.1999 but now the respondents no. 2 to 4 are propounding the Will dated 30.11.95 alleged to have been executed by Sh. Kirpa Ram according to which respondent no. 2 has been given right to realize the rent of the four shops of the property and ownership right with the respondent no. 3 only. As stated petitioner is shown to be in possession of only two rooms and kitchen on the ground floor and it was stated in the said Will that Mahesh Chand the petitioner shall not have any right to sell the portion in his possession. The said Will is claimed to be registered on 28.6.04 and the same did not see the light of the day during the life time of Sh. Kripa Ram and were filed only in the litigation going between Durga Devi and Sh. Kirpa Ram. It was stated that prior to 1997 the entire PC- 40/11/06 Page:-7/37 residential portion situation in the ground floor was in possession of petitioner and his wife, however respondent no. 3 forcibly took the possession of one room, kitchen, bath and store all situated on the ground floor and thereafter respondent no. 2 also covered a small portion of the open space situated in the ground floor adjacent to the store room and converted the said covered space into a room which is in illegal and unauthorized control and under the lock and key of the respondent no. 3. As stated on 19.2.03 Sh. Kirpa Ram executed the necessary document of transfer of title with regard to the property in favour of the petitioner. Accordingly on 19.2.03 Sh. Kirpa Ram executed a SGPA, agreement to sell and a Will duly registered with the office of Sub Registrar and besides that he also executed receipt thereby acknowledging to have receipt the sale consideration of the property. It was also stated that the four shops which were under the tenancy of different tenants inducted by Sh. Kirpa Ram, one shop is in the tenancy of Sh. Roshan Lal husband of Sh. Durga Devi and another shop is in the tenancy of Sh. Satish Khurana and after the death of Sh. Kirpa Ram the petitioner realized the rent for three months from the tenant namely Sh. Roshan Lal tenant of shop no. 1 and rent for two months of December,2004 and January-February,2005 was realised PC- 40/11/06 Page:-8/37 with regard to shop no. 2 and 3 from its tenant. As stated after the death of Sh. Kirpa Ram the petitioner for the first time came to know about the eviction proceeding against Sh. Satish Khurana initiated by Sh. Kirpa Ram and as such took the necessary steps for his being substituted in place of Sh. Kirpa Ram. It was stated that grandfather of petitioner expired on 7.12.04 and the respondent no. 2 to 4 and other family members started causing harassment and embarrassment to the petitioner and his wife with a sole motive to grab the property which was purchased by the petitioner for a consideration from its absolute and exclusive owner Sh. Kirpa Ram. Even in order to achieve the sinister design to grab the property, the respondent no. 2 to 4 in active connivance and support of other family members had murderous attack on the life of the petitioner which resulted into lodging a complaint to the police. Respondent no. 3 as stated had also caused knife injury to the petitioner which resulted into lodging of FIR bearing no. 270/97 u/s 324/323 IPC. After the death of Sh. Kirpa Ram the petitioner came toknow that one Smt. Durga Devi wife of Sh. Roshan Lal a tenant of one of the shop had filed a suit against Sh. Kirpa Ram for specific performance and Sh. Kirpa Ram filed suit for declaration against Smt. Durga Devi and during the pendency of said two suit the alleged Will PC- 40/11/06 Page:-9/37 propounded by the respondents no. 2 to 4 were filed in the court. It was stated that the Will on the basis of which the respondents no. 2 to 4 are claiming the right over the property is forged and fabricated. it was stated that the petitioner no. 2 who is also the beneficiary in the said Will signed the same as witness and even the said Will was executed on a stamp paper of Rs.100/- whereas the deceased was well aware of the formalities required to be completed for execution of a Will as he had in the past executed number of wills with regard to the property in question. It was stated that the mode, manner and style of the signatures of the deceased Kirpa Ram was altogether different. It was stated that at the relevant time when the Will in question was executed eviction proceedings with regarding to the property were going on against the tenants of the property and there is strong possibility of petitioners obtaining signature of the deceased on a blank stamp paper on the pretext of filing the same in the court where those proceedings were pending to look after the proceedings on behalf of Sh. Kirpa Ram. It was stated that it is clear that the respondent no. 2 to 4 have committed forgery in connivance with each other since had the said Will was in the knowledge of Sh. Kirpa Ram then there was no earthly reason with him not to cancel or revoke the same while executing the deed of PC- 40/11/06 Page:-10/37 cancellation dated 19.2.03 vide which he cancelled the two earlier Wills dated 30.11.95 and 23.3.99. As stated the possession of the respondent no. 2 to 4 of the portion of the property in question is totally unauthorized and illegal and petitioner finally called upon the respondent no. 2 &3 vide notice dated 3.10.05 to deliver the peaceful and vacant possession of the portion of the property which is under their control. Petitioner also called upon the respondent no. 2 & 3 to accept the Will dated 19.2.03 as the last and final Will executed by Sh. Kirpa Ram in his favour thereby bequeathing the entire property to him. But despite receipt of the said notice no reply has been received from the respondents no. 2&3 till the date of filing the present petition. It was stated that Sh. Kirpa Ram had executed Will dated 19.2.03 in presence of the witnesses and the witnesses signed the said Will in presence of each other and in presence of Sh. Kirpa Ram. The said Will as sated was executed by Sh. Kirpa Ram in a free manner, without any pressure, coercion or misrepresentation in sound disposing mind. It was accordingly prayed that letter of administration be granted to the petitioner in respect of last Will of the deceased dated 19.2.03.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report. Valuation report dated 26.4.06 was filed.
PC- 40/11/06 Page:-11/37 Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " National Herald" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper "National Herald" on 2.3.06.
4. Respondent no. 4 initially appeared but did not file any objection and subsequently stopped appearing in the matter and was accordingly proceeded ex-parte on 20.7.06.
5. Objections/written statement to the present petition were filed on behalf of respondent no. 2 and 3 wherein it was stated that present petition for grant of letter of administration on the basis of Will dated 19.2.03 is misconceived and is liable to be dismissed. It was not denied that late Sh. Kirpa Ram executed three different Wills dated 28.2.1987, Will dated 23.3.99 and 30.11.95, however all the three will mentioned above were cancelled subsequently. It was stated that late Sh. Kirpa Ram cancelled his Will dated 28.2.97 vide another registered Will dated 30.11.95 and other two Wills dated 23.3.99 and 30.11.95 were again cancelled on 19.2.03 by registered instrument. It was stated that last and final Will of late Sh. Kirpa PC- 40/11/06 Page:-12/37 Ram was executed on 28.6.04 in favour of the respondents no. 2 to 4 and petitioner was given a right of residence in two rooms on the ground floor, however the petitioner cannot sell or alienate the same in any manner. It was stated that late Sh. Kirpa Ram had never sold the property in question in favour of the petitioner, the document of sale like agreement to sell, GPA and receipt etc. dated 19.2.03 allegedly executed by Sh. Kirpa Ram in favour of the petitioner are false, forged and fabricated document without any valid consideration. It was submitted that late Sh. Kirpa Ram had never transferred the property in question in favour of the petitioner and continued to file cases against his tenant in the court in the capacity of an owner/landlord till he breathed his last on 7.12.04 and during the life time of late Sh. Kirpa Ram the petitioner has never asserted his right of ownership on the basis of alleged agreement to sell, GPA, receipt and Will etc. dated 19.2.03. It was stated that Kirpa Ram himself filed a suit no. 254/04 against his tenant Roshan Lal which was compromised on 5.6.04. it was stated that last and final Will dated 28.6.04 was executed and registered on the same date, however inadvertently the date of its execution was mentioned as 30.11.95 which is bonafide mistake due to old age of the testator who was illiterate and could not read and understand its contents in PC- 40/11/06 Page:-13/37 English. It was also stated that sworn affidavit of late Sh. Kirpa Ram dated 17.11.95 is a substantial piece of evidence that defendant no. 2 was on good terms with his father who had voluntarily consented to bequeath the share of his property in favour of the defendant no. 2. It was also submitted that under the pretext of executing the deed for cancellation of existing Wills dated 23.3.99 and 30.11.95 the petitioner had obtained the signatures and thumb impression of late Sh. Kirpa Ram on the false and fabricated agreement to sell, receipt, GPA and Will etc. of the even date without any consideration taking benefit of Kirpa Ram's illiteracy and inability to read and write in English otherwise late Sh. Kirpa Ram would have never executed his last and final Will in favour of the petitioner and defendants no. 2 to 4 and even might have not filed and compromised the civil suit and other suit under DRC Act against his tenant in the capacity of owner/landlord which was also well within the knowledge of the petitioner who has never asserted his right of ownership on the basis of alleged sale of the property in his name. It was stated that if the alleged agreement to sell and receipt dated 19.2.03 were in possession of petitioner then why the petitioner failed to get the property transfered in his name through court of law during the life time of late Sh. Kirpa Ram and is now relying heavily on PC- 40/11/06 Page:-14/37 Will dated 19.2.03 which is not the last and final Will of late Sh. Kirpa Ram. Accordingly it was prayed that the probate petition filed by the petitioner by dismissed.
6. Objections were also filed on behalf of respondent no. 5 to 10 wherein it was stated that late Sh. Kirpa Ram executed registered Will dated 28.9.1987 and according to the said Will the entire property was bequethed to his wife and thereafter to his another son namely Sh. Amarjeet and after his death the said property devolved upon respondent no. 5 wife of Sh. Amarjeet. It was stated that Will dated 19.2.03, SPA, agreement to sell are forged and fabricated documents since in the year 2000 Sh. Kirpa Ram had become insane. It was accordingly prayed that instant petition be dismissed.
7. Separate rejoinder to objections of objectors were filed on behalf of the petitioner in which contents of the petition were reiterated and those of the objections were denied.
8. It is pertinent to mention here that these are two probate cases i.e. case bearing no. 41/11/06 titled as Satish Kumar Vs State and present petition no. 40/11//06 Mahesh Chander Monga Vs. State which were consolidated vide order dated 17.8.06.
PC- 40/11/06 Page:-15/37
9. Vide order dated 17.8.06 from the pleadings of parties, the following issues were framed:-
1) Whether the allege executed and registered Will dated 28.6.04, propounded by the petitioners Satish Kumar and Devender Kumar is the duly executed last and final Will of late Sh. Kirpa Ram in sound physical and disposing state of mind?OPP
2) Whether the petition is liable to be rejected in view of preliminary objections taken by respondent no. 2 Mahesh Chander? (Onus placed on respondent no. 2)
3) Whether the alleged Will dated 19.2.03, propounded by respondent no. 2 Mahesh Chander Monga is the duly executed last and final Will of late Sh. Kirpa Ram in sound disposing state of mind?(Onus placed on respondent no. 2)
4) Relief.
10. In evidence petitioner Mahesh Chander Monga in the present case and objector no. 2 in the connected case examined himself as R2W1, R2W2 Sh. O.P. Chaudhary and, R2W3 Harjeet Singh. Objectors no. 4 to 6 produced R4W1 Smt. Kamlesh. R2W1 i.e. objector no. 2 reiterated his case as set out in the objections filed by him and relied upon certified copy of the deed of cancellation of the Will Ex. R2W1/1, general power of attorney Ex. R2W1/2, special power of attorney Ex. R2W1/3, agreement to sell Ex. R2W1/4, receipt of consideration Ex. R2W1/5, affidavit & PC- 40/11/06 Page:-16/37 possession letters Ex. R2W1/6& 7, counter foils of the rent receipts Ex. R2W1/8 to 14, certified copy of order of Hon'ble High Court Ex. R2W1/15, death certificate of Kirpa Ram Ex. PW-4/B and Will dated 19.2.03 was Mark RX. R2W2 Sh. O.P. Chaudhary, advocate stated himself to be witness of the Will dated 19.2.03 Mark RX. He identified the signatures of Sh. Kirpa Ram at point B and other witness Harjeet Singh at point C on the Will Mark RX. He stated that the Will was first signed by Kirpa Ram then by Harjeet Singh and thereafter by him. He also stated that the testator signed the Will after being read over the same. The original Will was Ex. R2W2/A. He also identified the signatures and thumb impression of Kirpa Ram on cancellation of Will Ex. R2W1/1 as well as signatures of Sh. Harjeet Singh and his own signatures. He also identified signatures of Sh. Kirpa Ram, Harjeet Singh and his own on the general power of attorney dated 19.2.03 Ex. R2W1/2. Similarly R2W3 Sh. Harjeet Singh also stated himself to be witness on Ex. R2W2/A and identified his own signatures as well as signatures of Sh. Kirpa Ram on the same. He stated that the said Will was first signed and thumb impression by Sh. Kirpa Ram, then by him and thereafter by Sh. O.P. Chaoudhary. He also identified his own signatures, signatures of Kirpa Ram and signatures of Sh. O.P. Chaudhary on Ex.
PC- 40/11/06 Page:-17/37 R2W1/1 and on Ex. R2W1/2. He also identified his signatures, signatures & thumb impression of Kirpa Ram and signatures of Mahesh Chander on Ex. R2W1/4. Similarly he identified the signatures & thumb impression of Kirpa Ram and other witnesses on Ex. R2W1/6, R2W1/5, R2W1/7. He stated that the aforesaid documents were drafted and prepared by Sh. Dalip Bajaj and he took to Sh. O.P. Choudhary for registration of the aforesaid documents and for notorisation.
11. In defence Satish Kumar and Davinder Kumar Monga objectors in the present case and petitioners in connected case produced PW-1 Ranjeev Shoukin, LDC from office of Sub Registrar-II, PW-2 Ramesh Chander, LDC from office of SDM, PW-3 Sh. O.P. Chaudhary, PW-4 Satish Kumar, petitioner no. 1, PW-5 Sh. Davinder Kumar, petitioner no. 2, PW-6 Sh. Inderjeet Barnala, PW-7 Sh. Shadi Lal. PW-1 Sh. Rajeev Shoukin, LDC from the office of Sub Registrar who brought registered Will bearing no. 3732 book no. 3 Vol. no. 795 pages 63 to 65 dated 28.6.04 executed by Sh. Kripa Ram and deposed that he had seen the original Will Mark A on record which is correct according to is record. He after going through the contents of Will Mark A and the copy of the Will pasted in the Bahi brought by him deposed that in mark A there is only one thumb impression whereas PC- 40/11/06 Page:-18/37 in the photocopy of his bahi brought by him there are two thumb impression. He further stated that in Mark A in Urdu languate is appearing at one point in front page whereas in photocopy of the summoned record Urdu languate is appearing at two places. He also stated that in mark A there is is no dot above the work 'raised' appearing in the second para of first page of the Will whereas there is a dot at the same pace in the summoned Will brought by him. PW-2 Sh. Ramesh Chander, LDC from office of SDM brought the summoned record of non judicial stamp paper of Rs.100/- bearing no. 30658 dated 28.6.04 and deposed that the said stamp was purchased by Sh. Kirpa Ram from the stamp vendor with license no. 214 whose name was Sh. Mahesh Khanna who was having his sale counter at District Center Janakpuri. He deposed that in his original record page no. 766 the signatures of Kirpa Ram were appended in Urdu and the date and other particulars of the stamp papers were correct accordingly to his record which was purchased on 28.6.04. PW-3 Sh. O.P. Chaudhary stated himself to be the witness no. 2 in the Will dated 28.6.04 and identified his signatures on the same. He stated that witness no. 1 came to him and he requested him to present this Will. He further stated that witness no. 1 signed in his presence, however he was not present when PC- 40/11/06 Page:-19/37 the Will was presented for registration. He could not identify any other signatures and stated he did not have any knowledge of the contents of the Will Mark A. PW-4 Satish Kumar, petitioner no. 1 reiterated his case as set out in the petition and relied upon his affidavit Ex. PW-4/A and death certificate of Sh. Kirpa Ram Ex. PW-4/B. PW-5 Davinder Kumar, petitioner no. 2 also reiterated his case as set out in petition. PW-6 Sh. Inderjeet Barnala stated that Sh. Kirpa Ram, father of Devender Kumar is known to me since last 5-6 years being his client and had a property dispute. He stated that he filed a suit for permanent injunction on behalf of Sh. Kirpa Ram as an advocate. He relied upon Ex. PW-6/A certified copy of the plaint and identified his signature on the original plaint as well as identified the signatures of Sh. Kirpa Ram on his original affidavit certified copy of which was Ex. PW-6/B. He also stated that he gave statement on behalf of Sh. Kirpa Ram at his instruction on 5.6.04. He stated that Kirpa Ram was aged but was hale and hearty otherwise at the time of filing of plaint on 1.6.04 and also on 5.6.04. PW-7 Sh. Shadi Lal, UDC from office of Sub Registrar stated that he was an ex-employee of Sub Registrar office and was working as UDC. He identified his signatures on the original Will at point A and also recognized the signatures of the then Sub Registrar Sh. Mathur at points B PC- 40/11/06 Page:-20/37 and C.
12.In defence R4W1 Kamlesh, objector no. 5 also examined herself reiterated her case as set out in her objections.
13.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
14. Since these are two connected probate petitions which were clubbed together and common issues have been framed in both of them as well as common evidence was led, hence I proceed to decide both the petitions simultaneously. Issue no. 1 & 2 regarding Will dated 28.6.04 as propounded by Sh. Satish Kumar and Devender Kumar are being decided in the connected case whereas issue no. 3 regarding Will dated 19.2.03 is being decided in the present case. Now I have to see whether in the present case the above principles have been duly made out or not.
15.Issue no. 1 & 2:- Both these issues have been decided simultaneously in the connected petition since the same relate to the Will dated 28.6.04 which has been propounded by objector no. Satish Kumar and Devender Kumar in the connected petition filed by them. These issue accordingly PC- 40/11/06 Page:-21/37 stands disposed off.
16.Issue no. 3 :- Before proceeding to decide this issue, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
17.Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and
PC- 40/11/06 Page:-22/37
disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vashram Vs. State of Gujrat. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Ku. Chandan & Anr. Vs. Longa Bai& Anr."
18.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the PC- 40/11/06 Page:-23/37 testator, or has received from the testator a personal acknowledgment of his signatures 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."
19.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
20. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid PC- 40/11/06 Page:-24/37 and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
21. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
22. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or PC- 40/11/06 Page:-25/37 fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
23.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence PC- 40/11/06 Page:-26/37 properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in (1971) 1 MLJ 127 P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear PC- 40/11/06 Page:-27/37 provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
24.In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as PC- 40/11/06 Page:-28/37 evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on PC- 40/11/06 Page:-29/37 the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
25.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been PC- 40/11/06 Page:-30/37 brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
26. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
27. Now I have to see whether in the present case the above principles have been duly made out or not.
28. As far as the ingredient whether the testator was in sound disposing mind PC- 40/11/06 Page:-31/37 at the relevant time of execution of the Will is concerned it has already been held in the connected probate petition that testator was of sound disposing mind at the time of execution of Will dated 28.6.04 and since the Will in the present case is of prior time bearing date 19.2.03 therefore for the same reasons as given in the connected probate petition which are not repeated here for the sake of brevity, it is held that testator was not suffering from any disease at the relevant time of execution of the Will in question dated 19.2.03 which would have effected his cognitive faculties.
29. Now I will deal with the question of valid execution of the Will dated 19.2.03. The Will dated 19.2.03 was signed by two attesting witnesses namely Harjeet Singh and Sh. O.P. Chaudhary, Advocate. It is pertinent to mention here that Sh. O.P. Chaudhary, Advocate stood witness to the present Will dated 19.2.03 wherein Sh. Mahesh Chander Monga is the beneficiary and he also stood witness to the Will dated 28.6.04 wherein Sh. Satish Kumar and Sh. Devender, petitioners in the connected case were beneficiaries. The said witness in the connected case has completely demolished the said case by not identifying the signatures of the testator and stated that executant and other witness did not sign in his presence. However, in the present case he has identified the signatures of the same testator on the Will dated 19.2.03.
PC- 40/11/06 Page:-32/37 When the testator had approached the said advocate on 19.2.03 which is prior to 28.6.04 meaning thereby the testator was not unknown to the testator and it is very strange that the said witness is able to identify the signatures of testator on the Will dated 19.2.03 and not on another Will dated 28.6.04 though the said Will has already been held to be not the last testamentary statement of the testator in the connected case. When a single person is witness in both the cases and if his statement is not trust worthy in one case then how come his testimony can be relied upon in another case. As far as other attesting witness to the Will in question namely Harjeet Singh is concerned though he has duly identified the signatures of testator as well as other attesting witness but during cross examination it was admitted by him that he came to know Kirpa Ram through Mahesh as well as that he had been working with Mahesh as a helper in the dye fitter factory of Mr. Katyal. He had also deposed that he knew Mahesh Chand Monga since 1980. He also admitted that he and Mahesh got married in the same year and had gone to Vaishno Devi together after 6-8 months of their marriage. From the abovesaid it is clear that the witness Harjeet Singh is very well known to Mahesh Chander Monga i.e. the beneficiary of the Will in question and even testator came in his contact only through Sh. Mahesh Chander Monga which certainly give rise to PC- 40/11/06 Page:-33/37 suspicious circumstances and influence of Sh. Mahesh Chander Monga on the testator cannot be ruled out.
30.Further, the Will in question does not mention as to how many children testator Kirpa Ram had and no reasons for their debarment have been mentioned therein. The Will in question is mechanical in nature and does not disclose the real intention of the testator as the same is silent on the aspect as to why he bequeathed property in question only in favour of Sh. Mahesh Chander Monga. Even the document Ex. R2W1/1 document of cancellation of previous Will dated 30.11.95 simply mentions that the testator had cancelled the said Will but no reasons have been assigned by the testator to the same which also give rise to suspicious circumstances.
31. Further it is also pertinent to mention here that the Will in question dated 19.2.03 which is filed alongwith GPA, agreement to sell, receipt and document of cancellation of previous Will which documents as alleged were also executed on 19.2.03 and the petitioner is asserting his right over the property in question on the basis of the said documents. It is the case of the petitioner that he had purchased the property in question by way of Will, GPA, agreement to sell, receipt dated 19.2.03, however no sale deed has been produced on record in respect of the same. Petitioner during cross examination on 14.7.08 PC- 40/11/06 Page:-34/37 stated that no sale deed of property was executed in his favour and even did not give any notice to his grandfather to execute the sale deed pursuant to the agreement to sell as he and his grandfather apprehended threat to their life from objectors, however during cross examination on 28.8.08 he stated that he did not have the original sale deed in his possession and was under the impression that copy of the sale deed produced in laminated condition was the original sale deed. The petitioner has taken contradictory stand regarding the sale deed. Further, cash receipt Ex. R2W1/5 is on record whereby Rs.1,90,000/- is alleged to have been received by Sh. Kirpa Ram in advance in lieu of the sale of the property in question to the petitioner, however witness to the said receipt namely Harjeet himself deposed during cross examination that the payment for the purchase of the property was not made in his presence but he was told that a sum of Rs.1,90,000/- was paid to Sh. Kirpa Ram while at home. Further, Sh. Mahesh Chander Monga during cross examination deposed that Rs.1,90,000/- was paid from personal savings lying in house and the money was paid to Sh. Kirpa Ram at house itself and nobody was present at the time of payment. When nobody was present at the time of payment then how come Sh. Harjeet Singh signed the said document as witness. The said deposition made by Sh. Harjeet Singh shows that the said receipt PC- 40/11/06 Page:-35/37 cannot be said to be properly executed since the transcation in the said receipt did not take place in the presence of the witness who signed the same. There is no sale deed and there is no person in whose presence the payment of consideration of said sale was effected. It is also unexplained on record as to why the petitioner did not assert ownership of the property in question during the lifetime of the testator when he had become the owner of the said property on 19.2.03 whereas the testator died on 7.12.04. It is also pertinent to mention that vide possession letter Ex. R2W1/7 the possession of the property in question was alleged to have been handed to the petitioner but during cross examination petitioner deposed that Satish was in possession of property since 1997 though volunteered he occupied the property forcibly, however further admitted that at the time of purchase of the property he was in possession of a portion of the property. When Satish was in possession of the property then how come possession of the property in question was handed over to petitioner by Sh. Kirpa Ram and even if Sh. Satish was in possession then what steps were taken by the petitioner for vacation of the same after its purchase by him. These questions remained unanswered on record. Even otherwise, the documents i.e. GPA, receipt, agreement to sale, possession letter, affidavit are merely transitory documents and does not confer any PC- 40/11/06 Page:-36/37 ownership right on the petitioner. Hence the plea of petitioner that the property in question was sold by the testator to him is rejected and said documents cannot be given the clean chit. Besides that as already observed Will dated 19.2.03 is surrounded with suspicious circumstances and also cannot be given clean chit. Rather Wills dated 29.9.87, 23.3.99, 19.2.03, 28.6.04, 30.11.95 alleged to be executed by the testator have been pleaded by the respective parties which goes to show that testator had inconsistent stand and was not sure as to whom he should bequeath his property. Accordingly in view of the above said Will dated 19.2.03 Ex. R2W2/A cannot be stated to be the last testamentary disposition of the testator out of free will and without coercion and is accordingly rejected. It is pertinent to mention here that this court has given the observations as above regarding title documents like GPA, agreement to sell, receipt, affidavit only in relation to the Will in question, however the said observations of this court does not tentamount to expression or decision on genuineness of those document since that is beyond the jurisdiction of this court.
32.Relief:- In view of the above finding, the petition is dismissed. File be consigned to record room.
Announced in open court (Ajay Goel) on 5.7.14 ADJ-12(Central)/Delhi PC- 40/11/06 Page:-37/37