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Delhi District Court

Anil Kumar And Others vs State (Nct Of Delhi) And Others on 1 September, 2023

IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
   JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
               COURTS, NEW DELHI


PC NO. 79/14
CNR No. DLSW010008402014



IN THE MATTER OF:

1.       Anil Kumar
         S/o Late Sh. Shadi Ram
         S/o Late Smt. Vidya Devi                                ... Petitioner No.1

2.       Kulvinder Kaur
         W/o Sh. Vijay Kumar
         Daughter-in-law of Late Smt.Vidya Devi ... Petitioner No.2

3.       Vijay Kumar
         S/o Late Sh. Shadi Ram
         S/o Late Smt. Vidya Devi                                     ... Petitioner No.3

All R/o RZ-G-351
        Raj Nagar Extn.
        Palam Colony
        New Delhi - 110045
                                             Vs

1.       State (NCT of Delhi)                                    ... Respondent No.1

2.       Smt Rachna
         W/o Sh. Kamaljeet Singh
         R/o B-370, MIG flats
         East Loni Road, Shahdara, Delhi                         ... Respondent No. 2

3.       Smt. Lata Khatri
         W/o Late Sh.Bhanwar Kumar                              ... Respondent No. 3


     PC No. 41/16   Anil Kumar & ors vs. State (NCT of Delhi) & Ors     Page No. 1/23
 4.       Sh. Vimal Kumar
         S/o Late Sh. Bhanwar Kumar                              ... Respondent No. 4

5.       Smt Komal
         D/o Late Sh. Bhanwar Kumar                              ... Respondent No. 5

         (Respondent No.s 3 to 5
         All R/o A-15-D, DSIDC Flats
         Paschim Puri, New Delhi -- 110063)

Date of institution of suit:                                              10.11.2014
Date of judgment reserved:                                                21.08.2023
Date of pronouncement of judgment:                                        01.09.2023

JUDGMENT

1. The present petition is filed under Section 276 of the Indian Succession Act, 1925 (hereinafter "the act") for grant of Probate/ letters of administration of the Will dated 02.03.1998 duly registered with Sub Registrar Janakpuri, executed by Late Smt. Vidya Devi w/o Late Shadi Ram (hereinafter referred as testatrix) in favour of the petitioners.

2. Briefly stated, as per the amended petition, it is the case of the petitioners that the testatrix was earlier married to Sh. Ram Lubhahya and out of the wedlock one son namely, Sh. Bhanwar Kumar was born in the year 1958 and Sh. Bhanwar Kumar died on 31.03.1998 leaving behind his widow, one son and one daughter impleaded as respondent Nos. 3 to 5 herein.

3. It is further averred that Sh. Ram Lubhahya (first husband of the testatrix) died in the year 1959 and subsequently the testatrix married to the younger brother of the deceased Ram PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 2/23 Lubhahya namely, Sh. Shadi Ram in the year 1961-1962 and out of this wedlock the petitioner No. 1,3 and the respondent No. 2 were born.

4. It is further averred that testatrix died on 02.01.2014 leaving behind petitioner No. 1,3 and respondent No.2 i.e. the children born out of the wedlock of second marriage with Late Sh. Shadi Ram and also respondent Nos. 3 to 5 being the widow, son and daughter of Late Sh. Bhanwar Kumar who was the son of the testatrix born out of the first marriage with Late Sh. Ram Lubhyaya.

5. It is further averred that the testatrix was the owner of built up house No. RZG 351, Raj Nagar Extension, Palam Colony, New Delhi(hereinafter referred as 'subject property') being purchased by her in the year 1982 through set of documents i.e. Agreement to Sell, GPA, Will and cash receipt.

6. It is further averred that the testatrix executed her final and last Will dated 02.03.1998 duly registered with the Sub Registrar Janakpuri, New Delhi whereby she has bequeathed the subject property in favour of petitioner Nos. 1 to 3 in her perfect state of health and sound disposing mind without the pressure and persuasion of any body.

7. It is further averred that the testatrix at the time of her death was having a fixed abode at the subject property, where she resided at the time of her death, which is situated within the territorial jurisdiction of this Court and thus,they have sought the relief of grant of probate/ Letter of Administration in respect of the Will dated 02.03.1998 in their favour.

8. The Court issued notice of the petition to the respondents, citation was published in English daily 'The Statesman' dated 12.12.2014 and Hindi daily 'Rashtriya Sahara' dated 11.12.2014 also to the concerned Collector/SDM for filing the valuation report of the immovable properties in accordance with law. The notice was also displayed at the notice board of this Court. No objections were received to the petition, from any quarter despite publication of citations in newspaper.

9. In response to the same, the SDM, Dwarka, filed valuation report qua the subject property wherein the same has been valued at ₹ 60,00,000/- (Rupees Sixty lakhs only).

10. Pursuant to service of notice upon respondent No.2 to 5, respondent No. 2 Smt. Rachna d/o Late Sh. Shadi Ram and w/o Kamaljeet Singh recorded her no-objection statement in favour of the petitioners on 17.03.2015. However, respondent Nos. 3 to 5(hereinafter referred as 'objectors') filed objections and opposed the present petition.

11. It is contended by the objectors that the testatrix during her lifetime while residing with the petitioners had told the respondent No. 4 and the petitioners that respondent Nos. 3 to 5 and other legal heirs have equal rights in the movable (gold, silver, cash, bank accounts etc.,) and immovable property of the testatrix including the suit property after her death. It is further contended that the petitioners and respondents have cordial relations but after the death of testatrix the intention of the petitioners have become malafide and they have started concealing and removing the movable and immovable properties PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 4/23 of the testatrix and even sold and disposed off one of the joint property which was in the name of testatrix situated at Ludhiana.

12. It is also contended that the after the death of the testatrix the petitioner No.1 had settlement talks with respondent No. 4 with WhatsApp chat application and the petitioner No. 1 agreed to pay Rs 6 lakhs as part of settlement to the respondent No. 4 and some documents were also signed and prepared but the same are in possession of petitioner No. 1. It is also stated that in lieu of the settlement the petitioner No.1 has also paid a sum of Rs60,000/- in the account of respondent No. 3 but later on due to malafide intention he backed out from the settlement and filed a recovery suit by falsely showing friendly loan to respondent No.3.

13. It is further contended that the testatrix was an illiterate lady and same is substantiated from the fact that the Will in question bears the thumb impression of the testatrix and she was unable to sign and read English language and was unaware about the contents of the present Will and therefore, she has not executed the impugned Will and the same is a false and fabricated document. It is further contended that in the Will viz a viz the present petition there is difference of the property number and same is not explained in the Will and thus, the Will is ambiguous,unclear and vague as in the Will the property number is mentioned as Plot No. 17, land measuring 100 sq. yds out of khasra No. 50/7 situated at Village Palam Delhi colony known as Raj Nagar, Palam (herein referred as 'Plot No. 17') whereas in the petition the petitioners have sought the letter of PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 5/23 Administration with respect of subject property RZG 351, Raj Nagar Extension, Palam Colony, New Delhi (hereinafter referred as 'RZG 351') and thus the Will is nothing but a fraud played by the petitioners with the testatrix.

14. On the basis of the pleadings of the parties, the following issues were framed:-

(i) Whether the petitioner proves the due execution of Will in question i.e. Will dated 02.03.1998 bearing registration no. 12327, Addl. Book No. 3, Vol. no. 4198, page no. 72? ...OPP

(ii) Whether the petitioner proves that the testator had is sound disposing state of mind to execute the aforesaid Will? ...OPP

(iii) Whether the respondent Nos. 3 to 5 prove the alleged undue influence and Will tainted by such influence? ...OPR3-5

(iv) Whether the aforesaid Will is a Valid Will? ....OPP

(v) Relief, if any

15. In order to prove its case, petitioner examined three witnesses.

16. On 17.08.2019, the petitioner stepped into the witness box and deposed in tandem to the averments in the petition. Apart from filing her evidence by way of affidavit Ex.PW1/A, the petitioner relied upon the following documents:

(i) Attested photocopy of death certificate of Vidya Devi already exhibited as Ex P-1(OSR);

(ii) Title deeds i.e. copy of Agreement to Sell, General Power of Attorney, Will and cash receipt, all dated 13.08.1982 as already exhibited as Ex P-2 (Colly) (OSR);

(iv) Original Will deed dated 02.03.1998 as Ex PW1/4

(v) The schedule of property as Ex PW1/5 (de- exhibited)

(vi) The amended petition as Ex PW1/6 ( de- exhibited)

(vii) Replication of petitioner as Ex PW1/7 ( de - exhibited)

17. Mr. Narendra Kumar, Civil Defence volunteer from the office of e-Sub Registrar-II, Basai Darapur appeared in the witness as PW-2 and he had proved the original record in respect of Will bearing registration No.12327 Book No. 3, Vol. No. 4198 at pages 72 on 02.03.1998 and same is already exhibited as Ex PW1/4 (OSR). During his cross examination PW-2 has also proved the authority letter dated 29.10.2021 and same is Ex PW2/D1.

18. Mr. H.K.Babar, one of the attesting witnesses of the Will in question, has appeared in the witness box as PW-3 and deposed that " I am a summoned witness. Today, I have brought my Aadhaar Identity card as a proof of my identity and proof of address, copy of same is ExPW3/A (OSR). I am lawyer by profession and doing revenue practice at the Sub Registrar office Janakpuri. Vidya Devi w/o Sadhi Ram came at Sub Registrar office Janakpuri and asked me that she want to execute a will. I asked her to come after 2-3 days in the meantime I will prepare the Will. Thereafter Vidya Devi came to me alongwith one other witness namely, Payara Singh. I have read over the contents of PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 7/23 the Will to Vidya Devi in Punjabi language. Vidya Devi was well conversant with Hindi and Punjabi both. After understanding the contents of the Will Vidya Devi put her thumb impression on the Will which is already exhibited as Ex PW1/4 . The thumb impression of Vidya Devi is at point 'A'. The witness Payara Singh also signed the Will in my presence and I identify his signatures are at point' B'.Thereafter I put my signature at point 'C'. Further, the Will was presented before the office of Sub Registrar Janakpuri for registration.

19. Thereafter, the attesting witness was cross examined and discharged and the petitioners closed their evidence and case was fixed for respondent's evidence.

20. In order to prove their case, respondents examined two witnesses i.e. Smt Lata Khatri as DW-1(respondent No.3 herein) and Sh. Vimal Kumar as DW-2 (respondent No.4 herein).

21. Smt. Lata Khatri appeared in the witness box and tender her evidence by way of affidavit Ex.DW1/A and relied upon the following documents:

(i) Copy of sale deed dated 26.09.2014 with its translation as Ex DW1/1 (Colly) (OSR) and

(ii) Photocopy of character certificate of Bhanwar Kumar Khatri dated 17.10.1975 alongwith photocopy of mark sheet of Higher Secondary dated 25.09.1975 and photocopy of certificate of Higher Secondary as Ex DW1/2 (Colly) (OSR).

22. Sh. Vimal Kumar appeared in the witness box as DW-2 and tendered his evidence by way of affidavit Ex DW2/A and relied upon the copy of WhatsApp chat dated 22.01.1998 alongwith certificate under Section 65B of the Indian Evidence Act as Ex DW2/2(Colly). Thereafter, respondents have closed their evidence and matter was fixed for final arguments. I have heard the arguments and have gone through the judicial file.

23. The Ld. Counsel for the petitioner has argued that the petitioner has duly proved due execution of the Will in question by calling one of the attesting witness in the witness boxHe further argued that the objectors on the other hand have miserably failed to prove that the testatrix was not in sound disposing mind at the time of the execution of the Will in question.

24. Per Contra, Ld. Counsel for the objectors has argued that the attesting witness called by the petitioners was only a scribe to the Will and cannot be termed as attesting witness as he has no animus attestandi which is a necessary requirement for the purpose of attestation. The Ld. Counsel further argued that the attesting witness duly admitted in his cross examination that he is working as an advocate at the sub- Registrar office and is in the profession of preparation of documents and on the day when the Will in question was executed and registered at the office of the sub-registrar, he was a witness to four other Wills and therefore, his testimony cannot be taken into consideration. It is further argued that the petitioners have never called the second attesting PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 9/23 witness through Court process and simply stated that he has already died and filed his death certificate before this Court.

25. The Ld. Counsel has further argues that the petitioner in his evidence has admitted that the testatrix was an illiterate lady and conversant with Punjabi and Hindi language only whereas the Will in question is typed in English and in addition thereto, petitioner in his testimony also claimed that the testatrix was a calculative lady and if his version is believed, the testatrix could have mentioned the grounds for disinheriting the objectors from subject property but surprisingly no such ground is mentioned in the Will. It is also argued that in the Will the description of property is mentioned as Plot no. 17 whereas the petitioner have sought the letter of administration in respect of RZG-351 and this fact also goes against the claim of the petitioners as if the testatrix was a calculative lady, she should have mentioned that the plot no.17 and RZG 351 are one and the same property in the Will itself. The Ld. Counsel has relied upon the citation titled as Joyana John versus State & Ors- FAO No. 302/2007 of Hon'ble High Court of Delhi in order to buttress his argument.

26. In rebuttal arguments the ld. Counsel for the petitioner has argued that the description of the property in Will was mentioned as Plot no. 17 only due to the fact that the same description is mentioned in the set of documents Ex. P-2(colly) and this fact is duly explained by the petitioners in the rejoinder itself. He further argued that if the testimony of the attesting witness is read as whole it is crystal clear that he was having requisite animus attestandi to attest the Will as a Witness as he has duly deposed PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 10/23 that he has read over the Will to the testatrix in Punjabi language and after understanding the contents of the Will she has put her thumb impression on the Will at point "A"and the second attesting witness Payara Singh also signed the Will in his presence at point "B" and thereafter he put his signature at point "C". In order to buttress his arguments the ld. Counsel relied upon the citations titled as Dhanpat vs. Sheo Ram (Deceased) through Lrs and Ors- Civil Appeal No. 1960/2020, Khem Chand and Ors vs. State & Ors - FAO No. 241-43/2005 of Hon'ble High Court of Delhi and M.B. Ramesh (D) by Lrs vs. K.M.Veeraje Urs (D) By Lrs & Ors - Civil Appeal No. 1071/2006 decided on 03.05.2013.

27. I have heard the rival arguments and have gone through the pleadings, oral as well as documentary evidence led by the parties and the judgments cited at bar and my issue-wise findings are as under:-

Issue-wise finding:-

28. All the issues are taken up together being interconnected and requires common appreciation of evidence and finding on one issue has direct bearing on the other.

29. The Hon'ble Supreme Court recently in judgment titled as titled as Kavita Kanwar v. Pamela Mehta (2021) 11 SCC 209, after an elaborate discussion and referring to almost all the celebrated judgments on the proof of Wills such as H. Venkatachala Iyengar v. B.N. Thimmajamma, (1959) Supp. 1 SCR 426; Purnima Debi v. Kumar Khagendra Narayan Deb, (1962) 3 SCR 195: AIR 1962 SC 567: Indu Bala Bose v.

Manindra Chandra Bose, (1982) 1 SCC 20; Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321; Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529; Mahesh Kumar v. Vinod Kumar, (2012) 4 SCC 387: (2012) 2 SCC (Civ) 526; Leela Rajagopal v. Kamala Menon Cocharan, (2014) 15 SCC 570:

(2015) 4 SCC (Civ) 267; Shivakumar v. Sharanabasappa, (2021) 11 SCC 277, summarised and appliedHarmes v. Hinkson, 1946 SCC OnLine PC 20 AIR 1946 PC 156: (1945-46) 50 CWN 895:

P.PK. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, 1995 Supp (2) SCC 664; Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459 has laid down the following guiding principles.

30. The principles governing the adjudicatory process concerning proof of will are:

(i) Ordinarily, 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 and proof of mathematical accuracy is not to be insisted upon.

(ii) Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

(iii) The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 12/23 initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.

(iv) However, presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

(v) If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

(vi) A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. The suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind'.

(vii) As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the will o by the beneficiary thereunder etc. are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 13/23 could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will.

(viii) On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

(ix) The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?

(x) In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will."

31. In light of the ratio of the judgments cited above, coming to the case in hand, it is observed that Will in question bears the thumb impression of the testatrix and the same is attested by two attesting witnesses, namely Sh.Payara Singh and Sh. H.K.Babbar, Advocate and out of the two attesting witnesses Sh H.K.Babbar, Advocate was called in the witness box to prove the Will in question and the death certificate of the another attesting witness Sh. Payara Singh was placed on record by the petitioner. Thus, it PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 14/23 prima facie fulfills the mandatory requirement of Section 63 of the Indian Succession Act, 1925.

32. Now it has to be seen that whether the attesting witness has duly proved that the Will in question was executed by the testatrix in sound disposing mind after understanding its contents thereof and whether the Will is surrounded by any suspicious circumstance which can invalidate the Will in question.

33. It is the plea of the Ld. Counsel for the objectors that the second attesting witness i.e. Sh. H.K. Babbar Advocate cannot be termed as the attesting witness of the Will as he has signed the Will only in the capacity of scribe and the witness himself admitted that one official witness is required at the office of the sub-registrar for the purpose of presentation of the Will for registration and moreover, the witness has appeared as a witness in four other Wills executed on the same day when the Will in question was executed and registered and thus, once Sh H.K.Babbar cannot be termed as a attesting witness as a necessarily corollary the Will in question cannot be termed as a duly executed document as per the requirements of Section 63 of the Indian Succession Act, 1925.

34. However, this Court is of the considered view that the contention raised by the Ld. Counsel is not sustainable as it is not provided in any legal provision of the Indian Succession Act, 1925 or any other law for the time being in force that an Advocate who is doing revenue practice at the sub-registrar office cannot be a competent attesting witness. It is also not required by law that the witness must be known to the executor. The only PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 15/23 legal requirement as per Section 63 of the ISA, 1925 is that the witness must have seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark 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.

35. Thus, the only legal requirement as prescribed by law is that the person attesting the Will as a witness must have the intention to attest as a Witness and the testator/ testatrix must have signed or affixed his/ her signature or mark in his presence. In the present case, it is specifically deposed by the attesting witness namely Sh. H.K. Babbar, Advocate in his examination- in-chief that he is lawyer by profession and doing revenue practice at the Sub-Registrar office Janakpuri and the testatrix came to him and told that she wants to execute a Will and he asked her to come after 2-3 days in the meantime he will prepare the Will and thereafter, she came with one Payara Singh, he read over the Will to the testatrix in Punjabi language and after understanding the contents of the Will, she affixed her thumb impression at point A and Payara Singh also signed the Will at point B and he signed the same at Point C and thereafter, the Will was presented for registration before the Sub-registrar.

36. In cross examination much emphasis was put on to impeach the witness on the ground that except his name and designation neither his enrollment number nor his office or PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 16/23 residential address is mentioned on the Will and also on the ground that apart from the Will in question he appeared as a Witness in five other Wills on the date of execution and registration of the Will in question and there is no iota of doubt that the witness admitted that he was witness in five other Wills executed on the same day and even deposed voluntarily that it is his profession to attest the Wills and present them for registration but in the entire cross examination the Witness remained firm to the extent that the Will was prepared at the instance of the testatrix and the same was read over to her in Punjabi language and the she has put her thumb impression after understanding its contents and other attesting witness Payara Singh has signed in his presence and thereafter, he signed the Will. He also deposed in cross examination that he was not known to testatrix earlier. Thus, merely because the witness is doing revenue practice at the office of the Sub-Registrar and has attested as a witness another five Wills in addition to the Will in question on the same day and merely because Will bears only his stamp and initials of the witness cannot be termed as a ground to declare that he was not having the requisite intention to attest the Will.

37. The Hon'ble High Court of Delhi in the Judgment titled as Harjit Singh Vs. Surender Singh, RFA no. 24/2018 has held that even a draftsman can be an attesting witness, if the draftsman has signed on the Will with an intention of attesting the Will. Thus, once the attesting witness has deposed that the Will was read over to the testatrix in Punjabi language and thereafter she affixed the thumb impression on the Will after understanding its contents and PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 17/23 the first attesting witness Payara Singh also signed in his presence at point 'B' and thereafter he signed the Will at point 'C', it is abundantly clear that the witness was having the requisite animus attestandi i.e intention to attest the Will as a witness.

38. As far as the argument of the Ld. Counsel for the objectors to the extent that there is mis-description of the subject property in the Will viz a viz the petition i.e. in the petition the Letter of Administration is sought in respect of RGZ-351 whereas in the Will in question the property bequeathed is plot No. 17.

39. To begin with in the set of documents Ex P-2 (colly) which is already admitted by the objectors the description of the property is mentioned as Plot No. 17 and same description is found mentioned in the Will. Thus, as far as the description of the property mentioned in the set of documents and the Will in question is concerned, this Court is of the view that on perusal of the Will in question and the set of documents Ex P2 (colly), there is no differentiation in the description of the subject property and it is only the petitioners who have sought the letter of Administration in respect of RGZ-351 and reasons for the same are explained by them in para No. 6 of the rejoinder to the objections of the objectors that now the local authorities have given plot No. 17 a new number i.e RGZ-351. In addition thereto, the objectors have not led any evidence to show that the property mentioned in the Will and the property regarding which the Letter of Administration is sought are two different properties.

40. Moreover, the jurisdiction of the probate Court is limited being confined only to consider the genuineness of the WILL. A question of title arising under the Act cannot be gone into the proceedings and construction of a will relating to the right, title and interest of any other person is beyond the domain of the probate Court - See Krishna Kumar Birla v. Rajendra Singh Lodha.1 Furher, Hon'ble Supreme Court of India in judgment titled as Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon & ors bearing Appeal NO. 4890/2007 while relying upon the other judgments of the Hon'ble Supreme Court titled as Rukmani Devi Vs. Narender Lal Gupta 1985 (1) SCC 144 and Chiranjilal Shrilal Goenka vs. Jasjeet Singh 1993 (2) SCC 507 and held that court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of the 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 the preview of the probate court. Therefore, the only issue in a probate proceedings relates to the genuineness and due execution of the Will .

41. Thus, the arguments of the ld. Counsel for the objectors that as the new number of the property was not mentioned in the Will in question by the testatrix and therefore, same gives rise to a presumption that she has not read the contents of the Will is not sustainable for the reasons that the property number mentioned 1 (2008) 4 SCC 300 PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 19/23 on the documents Ex P2 is same as mentioned in the Will in question.

42. Coming to the next argument that the testatrix has not mentioned any reason for dis-inheriting her son namely, Late Bhanwar Kumar, who is predecessor in interest of the objectors and thus, the same raises a reasonable apprehension regarding the invalidity of the Will is concerned, this Court has gone through the cross examination of the widow of Late Bhanwar Kumar, namely, Smt Lata Khatri, who entered the witness box as DW-1 and in her cross examination she has categorically deposed that since her marriage with Late Bhanwar Kumar on 09.11.1980 she resided with him at Ghitorni and thereafter in Paschim Puri, New Delhi and thereafter they moved to Sanewal Punjab and returned to Paschim Puri in 1987 and thereafter moved to Avantika Rohini in the year 1995 and Late Bhanwar Kumar died in the year 1998. It is further categorically admitted by the witness that they never resided with the testatrix. She also admitted that the contentions raised by her in para No. 5 of her chief examination by way of affidavit to the extent that "relationship between the family of Sh Bhanwar Kumar and the family of the petitioners and other legal heirs were cordial till the death of the testatrix Smt Vidya Devi and testatrix during her lifetime was willing to purchase plot in the name of Sh. Bhanwar Kumar but she was stopped by the other legal heirs of Shadi Ram and testatrix" has been raised by her for the first time and not stated so in the joint objections.

43. Thus, the testimony of the DW-1 itself speaks out loudly PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 20/23 that after marriage in the year 1980 and till his death in 1998, Late Bhanwar Kumar never resided with the testatrix and by necessary implication it raises a presumption that the testatrix was residing with her children from her second marriage i.e. petitioner No. 1, 3 and respondent No. 2 till her last breath and therefore, merely because the testatrix has not mentioned any reason for dis- inheriting the legal heirs of Late Bhanwar Kumar in the Will in itself cannot be termed as a ground to disbelieve the Will in question.

44. In the objections as well as during arguments it is pressed upon by the objectors that the petitioners without their consent have already sold one property of the testatrix situated at Ludhiana, even though this objection has nothing to do for the purpose of deciding the validity of the Will in question,however, at the same time it stands duly proved by the petitioners that the said property belongs to their father Shadi Ram and after his death the said property was developed upon the LRs of the Shadi Ram i.e. the petitioner Nos, 1,3, respondent No. 2 and the testatrix and therefore, they were very well in their right to dispose off the said property.

45. On the other hand, the objectors have not led any evidence to prove that the petitioners have exercised any alleged undue influence on the testatrix for the purpose of the execution of the Will in their favour. Rather in cross examination DW-2 Vimal Kumar himself admitted that when he lastly met the testatrix in the month of November 2013 she was otherwise healthy but suffering from old age ailments and he had a good conversation PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 21/23 with her on that day and she was fit and fine and recognize him well and was mentally fit at that time. Thus, if the testatrix was healthy and in good mental condition in the year 2013, the Will in question was executed almost 15 years back in the year 1998 and in addition thereto the Will in question is registered one, which brings this Court to only one irresistible conclusion that the Will in question was validly executed by the testatrix in her sound disposing mind after understanding the contents of the same. The judgments relied upon by the petitioners and the respondent are distinguishable from the facts and circumstance of the present case and thus, does not require any discussion and consideration for the just decision of this case.

46. In view of the discussion and observations made above issues Nos. (i), (ii) and (iv) are decided in favour of the petitioners and against the objectors and the issue No.(iii) is decided against the objectors and in favour of the petitioners. Relief

47. In view of my issue wise finding on issue nos. (i) to (iv) the present petition is allowed in favour of petitioners, accordingly, let the letter of Administration of Will dated 02.03.1998 duly registered with Sub Registrar Janakpuri be issued in favour of petitioners with the seal of this Court in the form set forth in Schedule VI of the Act and also, subject to completion of requisite formalities, such as:

1. affixation of ad-valorem court fees of the total value of suit property as per the valuation report filed by the SDM, Dwarka in accordance with law, and PC No. 41/16 Anil Kumar & ors vs. State (NCT of Delhi) & Ors Page No. 22/23

2. an administration bond with one surety of like amount.

48. File be consigned to record room only after completion of all necessary compliance and due formalities, as per Rules.

                                                         Sachin                    Digitally signed by
                                                                                   Sachin Jain

                                                         Jain                      Date: 2023.09.01
                                                                                   14:26:58 +0530

Pronounced in the open                                      (Sachin Jain)
Court on 01.09.2023                                     Addl. District Judge-02
                                                         South West District
                                                     Dwarka Courts Complex, Delhi




      PC No. 41/16      Anil Kumar & ors vs. State (NCT of Delhi) & Ors   Page No. 23/23