Delhi District Court
Kiran Sharma vs Aditya Sharma @ Rajesh Sharma on 26 March, 2024
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 482/20165
CNR No. DLNE01-003609-2016
Kiran Sharma
W/o Sh. Parvesh Kumar
D/o Late Dal Chand Sharma
R/o House No. B-459, Gali No. 2,
Arjun Mohalla, Moujpur, Delhi. .....Plaintiff
Versus
1. Aditya Sharma @ Rajesh Sharma
2. Ramesh Sharma
Both sons of Late Dal Chand Sharma
Both residents of House No. C-2/275,
Yamuna Vihar, Delhi.
3. Mamta Sharma
W/o Sh. Sameer
D/o Late Dal Chand Sharma
R/o House No. L-365, L-Block,
Near Kali Mandir, J.J. Colony,
Shakoorpur, Delhi. .....Defendants
Date of Institution : 16.09.2016
Date of Reserving Judgment : 26.03.2024
Date of Judgment : 26.03.2024
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 1 of 19 seeking the decree of partition, possession and declaration.
2. Brief facts, as stated in the plaint are that plaintiff is the law abiding citizen of India and is residing at house bearing number, B-459, Gali number 2, Arjun Mohalla, Moujpur, Delhi alongwith her family, since, her marriage. It is stated that defendant number 1 and 2 are the real brothers and defendant number 3 is the real sister of plaintiff. It is further stated that plaintiff as well as all the defendants are the only legal heirs of Late Dal Chand and Late Sheela Devi, who are the deceased parents of all the defendants and the plaintiff. It is further stated that the father of plaintiff had expired fifteen years ago and the mother of plaintiff had expired on 08.06.2016. It is further stated that the property bearing House Number C- 2/275, Yamuna Vihar, Delhi measuring area 40 square yards constructed upto 4th floor (henceforth referred to as suit property) is in the name of deceased mother of plaintiff, Smt. Sheela Sharma. It is further stated that before her death on 26.05.2016, deceased mother of plaintiff had nominated jointly the plaintiff and wife of defendant number 2, namely, Mansi Sharma in her saving account having rupees 1,28,000/- in the Post office at Aditya Complex, Yamuna Vihar, Delhi. It is further stated that the deceased mother of plaintiff had also disclosed her about the jewelery alongwith cash of rupees 70,000/- kept by her in her Almirah and told the plaintiff to take some jewellery articles. It is further stated that after performing the last rites/tehravi of her mother, when plaintiff reached at the Post Office, Yamuna Vihar for withdrawing half of the amount that is rupees 64,000/- from the saving account of her deceased mother she was informed that aforesaid amount had already been withdrawn by the defendants. It is further stated that later on, when plaintiff demanded her part of jewellery from defendant number 1 and 2, they refused to give her the same.
CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 2 of 19 It is further stated that when plaintiff demanded her share in the immovable property left by her deceased mother then defendant number 1 and 2 had kicked out the plaintiff from the house of her deceased mother. It is further stated that the suit property is in the name of deceased mother of plaintiff and the plaintiff is also having right, title, interest upto her one fourth (¼th} share in the suit property being one of the legal heirs of her deceased mother, but, the defendant number 1 and 2 have clearly refused to give the share of the plaintiff. It is further stated that thereafter, plaintiff had filed the police complaint against defendant number 1 and 2 and their wives and also sent the legal notice, dated 25.07.2016, thereby requesting the defendant number 1 and 2 to hand over her one fourth (¼ th) share that is one floor of the suit property within 15 day from the receipt of legal notice. It is further stated that defendant number 1 and 2 instead of handing over the share of plaintiff had sent a false reply, dated 08.08.2016, through their counsel in which it was disclosed on behalf of defendant number 1 and 2 that deceased mother of plaintiff had executed a Will, dated 25.04.2016, in favour of all the defendants, however, no copy of Will had been sent by defendant number 1 and 2. It is further stated that as per the knowledge of plaintiff, no will was in existence till the death of her mother and the plaintiff is sure that the alleged Will had been prepared by the defendants after the death of mother of plaintiff only to grab the share of plaintiff hence, the same is liable to be declared as null and void. It is therefore requested that decree of partition alongwith possession and declaration be passed with respect to suit property in favour of plaintiff and against the defendants.
3. Written statement has been filed on behalf of defendant number 1 in which apart from denying the allegations/contentions of plaintiff, it is stated that the suit of plaintiff has been filed without any cause of action CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 3 of 19 and the same is liable to be dismissed under Order VII Rule 11 of Code of Civil Procedure, 1908 as it is well within the knowledge of plaintiff that the mother of plaintiff as well as the defendants, Smt. Sheela Devi W/o Sh. Dal Chand Sharma had bequeathed the suit property in favour of defendants by virtue of execution of Will, dated 25.04.2016 duly registered at the office of Sub Registrar, SR IV, Seelampur, Delhi, vide registration number 77, book number 3, volume number 3535, on page 169 to 173. It is further stated that the plaintiff has no right, title or interest over the suit property constructed upto 3rd storey situated at Yamuna Vihar, Delhi. It is further stated that the suit of plaintiff is liable to be dismissed on the sole ground that the plaintiff has not paid the appropriate court fees. It is further stated that the plaintiff is a quarrelsome lady and she had picked up a quarrel with the defendants, on 11.07.2003, and, had left the house as she had married with one Sh. Parvesh Kumar. Plaintiff had also threatened the defendant number 1 that she would get him implicated in a false case. It is further stated that thereafter, defendant number 1 had lodged a complaint vide D.D. number 28-A on 11.07.2003 at Police Station Bhajanpura. It is further stated that the plaintiff has no legal right to challenge the Will, dated 25.04.2016, executed in favour of defendants duly registered at the office of Sub Registrar. It is further stated that the defendants by virtue of said Will are the legal owners and in actual physical possession of the suit property. It is further stated that the mother of plaintiff, Smt. Sheela Devi had debarred the plaintiff from the suit property and she bequeathed the same in favour of the defendants. It is further stated that after the death of mother of plaintiff on 08.06.2016, defendants became the successors, possessors and exclusive owners of the suit property. It is therefore requested that the suit of plaintiff be dismissed.
Separate written statement has been filed on behalf number 2 in which apart from denying the allegations/contentions of plaintiff, it is CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 4 of 19 similarly stated as mentioned/contended by defendant number 1 that the suit of plaintiff has been filed without any cause of action as it is well within the knowledge of plaintiff that the mother of plaintiff as well as the defendants, Smt. Sheela Devi W/o Sh. Dal Chand Sharma had bequeathed the suit property in favour of defendant number 2 as well as defendant number 1 and 3 by virtue of execution of Will, dated 25.04.2016 duly registered at the office of Sub Registrar, SR IV, Seelampur, Delhi, vide registration number 77, book number 3, volume number 3535, on page 169 to 173. It is further stated that the plaintiff has no right, title or interest over the suit property constructed upto 3 storey. It is further stated that defendant number 2 alongwith defendant number 1 and 3 by virtue of said Will are the legal owners and in actual physical possession of the suit property. It is further stated that the defendant number 2 as per the Will executed by deceased Sheela Devi on 25.04.2016, is the absolute owner of ground floor and defendant number 3 Smt. Mamta Sharma and defendant number 2 are the absolute owners of the First and Second Floors respectively. It is further stated that the plaintiff has absolutely got no right, title and interest over the suit property. It is further stated that it was well within the knowledge of plaintiff that the deceased mother had bequeathed the suit property in favour of defendants by virtue of registered Will, dated 26.04.2016 and as such defendant number 2 alongwith defendant number 1 and 3 became the absolute owner of the suit property after the death of the deceased mother, on 08.06.2016. It is therefore requested that the suit of plaintiff be dismissed.
Separate written statement has been filed on behalf of defendant number 3 in which apart from denying the allegations/contentions of plaintiff, it is repeated/as already mentioned by defendant number 1 and 2 that the plaintiff has concealed the material fact that the mother of parties, Smt. Sheela Devi had bequeathed the suit property in favour of all the CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 5 of 19 defendants by virtue of execution of the registered Will, dated 25.04.2016, duly registered at the office of Sub Registrar, SR-IV, Sleeampur, Delhi vide registration number 77, book number 3, volume number 3535, on page 169 to 173. It is further stated that the plaintiff has got no right, title or interest over the suit property. It is further stated that as per the said registered Will, ground floor of the suit property devolved upon the defendant number 2, first floor devolved upon defendant number 2 and second floor alongwith one room on third floor upto ceiling level with common roof rights devolved upon defendant number 1. It is further stated that Smt. Sheela Devi in her life time had issued cheques in the name of Ms. Ritika W/o Sh. Aditya Sharma @ Rajesh Sharma that is defendant number 3 of rupees 75,000/- for love and affection and rupees 50,000/- in the name of Sh. Aditya Sharma @ Rajesh Sharma that is defendant number 3 for doing the rituals after her death. It is further stated that Smt. Sheela Devi never nominated any person in her account in Post Office bearing account number 1197266262, Yamuna Vihar, Delhi. It is therefore requested that the suit of plaintiff be dismissed.
4. Separate replications to the written statement of defendant number 1 and 2 were filed which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement filed on behalf of defendant number 1 and 2.
5. On the basis of pleadings, the following issues were framed:-
(i) Whether the suit of the plaintiff has not been valued properly for the purposes of Court fees? OPD
(ii) Whether the plaintiff is entitled for a preliminary decree of partition in respect of the property bearing number C-2/275, Yamuna Vihar, Delhi-53, as claimed in the plaint? OPP CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 6 of 19
(iii) Whether the plaintiff is entitled for a decree of possession in respect of her share in the suit property, as claimed in the plaint? OPP
(iv) Whether the plaintiff is entitled for a decree of declaration, as claimed in the plaint? OPP
(v) Whether the plaintiff is entitled for a final decree of partition in respect of the abovesaid suit property?
OPP
(vi) Relief.
6. Plaintiff has led her piece of evidence. Plaintiff has got examined herself as PW1. She reiterated the facts as are mentioned by her in her plaint. Thereafter, she tendered her evidence by way of affidavit which is Ex.PW1/A and relied upon the documents that are voter identity card of plaintiff as Ex.PW1/1, site plan as Ex.PW1/2, legal notice, dated 25.07.2016 alongwith postal receipt as Ex.PW1/3 (colly) and reply, dated 08.08.2016 as Ex.PW1/4. PW1 was cross examined at length by Learned Counsel for defendants.
Sh. Pradeep Kumar Sharma, Junior Secretariat Assistant, LAB (Residential), Delhi Development Authority Vikas Sadan, INA, New Delhi was examined as PW2. PW2 produced the summoned record of property bearing bearing number C-2/275, Yamuna Vihar, Delhi. As per their record, the said property is a free hold property. Originally, the said property was allotted by Delhi Development Authority in the name of Sh. Shyam Sunder Gupta S/o Sh. Subhash Chand Gupta, on 07.03.1977 on lease hold basis. PW2 deposed that as per their record, this property was transferred in the name of Sh. Dal Chand S/o Sh. Heera Lal Sharma on 02.09.1981. Thereafter, the same was transferred in the name of Smt. Sheela Devi W/o Sh. Dal Chand vide conveyance deed, dated 19.08.2008. Copy of conveyance deed is Ex.PW2/A (OSR). PW2 was cross examined CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 7 of 19 at length by Ld. Counsel for defendants.
Sh. Rang Nath Mishra, Assistant Post Master, Post Office Seelampur, Delhi was examined as PW3. PW3 produced the record of savings account at Post Office, Yamuna Vihar, in the name of Smt. Sheela Sharma bearing account number 1197266262. PW3 deposed that as per their record, there was no nominee of the said account. The copies of the savings account are Ex. PW3/A (colly). PW3 was cross examined at length by Ld. Counsel for defendants.
After closing of plaintiffs' evidence, defendants have led their piece of evidence. Defendant number 1 Sh. Aditya Sharma @ Rajesh Sharma had himself stepped into the witness box and deposed as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement. He tendered his evidence by way of affidavit which is Ex.DW1/A and relied upon the documents i.e. certified copy of Will, dated 26.04.2016 executed in favour of defendants as Ex.DW1/1, copy of saving bank passbook as Ex.DW1/2 (colly), copy of DD number 28-A, dated 11.07.2003 lodged at Police Station Bhajanpura as Ex.DW1/3. DW1 was cross examined at length by Learned Counsel for plaintiff. During the course of his cross examination, DW1 submitted that his mother had executed the Will in favour of the defendants at the suit property. DW1 also submitted that his brother Sh. Ramesh Sharma, his wife Smt. Malti Sharma, he himself, his wife Smt. Ritika Sharma and his uncle Sh. Arun Kumar were present at the time of execution of the aforeasid Will. DW1 also submitted that the aforesaid Will was written by some Registrar whose name he did not know.
Defendant number 2 Sh. Ramesh Kumar Sharma was examined as DW2. DW2 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, DW1 tendered his evidence by way of affidavit which is Ex.DW2/A and relied upon the documents already CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 8 of 19 exhibited as Ex.DW1/1 to Ex.DW1/3 in the testimony of DW1. DW2 was cross examined at length by Learned Counsel for plaintiff. During the course of his cross examination, DW2 submitted that the Will was executed by his mother on 26.04.2016 or may be one or two days after 26.04.2016. DW1 also submitted that at the time of execution of aforesaid Will, he, his brother Rajesh, his wife Smt. Ritika Sharma and uncle Sh. Arun Kumar were present and the Will was executed at the suit property.
Defendant number 3 Smt. Mamta Sharma was examined as DW3. DW3 has reiterated the same facts as are mentioned by her in her written statement. Thereafter, DW3 tendered her evidence by way of affidavit which is Ex.DW3/A. DW3 had also relied upon the documents already exhibited as Ex.DW1/1 to Ex.DW1/3 in the testimony of DW1. DW3 was cross examined at length by Learned Counsel for plaintiff.
7. I have heard the arguments advanced on behalf of both the parties and perused the case file carefully. Learned Counsel for defendant number 1 and 2 during the course of his oral submissions, submitted that the Will Ex.DW1/1 is registered and there is no suspicious circumstances surrounding the Will therefore, there is no requirement of calling of any official witness from the registrar office or any of the attesting witnesses. Learned Counsel further submitted that there are plethora of judgments in this regard that when there is no suspicious circumstances surrounding the registered Will, there is no need of leading any further evidence except the production and exhibiting the Will in evidence. It is also submitted by Learned Counsel that even during the course of cross examination of defendants, no question/circumstance against the Will/rebutting the Will Ex.DW1/1 as such raised by the plaintiff.
Written submissions have been filed on behalf of plaintiff. In the written submissions apart from reiterating the contents of plaint/replication CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 9 of 19 and testimonies of witnesses, plaintiff has also pointed out the suspicious circumstances surrounding the execution of the Will. Plaintiff has also pointed out the parts of cross examination of the defendants in that regard. It is specifically stated that the plaintiff is entitled to one fourth (1/4th) share of the suit property as the mother of plaintiff had expired intestate. It is stated that the defendants who are claiming that the mother of parties had bequeathed the suit property in favour of defendants by way of Will, dated 25.04.2016, is surrounded by suspicious circumstances as before her death she was not in a fit state of mind. It is further stated that the defendants though claim that plaintiff is a quarrelsome lady and she had solemnized her marriage against the wishes of family member, but, defendant number 2 and 3 had also performed the love marriage as per their own wishes. So, it could not be a ground to preclude the plaintiff from her lawful right of one fourth share of the suit property. It is further stated that admittedly the concerned Will was written by some registrar whose name defendant number 1 did not remember and mother was bed ridden at that time. It is further stated that at the time of execution of the said Will, he, his brother Rajesh, his wife Smt. Ritika Sharma, uncle Sh. Arun Kumar and court officials were present. The said Will was executed at the suit property itself but he did not know who had typed the same.
Written submissions on behalf of defendant number 3 have also been filed in which apart from reiterating the contents of written statement and her testimony, it is stated that the official witness PW2 clearly stated that Smt. Sheela Devi wife of Shri Dal Chand is the registered owner in the Delhi Development Authority Record. It is further stated that all the defendants have deposed as DW1, DW2 and DW3 in which they had supported their defence and the plaintiff miserably failed to discredit the truthfulness of these witnesses. It is further stated that the plaintiff has no right, title or interest on the suit property as the suit property had already CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 10 of 19 been transferred by way of registered Will, dated 25.04.2016 in favour of the defendants.
8. Reasons and analysis/finding:
After recording the gist of evidence led by both the parties, let me record the findings on each issue.
Issue number 1, that is, whether the suit of the plaintiff has not been valued properly for the purposes of Court fees? The onus to prove this issue is upon the defendants. No evidence/submissions in this regard has ever been made by defendants either at the time of leading evidence or at the time of making the submissions. Further, after perusing the case file properly in light of the Suit Valuation Act/Court Fees Act/Civil Procedure Code, there seems to be no reason for arriving at such conclusion. Thus, there is no merit in claiming that the suit of the plaintiff is under valued. Accordingly this issue is decided against the defendants.
Issue number 2, that is whether the plaintiff is entitled for a preliminary decree of partition in respect of the property bearing number C-2/275, Yamuna Vihar, Delhi-53, as claimed in the plaint? Issue number 3, that is, whether the plaintiff is entitled for a decree of possession in respect of her share in the suit property, as claimed in the plaint? Issue number 4, that is whether the plaintiff is entitled for a decree of declaration, as claimed in the plaint? and Issue number 5, that is, whether the plaintiff is entitled for a final decree of partition in respect of the abovesaid suit property? The onus to prove all these issues is on the plaintiff. All these issues being interconnected and having the bearing upon each other are taken up together.
First of all, it seems necessary that the aspect of burden of proof/relevancy of the evidence in the civil proceedings be elaborated. The incidence of the burden on different issues may lie in different places CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 11 of 19 and issues may rise or fall according to the facts proved. But, on analysis of issues the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. The initial burden of proving a prima facie case in his favour is cast on the plaintiff, when he gives such evidence as will support a prima facie case, onus shifts on the defendants. A party has to plead the case and produce / adduce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. Plaintiffs have to create a high degree of probability so as to shift the onus on the defendants. At the same time, it needs to be understood that in civil case a mere preponderance of probability due regard being had to the burden of proof must be a sufficient basis of decision. So, also there may be degrees of probability with in the higher domain of probability. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. Thus, burden of proof lies upon the plaintiff and it is he who has to prove the fact and it never shifts, while the onus shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Reliance is placed upon Life Insurance CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 12 of 19 Corporation of India v Ram Pal Singh Bisen, (2010) 4 SCC 491, Ram Bhajan v Abdul Rahman, AIR 1997 AII 17, Rajasthan State Road Transport Corporation v Bajrang Lal, (2014) 4 SCC 693, A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
9. Further, with respect to the mode and manner of the execution of the Will, in case titled as "Shiv Kumar & Ors. v. Sharanbasappa & Ors.", Civil Appeal No. 6076/2009, the Hon'ble Supreme Court has laid down principles governing the adjudicatory process concerning proof of a Will. The relevant extracts thereof are reproduced herein below for ready reference:
11. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows:-
1. 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. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
2. 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.
3. 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 initial onus, naturally, CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 13 of 19 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.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The 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.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion etcetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may 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.
6. 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'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.
7. 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 dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion.
The circumstances above-noted are only illustrative CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 14 of 19 and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. 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.
8. 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?
9. 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.
10. Now, in the instant case, admittedly, suit property belongs to the mother of parties, Late Sheela Devi. Plaintiff, here is making the claim over the suit property being one of the legal heirs of Late Sheela Devi. On the other hand, defendants are stating that the mother of the parties, Late Sheela Devi had already executed a Will, which is Ex.DW1/1 in favour of defendants and therefore, plaintiff is not entitled to any of the share in the suit property as such. The Will, Ex.DW1/1, is accordingly, the most important piece of evidence, as, it is excluding the plaintiff from making/pressing her right over the suit property. It is to be noted that the lawful execution of the Will had to be necessarily proved in accordance with section 68 of the Indian Evidence Act, 1872 read with section 63 of CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 15 of 19 the Indian Succession Act, 1925. Also, section 69 of the Indian Evidence Act explains the situation where attesting witnesses cannot be found then it must be proved that the attestation of one of attesting witnesses is atleast in handwriting and that the signature of the person executing the document is in the handwriting of that person. More specifically, section 68 of the Indian Succession Act, 1925 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 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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] Alongwith, section 63 of the Indian Succession Act describes the mode and method of proving a Will and it 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) ....
(b) ....
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement 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."
No doubt, a Will is basically executed to alter the ordinary mode of succession, merely because some of the natural heirs have either been CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 16 of 19 excluded or lesser share had been given to them, by itself, will not be considered to be suspicious circumstance. Adverting, to the facts of the case, Will Ex.DW1/1 has also to be seen in the light of surrounding circumstances, that, it has excluded one of the legal heirs of the suit property without having in it's body any specification/clarification in that regard. It is stated by the plaintiff that admittedly her other sister and one of the brothers have also done marriage as per their own choice and this cannot be ground for her exclusion from Will. Also, admittedly Will was executed in presence of it's beneficiaries and this is also one of the reasons that it has to be seen/analyzed more carefully. It is also to be noted that the Will has not been signed by any of the attesting witnesses on each of the pages, neither any of the attesting witnesses have been called for deposing before the Court without mentioning any reason. It is well settled by the Hon'ble Superior Courts that mere registration would not give irrebutable presumption of genuineness to a document. In Rani Purnima Debi & Anr. vs. Khagendra Narayan Deb & Anr, AIR 1962 SC 567, the Hon'ble Supreme Court of India has observed that... "Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will, though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator admitted the execution of the Will after knowing that it was a Will the execution of which he was admitting...."
Again, in Dhani Ram (died) through LRs. & Ors. vs. Shiv Singh, Civil Appeal No. 8172/2009, decided on 06.10.2023 by the Hon'ble Supreme Court of India (Civil Appellate Jurisdiction), it was quoted/observed that ...."22. We may also refer to Janki Narayan Bhoir vs. Narayan Namdeo Kadam, (2003) 2 SCC 91, wherein this Court held that, to prove that a Will has been executed, the requirement in clauses (a), (b) CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 17 of 19 and (c) of Section 63 of the Succession Act have to be complied with. It was pointed out that the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that the Will was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63 (c) of the Succession Act. These observations were affirmed and quoted with approval by this Court in its later judgment in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria & Ors. (2008) 15 SCC 365" Reliance is also placed upon Jagdish Chand Sharma vs. Narayan Singh Saini (Dead), 2015 8 SCC 615.
Defendants here had neither produced/summoned any of the attesting witnesses nor any official from the office of concerned Registrar to prove/corroborate the execution of Will in accordance with Indian Evidence Act as well as Indian Succession Act as already discussed above in detail. Despite, opportunities given, no attesting witness of the Will has ever been produced to corroborate it's execution in terms of the legal mandate that is, that any of the witnesses has seen Late Sheela Devi signed the Will or that the concerned witness has signed the Will in the presence of Smt. Sheela Devi. Therefore, in the totality of circumstances and in view of the above discussion, the compliance of the essential legal requirements in terms of section 68, 71 of the Indian Evidence Act and section 63 of the Indian Succession Act was not established. In the overall CS No. 482/2016 Kiran Sharma Vs. Aditya Sharma @ Rajesh Sharma & Ors. Page No. 18 of 19 scenario, it can be safely said that the defendants as such have miserably failed to prove the execution of the Will in terms of mandatory requirement therefore, the Will, dated Ex.DW1/1 is hereby declared as null and void. Accordingly, in light of abovementioned discussion, all these issues are decided against the defendants.
11. In view of the facts and circumstances of the case, the suit of the plaintiff is decreed in the following terms:- (a) Plaintiff and defendants shall be entitled to one fourth (1/4th) each share in the suit property that is property bearing number House Number C-2/275, Yamuna Vihar, Delhi measuring area 40 square yards constructed upto 4th floor. (b) The preliminary decree of partition be passed accordingly. Defendants are directed to hand over the physical possession of one fourth (1/4 th) each share in the suit property to the plaintiff. (c) The parties shall be entitled to exclusive possession of their respective shares in terms of preliminary decree. However, the appropriate method of partition of suit property shall require further inquiry, which shall be conducted in due course.
(d) Further, a decree of declaration is also passed in favour of plaintiff and against the defendants thereby Will, dated 25.04.2016 Ex.DW1/1 is hereby declared as null and void.
12. Preliminary decree sheet be prepared accordingly.
MANU Digitally signed by
MANU VEDWAN
VEDWAN Date: 2024.03.27
15:31:41 +0530
(Manu Vedwan)
Addl. District Judge-02 (North East District)
Karkardooma Courts, Delhi.
Announced in the open court
today i.e. 26th March, 2024
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