Delhi District Court
Arsh Kumar vs Kailash Chander on 29 November, 2023
1
IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST
DISTRICT, TIS HAZARI COURTS, DELHI
CNR No: DLWTO1-000995/2013
Suit No:610378/2016 (Dated 20-12-2013)
Shri Arsh Kumar S/o Sh. Kailash Chander
R/o C-196, Second Floor, Hari Nagar
Clock Tower, New Delhi-110064 .....Plaintiff
Versus
1. Sh. Kailash Chander
R/o C-196, Second Floor, Hari Nagar
Clock Tower, New Delhi-110064
2. Sh. Ravinder Seth S/o Sh. Kailash Chander
R/o C-196, Second Floor, Hari Nagar
Clock Tower, New Delhi-110064 ..Defendants
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
Date of Institution of suit :20-12-2013
Date reserved for Judgment :25-11-2023
Date of Judgment :29-11-2023
JUDGMENT
1. Plaintiff has filed the present suit against the defendants for declaration and permanent injunction praying therein that Will dated 07-05-2013 alleged to be Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 2 executed by Smt. Soma Devi in favour of defendant is forged, fabricated, illegal, null and void and of no effect and same be cancelled. Plaintiff further prayed that any interest, right, encumbrance, lien or charge of any nature whatsoever created by the defendants over the suit property on the strength of aforesaid Will dated 07-05- 2013 is null and void and not binding on the plaintiff. Plaintiff also prayed that defendants be restrained from creating any third party interest of the suit property.
2. The case of the plaintiff as enumerated in the plaint is that defendant no.1 is the father of the plaintiff and defendant no.2 is the brother of the plaintiff. Smt. Soma Devi @ Smt. Swaran Kant was the wife of defendant no.1 and mother of the plaintiff and defendant no.2 and she was the absolute owner of the suit property bearing no.C-196, Second Floor, Hari Nagar Clock Tower, New Delhi- 110064.
3. It is averred by the plaintiff that Smt. Soma Devi, during her life time entered into a collaboration agreement dated 12-06-2009 with Smt. Sapna Maggo in respect of the suit property and the silent features of the above said collaboration agreement is as under:-
(i) Smt. Soma Devi shall retain one shop and one room set on ground floor measuring 12' x 31 '(including walls) adjoining property no.C-195, staircase space measuring 7' x 12' adjoining property no.C-197, and entire first floor with terrace roof rights, measuring 113.66 sq. yds out of suit property no.C-196 along with proportionate undivided, Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 3 indivisible and impartible rights of underneath land of the property.
(ii) Smt. Sapna Maggo will become the owner of the portion of ground floor without terrace roof rights, measuring 72.33 sq. yds (except stair case space of 7' x 12') out of suit property no.C-196 along with proportionate undivided, indivisible and impartible rights of underneath land of the property.
4. It is averred that plaintiff was the witness to the said collaboration agreement. It is stated that as per verbal arrangement with his mother, the plaintiff is entitled to one shop measuring 9'x10' situated at ground floor front side of plot No.C-196, because plaintiff was using the previously built up shop under the name and style of M/s Modi Jewelers since 2004 till 2009, prior to execution of collaboration agreement and the possession of the shop was handed over by plaintiff for demolition under collaboration agreement.
5. It is submitted by plaintiff that after construction of newly shop in the year 2010, the shop was subsequently used for room by defendant no.1. It is stated that plaintiff himself and his mother repeatedly asked defendant no.1 to vacate the shop/ room as he is losing his business of jewelry, however, on one pretext or another, the defendant no.1 kept the matter in abeyance.
6. It is stated that Smt. Soma Devi by virtue of collaboration agreement, thus became the absolute owner of the property bearing No.C-196, ground Floor, two Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 4 rooms set (front side) Hari Nagar Clock Tower, New Delhi-110064, ad measuring 40 sq. yds (hereinafter referred as to Suit property), which is more particularly shown in red colour in the site plan.
7. It is averred that Smt. Soma Devi died intestate on 10-05-2013 and plaintiff being one of the legal owner of Smt. Soma Devi is having equal share in the properties of late Smt. Soma Devi. It is further averred by plaintiff that he came to know that defendant no.1 in connivance with defendant no.2 had applied for transfer of electricity connection installed in suit property and filed an affidavit along with a Will dated 07-05-2013 alleged to be executed by Smt. Soma Devi in favour of defendant no.1 and on the basis of said Will defendant no.1 claimed himself as owner of the suit property.
8. It is stated by the plaintiff that aforesaid Will is forged and fabricated and on the basis of said Will the defendants want to grab the suit property. Plaintiff stated to have served legal notice dated 18-11-2013 upon the defendants to refrain them to act upon the said forged and fabricated Will but all in vain. Hence, the present suit.
9. Defendants filed written statement and stated that the suit of the plaintiff is false and fabricated and has been filed only to harass the defendants. It is denied by defendants that as per verbal arrangement with his mother, the plaintiff is entitled to one shop at ground floor as alleged by plaintiff. It is stated that no such verbal arrangement/ promise as alleged was made by the mother Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 5 of the plaintiff. It is further denied that plaintiff was previously using the shop under the name and style of M/s Modi Jewelers since 2004 till 2009 as alleged or that possession of the shop was handed over by plaintiff for demolition as alleged in the plaint under the collaboration agreement. It is stated that Smt. Soma Devi, the wife of the defendant no.1 and mother of defendant no.2 & plaintiff executed a Will dated 07-05-2013 in favour of her husband-defendant no.1 in her sound mind and conscious state. It is denied that aforementioned Will is forged and fabricated as alleged or that defendants wants to grab the suit property as alleged by plaintiff. Defendants have further denied all other averments of the plaintiff and prayed for dismissal of the suit of the plaintiff.
10. In his replication the plaintiff has reiterated the contents of his plaint and controverted the averments made in the written statement.
11. From the pleadings of the parties the following issues were framed for trial on 25-03-2015:-
(1) Whether the plaintiff is entitled to a decree of declaration declaring the Will dated 07-05-2013 allegedly executed by Smt. Some Devi in favour of defendant no.1 as null and void as prayed for ? OPP (2) Whether the plaintiff is entitled to a decree of declaration declaring any right, interest, encumbrance, lien or charge created by defendant no.1 &2 over the suit property on the Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 6 basis of Will dated 07-05-2013 as null and void as prayed for? OPP (3) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from creating third party interest in the suit property as prayed for ? OPP (4) Relief
12. Plaintiff has examined himself as PW1 and has filed his evidence by way of affidavit Ex.PW1/A which bears his signatures at point A and B. PW1 has relied upon the documentsEx.PW1/1 to Ex.PW1/4.
(I) MARK-A : Collaboration agreement dt. 12-06- 2009;
(ii) MARK-B : water bill dated 23-10-2013.
(iii) Ex. PW-1/1: site plan is of suit property.
(iv) Ex.PW-1/2 : Legal notice dt. 18-11-2013.
(v) Ex. PW-1/3 & Ex. PW-1/4 : postal receipts are.
13. Perusal of the file shows that earlier to the examination of plaintiff-PW1, the plaintiff had examined Sh. Sunil Sharma, Medical Record Clerk from Park Hospital, Meera Enclave near Keshavpur Bus Depot, New Delhi-110018, who has also been given witness serial number as PW-1, who has brought summary of documents of admission-discharge record of late Smt. Soma Devi which has been exhibited as Ex.PW- 1/1(Colly.) and Ex.PW-1/2 respectively. It is stated by Sh. Sunil Sharma-PW1 that he is not aware of the mental Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 7 condition of deceased Soma Devi at the time of her admission in the hospital. PW1 stated that she died in hospital on 10-05-2013.
14. There is one more witness namely Sh. Praveen Bajaj from BSES Rajdhani Poawer Limited, Hari Nagar Branch, who has been examined by plaintiff as PW-2, who has brought the name change application moved by defendant no.1 and current electricity bills. The same were exhibit ted as Ex.PW-2/1(Colly.) (Running in 15 pages) and Ex.PW-2/2 respectively.
15. No other witnesses was examined by the plaintiff and he closed his evidence on 04-04-2019.
16. On the other hand the defendants have examined Sh.
Yadvinder Singh as DW-1, who has filed his evidence by way of affidavit which is Ex.Dw1/A.
17. The Defendant no.1 Kailash Chander has examined himself as DW2, who tendered his evidence by way of affidavit which is exhibited as exhibit DW2/A which bears his signature at points A and B. He relied upon the documents i.e. (I) EX DW-2/1 which is the Original Relinquishment deed dated 24.02.1978;
(ii) Collaboration agreement which is already marked in PE as Mark A;
(iii) Original Will of Smt Soma Devi dated 07.05.2013 is EX DW-2/2;
(iv) Original Death certificate of Soma Devi dated 10.05.2013 is Ex DW2/3;
Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 8
(v) Application for transfer the electricity connection and affidavit dated 29.05.2013 were exhibited as DW2/4 in affidavit but since they are the photocopies they are now marked as Mark B(colly);
(vi) Copy of letter dated 01.09.2014 which is exhibited in affidavit as EX DW2/5 but the same is photocopy and now marked as Mark C.
18. DW-2 deposed that the contents of his affidavit are true and correct.
19. Defendant no.2 Sh. Ravinder Seth has examined himself as DW3, who tendered his evidence by way of affidavit which is exhibited as exhibit DW-3/A which bears his signature at points A and B. The defendant has examined the following witnesses:-
(I) DW-1: Sh. Yadvinder Singh (one of the two witnesses to the WILL dated 07.05.2013) (2) DW-2: Sh. Kailash Chander (Defendant No.1); (3) DW-3: Sh. Ravinder Seth (Defendant No.2); (4) DW-4: Ms. Divya Sehgal (Handwriting expert)
20. No other witness was examined by the defendant and ld. Counsel for the defendants has closed their evidence on 01-04-2023.
21. I have heard the final argument of ld. Counsel for the plaintiff and perused the written submissions filed on behalf of parties and also perused the material on record. My findings on the issues are as under:-
ISSUE No. (1) Whether the plaintiff is entitled to a decree of declaration declaring the Will dated 07-05- Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 9 2013 allegedly executed by Smt. Some Devi in favour of defendant no.1 as null and void as prayed for ? OPP And ISSUE No. (2) Whether the plaintiff is entitled to a decree of declaration declaring any right, interest, encumbrance, lien or charge created by defendant no.1 &2 over the suit property on the basis of Will dated 07- 05-2013 as null and void as prayed for? OPP
22. As far as the relief of Declaration is concerned, S.34 of the Specific relief Act deals with Discretion of Court as to declaration of status or right in the following words:
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief"
23. The object of this Section is obviously to provide a perpetual bulwark against adverse attacks on the title of the plaintiff, where a cloud is cast upon it, and to prevent further litigation by removing existing cause of controversy. The threat to his legal character has to be real and not imaginary. In Khan Bahadur Bhiwandiwala and co. AIR 1971 MP 65 the Hon'ble High Court observed that in order to obtain the relief of declaration the plaintiff must establish that :-
(a) the plaintiff was at the time of the suit entitled to any Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 10 legal character or any right to any property
(b) the defendant had denied or was interested in denying the character or the title of the plaintiff,
(c) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property,
(d) the plaintiff was not in a position to claim a further relief than a bare declaration of his title.
24. The plaintiff has to prove that the defendant has denied or is interested in denying to the character or title of the plaintiff. There must be some present danger or determent to his interest. So that a declaration is necessary to safeguard his right and clear the mist. The denial must be communicated to the plaintiff in order to give him cause of action.
25. In the present case it is the case of the plaintiff that Late Smt. Soma Devi @ Smt. Swaran Kant was the wife of defendant no.1 and mother of the plaintiff and defendant no.2 and she was the absolute owner of the suit property bearing no.C-196, Second Floor, Hari Nagar Clock Tower, New Delhi-110064. It is averred by the plaintiff that Smt. Soma Devi, during her life time entered into a collaboration agreement dated 12-06-2009 with Smt. Sapna Maggo in respect of the suit property
26. It is averred that Smt. Soma Devi died intestate on 10-05-2013 and plaintiff being one of the legal owner of Smt. Soma Devi is having equal share in the properties of late Smt. Soma Devi.
Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 11
27. It is also the case of the plaintiff-herein that he learned that the defendant no.1 is relying on a WILL dated 07-05-2013 alleged to be executed by Smt. Soma Devi in favour of defendant no.1 while seeking transfer of the electricity connection in his name. According to the plaintiff-herein the aforesaid Will is forged and fabricated and on the basis of said Will the defendants want to grab the suit property. Plaintiff stated to have served legal notice dated 18-11-2013 upon the defendants to refrain them to act upon the said forged and fabricated Will but all in vain. Hence, the present suit.
28. Perusal of the Written Submission of the plaintiff reveals that the plaintiff-herein is challenging the WILL on the following grounds:
(I) Will dated 07.05.2013 allegedly being forged and fabricated;
(ii) Smt. Soma Devi was not keeping well and was on medication before the death;
(iii) Smt. Som Devi was hospitalized for multiple problems when she was admitted in hospital on 08.05.2013
(iv) Smt. Soma Devi was not in position to execute any will when she died on 10.05.2013;
(v) Signature of Smt. Soma Devi were forged on the WILL dated 07.05.2013.
29. When disputing a will, the standard of proof required is of the preponderance of probabilities. Section 2(h) of the Indian Succession Act, 1925 defines a will to Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 12 mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is the last will of a free and capable testator.
30. A will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the will. It is the living who have to establish the will. It naturally throws a heavy burden on the court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspicious circumstance explained.
31. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of Laws but are rules of prudence. Normally, a will is executed by a person where he desirous, to either alter the normal rule of succession, or where he desirous to settle his estate in a particular manner amongst the legal heirs.
32. The Hon'ble Delhi High Court has laid guidelines vis-à-vis WILL in "Shri Vidya Sagar Soni vs State And Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 13 Ors." [AIR 2006 Delhi 354, 132 (2006) DLT 226] wherein the following factors have been considered while determining whether a WILL is genuine or not:
1. Disproportionate nature of a bequest.
2. Rationality in a will, raises presumption about due execution. Of course, being a presumption, it is rebuttable.
3. The more unreasonable an instrument is, the less probative value it carries. Where the terms of a will are unusual and the evidence of testamentary capacity doubtful, or due execution doubtful, the vigilance of the Court will be roused;
4. Full awareness of testator of the contents of the WILL;
5. Where a person is illiterate or semi-literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
6. The affirmative proof of the testator's knowledge and approval must be strong enough to satisfy the court, in the particular circumstances, that the will was duly executed. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. Another form of Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 14 affirmative proof is to establish that the testator gave instructions for his will and that the will was drafted in accordance with those instructions.
7. Conduct of the legal heirs when a will was propounded.
Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will. Reference to satisfaction of judicial conscience is a heritage inherited by court's since time immemorial for the reason, as noted above, a will is a solemn declaration as per which the living have to carry out the wishes of a dead person.
33. In the present case, the plaintiff has remained unshaken during his cross-examination and has stood firmly on his version of facts. The plaintiff-herein has firmly stated that he obtained the copy of Will dt 07.05.2013 from BSES office. Further stated that earlier electricity and water bills were in name of his mother but after death of his mother, he found said bills were coming in name of his father and thereafter he learned from the BSES office that on the basis of Will dt 07.05.2013, his father got the connections of electricity and water transferred in his name.
34. The plaintiff also stated that he filed three Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 15 complaints in PS Hari Nagar that the signatures of his mother are forged and fabricated on Will dt 07.05.2013. However, the said complaints have not been filed by the plaintiff in evidence.
35. Relevant portion of the cross-examination of PW-1 (Plaintiff-herein) has stated as under:-
"...It is correct that as per document filed by me, my mother died of sudden cardiac arrest. My mother was admitted in hospital on 08.05.2013 and prior to that, she was at home. She was mentally sound prior to her death. Although she was worried. ...The medical document pertaining to illness of my mother prior to 08.05.2013 are with my father. I do not remember where I was on 07.05.2013. Since I do not remember where I was on 07.05.2013 so I can not say who was present in my house on 07.05.2013.
...It is correct that Will dated 07.05.2013 was having photograph of my mother but same was the photocopy and I have not seen its original. After 3-4 months of the date of my mother, I obtained the copy of Will dt 07.05.2013 from BSES office. Vol. Since earlier electricity and water bills were in name of my mother but after death of my mother, I found said bills were coming in name of my father, thereafter I conducted inquiry from BSES office and came to know that on the basis of Will dt 07.05.2013, my father got the connections of electricity and water transferred in his name. After obtaining the copy of Will dt 07.05.2013, I found that it Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 16 was containing signatures of two witnesses as well as of my mother but the signatures of my mother were forged on the said Will.
... I have filed three complaints in PS Hari Nagar that the signatures of my mother are forged and fabricated on Will dt 07.05.2013. I have not filed those complaints on the court record. ...."
36. CONTRADICTORY TESTIMONIES OF DW-1, DW-2 & DW-3:
"The onus to prove the genuineness of the WILL dated 07.054.2013 was on the defendants-herein. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a WILL by S. 63 of the Indian Succession Act. The onus is on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. In other words, the onus on the propounder can be taken to be discharged on proof of the essential ingredients. Jarman on "Wills" says that " the general rule is that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator'." He adds that, "if a will is rational on the face of it, and appears to be duly executed, it is presumed, in the absence of evidence to the contrary, to be Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 17 valid." Similarly, Williams on " Executors and Administrators " has observed that, " generally speaking, where there is proof of signature, everything else is implied till the contrary is proved; and evidence of the will having been read over to the testator or of instructions having been given is not necessary."
37. The plaintiff has pointed out the relevant portions of the cross-examination of the defendant-witnesses. There is certainly a great amount of contradiction in the statements of the defense witnesses DW-1, DW-2 and DW-3 on the factual aspects of the testator (Smt. Soma Devi) and also the circumstances surrounding the execution of the WILL dated 07.05.2013. The contradictions are highlighted thus:
38. According to DW-1 (Sh. Yadvinder Singh one of the two attesting witnesses to the WILL dated 07.05.2013) he reached the house of Smt. Soma Devi where Sh. Kailash Chander (defendant no.1) and the defendant No.2 were present and the WILL was being typed and the typed copy of the WILL was shown to DW-1 who was one of the two witnesses to the WILL. The relevant portion of the cross- examination:
"...The Will dated 07.05.2013 was drafted and typed in the back portion of C-196, Hari Nagar and was got typed by Smt. Soma Devi. Typist had visited at home for the said purpose and I do not know who had called the typist. The typist did not come in my presence. I reached at the residence of Sh. Kailash Chander at about 11 am. When I reached there, I found Sh. Kailash Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 18 Chander, his son, Smt. Raj Kumari and other persons were present. When I reached at the house of Sh. Kailash Chander, the Will was being typed.
Smt. Soma Devi does not know English. Sh. Kailas Chander brought the typed copy of Will from the typist. I cannot tell from where the typed copy of Will was brought by Sh. Kailash Chander. Sh. Kailash Chander, typist and one more person went together and brought the typed Will at residence of Sh. Kailash Chander. I have read the contents of the Will which was compete in all respect and there were no blanks in the same..."
Whereas DW-2 (defendant No.1) has stated in his cross-examination that the Will, Ex DW-2/2 was found after about 10-15 days of the death of Soma Devi in her personal belongings. Further stated that he did not know whether Raj Kumari and Yadvinder Singh (DW-1) came to his house on 07.05.2013. The defendant No.1 had not seen Ms. Raj Kumari, Councilor and Sh Yadvinder Singh at his residence on 07.05.2013. The relevant portion of the cross- examination:
"The Will is dated 07.05.2013. Soma Devi do not know English. I know English. Soma Devi did not consult me while executing Will EX DW2/2 was prepared. Soma Devi was admitted in the hospital on 08.05.2013.....
...Will, Ex DW2/2 was found after about 10-15 days of the death of Soma Devi in her personal belongings. I do not know whether Raj Kumari and Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 19 Yadvinder Singh came to my house on 07.05.2013. I did not see Ms Raj Kumari, Councilor and Sh Yadvinder Singh at my residence on 07.05.2013. I know both Ms Raj Kumari and Sh Yadvinder Singh."
39. Whereas DW-3: Sh. Ravinder Seth (Defendant No.2) stated that the WILL dated 07.05.2013 was prepared in his presence on 07.05.2013 when he was at home with his father and mother. Further stated that the said Will was a typed Will and he had called the said typist. Relevant portion of cross-examination:
"...I have gone through the contents of Will of my mother dt. 07-05-2013. On 7-5-2013 I was at home with my mother. The said will was prepared in my presence. At the time of execution of the said Will myself, my father and my mother were present. ... I had called the said typist. I had also called the attesting witnesses of the said Will. My mother was not knowing English. The said Will narrated to my mother by my father. I had gone to the shop of the typist to get the print of out of the said Will.
40. According to DW-1 (Sh. Yadvinder Singh one of the two attesting witnesses to the WILL dated 07.05.2013) Smt. Soma Devi was got admitted in the hospital in April 2013 for about 3-4 days in DDU Hospital. She was not admitted in hospital after April 2013. She was not admitted in any hospital in the month of May 2013. Relevant portion of the cross-examination of DW-1:
"It is correct that Smt. Soma Devi used to remain Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 20 ill. She was suffering from heart ailment and breathing disorder. I have met Smt. Soma Devi after 07.05.2013 but I am not sure as to when exactly I met her. Vol. May be next day and thereafter on frequent basis. Smt. Soma Devi was got admitted in the hospital in April 2013 for about 3-4 days in DDU Hospital. She was not admitted in hospital after April 2013. She was not admitted in any hospital in the month of May 2013."
41. Whereas DW-2: Sh. Kailash Chander (Defendant No.1) stated that Soma Devi was admitted in the hospital on 08.05.2013. Soma Devi died in the hospital on 10.05.2013. She was admitted in the hospital on 08.05.2013 at 10 am. She was suffering from piles. Relevant portion of cross-examination:
".... Soma Devi was admitted in the hospital on 08.05.2013. Soma Devi died in the hospital on 10.05.2013. She was admitted in the hospital on 08.05.2013 at 10 am. She was suffering from piles."
42. There is glaring contradictions in the factual deposition of the witnesses DW-1, DW-2 & DW-3. This makes the execution of the WILL highly doubtful. The active role of Defendant No.1 (Sh. Kailash Chander) the beneficiary of the WILL cannot be ruled out - particularly in view of the cross-examination of DW-3 (Defendant No.
2) who admitted that the cutting at point A in the Will Ex. DW2/2 and the writing at point B & C were done by the typist at our home in the presence of his father i.e. Defendant no.1 who was the sole beneficiary of the said Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 21 WILL. The relevant portions of the cross-examination is:
"...At this stage the original Will Ex. Dw2/2 is shown to the witness. After seeing the said Will, the witness states that this is the same Will which was executed by my mother. The cutting at point A in the Will Ex. DW2/2 and the writing at point B & C was done by the typist at our home in the presence of my father."
43. The WILL dated 07.05.2013 is clouded densely and flouts the basic requirements of a genuine WILL. As held in the report published as (1838) 2 Moo P.C. 480 Barry v. Butlin, a classic instance of suspicious circumstances is where the will was prepared by a person who took a substantial benefit under it. Another instance is as opined in the report published as (1890) 63 LT 465 Brown v. Fisher where a person taking benefit under the will has an active role to play in the execution of the will.
44. As observed in , Rabindra Nath Mukherjee and Anr.
v. Panchanan Banerjee (dead) by LRs, [1995 AIR 1684, 1995 SCC (4) 459] disproportionate nature of a bequest is no doubt a suspicious circumstance to be kept in mind, but, being a mere suspicion, it is capable of being dispelled by other evidence to show voluntary character of the document.
45. As observed in Smt. Kamla Devi v. Kishori Lal Labhu Ram and Ors. [AIR 1962 P H 196] the omission of a close relation from the bounty of a testator raises a presumption in favor of some undue influence. The probative force of such a testament rises and falls in Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 22 inverse ratio to its unreasonableness.
46. EVIDENCE OF THE HANDWRITING EXPERT WITNES D-4 In the present case the plaintiff has doubted the genuineness of the signatures and has tried to discredit the testimony of the handwriting expert D-4 Ms. Divya Sehgal (Handwriting expert) who was put various questions during the cross-examination. The said witness DW-4 deposed that after the comparison, the opinion was given in the report Ex.DW4/A (colly, running into 5 pages). Further stated that the documents used for comparison the signature of Smt Soma Devi on the said Will dated 07.05.2013 were marked as D1 to D6 and scientific equipments were used. It was opined in favour of the propounder of the WILL i.e. defendant no.1.
47. As per the decision of Hon'ble Bombay High Court in "Shirish Popatlal Shah Vs. Arun Popatlal Shah"
[Testamentary Suit No. 20 of 2005 in Testamentary Petition No. 753 of 2004 Decided On: 08.07.2016] :
"Handwriting analysis is an imperfect science. Experts' opinions are error-prone. They are not to be brushed aside, but they are also not to be accepted as the unvarnished truth merely because they say a particular thing."
48. The plaintiff's counsel while cross-examining the handwriting expert DW-4 had put pertinent queries where the witness DW-4 admitted that the opinion was given on the photocopy of the signatures which not the original Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 23 signatures of the testator (relevant portions of cross- examination):
"It is correct that I had compared the documents with the photocopy only. I had asked Mr Kailash Chander to provide me the original of the documents for comparison but he told that he has photocopies only. Q- I put it to you that comparison of the signature on photocopies is a weak evidence. What you have to say? A- It is not a weak evidence but it is better to give opinion on the basis of original documents."
49. It has been held in a catena of judgments that an expert should form opinion on the basis of study of original document. In the Hon'ble Madhya Pradesh High Court held that the pressure points are analyzed by the hand writing expert for which original are required and in the absence of original documents, the analysis of a questioned document is limited to the features that survive the copying process as the "three-dimensionality" of the original document is lost. As per the Hon'ble Andhra Pradesh High Court in Bheri Nageswara Rao v. Mavuri Veerabhadra Rao and Ors [AIR 2006 AP 31] the opinion of a hand writing expert involves analysis of the slant, which a person uses in the matter of putting his signature, and in some cases, the point of time, at which it may have been subscribed. These analyses would become possible only vis-a-vis an original signature; and the signature mark on a xerox copy of a document can never constitute the basis.
50. Thus, the law is clear that the opinion of Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 24 handwriting expert is relevant but not conclusive. It is a fragile type of evidence. It is only corroborative evidence. It's probative value is that only on the basis of expert opinion no conclusion can be drawn if there is no other supportive evidence. It is to be accepted with good amount of circumspection. It is also clear that it cannot be ascertained as to whether the testator signed the Will or not only on the basis of expert opinion based on photocopies of the Will and if it cannot be established, there is no reason to prosecute the accused persons. (see Abhay Jain And 2 Ors. vs State Of M.P. And Anr. [MCRC No.431/2014 decided on 06.08.2018]
51. In the present case, in view of the facts / circumstances and the case laws cited hereinabove, it will not be safe to accept the report of the Handwriting expert witness DW-4.
52. The burden of proof of execution of a Will as also the suspicious circumstances attached to execution of such Will always lies on the propounder of the Will who has to prove the due execution of Will and remove the suspicious circumstances from the mind of the court by cogent and satisfactory evidence. The present case was hinged upon the validity of the WILL dated 07.05.2013 which was propounded by the defendant No.1 being the sole beneficiary of the said WILL. The plaintiff-herein as the challenger of the WILL has discharged his onus in establishing that the execution of the WILL dated 07.05.2013 does not inspire confidence.
Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 25
53. In the present case none of the tests as laid down in "Shri Vidya Sagar Soni vs State And Ors." [AIR 2006 Delhi 354, 132 (2006) DLT 226] and propounded by the guidelines prior to and after the said judgment, has been satisfied. The expert opinion and the report of DW-4 is also found unreliable and unacceptable in view of the various judgments cited hereinabove. Therefore, the plaintiff-herein is entitled to have the WILL dated 07.05.2013 declared as null and void. Thus ISSUE No.1 & 2 are decided in favour of the plaintiff and against the defendants No.1 & 2.
54. ISSUE No.(3) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from creating third party interest in the suit property as prayed for ? OPP As far as the ISSUE relating to permanent injunction is concerned, the object is to see that the defendant is perpetually enjoined from the assertion of a right or from the commission of an act which would be contrary to the rights of the Plaintiff as finally established before the court. It is a decree which concludes a right. Section 38 of the Specific Relief Act, 1963 enables a court to grant perpetual injunction to prevent the breach of an obligation existing In favour of the petitioner, whether express or implied. The point for determination is whether there exists an obligation in favour of the petitioner. Section 38 of the Specific Relief Act, 1963 enables a court to grant perpetual injunction to prevent the breach of an obligation Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 26 existing In favour of the petitioner, whether express or implied. The point for determination is whether there exists an obligation in favour of the petitioner.
Since the ISSUES No.1 & 2 have been decided in favour of the plaintiff the plaintiff is entitled to the decree of permanent injunction also. Thus the ISSUE No.3 is also decided in favour of the plaintiff and against the defendants No.1 & 2.
55. ISSUE No. (4) Relief In view of my findings on the aforesaid issues , the he suit of the plaintiff-herein is decreed with cost in favour of the plaintiff and against the defendants. The plaintiff- herein is granted the following relief:-
(A) Decree of declaration in favour of the plaintiff-
herein that the WILL dated 07-05-2013 alleged to be executed by Smt. Soma Devi in favour of defendant No.1 is hereby declared as null and void and of no effect.
(B) Consequently, any interest, right, encumbrance, lien or charge of any nature whatsoever created by the defendants over the suit property on the strength of aforesaid Will dated 07-05-2013 is null and void and not binding on the plaintiff;
(C) Decree of permanent injunction in favour of the plaintiff, thereby restraining defendants-herein, their agents, attorneys, legal heirs, servants, nominees, administrators, successors etc. from selling, mortgaging, alienating, transferring, assigning or Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 27 creating third party interest in the subject matter of the WILL dated 07.05.2013 i.e. suit property.
56. Decree sheet be prepared accordingly. File be consigned to record room. Digitally signed by VEENA VEENA RANI RANI Date:
2023.12.07 Announced in the open court. 15:33:48 +0530 ( VEENA RANI ) Additional District Judge-06, West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:29-11-2023 Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander 28 IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST DISTRICT, TIS HAZARI COURTS, DELHI CNR No: DLWTO1-000995/2013 Suit No:610378/2016 (Dated 20-12-2013) Shri Arsh Kumar .....Plaintiff.
Versus Sh. Kailash Chander & Anrs. .....Defendants 29-11-2023 Present: Sh. T.C. Sharma, ld. counsel for the plaintiff Defendant Kailash Chander in person. Vide my separate judgment, the suit of the plaintiff is decreed with cost. Decree sheet be prepared accordingly. File be consigned to record room.
Digitally
signed by
VEENA
VEENA RANI
Announced in the open court. RANI Date:
2023.12.07
. 15:33:54
+0530
( VEENA RANI )
Additional District Judge-06,
West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:29-11-2023 Suit No:610378/2016, Shri Arsh Kumar Vs. Sh. Kailash Chander