Delhi District Court
Smt. Kamlesh Kumari vs State on 19 May, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC- 74/11/00
In the Matter of:
Smt. Kamlesh Kumari
w/o Sh. Brij Lal,
r/o 37/1, Ashok Nagar,
New Delhi.
.................. Petitioner
VERSUS
1. State
2. Smt. Prem Lata(since deceased)
through her LRs.
(a) Sh. Ashok Kumar
s/o late Sh. Kishori Lal
r/o WZ-283, Sudershan Park
Moti Nagar, New Delhi-110015
(b) Rajender Kumar
s/o Late Sh. Kishori Lal
r/o 37/1, Ashok Nagar,
New Delhi-110018
(c) Ms. Veena Kumari
w/o Sh. Harpal Singh
d/o Late Sh. Kishori Lal
r/o C-208 JJ Colony Dakshin Puri
New Delhi-110062.
3. Smt. Chander Kala
w/o Sh. Ram Nihore
r/o B-401, Jalapuri
New Delhi.
......Respondents
PC-74/11/00 Page:-1/28
Date of Institution: 13.01.2000
Date of Assignment to this court: 15.09.2012
Date of Arguments: 02.05.14
Date of Decision: 19.05.14
JUDGMENT
1. Vide this judgment I shall dispose off instant petition u/s 375 of Indian Succession Act,1925 for grant of probate in respect of the estate of deceased late Puran Chand @ Puran Mashi son of Sh. Mohan Lal in view of Will dated 14.8.71. As stated Sh. Puran Chand expired at Delhi on 6.4.1978 and under the said Will Sh. Puran Chand had bequeathed his property bearing no. 37/1, Ashok Nagar, Tihar-II, New Delhi in favour of the petitioner who is his daughter. It was accordingly prayed that probate be granted to the petitioner in respect of last Will of the deceased.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed on record. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " Statesman" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper "Statesman" on 6.3.00, however no objections were filed by anyone.
PC-74/11/00 Page:-2/28
4. Thereafter in support of her case petitioner examined herself as PW-1, Sh. Kundan Lal as PW-2, Sh. Dinesh Mittal, LDC from Sub Registrar Office as PW-3. PW-1 reiterated her case as set out in the petition. PW-2 stated himself to be the attesting witness of the Will and stated that the deceased Puran Chand executed a Will in his presence on 14.8.71 and in presence of Harbhajan Singh. He stated that Sh. Puran Chand signed the Will in his presence at point A and he signed the Will at point B and Sh. Harbhajan Singh singed at point C. He stated that Sh. Puran Chand had executed the Will voluntarily without any pressure or coercion and the deceased was in sound disposing mind at the time of execution of the Will. Will was Ex. PW-2/1. PW-3 stated that Will dated 14.8.71 Ex. PW-2/1 was registered in their office vide document no. 3379 in addl. Book no. 3, Vol. no. 2817, page 116 regd. On 10.2.97. He deposed that Will Ex. PW-2/1 is correct according to the record brought by him.
5. Thereafter matter was fixed for final argument and after hearing the arguments of Ld. Cl. for petitioner instant petition was allowed vide impugned ex-parte order dated 7.2.02 and letter of administration dated 23.3.02 was accordingly issued to the petitioner.
6. Later on respondents no. 2 an 3 moved an application for revocation of PC-74/11/00 Page:-3/28 the order dated 7.2.02 stating that they came to know about the impugned order only on 11.12.07 when petitioner disclosed the said fact in another suit for possession and mesne profit filed by her in March,2005. As stated petitioner as well as respondents no. 2 and 3 are the real sisters and daughters of late Sh. Puran Chand @ Puran Mashi who owned the property bearing no. 37/1, Ashok Nagar, New Delhi. As stated Sh. Puran Chand died intestate on 6.4.78 leaving behind petitioner and respondents no. 2 and 3 as his only legal heirs who got one third share each in the suit property. As stated one suit for partition was filed by respondent no. 2 in the year 2001 wherein petitioner had filed written statement but there also the factum of filing the instant probate petition as well passing of order dated 7.2.02 and letter of administration dated 23.3.02 was not deliberately disclosed . It is also stated that after the factum of passing of order and grant of letter of administration in probate petition came to the knowledge of respondents no. 2 and 3 their lawyer inspected the case file and it was revealed that no summons were duly served upon the respondents. As stated that Will alleged to be executed by the deceased in probate petition is forged and fabricated by the petitioner with malafide intention to usurp the valuable share of the respondents. It is also stated that the conduct of PC-74/11/00 Page:-4/28 the petitioner herein apparently reflects that petitioner with malafide intention to deprive the respondents from contesting the probate petition never disclosed the filing of the probate petition to them neither service of said petition was effected on them. Accordingly it was prayed that the order dated 7.2.02 be revoked and letter of administration dated 23.3.02 be cancelled.
7. Reply was filed on behalf of the petitioner opposing the said application on the grounds that no sufficient reason has been assigned for revocation of the probate and the same is barred by limitation. It is stated that petitioner had filed suit for possession and mesne profit against Smt. Prem Lata who is in possession of suit property on 29.3.05 and in the said suit it was clearly mentioned that the probate was obtained by the petitioner and thereafter mutation took place in the name of petitioner but respondents never moved any application as they had the knowledge of the present petition. Similarly in the case pending before the court of Sh. Praveen Singh an application u/o 6 Rule 17 CPC was filed by the petitioner wherein also fact that probate was obtained by the petitioner was clearly mentioned but the respondents choose not to file any objections. As stated even otherwise respondent Prem Lata had moved various applications in the PC-74/11/00 Page:-5/28 department of L&DO where the probate certificate is lying and hence the plea of respondents is contradictory and is liable to be dismissed. It was denied that petitioner has concealed any process of any court and it was prayed that the application for revocation moved by the respondents be dismissed.
8. Rejoinder to the reply of petitioner was filed by the respondents wherein contents of the application were reiterated and those of the reply were denied.
9. From the pleadings of the parties following issues were framed vide order dated 27.5.08:-
1) Whether there is just and sufficient cause for revocation of letter of administration dated 23.3.02 granted pursuant to the judgment dated 7.2.02? Onus placed on applicant
2) Relief.
10. Applicants/respondents in support of their case examined themselves as AW-1 and AW-2, Sh. Raj Kumar as AW-3, Sh. K.S. Ramgopalan as AW-4 whereas petitioner herself as RW-1, Sh. Brij Lal as RW-2 and Sh. Wazir Chand as RW-3.
11. After hearing arguments of both the parties the application for revocation was allowed vide judgment dated 5.1.13 and main probate petition was PC-74/11/00 Page:-6/28 restored back to its original number and position. However, petitioner went in appeal before Hon'ble High Court against the said judgment dated 5.1.13 but the said appeal was dismissed by Hon'ble High Court vide order dated 25.3.14 and present probate was proceeded further.
12.Objections were filed on behalf of the respondents wherein it was stated that the present petition is false, frivolous, baseless, without cause of action and the same is based on forged, fabricated and manipulated alleged Will dated 14.8.1971 falsely claimed to be executed by late Sh. Puran Chand Masih in favour of petitioner. It was stated that Sh. Puran Chand @ Puran Masih died intestate on 6.4.1978 leaving behind his three daughters namely Smt. Prem Lata, respondent no. 2, Smt. Chander Kala, respondent no. 3 and petitioner. It was stated that Sh. Puran Chand was alloted a built up property measuring 100 sq. yards bearing no. 37/1, Ashok Nagar, Tihar- II, New Delhi by the Government of India in the year 1947-48 as he migrated with his family as refugee during the partition between Indian and Pakistan and said property was allotted to Sh. Puran Chand being head of the family. It was stated that in the year 1947-48 when late Sh. Puran Chand migrated to India being refugee the petitioner was hardly about 2 years old and she was brought up and looked after mainly by the respondent no.3. It was stated that Sh. Puran Chand @ Puran Masih has no right or competent to execute the alleged Will dated 14.8.1971 in favour of the petitioner in respect of the property in question because he was allotted the same being head of the refugee family to India. It was stated that Sh. Puran Chand had not executed Will in question during his lifetime PC-74/11/00 Page:-7/28 and hence after his death the property in question devolved upon his three daughters in equal share i.e. 1/3rd to each daughter. It was stated that alleged Will as falsely claimed by the petitioner executed on 14.8.1971 in her favour by late Sh. Puran Chand in respect of the property in question was never disclosed by the petitioner to the objectors/respondents who are the real sisters of petitioner and having cordial relations between them. As stated petitioner in connivance with her husband Brij Lal with malafide intentions to deprive the objectors from the property in question had fabricated the Will in question. It was stated that the respondent no.2 has been residing in the premises in question since the life time of her father late Sh. Puran Chand and since the day the property in question was allotted by the Government of India to her father. As stated after the death of late Sh. Puran Chand, Smt. Prem Lata solemnized the marriage of the petitioner with Sh. Brij Lal in the year 1992 and born out all the expenses on her marriage. It was further stated that respondent no. 3 Smt. Chander Kala had also been residing in the property in question before her marriage held in the year 1958 and she had also lived with her family in the said property for about five years after her marriage. Smt. Chander Kala had been frequently visiting the property in question after she left the same. It was stated had the alleged Will had been executed by their father Sh. Puran Chand in favour of petitioner the same might have been disclosed either by their father during his life time of by the petitioner. As stated the alleged Will dated 14.8.1971 was not got registered by the testator during his lifetime who died on 6.4.1978 after passing of about seven years which casts doubt on the genuineness of the alleged Will and at the same time on the integrity of the petitioner. It was stated that as per the version of the PC-74/11/00 Page:-8/28 petitioner the alleged Will was got registered on 10.2.97 by the petitioner i.e. after lapse of 26 years from the date of alleged Will without intimating and disclosing it to the objectors. It was also stated that the present petition was filed in year 2000 whereas Sh. Puran Chand died on 6.4.1978 and petitioner has not given any reason as to why she waited for such long period of 22 years to claim her right in respect of the property in question. It was stated that petitioner and objectors had already other litigations in respect of the property in question since 2000-01 but the petitioner deliberately did not disclose the factum of obtaining ex-parte probate order dated 7.2.02 which was disclosed on 11.12.07 before the court of Sh. M.K. Gupta, ADJ, Delhi in the suit for possession and mense profit bearing no. 3806/06 which shows that petitioner has evil eyes on the property in question with sole motive to usurp the property in question. It was accordingly prayed that the instant petition be dismissed.
13.From the pleadings of the parties following issues were framed vide order dated 22.4.13:-
1) Whether the petitioner is entitled for grant of probate?OPP
2) Whether the Will dated 14.8.1971 is true and genuine?OPP
3) Relief.
14. Petitioner in support of her case examined herself as PW-1, Sh. Ram Phool Meena, LDC from the office of Sub Registrar as PW-2, Sh. Kundan Lal as PW-3. PW-1 i.e. petitioner reiterated her case as set out in the petition. She relied upon death certificate of Sh. Puran Chand Ex. PW-1/1, details of the property of the deceased Ex. PW-1/2, Will dated 14.8.1971 Ex. PW-1/3. PW-2 Sh. Ram Phool who was the official witness from the office of Sub Registrar compared Ex. PW-1/3 with official record and PC-74/11/00 Page:-9/28 stated that the same had been registered from their office. During cross examination he placed on record one order dated 6.1.97 passed by the Sub Registrar-I which was Ex. PW-1/3A. PW-3 Sh. Kundan Lal stated that Puran Chand @ Puranmashi executed a Will in his presence on 14.8.1971 and he adopted his statement dated 20.4.01 which was already made before the court.
15.In defence objectors examined R2W1 Sh. Rajender , R2W2 Sh. B.R.S. Bedi, R2W3 Sh. Rattan Lal and R2W4 Sh. Balwan Singh. R2W1 who is son of objector Prem Lata reiterated the case of the objectors and relied upon certificate of Central Board of Eduction reflecting the name of his school Ex. R2W1/1 and R2W1/2, certificate of Central Board of Education of Ms. Veena Kumari Ex. R2W1/3 and R2W1/4, ration card of the family Ex. R2W1/5, electricity bills pertaining to the property in question were collectively Ex. R2W1/6. R2W2 Sh. B.R. S Bedi, office Supdt. Deputy from Railway brought the service record pertaining to Kamlesh Kumari as well as late Sh. Puran Chand. He stated that as per service book the date of birth of Smt. Kamlesh Kumari is 21.4.1956 and her educational qualification is middle class. He stated that no school certificate regarding educational qualification or any other document had been filed by Kamlesh Kumari in service record. He further stated that late Sh. Puran Chand s/o Sh. Mohan Lal as per record joined the Railway department on 24.4.1948 and at that time he put his thumb impressions and signatures on the employees record of service copy of which was Ex. R2W2/1. He stated as per service record of Sh. Puran Chand filled a form of option dated 13.12.73 and the same was Ex. R2W2/2. He stated that after the death of Sh. Puran Chand all his service benefits as per certificate of identity which PC-74/11/00 Page:-10/28 was filled up by Asst. Controller of Store was given on said form. He stated that as per noting dated 13.7.78 the officers of department directed the amount of special contribution be paid equally to three sisters as per identity certificate wherein the name has been mentioned as Smt. Prem Kumar( married daughter aged 35years), Smt. Chandra Kala(married daughter, aged 32) and Kamlesh Kumar(unmarried daughter aged 22 years). It was stated that job of Puran Chand on compensatory ground was given to Ms. Kamlesh Kumari. R2W3 Sh. Rattan stated himself to be real nephew of late Sh. Puran Chand Mashi and he supported the case of the objectors. R2W4 Sh. Balwan Singh, handwriting expert stated that he had examined the disputed signatures of Puran Chand & Puran Masi on the Will dated 14.8.1971 already Ex. PW-1/3 and also examined the admitted signatures of Sh. Puran Chand & Puran Masi on his employees record of service already Ex. R2W2/1 and from form of option which is already Ex. R2W2/2. He stated that he found that disputed signature mark Q does not tally with the admitted signatures and the disputed signatures have been recorded by a different writer. He relied upon his report Ex. R2W4/1, enlarged photographs Ex. R2W4/2 and CD of signatures Ex. R2W4/3.
16.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsels for both parties.
17. Issue no. 1 and 2 :- Both these issues are taken up together. Before proceeding to decide these issues, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with PC-74/11/00 Page:-11/28 petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
18.Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force PC-74/11/00 Page:-12/28 when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vashram Vs. State of Gujrat. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Ku. Chandan & Anr. Vs. Longa Bai& Anr."
19.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that PC-74/11/00 Page:-13/28 more than one witness be present at the same time, and no particular form of attestation shall be necessary."
20.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
21. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to PC-74/11/00 Page:-14/28 be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
22. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
23. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
24.The intention in the Will are to be ascertained by all possible and available PC-74/11/00 Page:-15/28 circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in (1971) 1 MLJ 127 P. Manavala Chetty V. P. PC-74/11/00 Page:-16/28 Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral PC-74/11/00 Page:-17/28 circumstances."
25.In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party PC-74/11/00 Page:-18/28 who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act.
PC-74/11/00 Page:-19/28 As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
26.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to PC-74/11/00 Page:-20/28 dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
27. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
28. Now I have to see whether in the present case the above principles have been duly made out or not. As far as the ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will is concerned no objection in that respect was taken by the objectors and there is nothing on record to show that testator was not in good mental state at the relevant time. Hence it is held that testator was not suffering PC-74/11/00 Page:-21/28 from any disease at the relevant time of execution of the Will which would have effected his cognitive faculties.
29. Now I will deal with the question of valid execution of the Will. Perusal of the alleged Will dated 14.8.1971 Ex. PW-1/3 shows that deceased had bequeathed property in question bearing no. 37/1, Ashok Nagar, Tihar, New Delhi in favour of the petitioner. It is admitted case that objectors are the real daughters of the deceased and no reason had been mentioned in the Will in question for their debarment. Neither there is anything on record to show that deceased had any strained relationship with the objectors nor the same is pleaded by the petitioner. Though in the Will in question it is written that testator had married his other two daughters and petitioner is minor but that reason was not specifically attributed to bequeathing of the property in question in favour of petitioner and it was simply written that in the event of his death the property in question will be inherited by his third minor unmarried daughter Kamlesh Kumari to the exclusion of others and she will become its absolute owner. It has not come on record as to why the testator chose his minor daughter to be absolute owner over his other two major daughters when there were no strained relationship between them. Even if it is presumed that he wanted to secure the future of the PC-74/11/00 Page:-22/28 minor then he could have bequeathed part of the property in her favour and could have given his other two daughters part share in the property but the debarment of objectors from giving even part share in the property in the conditions when relations between the testator and objectors were cordial certainly raise doubt on the Will in question.
30. Further, the objectors have raised objection that the factum of the Will in question was never disclosed by the petitioner to the objectors and rather the Will in question which is dated 14.8.1971 was got registered by the petitioner on 10.2.97 after lapse of 26 years from the date of its execution as well as the present petition was filed in the year 2000 i.e. after lapse of almost 22 years of death of the testator. Petitioner has not pleaded anything in the petition nor in her affidavit as to how she gained the knowledge about the Will, however during cross examination when the question was put to her in this respect she stated that she came to know about the Will Ex. PW-1/3 when she was searching papers in the property in question but could not tell the date, month and year of founding the said Will in property. On the other hand PW-3 Kundan Lal who stated himself to be the attesting witness of the Will in question stated during cross examination that late Sh. Puran Mashi told him regarding execution of Will PC-74/11/00 Page:-23/28 about 1 week before the execution of the same but he did not tell the petitioner regarding the execution of the Will before the Will executed by late Sh. Puran Chand as these talks were between me and late Sh. Puran Chand Mashi. He further stated that he told petitioner regarding the execution of Will in her favour during some discussions with her but he could not tell whether he revealed regarding the execution of Will to petitioner after 1 month, 1 year, 2 year or 3 year and he did not remember the exact date and year. It is not clear as to petitioner herself found the Will in question or the attesting witness disclosed about the Will in question. Both petitioner and attesting witness have given contradictory versions regarding gaining of knowledge in respect of Will in question by the petitioner. There is nothing on record to show as to when the petitioner gained the knowledge about the Will Ex. PW-1/3 and in absence of the same petitioner certainly failed to explain on record why the Will was registered by her after lapse of 26 years of its execution or why the present petition was filed after 22 years after the death of testator. Further, during cross examination PW-1 petitioner stated that at the time of registration of the Will Ex. PW-1/3 there were four persons namely Sh. Kundan Lal, Sh. Harbhajan Singh, Sh. Tilak Raj and Sh. Krishan and she was present. She PC-74/11/00 Page:-24/28 also stated that she called the aforesaid persons at the time of registration of the Will. She stated that she did not call her elder sister and other relative at the time of registration of the said Will. No explanation was given by the petitioner as to why she did not call her elder sisters when she called other persons when even no strained relationship between her and her sisters has been pleaded by her. Rather PW-3 during cross examination stated that the marriage of petitioner was solemnised by her two sisters whereas petitioner during her cross examination denied that her elder sister namely late Smt. Prem Lata borne the expenses of her marriage. Again a contradictory version is given by the petitioner and PW-3. It has already come on record that objectors were not in knowledge of the present petition and the Will and revocation petition filed by the objectors has already been allowed vide judgment date 5.1.13 wherein it was observed by this court that "record shows that the petitioner who had obtained the probate in the probate proceedings has no where disclosed in clear terms regarding the obtaining of the probate order from the court". Hence, in view of the above, it is ample clear that petitioner deliberately did not disclose regarding the Will in question to her elder sisters and there is lapse of long period between the date of execution of Will and its registration as well as PC-74/11/00 Page:-25/28 between the death of the testator, registration of the Will and filing of the present petition and all the abovesaid questions remained unanswered by the petitioner which casts the shadow of doubt on the execution of the Will in question.
31. Further the Will in question had been signed by two attesting witnesses namely Kundan Lal and Sh. Harbhajan Singh. Sh. Kundan Lal has deposed before this court as PW-3. He had made contradictory statements as pointed out above. Further during cross examination he stated that the Will was typed in Tis Hazari Courts, Delhi, however he could not tell the date, month when the Will was typed but stated that it was typed in the year 1997 and he put his signatures on the Will in the year 1997. As per the case of petitioner the Will in question is dated 14.8.1971 whereas it was registered in the year 1997 and the said deposition of the attesting witness has completely destroyed the case of the petitioner that the Will was executed on 14.8.1971. PW-3 even stated that he signed the Will second time in the office of Sub Registrar, Kashmere Gate and stated that he had signed the Will Ex. PW-1/3 at point B but further stated that he had probably signed the Will at point B in Tis Hazari Court. When this witness was confronted with Will and asked to identify his signatures which he PC-74/11/00 Page:-26/28 signed in Registrar office he admitted that Will Ex. PW-1/3 does not bear his signatures except at point B. The said shaky testimony of PW-3 makes his testimony non trust worthy . Besides that it is also stated by PW-3 that he treat Smt. Kamlesh Kumari as his sister and she has been tying Rakhi to him since 1956. He even stated that the petitioner called him at Sub Registrar office, Kashmere Gate and he was called by the petitioner in her house about 1 or 2 days before visiting the office of Sub Registrar. He further stated that he had come to the court at the request of petitioner to depose in this case. The said statements of PW-3 shows that he is indirectly related to the beneficiary of the Will i.e. the petitioner which again raise doubt regarding the execution of the Will in question. Hence, the execution of the Will in question is surrounded with heavy suspicion and the Will in question cannot be given a clean chit.
32. Objectors have disputed the signatures of testator on the Will in question and have examined handwriting expert Sh. Balwan Singh R2W4 who has categorically stated that the signatures on the Will Ex. PW-1/3 does not tally with the admitted signatures which were on employees record of service Ex. R2W2/1 and from the form of option Ex. R2W2/2. No dent could be created in the testimony of handwriting expert. It is also pertinent PC-74/11/00 Page:-27/28 to mention here that petitioner herself produced a lease deed executed by the testator with Government in respect of the property in question at the stage of final arguments which was allowed to be tendered and was Ex. PX. If from the naked eyes the signatures on the Will Ex. PW-1/3 and signatures on Ex. PX are compared, then it can easily be concluded that both are different. Even this question of genuineness of signatures are ignored then also the contradictions as pointed above are sufficient to discard the Will in question. Accordingly in view of the above Will dated 14.8.1971 Ex. PW-1/3 cannot be stated to be the last testamentary disposition of the testator out of free will and without coercion and is accordingly rejected. Issue no. 1 and 3 are decided in favour of the objectors and against the petitioner.
33. Relief:- In view of the above findings , instant petition is hereby dismissed with costs. File be consigned to record room.
Announced in open court (Ajay Goel) on 19.5.14 ADJ-12(Central)/Delhi PC-74/11/00 Page:-28/28