Delhi District Court
Smt. Usha vs Sh. Ranbir Singh on 7 February, 2008
: 1:
IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
PC No.154/06
Date of institution : 08.9.2004
Date on which the judgment was reserved for : 31.1.2008
1. Smt. Usha,
D/o Late Sh. Ishwar Singh,
wife of Sh. Rajinder Singh,
R/o V. & P.O. Mubarak Pur Dabas,
Delhi - 110 061.
2. Smt. Raj Bala,
D/o Late Sh. Ishwar Singh,
wife of Sh. Balbir Singh,
R/o V. & P.O. Ferozpur,
District Sonepat,
Haryana.
3. Smt. Kunti Devi,
D/o Late Sh. Ishwar Singh,
wife of Sh. Surender Singh,
R/o V. & P.O. Rewari Khera,
Distt. Jhajjar,
Haryana. ............ Petitioners.
Versus
1. Sh. Ranbir Singh,
S/o late Sh. Hardwari,
R/o V. & P.O. Narela,
Delhi - 110 040.
2. Smt. Chameli Devi, W/o late Sh. Karan Singh
(Now deceased) through L.R's :
(i) Smt. Krishna, W/o Sh. Rajinder Singh
D/o Late Sh. Karan Singh,
R/o Savtantra Nagar, Narela,
Delhi.
: 2:
(ii) Smt. Satya Prabha @ Babli, W/o late Sh. Ramesh
and Grand Daughter of Sh. Karan Singh,
through her L.R's :
a) Manish (Grandson), S/o late Sh. Ramesh
through mother natural guardian (being mother)
b) Sonu (grandson), S/o late Sh. Ramesh
through mother natural guardian (being mother)
c) Manisha (grandson), S/o late Sh. Ramesh
through mother natural guardian (being mother)
d) Kalu (grandson), S/o late Sh. Suresh
through mother natural guardian (being mother)
All R/o (ii) and her L.R's
House No. 55-A, Panna Udayan,
Narela,
Delhi - 110 040.
3. State. ............ Respondents.
JUDGMENT
1. This is a petition for the grant of probate of Will dated 10.02.1993, executed by late Sh. Ishwar Singh, son of late Sh. Hardwari. Briefly stated the facts, as stated in the petition are that Sh. Ishwar Singh was the co-owner with his brothers Sh. Karan Singh and Sh. Ranbir Singh of agricultural land situated in the revenue estate of Village Narela, measuring about 35 Bighas and 12 Biswas and was also the co-owner of land measuring 30 Bighas and 9 Biswas, situated in Village Bhorgarh. He was also the owner of a built up house situated at Village Narela. Petitioners are the daughters of the deceased. During his lifetime, he executed Will, notarized by Notary Public dated : 3: 10.02.1993 in favour of petitioners. Respondents Ranbir Singh and Karan Singh are the brothers of the deceased. During the pendency of the case, respondent No. 2 Karan Singh expired. His legal heirs have been substituted on record.
2. Citation was published in Rashtriya Sahara but none appeared from general public to file any objection. Notice of the petition was given to the respondents. Respondent No. 1 filed objections, contesting the petition. He took seven preliminary objections stating therein that the petition has not been filed in accordance with the provisions of Section 276 & 281 of the Indian Succession Act, the petition is without any cause of action and is barred under Order 9 Rule 9 CPC. It has been stated that the petitioners had earlier filed a suit for declaration and permanent injunction on the basis of the Will dated 10.02.1993 but the same was dismissed in default on 23.03.1995 and therefore, the present petition on the same cause of action is not maintainable. It has also been stated that the petitioners have no locus standi to file the petition as they are neither the Bhumidars of the land nor they are in cultivatory possession of the same. It has been stated that deceased has died intestate and that the Will dated 10.02.1993 is a forged, fabricated and manipulated document. On merits, it has been stated that deceased Sh. Ishwar Singh was not possessing sound state of mind and was not in a position to execute Will dated 10.02.1993. It has been further stated that late Sh. Ishwar Singh was the joint : 4: Bhumidar of the agricultural land and after his death, respondent No. 1 along with Karan Singh (Deceased) became Bhumidar of the entire agricultural land left by deceased Sh. Ishwar Singh under Delhi Land Reforms Act. It is also stated that respondent No. 1 and the legal heirs of Karan Singh are in actual cultivatory and physical possession of the agricultural land.
3. Petitioners filed rejoinder denying the objections taken and reiterating the averments made in their petition.
4. The legal heirs of respondent No. 2 also filed objections. They took objections that petition has not been filed as per mandatory requirements of Section 276 and 281 of Succession Act. According to them, petition is not maintainable because the previous litigation filed by the petitioners was dismissed in default on 23.03.1995. It has been stated that the present petition is on the basis of same cause of action and is therefore not maintainable. It has been further stated that the respondents have been regarded as Bhumidars by the competent Revenue Court under Delhi Revenue Act vide case No. M-1020/9293 vide judgment dated 23.11.1993. Petitioners did not file any objection before the Revenue Court and therefore, the present petition is barred by resjudicata. It has been stated that the decision of competent Revenue Court in the matter of succession of late Sh. Ishwar Singh has become final. They have also challenged the Will stating that the same : 5: has been forged by the petitioners in collusion with the persons named at attesting witnesses.
5. Petitioners filed rejoinder to the reply of respondent No. 2, therein reiterating the averments made in their petition.
6. On completion of pleadings, following issues were framed:-
(1) Whether the Will dated 10.02.1993, propounded by the petitioners is the duly executed last and final Will of late Shri Ishwar Singh in good physical health and sound disposing state of mind? OPP.
(2) Whether the petition has not been filed in accordance with the provisions of Section 276 & 281 of the Indian Succession Act? OPO.
(3) Whether the petition is barred under Order 9 Rule 9 CPC? (4) Whether the petitioners have no locus standi to file the petition? OPO.
(5) Relief.
7. In their evidence, petitioners produced four witnesses. PW-1 : 6: is Smt. Usha (Petitioner No. 1). She tendered in evidence her affidavit Exbt. P-1, wherein, she has stated about the averments made in her petition.
PW-2 is Sh. Bhupinder Singh Dahiya. He is the Notary Public. The Will has allegedly been notarized by him but he states in his evidence that the Will does not bear his signatures at point A. It merely bears his name at point B and that the seal on the Will is not his seal.
PW-3 is Sh. Puran Singh, first attesting witness to the Will. He stated that the Will Mark X does not bear his signatures at point C. He further stated that he does not know the typist by the name Vinod. He was declared hostile and was cross examined. In cross examination, he denied the suggestion that he had signed at point C on the Will.
PW-4 is Sh. Vinod, second attesting witness. He stated that the Will Mark X does not bear his signatures at point D. He stated that testator Sh. Ishwar Singh was not known to him. He was declared hostile and was cross examined by the advocate of the petitioner. In cross examination, he stated that he does not know whether Ishwar Singh was the client of Sh. Ram Kumar Khatri, advocate. He denied that he typed the Will Mark X on the dictation of Sh. Khatri, advocate. He denied that Sh. Ishwar Singh had signed in his presence at point E. He further denied that he had signed at point D as attesting witness. : 7:
8. Respondents did not lead any evidence. Arguments have been heard from the learned advocates of the parties. My issue-wise findings are as under:-
9. ISSUE NO. 1
In order to succeed, petitioners being the propounder, have to prove that the Will dated 10.02.1993 conforms to the requirements of Section 63 of the Indian Succession Act. The burden of proving the execution and attestation of the Will is always on the propounder. For a Will to be accepted in evidence, special proof regarding attestation as required by Section 63 has to be adduced. To prove the due execution and attestation, it must be established that the testator and the attestors were present at the time of execution and the attestors saw signing the Will by the testator and the testator also saw attestors signing the Will. These things are clearly absent in this case. Both the alleged attesting witnesses have turned completely hostile. They have disputed their signatures on the Will. They have denied the execution of the Will in their presence. They have not identified the signatures of the testator. They have gone to the extent of saying that testator Sh. Ishwar Singh was not known to them. Even the Notary Public has denied that the Will bears his signatures or seal. The petitioners have miserably failed to prove the due execution of the Will in conformity with Section 63 of the Indian Succession Act. Issue No. 1 is accordingly decided. : 8: 10. ISSUE NO. 2
It has been argued that the petition has not been verified by the attesting witnesses in accordance with Section 281 of Indian Succession Act, which is a mandatory provision and therefore, petition is not maintainable.
11. As per provisions of Section 281 of the Act, every petition for grant of probate of any Will has to be verified by at least one of the attesting witnesses to the Will in the format as given in the Section.
Section 281 of the Act has used the words, " .......... the petition shall also be verified by at least one of the witnesses..........." and the format of the verification has also been given in the Section. But at the same time, the effect of non observance of the provisions laid down under Section 281 of the Act has not been given in the Act and therefore, these provisions were held to be directory in Nand Kishore Rai Vs. Mst Bhagi Kuer & others AIR 1958 Allahabad 329 and Jamuna Bai Vs. Surender Kumar AIR 1998 MP 274.
12. Although the petition has not been verified in terms of Section 281 of the Indian Succession Act but the petition cannot be dismissed on this ground. Issue No. 2 is decided accordingly. 13. ISSUE NO. 3 : 9:
Order 9 Rule 9 CPC provides for where a suit is wholly or partly dismissed under Rule 8 of Order 9 CPC, plaintiff shall be preculded from bringing a fresh suit in respect of the same cause of action. The learned counsels of respondents have argued that the present petition is barred under Order 9 Rule 9 CPC because the earlier suit filed by the petitioners for declaration and injunction on the basis of the same Will i.e. Will dated 10.02.1993, allegedly executed by late Sh. Ishwar Singh was dismissed in default on 23.03.1995. One of the prayers in the civil suit was to pass a decree of declaration in favour of the present petitioners and for declaring the petitioners as Bhumidars of share of their father in the agricultural land on the basis of his Will dated 10.02.1993. The certified copy of the plaint has neither been filed nor proved in this case. The cause of action in both the cases is different. While in the civil suit, prayer was made for the grant of injunction and declaration on the basis of the Will dated 10.02.1993, the present petition is for the grant of probate of Will dated 10.02.1993. The two cases are independent of each other. The scope and purview of both the cases is different and the cause of action is also different. Hence, in my view, the present petition is not barred under Order 9 Rule 9 CPC. Issue No. 3 is decided accordingly. 14. ISSUE NO. 4 It has been argued by the learned counsel of respondents that the petitioners have no locus standi to file the present petition as : 10 : they are neither the Bhumidars of the agricultural land nor they are in cultivatory possession of the same.
15. Section 222 of Indian Succession Act provides that the probate shall be granted only to executor, appointed by the Will. Admittedly, petitioners are not the persons named as executors in the Will. They are therefore not entitled to the grant of probate but it is a settled law that even in proceedings for grant of probate, letter of administration can be issued to a universal or residuary legatee. No separate proceedings are required to be filed in such cases. Petitioner are the beneficiaries under the alleged Will and therefore, it cannot be held that they had no locus standi to file the present petition. Issue No. 4 is accordingly decided in favour of the petitioners. : 11 :
16. ISSUE NO. 5 (Relief) In view of my findings on Issue No. 1, petition is dismissed. File be consigned to Record Room.
( RAVINDER DUDEJA ) ADDL. DISTRICT JUDGE: DELHI.
ANNOUNCED IN THE OPEN COURT ON 07.02.2008.