Delhi District Court
Asha@Ayesha vs Hirawati on 16 November, 2024
ASHA @ AYESHA Vs. HIRAWATI
DLST010006822017
IN THE COURT OF DISTRICT JUDGE-02,
SOUTH, SAKET COURTS COMPLEX, NEW DELHI
Presiding Judge: Dr. Yadvender Singh.
PC NO. 7/17
FILING No. 275/2017
CNR No. DLST01-000682-2017
In the matter of :-
Ms. Asha @ Ayesha .............Petitioner
Versus
1. State
2. Smt. Hirawati
D-31A, Shiv Enclave
Dichu Road Kalan
Najafgarh
New Delhi-110043 .............Respondents
Date of Institution : 30.08.2012
Date of reserving the judgment : 14.10.2024
Date of pronouncement : 16.11.2024
Decision : Dismissed
Digitally signed by
YADVENDER YADVENDER SINGH
SINGH Date: 2024.11.16
PC No.7/17 17:33:55 +0530
Page 1 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024
ASHA @ AYESHA Vs. HIRAWATI
PETITION UNDER SECTION 263 OF INDIAN
SUCCESSION ACT, 1925 TO REVOKE THE PROBATE
NO. 75/2000 GRANTED ON 12.07.2001 BY LD.
DISTRICT JUDGE, DELHI
JUDGMENT
1. Vide this judgment, I shall decide the application filed by the applicant Smt. Asha @ Ayesha Siddiqui under Section 263 of Indian Succession Act, 1925 to revoke the probate No. 75/2000 granted on 12.07.2001.
BRIEF FACTS
2. The petitioner and respondent in this revocation petition shall be mentioned as applicant and non-applicant respectively in order to avoid any confusion which may arise while describing their respective nomenclatures in the main probate case.
3. The brief facts of the case are that probate was granted in favour of Smt. Hirawati, who is the mother of the applicant. The aforesaid probate was granted to Smt. Hirawati through her Attorney Ms. Asha @ Ayesha i.e. applicant herein. The necessary facts relating to the grant of probate and for the revocation of the probate are as under:
3.1. Sh. Maya Ram was maternal grandfather (Nana) of the applicant. He was the owner of Khasra No. 11/6 (4.16), 11/17 (2.16), 566 (0.05), 574 (0.02) and 590 (0.04). He was Digitally signed by YADVENDER YADVENDER SINGH SINGH PC No.7/17 Date: 2024.11.16 17:34:12 +0530 Page 2 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI also the owner of 3/20 share in Khasra No. 624 and had 1/20 share in the Khasra No. 567,576,578,1171 and 1177. Sh.
Maya Ram died on 07.12.1965. It was not known whether he has left any Will or not. Shri Maya Ram had left behind his legal heirs i.e. his wife Smt. Chintawati, his daughters Smt. Chandro and Smt. Hirawati and his son Sh. Aik Sarup. The son of Sh. Maya Ram namely Sh. Aik Sarup was not mentally fit since about 1960. All the heirs of Sh. Maya Ram inherited the property of 25% each according to Hindu Succession Act. After the death of Shri Maya Ram, the ownership of his entire properties devolved upon his legal heirs namely Smt. Chintawati (wife), Smt. Hirawati (daughter), Smt. Chandro (daughter) and Shri Aik Sarup (son) in equal shares. Shri Aik Sarup disappeared in December, 1972 and has not been seen and heard since then anywhere. He was presumed to be dead after 7 years of disappearance. After the death of Shri Maya Ram, Smt. Chintawati bequeathed her entire share to the applciant herein. Smt. Hirawati herself admitted the genuineness and correctness of the Will by filing an affidavit / No Objection Certificate with the Revenue Authorities at the time of mutation of the property particularly after the death of Smt. . Chintawati. Smt. Hirawati and her sons namely Ashok Kumar Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 17:34:19 +0530 PC No.7/17 Page 3 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI and Deepak Kumar also gave Affidavits/No Objection Certificate for the same. After the death of Smt. Chintawati, applicant was paid compensation of the share of Smt. Chintawati Smt. Hirawati herself admitted before the concerned official that Smt. Chintawati had executed Will dated 10.05.1990 in favour of the applicant. The share of Smt. Chintawati was paid to the applicant and Smt. Hirawati and Late Smt. Chandro also got their share. Even Smt. Chandro, who was the elder daughter of Sh. Maya Ram, also gave Affidavit/No Objection Certificate stating that Smt. Chintawati had executed a Will dated 10.05.1990 in favour of the applicant. Smt. Hirawati and her sons admitted the genuineness and correctness of the Will dated 10.05.1990 executed by Smt. Chintawati at the time of mutation of the land in the name of the plaintiff in respect of the share of Smt. Chintawati. It is submitted that after the death of Smt. Chintawati, the applicant applied for mutation of the land in her name in respect of the share of Smt. Chintawati. Smt. Hirawati gave affidavit/No an Objection Certificate that Smt. Chintawati had executed favour a of Will dated 10.05.1990 in the applicant. Smt. Chintawati also expired on 04.10.1991 and the Applicant became the owner of her share in terms of will dated 10.05.1990 executed by Smt. Chintawati. The Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:34:27 +0530 Page 4 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI mutation in respect of agricultural land was effected in the names of Smt. Hirawati, Smt. Chandro, Shri Aik Barup and the applicant in place of Smt. Chintawati in the revenue record on 04.12.1998. Smt. Hirawati and her sons Sh. Ashok Kumar and Sh. Deepak Kumar gave No Objection and also admitted the genuineness and correctness of the will of Smt. Chintawati in favour of the Applicant and also file the affidavit in this regard before the Revenue Authorities.
3.2. Smt. Hirawati and other legal heirs namely Smt. Chandro relinquished their respective share i.e. 1/4th each in favour of the applicant by way of Relinquishment Deed duly registered as Document No. 3950 in Address Book No. 1, Volume No. 174 on pages 55 to 57 on 03.06.1998 with the Sub-Registrar, New Delhi. The applicant became the owner of 3/4th share of the entire agricultural land left by Mr. Maya Ram and remaining 1/4th share was owned by Sh. Aik Sarup. Accordingly, on 03.06.1998, applicant became the owner of 3/4th share of the entire property left by Shri Maya Ram (grandfather of the applicant). In the year 1999, it was discovered that Shri Maya Ram had executed a Will during his lifetime bequeathing his property to Smt. Hirawati. Smt Hirawati then filed a petition for probate before the District Judge, Delhi which was granted in the year 2001.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:34:38 +0530 Page 5 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI
3.3. It is submitted that after the grant of the abovesaid probate on 14.12.2001 in PC No. 75/2000 is liable to be revoked as the earlier Will dated 15.04.1965 was superseded by another will dated 08.10.1965 executed by Late Shri Maya Ram was discovered through Ms. Sabha who came into occupation of the property earlier occupied by Late Sh. Maya Ram and discovered the Will dated 08.10.1965 in which Shri Maya Ram bequeathed his property to his wife instead of Smt. Hirawati. It was further stated in the Will that he cancelled his earlier Will which was in favour of Smt. Hirawati due to some circumstances and under the circumstances, Smt. Chintawati became entitled to the whole property of her husband Shri Maya Ram. Smt Chintawati already died in 1991 much before the aforesaid Will in her favour was discovered and during her lifetime had bequeathed her entire share to the applicant herein. The applicant is entitled to the entire property due to the Will of Shri Maya Ram in favour of Smt. Chintawati and the Will of Smt. Chintawati in favour of the applicant. As the later Will of Shri Maya Ram was discovered after the grant of Probate and in the later Will the previous Will of Shri Maya Ram (on the basis of which the probate was granted) was revoked in the entire property was bequeathed to his wife Simt.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:34:45 +0530 Page 6 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI
Chintawati. Hence, the present petition has been filed. REPLY
4. Reply to the application was filed. It is stated in the reply that present application is not maintainable as the same is based upon false and frivolous allegations Will dated 08.10.1965 is also a false and fabricated document upon which the applicant cannot seek any revocation of the probate of the Will dated 15.0.1965. It is stated in the reply that during his lifetime, Late Sh. Maya Ram executed his last Will dated 15.04.1965 in favour of respondent no.2. The respondent no.2 through the petitioner being her attorney obtained the letter of administration of the said Will. After 15.04.1965, Late Sh. Maya Ram did not execute any Will. The petitioner has not mentioned as to how, where and when the said alleged Will dated 08.10.1965 was discovered. It is stated that when the petitioner herself obtained the letter of administration of the Will dated 15.04.1965 being an attorney of the respondent no.2, then now the petitioner cannot contended that there was another Will of Late Maya i.e. alleged Will dated 08.10.1965.
4.1. It is stated in the reply that present application is barred by limitation. In the present case, the probate was granted by the Court of Sh. R.C. Jain, the then District Judge, Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:34:53 +0530 Page 7 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Delhi vide order dated 12.07.2001 and since beginning same is well within the knowledge of the petitioner. It is further stated that in CS (O.S) No.506 of 2009 titled as "Smt. Heerawati Vs. Ms. Asha @ Aysha Siddiqui & Ors", the petitioner who is the defendant no.1 in the said suit, filed her written statement dated 12.05.2009, in the said written statement the petitioner, the petitioner herself alleged regarding the alleged Will dated 08.10.1965 and along with the written statement the petitioner also filed the photocopy of the alleged Will dated 08.10.1965 and hence, the alleged Will dated 08.10.1965 was well within the knowledge of the petitioner prior to 12.05.2009. The applicant has filed the present application for revocation of the probate on 29.08.2012 after expiry of the period of three years from the date when the right to file the present application occurred in favor of the petitioner. The applicant has intentionally and deliberately has not disclosed the fact that when, how and where the alleged Will dated 08.10.1965 was came within the knowledge of the applicant. Admittedly the alleged Will dated 08.10.1965 was already within the well knowledge of the petitioner prior to 12.05.2009 and present application filed by the petitioner after expiry of the period of three years is not maintainable and is liable to be rejected. It is further Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:35:00 +0530 Page 8 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI stated that this court has no jurisdiction to try and entertain the present application and only the successor court of Sh. R.C. Jain, the then District Judge, Tis Hazari Court, Delhi, who granted the probate dated 12.07.2001 of the Will dated 15.04.1965 is competent to adjudicate the present application filed by the applicant. It is stated that admittedly Late Sh.
Maya Ram used to sign in Urdu language, this fact can be verified from the admitted Will dated 15.04.1965 which had been executed by Late Sh. Maya Ram during his life time and in the said will deceased had signed in Urdu. In all the documents Late Sh. Maya Ram signed only in Urdu. In the alleged Will dated 08.10.1965 there is no signature of Late Sh. Maya Ram. Sh. Maya Ram was a teacher in Government School Delhi. In the Will dated 08.10.1965, there is no description dated of alleged witness. It is further stated that after grant of the probate dated 14.12.2001 some dispute and differences have cropped between the petitioner and respondent no.2 and her son then the respondent no. 2 revoked her GPA and Will executed in favor of the petitioner, when the petitioner came to know this fact, then the petitioner openly gave the threats to the respondent no. 2 and her sons that she would teach a lesson to the respondent no. 2 and by manufacturing some document ended all the right, title and Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:35:06 +0530 Page 9 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI interest of the respondent no. 2 over the estate left behind by Late Sh. Maya Ram and thereafter the applicant/petitioner with her malafide intention has manufactured a forged Will dated 08.10.1965. It is further stated that present petition is barred under Order VII Rule 11 CPC as there is no cause of action ever arose. The allegations leveled in the petitioner are false, frivolous and baseless and based on forged documents. REPLICATION
5. No replication filed on behalf of applicant to the reply filed by the non-applicant.
ISSUES
6. The following issue was framed vide order dated 25.10.2018 :-
"1. Whether the applicant is entitled to seek revocation of the probate which was granted on 12.07.2001? Onus on the applicant."
EVIDENCE ADDUCED
7. In the present revocation petition, Ms. Vineeta, Assistant Ahlmad in the court of Ms. Vineeta Goyal, the then Ld. ADJ-03, South District, Saket Courts, New Delhi was examined as PW2. During his examination-in-chief, she brought the summoned record pertaining to the case titled Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:35:12 +0530 Page 10 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Hirawati Vs Asha @ Ayesha Siddiqui & Ors, CS No.7240/2016 which was pending in the court of Ms. Vineeta Goyal, Ld. ADJ -03, South District, Saket Courts, New Delhi. She stated that she had seen the photocopy of the Will dated
08.10.1965 of Late Maya Ram placed in the present court file and the same was the copy of the original Will filed in the CS No.7240/2016 which was pending in the court of Ms. Vineeta Goyal, Ld. ADJ-03. The copy of the Will dated 8.10.1965 was Ex.PW2/1 (OSR). She had also seen the photocopy of the Will dated 10.05.1990 of Late Smt. Chintawati placed in the present Court file and the same was the copy of the original Will filed in the CS No.7240/2016 which was pending in the court of Ms. Vineeta Goyal, Ld. ADJ -03. The copy of the Will dated 10.05.1990 was exhibited as Ex.PW2/2.(OSR). She stated that Ex.PW2/3 is the certified copy of admission/denial affidavit, which is correct as per my record. During her cross-examination, she deposed that she had no personal knowledge of the dispute between the parties and her statement was on the basis of the records alone.
8. No other witness was examined on behalf of the applicant in the present case.
9. During the proceedings, applicant submitted that evidence of Sh. Jagdish Prasad, who examined as D25W5 in Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:35:19 +0530 Page 11 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI connected partition suit bearing CS DJ 7142/16 to prove the Will in question, may be read in the present matter also. Vide order dated 17.08.2024, the evidence of Sh. Jagdish Prasad/D25W5 was allowed to be read in the present matter as evidence on behalf of the applicant to prove the attestation of the Will in question. During his examination-in-chief dated 12.01.2018, D25W5/Sh. Jagdish Prashad deposed that he was a typist at Tis Hazari from the year 1966. He further deposed that earlier he used to do Hindi and English typing but now he was doing only English typing. He deposed that he had seen the document Ex.D25W3/1, which bore the signatures of Sh. Mohanlal at Point A. He deposted that Sh. Mohan Lal used to come to him during the year 1966-68 for typing work and he had seen Sh. Mohan Lal writing and signing on many occasions and he recognized his signatures. He was duly cross-examined by Ld. counsel for the plaintiff/non-applicant herein.
10. Vide order of even date, application on behalf of the applicant/Asha @ Ayesha Siddiqui under Section 151 CPC was also allowed for taking on record the evidence of DW25 as recorded in CS DJ 7142/16. In CS 7142/16, applicant herein was examined as DW25 wherein she tendered her evidence by way of affidavit as Ex.DW25/A. She relied upon Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 17:35:26 +0530 PC No.7/17 Page 12 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI the following documents:
1. Certified copy of affidavit of admission denial dated 07.07.2012 as Ex.DW-25/1.
2. Affidavit of No Objection by the plaintiff dated 13.11.1998 is already Ex.D25/2 to Ex.D-25/6.
3. Certified copy of Will of Chitawati dated 10.05.1990 already Ex.D25W3/2.
4. Certified copy of Relinquishment Deed dated 03.06.1998 as Ex.D-25/7.
5. Certified copy of Will of Smt. Chandro dated 09.08.1996 as Ex.D-25/8.
6. Death certificate of Sh. Mohan Lal as Mark D1.
7. Death certificate of Sh,. Hari Singh as Mark D2.
She was duly cross-examined by Ld. counsel for the plaintiff/applicant herein.
11. No evidence was led on behalf of non-applicant. Thereafter matter was listed for final arguments.
12. I have heard the arguments of Ld. counsels for both the parties.
13. Time now to deal with the issues.
Issue No.1: Whether the applicant is entitled to seek revocation of the probate which was granted on 12.07.2001?
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: PC No.7/17 2024.11.16 17:35:34 +0530 Page 13 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Onus on the applicant.
14. In the present revocation petition, the applicant's stand is that one subsequent Will dated 08.10.1965 of testator Late Sh. Maya Ram was discovered in which the testator bequeathed his property to his wife instead of Smt. Hirawati/non-applicant herein. It was further stated that through the subsequent Will the testator also cancelled his earlier Will executed in favor of Smt. Hirawati/non-applicant herein due to some circumstances. Considering the ground on which the present revocation petition has been filed and to check the entitlement of the applicant to seek revocation of the probate granted on 12.07.2001 it becomes necessary to examine whether the subsequent Will dated 08.10.1965 was legally and validly executed by Late Sh. Maya Ram or not.
15. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to 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". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
Digitally signed by YADVENDERYADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:35:40 +0530 Page 14 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI "59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
"Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
"Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it. "Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
"Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
16. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason (such as intoxiation, Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
PC No.7/172024.11.16 17:36:04 +0530 Page 15 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
17. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which 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) The testator shall sign or shall 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 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."
18. As per the mandate of clause (c), a Will is required to Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:36:12 +0530 Page 16 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:36:18 +0530 Page 17 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
19. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"1. Stated generally, a will has to be proved like any Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:36:25 +0530 Page 18 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
"2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, 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."3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
"This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
"4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
PC No.7/17 2024.11.16
17:36:31 +0530
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ASHA @ AYESHA Vs. HIRAWATI
circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
"5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
"6. If a caveator alleges fraud, undue influence, coercion etc. 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 raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
20. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC)
443) and Rani Purniama Devi v. Khagendra Narayan Digitally signed YADVENDER by YADVENDER SINGH SINGH PC No.7/17 Date: 2024.11.16 17:36:39 +0530 Page 20 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). 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 of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 17:36:47 +0530 PC No.7/17 Page 21 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI
21. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v. Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
"(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:36:57 +0530 Page 22 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
22. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:37:04 +0530 Page 23 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI specifically denied."
23. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as Cheeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
24. The applicant's narrative is that the testator Sh. Maya Ram was her grandfather (nana). He expired on 07.12.1965 leaving behind his four Class-I Legal Heirs i.e. his wife Smt. Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 17:37:09 PC No.7/17 +0530 Page 24 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Chinta Wati, his son Aik Sarup and two daughters namely Smt. Chandro and Smt. Hirawati. The applicant is daughter of non-applicant Smt. Hirawati. The testator's son Aik Sarup was mentally ill and disappeared in December, 1972 and has not been seen and heard since then anywhere. It is further contended that earlier on the date of death of Sh. Maya Ram, no Will was discovered. Accordingly all the four legal heirs inherited the property of Sh. Maya Ram in the share of 1/4 th each as per Hindu Succession Act. It is further contended that Smt. Chintawati (wife of the testator) bequeathed her entire share to the applicant herein through a Will dated 10.05.1990. Smt. Chintawati has also expired on 04.10.1991. Further Smt. Hirawati/non-applicant herein and Smt. Chandro/daughter of testator also relinquished their respective shares i.e. 1/4 th each in favour of the applicant by way of relinquishment deeds dated 03.06.1998. Accordingly, applicant became the owner of 3/4th share of the entire agricultural land left by Sh. Maya Ram and remaining 1/4th was owned by Sh. Aik Sarup.
25. It is further contended that in the year 1999, it was discovered that Late Sh. Maya Ram/testator had executed a Will during his lifetime thereby bequeathing his property to Smt. Hirawati/non-applicant herein. A petition under Indian Succession Act, 1925 was filed on the basis of Will by Smt. Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:37:53 +0530 Page 25 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Hirawati and Letters of Administration of Sh. Maya Ram's property was granted to Smt. Hirawati vide order dated 12.07.2001 in case title Smt. Hirawati Vs. State by the court of Ld. District Judge, Delhi.
26. It is further contended that later it was discovered that Sh. Maya Ram had also executed a subsequent Will during his lifetime thereby bequeathing his property to his wife Smt. Chintawati and due to this subsequent Will dated 08.10.1965 of testator Late Sh. Maya Ram in favour of his wife Smt Chintawati and thereafter in view of Will dated 10.05.1990 executed by late Smt. Chintawati in applicant's favour, the applicant has become the absolute owner of entire property of Late Sh. Maya Ram. Therefore, the present revocation petition has been filed to revoke Letter's of Administration granted vide order dated 12.07.2001.
27. Reply on behalf of respondent no.2 Smt. Hirawati to the application under Section 263 of the Act, 1925 was filed. In the reply, it was contended by Smt. Hirawati/non-applicant that Will dated 08.10.1965 is a forged and fabricated document and on the basis of this document, the applicant cannot seek any revocation to the Will dated 15.04.1965 executed by late Sh. Maya Ram during his lifetime.
28. Order dated 04.03.2013 in the present petition shows Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:38:00 +0530 Page 26 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI that certified copy of the Will dated 08.10.1965 was filed by the petitioner and the same was taken on record. One application under section 151 CPC was also filed on behalf of the applicant in which filing of the original Will in a civil suit having number CS (OS) 506/2009 titled Hirawati Vs. Asha @ Ayesha Siddiqui before Hon'ble High Court of Delhi has been mentioned. It is also pertinent to mention here that vide order dated 09.05.2014 the present revocation petition was rejected on rejection of application under Section 5 of the Limitation Act by Ld. Predecessor Court. However, the file was again taken up on 05.11.2016 on application under Section 151 CPC of the applicant herein in view of order dated 19.09.2016 passed by Hon'ble High Court of Delhi.
29. In order to prove its case, the applicant examined only one witness i.e. PW2 in the present case. PW2 being Assistant Ahlmad is an official witness who brought the summoned record pertaining to case titled Hirawati Vs. Asha @ Ayesha Siddiqui in CS No. 7240/2016. The copy of the Will dated 08.10.1965 of Late Sh. Maya Ram was exhibited as Ex.PW2/1 (OSR). The copy of the Will dated 10.05.1990 of Late Smt. Chintawati was also exhibited as Ex.PW2/2 (OSR) during her evidence. The certified copy of admission/denial of documents as filed in the abovesaid civil Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 17:38:08 +0530 PC No.7/17 Page 27 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI suit was also exhibited as Ex.PW2/3 during the evidence of PW2. However, perusal of the affidavit of admission/denial of documents shows that the Will dated 08.10.1965 executed by Late Sh. Maya Ram has been denied by the petitioner/non- applicant herein.
30. The applicant also relied upon the evidence of D25W5 Sh. Jagdish Prasad in CS DJ 7142/16 in case titled Hirawati Vs. Ishwar Singh & Anr. Vide order dated 17.08.2024, this court allowed the evidence of D25W5 in CS 7142/16 to be read in the present case as evidence on behalf of the applicant to prove the attestation of the Will in question. ON IDENTIFICATION OF SIGNATURES OF TESTATOR AND ATTESTING WITNESSES ON THE WILL
31. As abovestated, the applicant relied upon evidence of Sh. Jagdish Prasad/D25W5 in Hirawati Vs. Ishwar Singh & Anr. to prove the attestation of the Will dated 08.10.1965. In this civil suit, the witness examined the signatures of one of the attesting witness namely Sh. Mohan Lal at Point A. This witness deposed directly in his examination-in-chief without filing any affidavit of evidence. He deposed that he was a typist at Tis Hazari in the year 1966. He stated that Sh. Mohan Lal used to come to him during the year 1966-68 for typing work and he had seen Sh. Mohan Lal while writing Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
PC No.7/172024.11.16 17:38:16 +0530 Page 28 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI and signing on many occasions and he recognized his signatures. He was cross-examined by Ld. Counsel for the plaintiff therein/non-applicant herein. He answered that he did not know when Sh. Mohan Lal expired. He deposed that he had typed some of the documents pertaining to the properties of Sh. Mohan Lal, however, he did not remember to which particular property those documents pertained to. He also answered that he could not say if Sh. Mohan Lal expired in the year 1967. He admitted the suggestion that the Will in question Ex.D25W3/1 was neither prepared nor signed in his presence and he had never seen the original of the Will. He also answered that he was not having any such original document in his possession which bore signatures of Sh. Mohan Lal. He further answered voluntarily that Sh. Mohan Lal used to visit him at the same frequency from 1967-68. He answered that he met Asha Siddiqui (applicant herein) in the year 2015 when she came to him for getting a mutation application scribed. He also answered during his cross- examination dated 12.01.2018 that address of the Mohan Lal was Kishangarh, Mehrauli. However, he also answered that he could not say that village Kishangarh was carved out in the year 1980 and it was not in existence in the year 1966-67. He also answered that Sh. Mohan Lal never disclosed his Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:38:21 +0530 Page 29 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI house number while getting his address recorded on the documents scribed by him. He also answered that he was not having any documentary proof to show that he used to sit in Tis Hazari Courts Complex in the year 1966-67. He also answered that he did not know whether at that time Mohanlal had any Advocate or not. He also answered that he did not remember the contents of the documents that Sh. Mohan Lal used to get scribed from him. These answers of the witness during his cross-examination creates doubt on the truthfulness of his stand that Sh. Mohan Lal used to get his documents scribed from him. Firstly, he voluntarily answered that Sh. Mohan Lal used to visit him from 1967-68. However, during final arguments before this court, it was admitted position of the applicant and Ld. counsel for the non- applicant that Sh. Mohan Lal expired in the year 1967. When Sh. Mohan Lal expired in the year 1967 then at no stretch of imagination, he could have been visited the witness in the year 1968. Secondly, the witness could not show any proof that he used to sit in Tis Hazari Courts Complex in the year 1966-67. He also could not produce any proof to show that he used to scribe documents of Late Sh. Mohan Lal. He also disclosed the name of Village of deceased Sh. Mohan Lal as Kishangarh, Mehrauli. It was argued by Ld. counsel for non-
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 17:38:28 +0530 PC No.7/17 Page 30 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI
applicant that Village Kishangarh was carved out in the year 1980 and it was not in existence in the year 1966-67. No revenue record/evidence was ever led by the applicant herein to show that Village Kishangarh was in existence in the year 1966-67. The witness also could not tell the house number of Sh. Mohan Lal and tried to avoid this question by answering that Sh. Mohan Lal never disclosed his house number while getting his address recorded on the documents scribed by him. It is against the general practice whereby usually the house number is mentioned as part of the complete address in the documents meant to be filed in the court.
32. The witness was examined in the year 2018 i.e. after around 50 years when he allegedly last saw Sh. Mohan Lal writing and signing. As per the witness himself, he was a typist at Tis Hazri Courts. Normally, it is not humanly possible to recognize the signatures of a person who signed 50 years ago and the witness did not disclose anything on the basis of which it may safely be assumed that the witness was able to recognize the signatures of Late Sh. Mohan Lal even after a gap of more than 50 years. In these circumstances, the deposition of D25W5 Sh. Jagdish Prasad creates doubt regarding his truthfulness and it cannot be relied upon.
33. Copy of the Will Ex.PW2/1 (OSR) in the present Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:38:36 +0530 Page 31 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI revocation petition as well as the copy of the Will Ex.D25W3/1 in CS DJ 7142/16 titled Hirawati Vs. Ishwar Singh & Anr. are not legible copies. In the abovesaid civil suit titled Hirawati Vs. Ishwar Singh & Anr., the copy of the Will was exhibited as Ex.D25W3/1 by an official witness Smt. Sunita, Assistant Ahlmad who produced the summoned record i.e. complete file of case CS DJ 7240/16 titled Hirawati Vs. Asha @ Ayesha Siddiqui.
34. In the present revocation petition, an application on behalf of the applicant herein was filed under Section 151 CPC on 23.11.2023 for taking on record certified copy of the examination-in-chief and cross-examination recorded in suit CS DJ 7142/16. Vide order dated 16.11.2024, the application was disposed of as allowed and in view of the submissions of the applicant, her examination in civil suit bearing CS DJ 7142/16 as DW25 was ordered to be read as her evidence in the present petition also.
35. In the abovesaid civil suit bearing CS DJ 7142/16, the applicant examined herself as DW25 and she tendered her evidence by way of affidavit Ex.DW25/A. In para 12 of the affidavit, it has been mentioned that the Will dated 08.10.1965 of Sh. Maya Ram was attested by his two brothers namely Sh. Mohan Lal and Sh. Hari Singh.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:38:59 +0530 Page 32 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI
36. During her cross-examination dated 15.01.2020 as DW25 in the abovesaid partition suit, copy of sale deed Mark D-3 was shown to the applicant herein and she answered that she could not say if the thumb impression on sale deed as shown is of Mohan Lal. Perusal of the sale deed shows that this sale deed was executed on 02.03.1959 and bears thumb impression of the executant Mohan Lal. On this sale deed the person namely Mohan Lal not only put his thumb impression instead of the signatures as an executant in the end of the sale deed but also put his thumb impression before Sub-Registrar also at the time of registration as reflects at the back side of the first page of the sale deed, while it bears signatures of other witnesses. This sale deed also shows the complete address of this Mohan Lal as son of Sh. Ramji Lal Jat resident of Mehrauli, Delhi. Mark D-3 is a certified copy of registered sale deed and was not disputed by the witness DW25/applicant herein. Sale deed Mark D-3 creates two natural questions. First, if signatures of Mohan Lal are considered to be true on the Will dated 08.10.1965 then it means Mohan Lal was literate and if Mohan Lal knew to make his signatures then why he put his thumb impression on the sale deed Mark D-3 instead of his signatures. Secondly, Mohan Lal has mentioned his address as Kishangarh, Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:39:06 +0530 Page 33 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Mehrauli in Will dated 08.10.1965 whereas his address in the sale deed Mark D-3 has been mentioned as Mehrauli only. One another question also arises why Kishangarh was not mentioned as address of Sh. Mohan Lal in the sale deed. These circumstances creates doubt on the truthfulness of the applicant's version that Mohan Lal was an attesting witness of the Will dated 08.10.1965. However, DW25/applicant herein probably tried to counter these presumptions by leading a copy of sale deed Mark D-4 during her cross- examination while answering voluntarily immediately after the sale deed Mark D-3 was put to her. Perusal of this sale deed Mark D-4 shows that it was executed on 23.11.1966 by Mohan Lal and Hari Singh and bears signatures of Mohan Lal and his residence has been described as Krishangarh, Mehrauli. However, the genuineness of this sale deed Mark D-4 was disputed on behalf of plaintiff/non-applicant herein while suggesting to DW25 during her cross-examination that Mark D-4 is a forged and fabricated document. However, the sale deed Mark D-4 was never proved by DW25/applicant herein. Accordingly, this sale deed Mark D-4 cannot be relied upon. Even if document Mark D-4 is considered to be genuine and admissible just for the sake of arguments then also it creates serious doubt on the genuineness of the Will Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.11.16 17:39:12 +0530 PC No.7/17 Page 34 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI dated 08.10.1965 as the difference between the signatures of Mohan Lal on the Will dated 08.10.1965 and on sale deed Mark D-4 is visible to the naked eye.
37. If the identification of signatures of Sh. Mohan Lal (one of the attesting witness of the Will in question) by Sh. Jagdish Prasad/D25W5 in CS DJ 7142/16 is considered to be correct then also considering the requirement of Section 69 of Indian Evidence Act 1872, the signatures of the person executing the document in his handwriting is also required to be proved.
38. The Hon'ble Supreme Court of India in case titled 'Ashutosh Samanta (D) By Lrs. vs SM. Ranjan Bala Dasi' Civil Appeal No. 7775 OF 2021 decided on 14.03.2023 held as under:
"14. There are often situations when wills which otherwise may have satisfied the requirements of being attested, as provided by law, cannot be proved in terms of the said two provisions, for the reason that the attesting witnesses are not available, or if one of the witnesses denies having attested the will. Sections 69 and 71 of the Evidence Act, 1872 then come to the aid of the propounder. Section 69 reads as follows:
Section 69 - Proof where no attesting witness found If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person." Section 71 reads as follows: Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:39:21 +0530 Page 35 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Section 71- Proof when attesting witness denies the execution If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence"
15. .... It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved." Section 69 was also considered in K. Laxmanan v. Thekkayil Padmini & Ors10:
"Since both the attesting witnesses have not been examined, in terms of Section 69 of the Act it was incumbent upon the Appellant to prove that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person.".
39. During cross-examination dated 15.01.2020 of DW25/applicant herein in the partition suit CS 7142/16 the suggestion was put to the witness that on Will dated 08.10.1965 Ex.D25W3/1 there was no signature of Late Sh. Maya Ram. In response, witness stated that sign of Sh. Maya Ram was at place B on Will Ex.D25W3/1. However, the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
PC No.7/17 2024.11.16
17:39:28 +0530
Page 36 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024
ASHA @ AYESHA Vs. HIRAWATI
witness did not explain anything that how she was aware about the signatures of Late Sh. Maya Ram. During the cross- examination one more suggestion was put to her that the thumb impression affixed in Ex.25W3/1 was not thumb impression of Sh. Hari Singh to which she answered that she could not say as she was 5 years old at that time. In these circumstances, when the witness DW25 was 5 years old at the time of execution of the alleged Will dated 08.10.1965 then the burden comes on the witness herself to prove that how she was able to identify the signatures of the testator, which she failed to discharge. Accordingly, her answer in the cross-examination in response of a suggestion in the given circumstances cannot be relied upon to prove the signatures of the testator on the Will. Accordingly, the valid attestation of the Will in question cannot be said to be proved as per provisions of Section 63 (c) of Indian Succession Act, 1925. SOUND AND DISPOSING STATE OF MIND AND FREE WILL OF THE TESTATOR
40. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has observed that propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:39:35 +0530 Page 37 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signatures on the document of his own free will.
It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signatures as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
41. The applicant relied upon the evidence of D25W5 in the abovesaid partition suit CS DJ 7142/16 to prove the valid execution of the Will. This witness did not depose anything about the sound and disposing state of mind and free will of the testator at the time of execution of the Will in question. Neither any other witness was examined nor any evidence/material was placed on record to prove this fact by the applicant. The burden to prove the sound and disposing mind and free Will of the testator becomes more important Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 17:39:54 +0530 PC No.7/17 Page 38 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI when the testator died within next two months of the execution of the Will. Accordingly, the applicant failed to prove the sound and disposing state of mind and free will of the testator at the time of execution of the Will in question. OTHER SUSPICIOUS CIRCUMSTANCES:
APPLICANT'S CONTRADICTORY VERSIONS ON DISCOVERY OF WILL
42. It is pertinent to mention here that the proceedings in the abovesaid partition civil suit No. 7142/16 in case titled Hirawati Vs. Ishwar Singh & Anr. and the present revocation petition were usually taken up on the same dates on most of the occasions after filing the present revocation petition.
43. Perusal of the present amended revocation petition and the abovesaid affidavit of evidence of DW25/A in the partition suit shows that the applicant herein put two different stories regarding discovery of Will dated 08.10.1965.
44. It is found to be deposed in the affidavit of evidence Ex.DW25/A that the Will dated 08.10.1965 was found by the deponent/applicant herein in the year 2009 while going through the contents of one wooden box of Late Smt. Chinta Wati which was lying in the house No. 289/4, Mehrauli, New Delhi on the sale of the said house.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.11.16 PC No.7/17 17:40:00 +0530 Page 39 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI
45. The original revocation petition does not disclose that how, where and when the Will in question was discovered by the applicant. During the PE also, no evidence was led by the applicant to prove these aspects. One application under Order VI Rule 17 read with Section 151 CPC was filed in the present revocation petition by the applicant herein. Vide order dated 25.10.2012, application was allowed and amended petition was taken on record. However, in the amended petition, at para 7 it has been mentioned that the Will in question was discovered through Ms. Sabha, who came into occupation of the property earlier occupied by Late Sh. Maya Ram and discovered the Will dated 08.10.1965 in which Sh. Maya Ram bequeathed his property to his wife instead of Smt. Hirawati. However, to prove this source of discovery neither the source itself nor any other witness was examined nor any other evidence was led in PE despite opportunity due to the reasons best know to the applicant.
46. Both the stories disclosing different sources regarding discovery of the Will cannot be true and at least one of them is necessarily false. It creates serious doubts on the genuineness of the Will.
NON-EXAMINATION OF LR'S OF ATTESTING
WITNESS TO IDENTIFY THE ATTESTATION
Digitally signed
by
YADVENDER
YADVENDER SINGH
SINGH Date:
PC No.7/17 2024.11.16
17:40:09 +0530
Page 40 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024
ASHA @ AYESHA Vs. HIRAWATI
47. As mentioned in para 12 of the affidavit of evidence Ex.DW25/A, the attesting witness Sh Mohan Lal expired on 02.12.1969 and Sh. Hari Singh expired on 05.12.1991. Their death certificates were also tendered during examination-in- chief as Mark-D1 and Mark-D2 respectively on 15.01.2020 in this civil suit. In para 13, it was deposed that Sh. Mohan Lal had two sons namely Sh. Subhan Lal and Sh. Chandrabhan, who were also the defendants in the civil partition suit and had expired and are defendants in the present case. Sh. Hari Singh had two daughters namely Smt. Premwati and Smt. Satyawati and are defendants in the partition suit and their whereabout are not known. Perusal of the amended memo of parties shows that defendant no. 20 A and defendant no. 20 B and defendant no. 21A and defendant no. 21B were impleaded as Lrs of Late Sh. Chandrabhan and Sh. Subhan Singh respectively and their respective addresses are also found to be mentioned in the amended memo of parties. Smt. Prem Wati and and Smt. Satyawati are also found to be mentioned as defendants no.22 and 23 as per amended memo of parties with their respective addresses of Delhi. So, when LRs of the attesting witnesses are party to the partition suit CS 7142/16 then also none of them was examined to identify their signatures/thumb impressions on Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:40:18 +0530 Page 41 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI the Will in question due to the reasons best known to the petitioner and she examined an outsider who allegedly last seen the signatures of one of the attesting witnesses around 50 years ago to prove the signatures of Mohan Lal on the Will dated 08.10.1965. These circumstances further castigate the genuineness of the Will.
CHANGED ATTESTING WITNESSES
48. The execution of an earlier Will dated 15.04.1965 of Late Sh. Maya Ram in favour of Smt. Hirawati/non-applicant is not disputed by the applicant. Sh. Vidya Bhushan, English Master Rattan Lal and Shiksha Devi were attesting witnesses of the Will. However, the subsequent Will dated 08.10.1965 was attested by different witnesses i.e. Sh. Mohan Lal and Sh. Hari Singh. The subsequent Will was allegedly executed by the testator Late sh. Maya Ram within next six months of the execution of earlier Will. However, it was not explained neither in the subsequent Will nor by the applicant herein that why any of the previous witness was not made attesting witness of the subsequent Will. It creates doubt on the genuineness of the Will dated 08.10.1965. CHANGED LANGUAGE OF THE WILL
49. The previous admitted Will dated 15.04.1965 is found to be written in Urdu language and also was signed in Urdu Digitally signed YADVENDER by YADVENDER SINGH SINGH PC No.7/17 Date: 2024.11.16 17:40:36 +0530 Page 42 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI by the testator, however, the alleged subsequent Will dated 08.10.1965 is found to be written and signed in Hindi language. Perusal of the Will dated 08.10.1965 shows the reason for this change of language, where the testator mentioned that the will was written in Hindi language just for the sake of convenience of the beneficiary of the Will in reading the same because she could read and write Hindi language. However, the previous admitted Will dated 15.04.1965 was written in Urdu language and no mention is there in the Will if the beneficiary/Smt. Hirawati was able to read and write Urdu language or not. It is also mentioned in this Will that if required second Will shall be self handwritten, however, it is not mentioned that the Will may also be written in any other language, which might be understood by the beneficiary. It was never explained by the applicant if Hirawati was able to read and write Urdu language or not. The applicant herein also relied upon Will dated 10.05.1990 Ex.D25W3/2 of Late Smt. Chintawati (Hirawati's mother) while deposing as DW25 in abovesaid partition suit Cs No. 7142/16. Perusal of this Will shows that Hirawati was one of the attesting witness of this Will.
Another attesting witness signed in English language, while Hirawati signed in Hindi. When there is no proof of Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 PC No.7/17 17:40:44 +0530 Page 43 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI Hirawati's knowledge about Urdu language then by considering the fact of her signatures in Hindi language on the abovesaid Will, it can safely be concluded that she had no knowledge of Urdu language. If she had no knowledge of Urdu then if same logic of knowledge regarding language of the Will as applied in the Will dated 08.10.1965 is also applied in Will dated 15.04.1965 then a question arises that why earlier Will dated 15.04.1965 of which Hirawati is a beneficiary was not written in Hindi language by the testator as she was also not aware about Urdu language in view of abovesaid discussion. These circumstances create doubt on the genuineness of the Will dated 08.10.1965.
50. In view of the abovesaid discussion, I am of the considered view that the applicant failed to prove that subsequent Will dated 08.10.1965 was legally and validly executed by Late Sh. Maya Ram. So, the applicant is not entitled to seek revocation of the probate which was granted on 12.07.2001. Accordingly, the issue No.1 is decided against the applicant.
51. In view of the finding given qua issue no.1, the present revocation petition is dismissed.
52. The copy of the Will dated 08.10.1965 Ex.D25W3/1 shall remain part of judicial file. Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 17:41:00 PC No.7/17 +0530 Page 44 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024 ASHA @ AYESHA Vs. HIRAWATI
53. Main case file bearing PC No. 75/2000 in case title 'Hirawati Vs. State' be returned back to the concerned Record Room.
Pronounced in the open Court on this 16th Day of November, 2024. Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2024.11.16 17:41:07 +0530 (DR. YADVENDER SINGH) DISTRICT JUDGE-02/SOUTH, SAKET COURTS, NEW DELHI PC No.7/17 Page 45 of 45 Dr. Yadvender Singh/DJ-02/South/Saket/ND/16.11.2024