Delhi High Court
Sh. Surinder Pal Singh And Anr. vs Sh. Daljit Singh And Ors. on 31 August, 2007
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. This is a suit for partition, rendition of accounts and permanent and perpetual injunction. Initially, it was filed by the two plaintiffs-plaintiff No.1 and plaintiff No.2, who are the son and wife respectively of late Shri Prem Singh Bedi. However, afterwards the married daughters of late Shri Prem Singh Bedi were included as the plaintiff Nos.3 to 5. The defendants are also sons and daughter of Shri Prem Singh Bedi. The defendant Nos.1 to 5 being the sons and defendant No.6 being the unmarried daughter of late Shri Prem Singh Bedi.
2. The case set up by the plaintiffs is that the plaintiffs and the defendants are co-owners of the following properties:
i. Shop No.30, Central Market, Lajpat Nagar II, New Delhi.
ii. Double Storey House at A-49, Lajpat Nagar IV, New Delhi.
iii. Flat No. 23, Central Market, Lajpat Nagar II, New Delhi (above Shop No. 30, Central Market, Lajpat Nagar, New Delhi).
iv. Plot measuring 500 sq. yards in Faridabad.
v. 1000 sq. yards in Noida.
vi. 100 sq. yards plot in Ghaziabad Market (Two shops of 50 sq. yards each).
vii. One house recently purchased in Lajpat Nagar, New Delhi.
3. The co-ownership is claimed on the premise that Sh. Prem Singh Bedi, father of the plaintiff Nos.1, 3 to 5 as well as of defendant Nos.1 to 6 and husband of plaintiff No.2, had a joint Hindu family comprising of himself and all the parties to the suit and the aforesaid properties were purchased from the joint family funds and are, therefore, joint family properties. The claim of joint family is made on the averments that father of Sh. Prem Singh Bedi was employed as 'Hakim' and was earning substantial income from the said profession in Peshawar, which is now in Pakistan. From those earnings he purchased a family house in Peshawar, Pakistan. After his death some time in the year 1916, Sh.Prem Singh Bedi became the Karta of the joint family property and the house devolved upon him. Maternal grandfather of Sh. Prem Singh Bedi also purchased a house in Peshawar, Pakistan, which was also devolved upon Sh. Prem Singh Bedi after the death of the former. Sh. Prem Singh Bedi came to Delhi on the partition of the country in 1947. In lieu of the claims of the properties left behind in Pakistan, he was allotted shop No. 30, Central Market, Lajpat Nagar, Delhi in the year 1951 by the Ministry of Rehabilitation. Lease Deed dated 27.2.1970 for this purpose was executed in his favor. From this property Sh. Bedi did business of selling household wares etc. and earned substantial income. From the said income he purchased House No.A-49, Double Storey, Lajpat Nagar IV, New Delhi, which was being used for residential purpose by Sh. Bedi and his family and they started residing there. According to the plaintiffs, other properties, particulars whereof are mentioned above, were also purchased by Sh. Bedi out of the income from Shop No. 30, Central Market, Lajpat Nagar, New Delhi. In this manner, it is the endeavor of the plaintiff to project that all these properties were joint family properties to which the plaintiffs and the defendants have equal share after the death of Sh. Bedi and, therefore, partition of these properties is sought on this ground. It is submitted in the alternative that even if these properties are not the joint properties, the plaintiffs as well as the defendants would be owners of these properties to the extent of 1/8 each as successor-in-interest of Sh. Bedi, as, according to the plaintiffs, Sh. Bedi died intestate. Decree for rendition of accounts of the suit properties as well as decree for permanent injunction restraining the defendants from preventing the use and occupation of the possession of the suit property is also prayed for as a consequence.
4. The defendant Nos.1 to 4 have filed joint written statement. They have even preferred counter claim against the plaintiffs. Apart from taking various preliminary objections to the maintainability of the suit regarding non-joinder of necessary parties, improper valuation for the purpose of court fee and jurisdiction, suppression of facts etc., these defendants have pleaded that there was never any joint family of Sh.Prem Singh Bedi. In fact, according to the defendants, Sh. Bedi and his wife, namely, the plaintiff No.2 did not see eye to eye as the plaintiff No.2 had treated him with cruelty, torture and thereby deserted him. Sh. Bedi was living separately after he was maltreated by his wife and there was litigation between them. So much so, Sh. Bedi had also disowned the plaintiff No. 1 and the plaintiff No.3, for which purpose he had given public notice in Daily Pratap on 17.3.1990 and The Hindustan Times dated 14.7.1979 respectively. It is denied that the properties in question were the joint family properties. As per the defendants, all the properties were self-acquired properties of Sh. Bedi and, therefore, he had a right to dispose of those properties in any manner he liked and Sh. Bedi executed a duly registered Will dated 27.7.1982 in favor of the defendant Nos.1 to 4 in respect of the aforesaid properties as well as movable properties. On the basis of this Will, the defendants claim that they are the owners of different properties as bequeathed in their favor as per the said Will to the exclusion of the plaintiffs and, therefore, the plaintiffs have no right, title or interest therein. They have further stated that in so far as the Flat No. A-49, Lajpat Nagar IV, New Delhi and Flat No. 23, Central Market, Lajpat Nagar II, New Delhi are concerned, they were acquired by the defendant Nos.1 and 2 from their own funds and are their exclusive properties. Status of each property as to how it was acquired by Sh.Bedi and how it is bequeathed in the said Will is also given, in detail, in the written statement. Status of the litigation in the form of various cases between Sh. Bedi and the plaintiff No.2 is also given, with details thereof, to show that relationship between Sh. Bedi and these plaintiffs were not cordial because of which Sh. Bedi dis-inherited the plaintiffs from his properties in the said Will.
5. The plaintiffs filed the replication controverting the averments contained in the written statement. On the basis of pleadings, following issues were framed:
1. To what extent of share in the property the plaintiffs are entitled to? OPP
2. Whether Sardar Prem Singh Bedi was capable of executing a Will and if so to what extent? OPP
3. Whether the properties mentioned in the Schedule of Properties are joint family properties as purchased from Joint Family Funds?
4. Whether the Will dated 27th July, 1982 of Sardar Prem Singh Bedi is genuine? OPD
5. Whether the property shop no. 30, Central Market, Lajpat Nagar, Delhi was allotted to Sardar Prem Singh Bedi in lieu of claim property? OPP
6. Whether the properties Double Storey House at A-49, Lajpat Nagar, New Delhi and Flat No.23, Central Market, Lajpat Nagar II, New Delhi (shown as no.1 and 2 in the schedule of properties) have been acquired by defendant No.1 and 2 by separate funds? OPD
7. Whether the defendants are liable to render the accounts of Joint Family Business and Properties? OPD
8. Relief?
6. In support of the plaintiffs' case two witnesses are examined, namely, Smt. Shikha Sharma, who is plaintiff No.3, as PW-1 and Sh. C.L. Makkar, as PW-2 , who is UDC in the L&DO and produced the summoned record. On behalf of the defendants, three witnesses have been examined. The defendant no.1 Daljit Singh has appeared as DW-1. Sh. Vinod Kumar, who is one of the attesting witnesses of Will dated 27.7.1982, is produced as DW-2 and Sh. R.K. Chhabra, is produced as DW-3, who has deposed that he had been maintaining books of accounts for the shop Bedi Bartan Bhandar since 1974 and visiting the shop for one hour for last 30 years and had never seen the plaintiff No.1 or 2 or any other plaintiffs in the said shop. While discussing the findings on different issues, I shall refer to the testimony of these witnesses.
7. Counsel for the parties made their detailed submissions in support of their respective basis. I have considered those submissions with reference to pleadings, documents and the depositions of witnesses. From the pleadings noted above and the tenor of issues, it is clear that there are three facets of this case and all the issues can fall in one or the other category. These are:
a) Status of property bearing shop No.30, Central Market, Lajpat Nagar, which was allotted in favor of Sh. Prem Singh Bedi and in respect of which the claim of the plaintiffs is that it was allotted in lieu of claims of the property in Peshawar, Pakistan and, therefore, it is a joint famly property.
b) Status of other properties of Sh. Bedi. If these properties were purchased from the income derived out of the business at Shop No. 30, Central Market, Lajpat Nagar, New Delhi, whether these properties would also acquire the status of joint family properties. Incidental question here would be regarding the status of two properties, which are in the name of the defendant Nos.1 and 2 on which issue No.6 is framed.
The outcome of the aforesaid two broad issues would determine as to whether the properties are joint family properties claimed by the plaintiffs or they were the self-acquired properties of Sh. Bedi and/or the defendant Nos.1 and 2. If these or any of the above are held to be joint properties, to that extent Sh. Bedi had power to bequeath those properties by executing the Will.
(c) In case all or some properties are held to be self-acquired properties of Sh. Bedi, then the question of genuineness of Will dated 27.7.1982 would fall for consideration.
Therefore, while deciding various issues framed, I shall re-group them in the aforesaid three categories. My findings on various issues, as framed, are as under:
ISSUE No.5
8. Learned Counsel for the plaintiff submitted that Sh. Prem Singh Bedi was allotted shop No. 30, Central Market, Lajpat Nagar II, in lieu of properties left behind in Peshawar, Pakistan, which he had inherited from his father as per his Disclosure Form-A. This form Sh. Bedi had submitted along with his claim application, which is produced as Ex. PW 2/1. Conveyance Deed is filed as Ex. PW-1 and, therefore, this shop is the joint family property. In column 6 of Form-A, following information was sought:
How did applicant acquired his interest in the property (inheritance, purchase, gift etc.)?
The answer given against this column is "From my father". The address of the property mentioned in column 2 is house No. 524, Mohalla Lotian, Bazar Ganj Gali Kotla, Peshawar City.
9. On the other hand, learned Counsel for the defendants submitted that order dated 26.4.1951, which was passed by Claims Officer on this application (Ex. PW 2/1) mentions two properties. One was the aforesaid property No. 524 about which it is stated that the same was divided into two equal shares, one acquired by Sh. Prem Singh Bedi and his brother Sh. Raghubir Singh Bedi before building these houses. Other property mentioned in the order is the one, as per the order, Sh. Prem Singh Bedi had inherited from his maternal grandfather. Value of the claim passed against the house inherited from his father, as mentioned in the order, is Rs.2,608/-. He further pointed out that it was clearly mentioned in the order that after division of plot between the two brothers Sh. Bedi had made construction thereon. Cost of the building was assessed at Rs.1,328/- and after adding the value of the site, total value of the house was assessed at Rs.2,608/-. Therefore, out of Rs.2,608/-, once the cost of construction/building is excluded, the value of the site/land, which Sh. Bedi inherited from his fahter, comes to Rs.680/- only. Whereas against other house inherited from maternal grandfather, claim to the extent of Rs.10,000/- is mentioned. He, thus, pleaded that out of the total claim awarded, value of the inherited portion from father was very meagre, i.e. Rs.680/- only. He, therefore, submitted that allotment of shop No. 30, Central Market, Lajpat Nagar II, New Delhi, against this claim cannot be treated as ancestral property.
10. The aforesaid documents, which has come on record, would demonstrate the following:
Though in Form-A submitted by Sh. Prem Singh Bedi with the Central Claims Office, there is a mention about the residential property at Peshawar and it is also stated that the applicant acquired his interest in the property from his father, order dated 26.4.1951 (Ex. PW 2/1) clearly reveals that plot on which this house was constructed was divided between the applicant and his brother Sh. Raghubir Singh Bedi before building the houses. Thus, the applicant got only the plot of land from his father on which he built the house of his own. As far as plot is concerned, it was valued at Rs. 680/-. Remaining claim is towards construction of house on the said plot on which this money was spent by Shri Prem Singh Bedi. Further, substantial claim awarded is from second property, which was inherited by Sh. Bedi from his maternal grandfather. As per the Conveyance Deed executed in favor of Sh. Bedi, consideration for this property was fixed at Rs.4,003/-, which is paid by adjustment of the claims settled by the Settlement Commissioner in favor of Sh. Bedi. Therefore, it cannot be said that the consideration of this shop was from the claims given in favor of Sh. Bedi against the property which he inherited from his father, as that amount comes to only Rs.680/-. The Conveyance Deed is in favor of Sh. Bedi. From this evidence, it can be concluded that shop No.30, Central Market, Lajpat Nagar II, New Delhi, is not a joint family property and was the property of Sh. Bedi. In para 6 of the plaint, the plaintiffs have alleged that grandfather of the plaintiffs, i.e. father of Sh. Prem Singh Bedi had purchased a family house in Peshawar, Pakistan and after his death, the said house devolved upon him since other brothers had already been separated and taken their share. About the other house, which came to Sh. Prem Singh bedi from his maternal grandfather, it is alleged that he treated Sh. Prem Singh Bedi like his son and gave him the house. The defendants have denied these averments in the written statement. There is no evidence to suggest that Sh. Prem Singh Bedi's maternal grandfather "treated" him like his son and gave him the house. In fact, in the affidavit filed by PW-1 by way of evidence she has only stated that Mr. Bedi inherited this property from his maternal grandfather [Nana]. In her cross-examination, she states that this was told to her by her mother. This is, thus, clearly a hearsay. Therefore, I hold that shop No. 30, Central Market, Lajpat Nagar II, New Delhi, was not allotted to Sh. Prem Singh Bedi in lieu of ancestral properties left in Pakistan inasmuch as the compensation received by him from two properties were not of ancestral nature. Therefore, this property is to be treated as that of Sh. Prem Singh Bedi and not the joint family property. Issue is, thus, decided in favor of the defendants and against the plaintiffs.ISSUE No. 3
11. Though the properties, mentioned in issue No.6, are in individual name of defendant Nos.1 and 2, submission of the learned Counsel for the plaintiffs was that these properties were purchased by the father of the plaintiffs from the income earned from Shop No.30, Central Market, Lajpat Nagar II, New Delhi and, therefore, these properties form a nucleus of joint family property. However, no evidence is led in respect of the said joint family property. These issues cover the second facet of the case. The entire case of the plaintiff, on the basis of which they claim that other properties purchased were joint family properties, income is predicated on the premise that Shop No.30, Central Market, Lajpat Nagar II, New Delhi was a joint family property and, therefore, income derived there from, from which other properties were purchased, would also be joint family properties. The decision on issue No.5, therefore, would cover this aspect and these issues are also to be decided against the plaintiffs. Even if we proceed on the hypothesis that Shop No.30, Central Market, Lajpat Nagar II, was a joint family property, the conclusion which the plaintiffs want would not automatically follow. It would be for the plaintiffs to further prove that income derived from the business carried out in the said shop was also joint family income. It is also to be proved that the other properties were purchased from the income derived from the said business. The plaintiffs are confusing between the ownership of the property and the income, which is not from the property but from the business carried out in that shop. There is nothing on record to suggest that the business carried out by Sh. Prem Singh Bedi from this shop was a joint family business.
12. The defendants in the written statement have mentioned that plot measuring 500 sq. yards in Faridabad was sold by Sh. Prem Singh Bedi many years ago during his life time. Regarding other property, i.e. 100 sq. yards plot in Noida, the defendants had denied that there is any such house or property at Noida either with the defendants or it was ever owned by Sh. Prem Singh Bedi. In the plaint no particulars of these properties are given. Likewise, the property mentioned at serial No.7 in the schedule of properties filed by the plaintiff, i.e. "one house recently purchased in Lajpat Nagar, New Delhi" is denied by the defendants and they have said that no such property was ever purchased by the defendants or Sh. Bedi. Again, the description of the property is totally vague and no particulars are given. Therefore, in respect of the properties mentioned at serial No.4 to 7 in the schedule of properties, there is no proper description or particulars of those properties and in view of specific denial of the defendants, these cannot be gone into. In so far as shop No.30, Central Market, Lajpat Nagar II, New Delhi is concerned, it is already discussed above under issue No.5. That leaves us to serial Nos.2 and 3 and the answer of the defendants in the written statement in respect of these two properties are as under:
(i) Double Storey House at A-49, Lajpat Nagar IV, New Delhi. This house stands in the name of Daljit Singh (defendant No.1).
(ii) Flat No.23, Central Market, Lajpat Nagar, New Delhi. This property stands in the name of Daljit Singh and Inderjit Singh, the defendant Nos.1 and 2 respectively.
13. No doubt, case of the defendants is that partnership business was run from shop No.30, Central Market, Lajpat Nagar II, New Delhi in which the defendant Nos.2 and 3 and their father were the partners and to substantiate this contention, partnership deed is not placed on record. Learned Counsel for the plaintiffs has also argued that in 1974, the defendant No.2 was only 15 years old and he could not be having any income at that time and therefore, could not have purchased the property in question from his own funds. From this, it does not automatically follow that property was purchased from the joint family funds in the absence of any proof that there was joint Hindu family or joint family business. Since the properties are in the name of the defendant Nos.1 and 2 respectively, presumption is to be drawn in their favor that the property belongs to them. Even under the Benami Transaction (Prohibition) Act, 1988 there is such a presumption. Therefore, burden was on the plaintiffs to prove that it was purchased from joint family funds which the plaintiffs have not been able to discharge. I may also, at this stage, take note of the various litigations, which were pending between Sh. Prem Singh Bedi and his wife/plaintiffs.
1. Manohar Kaur v.
Prem Singh Bedi, before Sh. Shiv Charan, Sub Judge, Delhi.
Suit for declaration and permanent injunction.
Suit No.15/85GS No.609 N.D. 8.1.85
2. Manohar Kaur v.
Prem Singh Bedi Under Section 125 Cr.P.C. before Smt. Deepa Sharma, M.M., Delhi.
Under Section 125 Cr.P.C.
Case No.5411/27/3/85
3. Manohar Kaur v.
Prem Singh Bedi Under Section 9 of H.M. Act and Under Section 24 of H.M. Act.
4. Prem Singh Bedi v.
Manohar Kaur before Sh. R.P. Gupta, Addl. Sessions Judge, Delhi Criminal Revision Cr.No.293/87
5. Prem Singh Bedi v.
Manohar Kaur before Hon'ble Mr. Justice Malik Sharifuddin FAO No.129/90 No.293/87
6. Prem Singh Bedi v.
Manohar Kaur before Hon'ble Mr. Mahesh Chandra, Delhi High Court.
FAO No.128/90 (Appeal) and C.M.1926/90
14. In the face of such a litigation between the parties, it is difficult to even assume that there was a Hindu Undivided Family (HUF) or the joint family business. These issues are, therefore, decided against the plaintiffs and in favor of the defendants.
ISSUE No.2
15. As the properties in question were not joint family properties and the property in respect of which purported Will is executed by Sh. Prem Singh Bedi were not joint family properties, it is held that he was capable of executing a Will in respect of all the properties mentioned in the Will dated 27.7.1982. This issue, therefore, also stands decided against the plaintiffs and in favor of the defendants.
ISSUE Nos.4, 6 & 716. This brings us to last facet of the case, namely, validity of the Will dated 27.7.1982. The issues, which would cover while discussing this facet, would be issue Nos.4, 6 and 7.
17. Onus to prove the Will lay on the defendants as they have projected the Will. This Will is produced as Ex. DW-2/1. It is a registered Will. As per this Will, the testator Prem Singh Bedi has bequeathed two properties, namely, (i) Shop No.30, Central Market, Lajpat Nagar II, New Delhi and (ii) Plot No. 1315, Sector 28 measuring 500 sq. yards situated at Faridabad, Haryana in favor of his four sons, namely, S/s. Daljit Singh, Inderjit Singh, Avtar Singh and Jagjit Singh. He has also mentioned that after his death all other movable and immovable properties, including bank accounts, FDRs etc. shall become the property of his aforesaid sons in equal share and they would be entitled to use and enjoy the same in the manner they like. He has specifically disinherited his wife and other sons and daughters from his immovable and movable properties. The Will also contains a statement to the effect that he has executed this Will voluntarily without any pressure and influences, after the contents of the Will were explained to him and he understood the same as correct. He has described this Will as his first and last Will. It is registered before the Sub-Registrar on the same date of the execution, i.e. 27.7.1982. There are two attesting witnesses to this Will, namely, Sh. Vinod Kumar and Sh. Harsh Vir Chauhan, Advocate. The testator as well as these two witnesses have affixed their signature in the presence of the Sub-Registrar at the time of presenting this Will for registration. This Will also bears the thumb mark of the testator at two places affixed on the endorsement given by the Sub-Registrar on the back of first page of the Will.
18. In order to prove this Will, Mr. Vinod Kumar appeared as DW-2, who is one of the attesting witnesses. He has deposed that the testator has affixed his signatures in his presence and in the presence of other witness, who was also present at the same place and same time and both the witnesses attested the Will at the request of the testator. He further mentioned that both the witnesses signed in the presence of each other. In his cross-examination, he has stated that he knew the testator since 1972 as his shop/office is opposite to shop No.30, Central Market, Lajpat Nagar II, New Delhi, which is the shop of the testator. He has stated that he was not aware whether the testator was an educated person or not. He could read and write in Punjabi, used to sign in Punjabi and he also used to write "patris in Punjabi". He further deposed that Will was typed by one of the typists at Asaf Ali Road office of the Sub-Registrar, which was typed at the dictation given by the testator. He denied the suggestion that the Will was first signed by him and after signing, it was given to others. He specifically stated that the Will was first signed by the testator and then by him. He stated that there was another person present in addition to the testator and himself, who might be an Advocate and he also signed the Will. After the Will was signed by the testator and the witnesses, they had gone to the office of the Sub-Registrar where thumb impressions were taken. He denied the suggestion that he had signed the affidavit (i.e. examination-in-chief) as it was sent to him by the Advocate on the other side. He further stated that he did know how it has been typed in the affidavit "we both witness affix our signatures at the request of the testator." In answer to another question he replied that the testator had asked him to come to Asaf Ali Road office in the morning of the very day on which the Will was executed and registered. He had good relations with the defendant being neighbours of each other. He further deposed that contents of the Will were not read over to him. However, the Will was dictated in his presence. Other questions asked to him are about the relationship of testator with other family members and the particulars of properties owned by the testator etc.
19. In view of the aforesaid material on record and the testimony of the attesting witness, I am of the view that the defendants have been able to prove that the Will in question was executed by the testator, which was his last testament. There is hardly any dispute by the plaintiffs also in so far execution of the Will is concerned. The entire thrust of the arguments of the learned Counsel for the plaintiffs was that the testator was not keeping good health; he was not in sound disposing mind at the time of execution of the Will and, therefore, suspicion is cast upon the said Will. His submission was that DW-1 himself stated that the testator was not keeping good health as, according to him, testator's wife (Plaintiff No.2) had administered some poisonous substance to him in July 1981 due to which he was hospitalised. He submitted that the defendants had not filed any medical record or any complaint to the Police to this effect. It was nowhere stated that the testator was in sound disposing mind. The attesting witness did not also depose to this effect. He further argued that the testator was living with the defendants and therefore, undue influence on the testator in the execution of the Will cannot be ruled out. He further submitted that since the testator had disinherited other legal heirs as per the purported Will, no reason for doing so was stated. He also sought to draw mileage from the fact that though he made arrangements for his two minor sons, defendant Nos.3 and 4, on the other hand, no provision was made for unmarried daughters, specially defendant No.6, who was the youngest of all children and hardly 8 years old at the time of execution of the alleged Will. Referring to the testimony of DW-1, learned Counsel argued that he had not stated that the testator had understood the nature and contents of the Will and effect of disposition as the Will was typed in English language and the testator only knew Punjabi (Gurmukhi). He further submitted that this attesting witness did not even know as to who was the other attesting witness and he has also stated that he and the testator were the only person present at the spot and they had signed the Will. His statement in the cross-examination to the effect that he does not know how it had been written in the affidavit that "we both witness affix our signatures at the request of the testator" implies that the other attesting witness, if any, had not signed the Will in his presence nor in the presence of the testator. On this, he submitted that the defendants, propounder of the Will, had failed to prove that the testator had signed the Will in the presence of two witness, who attested the Will in his presence and in the presence of each other. He has also relied upon the judgment of the Supreme Court in the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam in support of the plea that simply proving the signatures on the Will as that of testator was not enough and requirement of its attestation by two or more witnesses was mandatory. He also referred to another judgment of the Apex Court in Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors. wherein the Court did not believe the genuineness of the Will on the ground that execution thereof was shrouded in suspicion.
20. Learned Counsel for the defendants, on the other hand, submitted that none of the arguments of the plaintiffs was relevant for the purpose of deciding the issue as to whether the Will in question was, in fact, executed by the testator or not. He submitted that only one attesting witness is sufficient to prove the Will which had been done in the instant case by producing Sh. Vinod Kumar (DW-2). Hardly any information was elicited from his cross-examination which could shake his credentials. It was a registered Will wherein Sh.Prem Singh Bedi had even put his thumb impression. Therefore, the defendants could discharge the onus as the standards of proving a Will had been complied with in the instant case.
21. In Smt. Jaswant Kaur (supra) the Supreme Court has described the nature and standard of evidence required to prove a Will. In para 10 of the judgment, referring to its earlier judgment pronounced in the year 1959 proposition are re-stated and read as under:
10. 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. Thimmajamma and Ors. [1959] Supp. 1 S.C.R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions:
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case 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 surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the pro-pounder 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 pro-pounder 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 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 emphasies 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.
22. It is clear from the aforesaid principles for proving a Will as laid down by the Apex Court, that one need not to insist on proof with mathematical certainty and evidence of one attesting witness is sufficient for this purpose. The onus, which rests on the propounder of the Will to prove the Will, is treated as discharged when essential facts, which go into the making of the Will, are proved. Examples of suspicious circumstances given by the Court, are shaky signatures, propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances that may raise suspicion about the execution of the Will. Where any of these suspicious circumstances exist, the onus to dispel the said suspicion would be heavy on the propounder. In such a case, the test, which is evolved, is the satisfaction of the judicial conscience. However, where fraud, undue influence, coercion etc. is alleged by the person challenging the Will, such plea has to be proved by that person, though in the absence of such a plea as well, if the circumstances surrounding the execution raise a doubt, it is for the propounder to remove all reasonable doubts in the matter.
23. Keeping in mind these parameters, let us examine the suspicious circumstances sought to be projected by the plaintiffs. The allegation that the testator did not know English still the Will is scribed in English language; no person from the office of the Sub-Registrar was produced to prove the Will; second witness was not produced/examined, stating that testator was possessing the sound disposing mind or that any deposition of the witness that Will was read out to the testator cannot be treated as suspicious circumstances when all the factors are taken into consideration. In the first instance, as mentioned above, it is a duly registered Will. Not only it contains the signatures of the testator but his thumb impression as well. An argument was raised by the learned Counsel for the plaintiffs that testator's signatures or thumb impression is not identified, however, when the attesting witness specifically deposed that the testator signed in his presence and his thumb impression was taken by the Sub-Registrar at the time of registration of the Will, it was for the plaintiffs to show that the signatures or thumb impression was not that of the testator. But the plaintiffs have not made any such attempt. In fact, there is not even a suggestion to the attesting witness that signatures are not that of the testator or he did not put his thumb impression or he did not go to the Sub-Registrar for registration of the Will. DW-2 categorically stated that the Will was typed by the typist at the instance of the testator, i.e. the testator dictated the contents of the Will. It is also not correct on the part of the plaintiffs to allege that there was no particulars of the properties. The two immovable properties are specifically mentioned in the Will. It is a matter of common knowledge that in India, many times such persons, who want a Will to be executed and registered visit the office of the Sub-Registrar. Many lawyers, who practice in this field, are available and help the testator in getting the Will typed and registered. The other witness in this case was an Advocate, who was contacted there and became the attesting witness. It is for this reason DW-1 would not be expected to remember his name, particularly when the Will was executed on 27.7.1982 and DW-2 came to the Court to depose on 5.5.2005. No doubt, the attesting witness did not specifically state that the testator was having sound disposing mind. However, interestingly there is no cross-examination of DW-2 by the plaintiffs. Not even a suggestion given to DW-2 that the testator was not capable of understanding as to what was happening. They have tried to take mileage from the written statement wherein it is alleged by the defendants that wife of the testator had administered poisonous substance to the testator because of which he was hospitalised. However, that would not show that the testator was not having sound mind capable of understanding as to what he was doing. Physical infirmity, if at all (even that is not suggested) has no correlation with the cognitive and mental faculties. A physically sick person may be mentally alert, capable of understanding as to what he intends to do and is doing.
24. In a recent judgment rendered by the Supreme Court in the case of Meenakshiammal v. Chandrasekaran the legal position regarding proof of Will is re-visited by the Supreme Court exhaustively. The Court held that when a question arises as to whether a Will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favor of the probabilities of the Will. 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 proof of 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 all legitimate suspicions to the satisfaction of the Court before it accepts the Will as genuine. If the propounder takes a prominent part in the execution of the Will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. Once the propounder proves that the Will was (i) signed by the testator, and (ii) that he was at the relevant time in a sound disposing state of mind, and (iii) that he understood the nature and effect of the disposition and put his signature out of his own free will, and (iv) that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged. The suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. Suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator's mind, the disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free.
25. No doubt, it is not stated in the Will as to why the testator disinherited other members of the family and was giving his property to four sons. However, the evidence produced on record explains the obvious. There was long drawn litigation between the testator and his wife and nature of this litigation would depict acute bitterness in the relationship. Four sons to whom the testator has bequeathed his properties were with him whereas other family members, including the defendant No.6, minor daughter, were with his wife, who was living separately. Taking holistic view of the matter, I hold that there are no suspicious circumstances, which would cast doubts about the genuineness of the Will and whatever circumstances the plaintiffs have attempted to project are satisfactorily and adequately explained by the defendants. The judgments cited by the learned Counsel for the plaintiffs, including Joseph Antony Lazarus (Dead) by LRs v. A.J. Francis 2006(1) HLR 757 shall have no application to the facts of this case. I, therefore, decide this issue in favor of the defendants holding that the Will dated 27.7.1982 was the last Will and testament of late Sardar Prem Singh Bedi, as per which the two immovable properties mentioned in the Will as well as the bank account and other movable properties left behind by him would belong to the four sons mentioned therein and the plaintiffs cannot have any right, title or interest in the same.
26. In so far as Flat No.A-49, Lajpat Nagar IV, New Delhi and Flat No. 23, Central Market, Lajpat Nagar, New Delhi are concerned, they are in the names of the defendant Nos.1 and 2, though learned Counsel for the plaintiffs argued that these properties could not have been purchased by the defendant Nos.1 and 2 from their own funds as they were minors at that time. In view of my findings on the issues No.3 that there was no joint family and the business of Mr. Bedi from shop No.30, Central Market, Lajpat Nagar, New Delhi was not a joint family business, the plaintiffs cannot claim any share in these two properties. Even if it is presumed that Sh. Bedi provided funds to his two sons, namely, defendant Nos.1 and 2, the plaintiffs cannot claim any share in these properties as those funds provided by Sh. Bedi would be his own funds and not from any joint family business. Furthermore, even if these are treated as benami properties of Sh. Bedi, though it not so, in view of the Will dated 27.7.1982, the plaintiffs cannot be said to have any interest in these properties.
27. For the aforesaid reasons the plaintiffs cannot claim directions against the defendants to render the account of the purported joint family business and properties. These issues are, therefore, stand decided against the plaintiffs and in favor of the defendants.
Relief:
28. The upshot of the aforesaid discussion would be that the plaintiffs are not entitled to any relief. Issue No.8 is decided accordingly. As a consequence, this suit fails and is, therefore, dismissed with costs.