Delhi District Court
District Judge vs The State ( Nct Of Delhi) on 16 March, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 81/10/09
New P.C. No. 16052/16
1 Sh. Gurvinder Singh
S/o late Sh. Partap Singh,
R/o H.No. 58/23, Ashok Nagar,
Near Tilak Nagar,
New Delhi- 110018
..........Petitioner
Versus
1 The State ( NCT of Delhi)
2 Sh. Lakhbir Singh
S/o Late Sh. Partap Singh
R/o H.No. 58/11, F.F. Ashok Nagar,
Near Tilak Nagar,
New Delhi-110018
3 Sh. Dapinder Singh
S/o Late Sh. Partap Singh
R/o H. No. 58/11, S.F. Ashok Nagar,
Near Tilak Nagar,
New Delhi- 110018
4 Sh. Ravinder Singh ( Since deceased)
S/o late Sh. Partap Singh
LRs of deceased Ravinder Singh
4A Smt. Devender Kaur ( Wife )
4B Sh. Navneet Singh ( Elder son )
4C Sh. Paramjeet Singh ( Younger son)
All R/o H. No. 58/11, G.F. Ashok Nagar,
New Delhi- 110018
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 1/37
5 Sh. Saranjeet Singh
S/o late Sh. Partap Singh
R/o H. No. 58/11, T.F. Ashok Nagar,
Near Tilak Nagar,
New Delhi- 110018
6 Sh. Narender Singh
S/o late Sh. Partap Singh
R/o H. No.34, GC-III, G-Block
Vikas Puri,
New Delhi
7 Smt. Surinder Kaur
D/o late Sh. Pratap Singh
W/o Sh. Paramjeet Singh
R/o WZ-597, F.F.
Shiv Nagar, New Delhi
8 Smt. Harjeet Kaur
D/o Late Sh. Pratap Singh
W/o Sh. Surjeet Singh,
R/o 19/44, Tilak Nagar,
New Delhi
......Respondents
Date of institution of the case : 06.05.2009
Date reserved for judgment on : 05.03.2018
Date of pronouncement of judgment: 16.03.2018
JUDGMENT:
1 A petition under Section 372 of the Indian Succession Act, 1925 for grant of Probate of Will dated 28 th January, 2008 executed by late Shri Pratap Singh, S/o late Shri Harman Singh, R/o 58/11, Ashok Nagar, New Delhi- 110018, has been filed.
2 In brief the facts are that petitioner is one of the legal heir of late Sh. Partap Singh S/o late Shri Harman Singh (hereinafter referred to as "deceased" ) who died on 30.08.2008, PC No. 81/10/09 Gurvinder Singh Vs State & Ors 2/37 leaving behind his eight legal heirs, i.e six sons and two daughters including the petitioner who have been mentioned above as respondents no. 2 to 8 as interested parties and all the legal heirs are married.
3 It is stated that deceased was the owner and occupier of the built up property bearing No. 58/11, measuring 103 sq. yds. Ashok Nagar, New Delhi consisting of four floors, duly fitted with water and electric connection (hereinafter referred to as the 'property in question') having purchased the same by virtue of Relinquishment Deed dated 01st November, 1995 duly registered with the concerned Sub-Registrar.
4 It is stated that deceased had executed a Will dated 28th January, 2008 in favour of all his legal heirs including the petitioner who have also been shown as interested parties in the array of respondent no. 2 to 8, whereby the deceased has bequeathed the property in question in equal proportion.
5 It is stated that deceased has declared in the Will dated 28.01.2008 that all the legal heirs will become the joint and complete owners in equal shares in respect of the property in question respectively and they can get it mutated and transferred the same in their own names with the concerned authorities on the basis of the Will.
6 It is stated that deceased was also owning a bus bearing no. DL-1P-A-6349 besides the property in question which the deceased has devolved only to the petitioner thereby giving rights to the petitioners of transferring the ownership of the said PC No. 81/10/09 Gurvinder Singh Vs State & Ors 3/37 bus in his own name after the death of the deceased. It has been declared in the Will that if anybody raises any objections at any point of time regarding the Will or challenging the Will then their objections or challenges shall be treated as null and void and not maintainable. It has also been declared in the Will that the Antim Sanskar of the deceased will be performed only by the petitioner which shows the close relationship between the petitioner and the deceased.
7 It is stated that language of the Will itself manifest that the deceased had executed the said Will with the sound disposing and understanding mind. It is stated that there is no scope of executing any other document or Will by the deceased, whereas the other two legal heirs of the deceased, namely, Ravinder Singh and Lakhbir Singh are alleging that the deceased had executed General Power of Attorney in their favour to do any act including sale/transfer or gift to any person. The said Shri Ravinder Singh alleges that he has been made the attorney of the deceased for the entire ground floor of a built up premises of the said property vide General Power of Attorney dated 22.11.2007 and further claiming the ownership rights on the ground floor of the premises on the basis of the alleged GPA dated 22.11.2007. Whereas no agreement to sell has been executed by the deceased in his favour.
8 It is stated that the other legal heir of the deceased, namely, Lakhbir Singh alleges that he has been nominated the General Power of Attorney vide its alleged execution dated 26.11.2004 in respect of the entire first floor of a built up premises of the property in question on the basis of which Shri PC No. 81/10/09 Gurvinder Singh Vs State & Ors 4/37 Lakhbir Singh is also claiming his ownership rights on the first floor and likewise the other legal heirs of the deceased, namely, Dapinder Singh is claiming the ownership rights on the entire second floor of the built up premises of property in question on the basis of alleged agreement to sell and purchase dated 21.11.2007 alleged to have been executed in his favour by the deceased. The legal heir namely, Saranjeet Singh is also alleging to be the owner of third floor of the built up premises of the said property on the basis of the alleged execution of agreement to sell dated 25.03.2004 allegedly executed by the deceased in his favour.
9 It is stated that the deceased/testator executed the Will in sound disposing state of mind and also declared in his Will that he has not made any testament or Will other than the Will dated 28.01.2008 and if the objections are raised then the said objections shall be considered as null and void. Therefore, the aforesaid documents, apart from the Will dated 29.01.2008 have no bearing on the execution, attestation and genuineness of the said Will.
10 It is stated that there has been no circumstances for the testator to execute the aforesaid General Power of Attorney and Agreements to Sell and Purchase in favour of few legal heirs to the exclusion of others without any rhyme and reason, therefore, no reliance can be placed upon the execution of the aforesaid false documents whereas the Will dated 28.01.2008 is the genuine Will and the said Will does not deprive any of the legal heir from their legal right in the property in question. Moreover, the said documents i.e General Power of Attorney etc. PC No. 81/10/09 Gurvinder Singh Vs State & Ors 5/37 allegedly executed by the deceased have no sanctity in the eyes of law after the death of the deceased.
11 It is stated that legal heirs who are alleging themselves to be the attorney of the deceased and the legal heirs who are alleging to be the owners of the said property on the basis of alleged execution of the General Power of Attorney, Agreement to Sell, are claiming falsely to be the owner of different floors of the property in question with the sole motive to deprive other legal heirs from their legal rights in the property in question.
12 It is stated that the deceased duly executed the aforesaid Will and got the same registered with Sub-Registrar, Janak Puri, New Delhi and got the same witnesses by two witnesses, namely, Navpreet Singh and Ms Puneet Kaur. The petitioner seeks Probate of the Will in respect of immovable property mentioned in Schedule-I as the movable property i.e the bus No. DL-1P-A-6349 has been sold earlier to junk dealers with the consent of all other legal heirs.
13 It is stated that cause of action for filing the present petition arose on 28.01.2008 and continues and finally arouse on 28.04.2009 when the petitioner found that the interested parties to the property in question are negotiating the deal of the property in question with the local property dealers for selling the same on the basis of aforesaid false documents. Petitioner seeks Probate of the Will dated 28.01.2008 executed by the deceased Shri Partap Singh in his favour.
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 6/37 14 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Dainik Jagran " dated 04.08.2009 .
15 The valuation report in respect of immovable property was called from the concerned SDM/Tehsildar and accordingly, Tehsildar/Executive Magistrate ( Rajouri Gardn) filed valuation report in respect of property bearing No.58/11, Ashok Nagar, New Delhi- 110018 and assessed the value of the same as Rs. 86,14,681/-.
16 It is pertinent to mention here that respondent no. 5 neither appeared nor filed his written statement or objections, therefore, vide order dated 25.11.2009 his right to file the same was closed by my ld. Predecessor.
17 Objections filed on behalf of respondent no. 2 Shri Lakhbir Singh who had taken the preliminary objections that present probate petition has been filed by the petitioner only to harass the answering respondent, without there being any cause of action in his favour. It is stated that present petition is liable to be dismissed as no Will has been executed by the deceased who has died intestate. Even otherwise the Will being propounded by the petitioner is forged and fabricated and does not bear the signatures of deceased. The deceased has not executed the Will in question nor the same has been attested by the attesting witnesses.
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 7/37 18 It is stated that the attesting witnesses are the son and daughter of the petitioner and are the interested witnesses who cannot be relied upon to prove the will in question. It is stated that deceased has neither executed the Will nor has appeared before the Sub-Registrar for registration of the same. It is stated that deceased was under medication during the period when the said Will is alleged to have been executed and could not have executed the said Will.
19 It is stated that deceased was living with respondent no. 4 and there was no occasion for deceased to execute the Will without informing Shri Ravinder Singh or the other respondents. It is stated that in case deceased would have executed the Will he would have involved his family members including sons and daughters and would not have made his grand children i.e the children of the petitioner as witnesses. It is stated that deceased was very closed to respondent no. 4 and used to reside with him. Even his last rites were performed by the respondent no. 4. It is surprising that the will being propounded by the petitioner mentions that the last rites of deceased shall be performed by the petitioner, however, at the time of the death of deceased the petitioner has neither disclosed the will nor has come forward or participated in the last rites to deceased. This shows that the petitioner forged and fabricated the present will.
20 It is stated that will in question is forged and fabricated as deceased would not have executed a Will in relation to a property already disposed off by him. It is stated that deceased had sold the first floor of the property in question to Smt. Harmeet Kaur wife of respondent no. 2 and has executed PC No. 81/10/09 Gurvinder Singh Vs State & Ors 8/37 the sale documents i.e the registered Will, the receipt, Registered General Power of attorney, agreement to sell, affidavit, possession letter all dated 26.10.2004 in favour of Smt. Harmeet Kaur for valuable consideration of Rs. 1,00,000/-. It is stated that out of the said documents the General Power of Attorney and will are duly registered with Sub-Registrar, Janakpuri, New Delhi on 26.11.2004. Smt. Harmeet Kaur since having purchased the first floor of the property in question is enjoying the same being the owner therein and also deposing the house tax for her portion.
21 It is stated that without prejudice to the other contentions, the alleged will if any shall not be effective as against the first floor of the property in question which has already been sold by the deceased. The deceased could not have bequeathed the property which did not belong to him on the date of alleged Will.
22 It is stated that probate petition is liable to be dismissed on account of suppression of material facts that the petitioner was already separated from the family of deceased and deceased has already purchased for the petitioner property No. 58/23, Ashok Nagar, New Delhi where the petitioner is living with his family members. In this manner the severance of the status of the petitioner from the family of deceased was already complete and the petitioner was not maintaining any relations with deceased or the respondent. The petitioner has fabricated the Will in question only to grab the property of deceased. Even otherwise the deceased would not have given any share to the petitioner who was already given another property by him.
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 9/37 23 On merit all the contents of the petition are denied and reiterated about the execution of sale documents in favour of his wife and stated that will is question is forged and fabricated documents. Respondent seeks dismissal of the petition.
24 Petitioner filed reply to the objection of respondent no. 2 and reiterated the contents of his petition and denied the averments of the objections. It is stated that property bearing No. 58/23, Ashok Nagar, New Delhi was purchased by the petitioner in the year 1989 from his own exclusive funds by selling out his bus bearing No. DBP 2358 which used to play on the route no.
871. It is stated that the petitioner after shifting to Delhi, opened a Work Shop from the premises no. 58/11, ground floor, Ashok Nagar, New Delhi-18 till the year 1988-89 and thereafter in the year 1989 the petitioner turned the said work shop into "Goprakhpuria Motors" clubbed with the sale and purchase of buses and spare parties and finally the petitioner changed the said business into the name and style of "Sukhmani Motors"
which was being run by the son of petitioner namely Navpreet Singh from the same premises i.e 58/11, ground floor, Ashok Nagar, New Delhi-18 till the year 2003 due to adamant behaviour of respondent no. 4. The respondent no. 4 had shifted to the ground floor of the property in question in the year 1990 after the petitioner alongwith his family had shifted to the premises where he is residing with his family at present.
25 Respondent no. 3 Sh. Dapinder Singh also filed objections to the present petition on the same line as of respondent no. 2 and taken the same preliminary objection and stated that deceased had sold the second floor of the property in PC No. 81/10/09 Gurvinder Singh Vs State & Ors 10/37 question to the answering respondent and has executed the sale documents i.e the registered Will, the receipt, Registered General Power of Attorney, agreement to sell and purchase, affidavit, possession letter, all dated 22.11.2007 in favour of respondent no. 3 for vlauable consideration of Rs. 1,00,000/-. It is stated the said documents GPA and Will were duly registered with Sub- Registrar Janakpuri, New Delhi on dated 22.11.2007. The answering respondent since having purchased the second floor of the said property is enjoying the same being the owner therein and also depositing the house tax for his portion. On merit denied all the contents of the petition and stated that deceased has executed the sale documents in respect of the respective portion of the property in question in favour of the answering respondent no. 3, 4 & 5 and Smt. Harmeet Kaur. It is stated that Shri Ravinder Singh and the answering respondent are rightly claiming the ownership of their respective portion on the basis of the documents executed by deceased for valuable consideration.
26 Respondent no. 4 Sh. Ravinder Singh also filed objections to the present petition on the same line as of respondent no. 2 & 3 and taken the same preliminary objection and stated that deceased had sold the ground floor of the property in question to the answering respondent and has executed the sale documents i.e the registered Will, the receipt, Registered General Power of Attorney, agreement to sell and purchase, affidavit, possession letter, all dated 22.11.2007 in favour of respondent no. 4 for valuable consideration of Rs. 1,00,000/-. It is stated the said documents GPA and Will were duly registered with Sub-Registrar Janakpuri, New Delhi on dated 22.11.2007. The answering respondent since having purchased PC No. 81/10/09 Gurvinder Singh Vs State & Ors 11/37 the second floor of the said property is enjoying the same being the owner therein and also depositing the house tax for his portion. On merit denied all the contents of the petition and stated that deceased has executed the sale documents in respect of the respective portion of the property in question in favour of the answering respondent no. 3, 4 & 5 and Smt. Harmeet Kaur. It is stated that Shri Ravinder Singh and the answering respondent are rightly claiming the ownership of their respective portion on the basis of the documents executed by deceased for valuable consideration.
27 Petitioner also filed reply to the objections filed on behalf of respondent no. 3 & 4 and denied all the objections and reiterated the contents of the petition.
28 It is pertinent to mention here that vide order dated 25.11.2009 the right of respondent no. 5 to file objections was closed. However, on 01.06.2010 he filed his reply/objections and vide order dated 01.06.2010 it is ordered that it cannot be taken on record as right of respondent no. 5 to file W.S/objections has already been closed vide order dated 25.11.2009. It is stated that written statement of respondent no. 5 filed today shall not be considered and is rejected.
29 Respondent no. 6 Shri Narender Singh, respondent no. 7 Smt. Surinder Kaur and respondent no. 8 Smt. Harjeet Kaur filed separate objections but on perusal of the same these are verbatim same and both the respondents taken preliminary objections that present petition has been filed by the petitioner only to harass the answering respondent and without any cause of action in his favour.
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 12/37 30 It is stated that probate petition is liable to be dismissed as no Will has been executed by late Shri Pratap Singh who has died intestate. Even otherwise the Will being propounded by the petitioner is forged and fabricated and does not bear the signatures of deceased or that the Will in question has not been attested by the attesting witnesses. It is stated that attesting witnesses are the son and daughter of the petitioner and are the interested witnesses who cannot be relied upon to prove the will in question. The deceased has neither executed the Will nor has appeared before the Sub-Registrar for registration of the same and was under medication during the period when the said will is alleged to have been executed and could not have executed and could not have executed the said Will.
31 It is stated that deceased was living with respondent no. 4 Shri Ravinder Singh and there was no occasion for Shri Pratap Singh to execute the Will without informing Shri Ravinder Singh or the other respondents. The will in question is forged and fabricated as deceased would not have executed a Will in relation to a property already disposed off by him. It is stated that deceased has sold the first floor portion of the property No. 58/11, Ashok Nagar, New Delhi to Smt. Harmeet Kaur wife of respondent no. 2 and has executed the sale documents i.e registered Will, the receipt, Registered General Power of Attorney, agreement to sell and purchase, affidavit, possession letter all dated 26.10.2004 in favour of Smt. Harmeet Kaur for valuable consideration of Rs. 1,00,000/-.
32 It is stated that similarly deceased during his life time has sold the ground floor portion of the said property to PC No. 81/10/09 Gurvinder Singh Vs State & Ors 13/37 respondent no. 4 Shri Ravinder Singh and has executed the sale documents all dated 22.11.2007 in favour of respondent no. 4 for sale consideration of Rs. 1,00,000/-. Out of the said documents the GPA and will duly registered with Sub Registrar, Janakpuri, New Delhi on 22.11.2007. Similarly deceased sold the second floor of the said property to Shri Dapinder Singh, respondent no. 3 and has executed the sale documents dated 22.1.2007 in favour of respondent no. 3 for sale consideration of Rs. 1,00,000/-. Respondent no. 6 & 7 further taken similar objections taken by other respondents and on merit also all the averments mentioned in the petition are denied and respondent no. 6 & 7 seek dismissal of the petition.
33 Petitioner also filed reply to the objections of respondent no. 6, 7 & 8 separately and denied all the objections and reiterated the averments mentioned in the petition.
34 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 14.12.2009:-
1. Whether the Will dated 28.01.2008 executed by testator Sh. Pratap Singh is his last, genuine and duly executed Will? OPP
2. Whether the aforesaid Will is forged and fabricated? OPR
3. Whether the petition is not maintainable and liable to be dismissed in view of the objections raised by respondents in their written statements? OPR
4. Whether the petitioner is entitled for Probate/Letter of Administration on the basis of Will dated 28.01.2008? OPP
5. Relief PC No. 81/10/09 Gurvinder Singh Vs State & Ors 14/37 35 Petitioner in order to prove his case examined himself as PW-1 who tendered his evidence by way of affidavit Ex. P-1 and rely upon the documents i.e original death certificate of late Sh. Pratap Singh Bindra as Ex. PW-1/1 and original Will dated 28.01.2008 of deceased as Ex. PW-1/2.
36 Petitioner further examined Sh. Navpreet Singh, attesting witness to the Will as PW-2 who tendered his evidence by way of affidavit Ex. PW2/A. Vide separate statement of the petitioner, evidence on behalf of petitioner was closed on 11.07.2016.
37 Objector No. 2 Sh. Lakhbir Singh Bindra appeared in the witness box as 02W1 and tendered his evidence by way of affidavit Ex. O2W1/A. He rely upon the documents Ex. O2W1/1 to Ex. O2W1/10 mentioned in his affidavit. However, documents exhibited in his affidavit i.e. Ex. O2W1/1, Ex. O2W1/7 (colly) are not on record and accordingly, the same are deleted. The document Ex. O2W1/2 is General Power of Attorney dated 26.10.2004; Ex. O2W1/3 is Agreement to Sell dated 26.10.2004;
Ex. O2W1/4 is Affidavit dated 26.10.2004; Ex. O2W1/5 is Will dated 26.10.2004; Ex. O2W1/6 is Receipt dated 26.10.2004; Ex. O2W1/8 is Receipt of House Tax dated 26.02.2007; Ex. O2W1/9 (colly) is photocopy of electricity bill and water bill and accordingly de-exhibited and are marked as Mark -A (colly); Ex. O2W1/10 is photocopy of Receipt issued by Cremation Ground Society dated 31.08.2008, same is also de-exhibited and marked as Mark -B. PC No. 81/10/09 Gurvinder Singh Vs State & Ors 15/37 38 Respondent no. 3 Shri Dapinder appeared in the witness box as O3W1 and tendered his evidence by way of affidavit Ex. O3W1/A. He rely upon the copies of documents i.e Will, GPA, Receipt, Agreement to Sell and Purchase, Affidavit, Possession Letter all dated 22.11.2007 executed by Sh. Pratap Singh in favour of Sh. Ravinder Singh and are exhibited as Ex. O3W1/1 to Ex. O3W1/5 (OSR).
39 The L.Rs of respondent no. 4 Shri Navneet Singh appeared in the witness box as O4W1 and tendered his evidence by way of affidavit Ex. O4W1/A. He rely upon the copies of documents i.e Will, GPA, Receipt, Agreement to Sell and Purchase, Affidavit, Possession Letter all dated 22.11.2007 executed by Sh. Pratap Singh in favour of Sh. Ravinder Singh and are exhibited as Ex. O4W1/1 to Ex. O4W1/5 ( OSR). The receipt No. 1509747 dated 3.11.2007, copy of receipt dated 2.6.2008 and bill of telephone as Ex. O4W1/8 (Colly) as Mark A to C. 40 Respondent no. 7 Smt. Surinder Kaur appeared in witness box as 07W1 tender her evidence by way of affidavit Ex. O7W1/A. 41 Respondent no. 8 Smt. Harjeet Kaur appeared in the witness box as O8W1 and tendered her evidence by way of affidavit Ex. O8W1/A. 42 It is pertinent to mention that affidavit of respondent no. 5 Shri Saranjeet Singh also filed on record but he has not been examined in the court. Vide order dated 15.03.2017 evidence on behalf of all the respondents was closed.
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 16/37 43 I have heard Sh. K.B. Rao, counsel for the petitioner, Sh. Vivek Srivastava, counsel for respondent no. 2, 3, 4 and 6 to 8 and perused the record and citation relied on by the parties.
Issue No. 1, 3 & 444 In order to decide the above issues, let us peruse the provisions and principles of law laid down by the Apex Court.
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 thus:-
"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.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second PC No. 81/10/09 Gurvinder Singh Vs State & Ors 17/37 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 pellucid 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 an intoxiation, 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.
20. 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 thus:-
"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 directions.
(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 PC No. 81/10/09 Gurvinder Singh Vs State & Ors 18/37 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".
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
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 PC No. 81/10/09 Gurvinder Singh Vs State & Ors 19/37 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 provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
45 The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would PC No. 81/10/09 Gurvinder Singh Vs State & Ors 20/37 be the usual test of the satisfaction of the prudent mind in such matters.
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and PC No. 81/10/09 Gurvinder Singh Vs State & Ors 21/37 evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
( emphasis supplied) 46 In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the PC No. 81/10/09 Gurvinder Singh Vs State & Ors 22/37 Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... 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 signatures 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 indications 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 suspicious 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 PC No. 81/10/09 Gurvinder Singh Vs State & Ors 23/37 of the will which confers a susbtantial 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..."
( emphasis supplied) 47 In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar ( supra), the Supreme Court culled out 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 68 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 PC No. 81/10/09 Gurvinder Singh Vs State & Ors 24/37 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 propounder himself taking a leading part in the making of the will under which he receives a susbtantial 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 circusmtances 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 ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is connection with wills, the execution of which
is surrounded by suspicious circumstances that the
test of satisfaction of the judicial conscience has
been evolved. That test emphasises that in
determining the question as to whether an
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 25/37
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."
( emphasis supplied) 48 The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious PC No. 81/10/09 Gurvinder Singh Vs State & Ors 26/37 circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied) 49 Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the PC No. 81/10/09 Gurvinder Singh Vs State & Ors 27/37 objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
50 In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied) PC No. 81/10/09 Gurvinder Singh Vs State & Ors 28/37 51 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, 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 testatrix 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 testatrix, 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 testatrix PC No. 81/10/09 Gurvinder Singh Vs State & Ors 29/37 sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix 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 testatrix, 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.
20.2 Section 68 & 71 of the 1872 Act:
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:
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.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as PC No. 81/10/09 Gurvinder Singh Vs State & Ors 30/37 will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 31/37 22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
52 Issue no. 1, 3 & 4 are taken simultaneously being inter-connected. The fundamental burden of issue no. 1, 3 and 4 PC No. 81/10/09 Gurvinder Singh Vs State & Ors 32/37 is on the petitioner who examined himself as PW-1 and PW-2 Sh. Navpreet Singh, the attesting witness. The attesting witness is happened to be the son of the petitioner. In the detailed cross- examination he established that deceased testator late Pratap Singh his grandfather died on 30.08.2008. He is not able to tell the exact date of execution and registration of the Will, however, it was in January 2008. He stated date which is wrong as 15.01.2008. He admitted that deceased testator was illiterate and the will was drafted by Verma Documents at Janak Puri, District Center. At the time of execution and registration of the Will the petitioner, his father Sh. Gurvinder Singh, he and his sister were present. He admitted that deceased testator Pratap Singh was not able to read the contents of the Will being illiterate.
53 PW-1, perpounder of the Will Sh. Gurvinder Singh in his cross-examination admitted that he was active throughout the execution and registration of the Will. He admitted that deceased testator Pratap Singh was not well versed with the English language. He admitted that he knew the writer of the Will Anil Verma who prepared the Will for about one year prior to preparation of the Will. He admitted that he had taken the deceased testator to the Anil Verma, document writer and told him to prepare the Will. He also collected the Will from the Sub- Registrar office after registration. He admitted that he remained active from preparation of the Will till registration.
54 The testimony of PW-1 Sh. Gurvinder Singh, perpounder of the Will and PW-2 Sh. Navpreet Singh, the attesting witness to the Will established that it was an family PC No. 81/10/09 Gurvinder Singh Vs State & Ors 33/37 affair of the perpounder of the Will Sh. Gurvinder Singh. He had taken the deceased testator to the deed writer, Sh. Anil Verma who was known to him. The attesting witnesses are the son and daughter of the petitioner and he had played very active role throughout the process of execution and registration. No other legal heir had informed. However, in the testimony of OW-1 Lakhbir Singh the knowledge of Will has been admitted and it is further admitted that there was no misunderstanding or collusion amongst the legal heirs. Similarly another O7W1, Smt. Surinder Kaur also not objected with regard to execution of Will and also deposed that there was no misunderstanding amongst the brothers and sisters with regard to Will in question but she was not present at the time to execution of the Will. 55 The law is well settled and also discussed hereinabove that petitioner has to establish the execution and registration of the Will as per Section 63 of Indian Succession Act. In my considered opinion, the attesting witness PW-2 Sh.Navpreet Singh is son of petitioner and appeared in witness box. The attesting witnesses are not the independent and natural, they are interested person. It is pertinent to mention here that petition has played very active role and his influence on the deceased testator cannot be ruled out. It cannot be ruled out that petitioner influenced the deceased testator who was illiterate and not able to understand English language and more so the Deed Writer was appointed by petitioner himself. Therefore, the execution and registration of the Will is not free from suspicious circumstance and cannot be ruled out that it was free will and wish of the deceased testator. My view is supported by the judgment of K. Ramaswamy and B.L. Hansaria, AIR 1995 Supreme Court 1684.
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 34/37 56 During the course of argument it was referred by counsel for respondents that deceased testator Pratap Singh during his life time had executed the Will, GPA, Receipt, Agreement to Sell dated 22.11.2007 in favour of one of the objector Ravinder Singh with regard to ground floor of the subject matter of the Will in Ex. PW-1/2. These registered documents proved on record as Ex. 04W1/1 to Ex. 04W1/5 and Ex. O4W1/8 (Colly). Similarly documents Ex. O3W1/1 to Ex. O3W1/5 (OSR) proved by another witness namely Shri Dapinder Singh as O3W1 which are also registered Will, Receipt, Agreement to Sell executed by deceased testator Sh. Pratap Singh on the same day i.e on 22.11.2007 with regard to second floor without roof right in favour of his son Shri Dapinder Singh.
57 The registered document Ex. O2W1/2 to Ex. O2W1/8 dated 26.10.2004 are the GPA, Agreement to Sell, Affidavit, Will and receipt executed by the deceased testator in favour of her daughter Smt. Harmeet Kaur in respect of first floor without roof right of the subject matter of the Will. These documents proved on record raises suspicious circumstances. When deceased testator already executed documents with regard to ground floor, first floor and second floor through wills and same were also got registered but there is no whisper these documents in the Will Ex. PW-1/2 dated 28.01.2008. In these peculiar circumstances, in my opinion the Will dated 28.01.2008 of deceased testator Sh. Pratap Singh is surrounded by suspicious circumstances which are not dispel by the petitioner.
58 On the basis of above observation and discussion, in my considered opinion, petitioner failed to prove as per Section PC No. 81/10/09 Gurvinder Singh Vs State & Ors 35/37 63 of Indian Evidence Act that deceased testator had executed last, legal and valid Will dated 28.01.2008 Ex. PW-1/2. Accordingly issue no. 1, 3 & 4 are decided against the petitioner and in favour of respondents.
Issue No. 259 The issue no.2 has been framed on the basis of objections raised by respondent no. 2 Sh. Lakhbir Singh, respondent no. 3, Sh. Dapinder Singh, respondent No. 4, Sh. Ravinder Singh, respondent no. 5 Sh. Saranjeet Singh, respondent no. 6 Sh. Narender Singh, respondent no. 7 Smt. Surinder Kaur and respondent no. 8 Smt. Harjeet Kaur. The respondents themselves appeared in witness box and their testimonies as O2W1 Sh. Lakhbir Singh Bindra, O3W1 Sh. Dapinder, O4W1, Sh. Navneet Singh, O7W1 Smt. Surinder Kaur and 08W1 Smt Harjeet Kaur have been discussed in detail. All the respondents have not examined any independent witness including any opinion of handwriting expert to establish that the Will Ex. PW-1/2 dated 28.01.2008 by late Pratap Singh is forged and fabricated. The respondents also failed to establish how and when the forgery has been committed as alleged in their written statement. In the absence of any oral and documentary evidence, I am of the considered opinion that respondents miserably failed to prove and established that Will Ex. PW-1/2 is forged and fabricated.
60 In view of the above observation and discussion, the issue no. 2 is decided in favour of petitioner and against the respondents.
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 36/37 61 Relief In view of finding on issue no. 1, 3 & 4, the present petition is dismissed. No order as to cost. File be consigned to record room.
SANJAY Digitally signed by SANJAY
KUMAR
KUMAR Date: 2018.03.16 21:37:40
+0530
(Announced in the open (SANJAY KUMAR)
court on 16th March, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 81/10/09 Gurvinder Singh Vs State & Ors 37/37
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