Delhi District Court
Ramakrishna Mission vs The State on 7 September, 2017
IN THE COURT OF MS. BARKHA GUPTA,
ADDITIONAL DISTRICT JUDGE 06, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
New PC No. 42429/16 (Old PC No. 121/07)
IN THE MATTER OF:
1. Ramakrishna Mission
Ramakrishna Ashram Marg
Pahar Ganj, New Delhi 110055.
through its Authorized Representative
Swami Shantatmananda
....... Petitioner no. 1.
2. Maharogi Sewa Samiti
Warora District, Chandrapur
Maharashtra State, Through its
Authorized Representative
Ramakrishna Mission Delhi.
....... Petitioner no. 2.
VERSUS
1. The State
2. Sh. Vijay Kumar Kheterpal
R/o C274, Defence Colony, New Delhi
Also At C/o Fair Deal, G24, South Extension
New PC No. 42429/16 (Old PC No. 121/07) Page 1/33
Market Part - I, New Delhi - 110049.
3. Missionaries of Charity
54A, AJC Bose Road,
Calcutta - 700017.
4. Sadhna Trust
S144, Greater Kailash - II,
New Delhi.
5. All India Pinglewara Charitable Society Ltd.
Opposite Bus Stand, G. T. Road,
Amritsar - 143001.
6. Action Forum Artisan
TS70/A, Chirag Gaon,
New Delhi - 110017.
7. Anna Hazare
Relegang Sidhi, Tulaka Parner
Ahmednagar District Maharashtra.
8. Mr. C. L. Narang
S294, GK II, New Delhi.
9. Smt. Darshan Narang
New PC No. 42429/16 (Old PC No. 121/07) Page 2/33
S294, GK II, New Delhi.
10. Sh. Vineet Narang
S294, GK II, New Delhi.
11. Smt. Poonam Bhasin
S294, GK - II, New Delhi.
........ Respondents
Other details: Date of Institution : 13.08.2007 Date of Reserving Judgment : 01.09.2017 Date of Judgment : 07.09.2017 JUDGMENT
1. The petitioners namely Ramakrishna Mission and Maharogi Sewa Samiti have filed a petition for grant of probate under Section 276 read with section 234 of Indian Succession Act, 1925 (hereinafter referred to as the "Act") contending that late Sh. R. P. Narang (hereinafter referred to as the "deceased") had bequeathed his properties in favour of New PC No. 42429/16 (Old PC No. 121/07) Page 3/33 petitioners also vide Will dated 03.02.2002 (hereinafter referred to as the "Will") and have mentioned the details as under: ● The sale proceeds of the shares lying with the depository of M/s. J G Shah Financial Consultants P. Ltd.
● The balance amount after the setting of liabilities of the pledged shares that are currently lying with the depositories of Stock Holding Corporation and the HDFC Bank Depository, as well as from the shares lying with the depositories of Bank of Punjab and ● The proceeds from liquefying the investments in specified mutual funds, being UTI 64, ITI Infotech Fund, ITI Internet, Sun F. C. Emerging Technologies, Alliance New Millennium, Kotak Mahindra, ITI Pioneer Fund. New PC No. 42429/16 (Old PC No. 121/07) Page 4/33 ● 50% of the total proceeds from the above to petitioner no. 1.
● 25% of the total proceeds from the above to petitioner no. 2 They have further submitted that the deceased had bequeathed rest of his Estate in favour of respondent no. 3 through respondent no. 7 and the deceased expired at Delhi between December, 2002 to January, 2003, however, they are not aware of exact date of his death.
The petitioners have further submitted that the deceased had expired after which Sh. K. K. Duggal, who is also one of the attesting witnesses of the Will and who was in custody the Will, vide his letter dated 27.05.2003 apprised the petitioners regarding the Will wherein the deceased had named respondent no. 2 to be the executor of the Will. Thereafter, the petitioner no. 1 also obtained one copy of the Will from Shri K. K. Duggal and also contacted respondent no. 2 for New PC No. 42429/16 (Old PC No. 121/07) Page 5/33 filing of probate petition but respondent no. 2 refused and thereafter, after the petitioners also wrote several registered letters dated 02.06.2003, 11.07.2003, 31.08.2003 and 15.09.2004 to respondent no. 2, but he did not pay any heed and did not file any probate petition and so, they filed the present petition wherein they have prayed that probate else letters of administration be granted with respect to Will dated 03.02.2002 as executed by the deceased in their favour and have also prayed that an executor be also appointed for probate of said Will in place of respondent no. 2 as he has failed to perform his duty.
It is also submitted that the petitioner no. 1 i.e. Ram Kishan Mission is a nonpolitical, nonsectarian spiritual organization and its fund resources are mainly from the voluntarily donations received from its devotees and petitioner no. 1 is the Delhi Branch office of Ramakrishna Mission.
New PC No. 42429/16 (Old PC No. 121/07) Page 6/33 Further, petitioner no. 2 is a charitable organization who provides rehabilitation and medical assistance to leprosy patients and its fund resources are from the voluntarily donations of wellwishers. Further, the deceased late Sh. R. P. Narang had also named Baba Amte Institution for Leprosy as one of the beneficiaries of the said Will which institution is operating in the name and style of Maharogi Sewa Samiti, Warora District (petitioner no. 2).
It is further contended that the petitioner no. 1 has been duly authorized vide authorization letter dated 23.06.2007 by petitioner no. 2 i.e. Maharogi Sewa Samiti, Warora District, to initiate the present proceedings in which regard, copy of authorization letter dated 23.06.2007 is filed which is Annexure 'B'. Further, the petitioner no. 1 Ram Kishan Mission has passed a resolution on 20.06.2006 and authorized Swami Smarananada, its General Secretary to initiate the probate proceedings or also to authorize Swami New PC No. 42429/16 (Old PC No. 121/07) Page 7/33 Gokulnanda, Secretary of petitioner no. 1 to initiate the probate proceedings by virtue of Power of Attorney in his favour. It is further submitted that above resolution was modified on 07.05.2007 in the meeting of governing body of Ramakrishna Mission and so, in lieu of Swami Smaranananda, the General Secretary of Ramakrishna Mission namely Swami Prabhananda was authorized to initiate the present probate proceedings and he has also been authorized to execute a Power of Attorney in favour of the Swami Shantatmandanda, present Secretary of petitioner no. 1 in place of late Swami Gokulananda to initiate the present probate proceedings on behalf of petitioner no. 1.
A copy of resolution dated 26.06.2007 is annexed as Annexure C, original modified resolution dated 07.05.2007 is annexed as Annexure D and the Original notarized Power of Attorney dated 17.07.2007 is annexed as Annexure - E. New PC No. 42429/16 (Old PC No. 121/07) Page 8/33
2. The objectors namely Sh. C. L. Narang and Shri K.L. Narang (who had later on expired and his wife Smt. Darshna Narang was impleaded as his legal heir) have filed their objections jointly wherein they have submitted that at the time of execution of Will dated 03.02.2002, the deceased was about 78 years old and he was not in sound disposing mind and further, when the deceased had real brothers and nephews, there was no reason as to why the deceased would execute the Will in favour of petitioners who were strangers to him. They have also contended that the signatures of the deceased on the Will were fabricated and in fact, the deceased was not competent to bequeath 54% of undivided share in house bearing no. S294, Greater Kailash - II, New Delhi in favour of petitioners as his undivided share in the said property was only 31.25%.
New PC No. 42429/16 (Old PC No. 121/07) Page 9/33
3. It needs to be mentioned that the proceedings against respondent no. 8 were abated by my Ld. Predecessor vide order dated 31.01.2017.
4. The petitioners filed rejoinder wherein they have reiterated whatever they have mentioned in the petition.
5. Vide order dated 18.11.2009, following issues were framed by my Ld. Predecessor :
1. Whether petition in hands is not maintainable ? OPR.
2. Whether petitioner is entitled for probate of the Will in question ?
3. Whether Will in question was validly executed by the deceased ?
4. Relief.
New PC No. 42429/16 (Old PC No. 121/07) Page 10/33
6. The petitioners in support of their case have examined two witnesses in all namely Shri S. K. Sinha as PW1 and Sh. G. M. Chopra (an attesting witness to the Will dated 03.02.02) as PW2.
The respondents/objectors have also examined Smt. Darshan Narang who is one of the respondents as R9W1.
7. I have heard final arguments as advanced by Shri Vijay Kumar Dwivedi, Ld. Counsel for the petitioners and Shri Manish Kaushik, Ld. Counsel for respondents/objectors and have given my thoughtful consideration to rival submissions made by them and have also gone through the material as placed on record.
8. Now, in the paras underneath Issue Nos. 1 and 2 would be discussed together being interrelated. New PC No. 42429/16 (Old PC No. 121/07) Page 11/33
"Issue No.1. Whether petition in hands is not maintainable ? OPR. and Issue No. 2 Whether petitioner is entitled for probate of the Will in question ?"
9. Smt. Darshan Narang, who is one of the respondents has been examined as R9W1 who has adduced her evidence way of her affidavit Ex.R9W1/A bearing her signatures at point A and A1. She has inter alia deposed that the Will dated 03.02.2002 was executed by Shri R.P. Narang wherein Shri Vijay Kumar Khetarpal was appointed as executor of the Will, however, since the executor had not filed the probate petition and so, the petition for grant of probate is not maintainable. She has further deposed that the petition does not disclose date of death of the deceased Shri R.P. Narang nor any death certificate has been filed and case is filed after more than three years from date of death of Shri New PC No. 42429/16 (Old PC No. 121/07) Page 12/33 R.P. Narang. She has also deposed that Shri R.P. Narang was about 78 years old and was not able to understand the real nature of the Will and was not of sound disposing mind and since the objectors/respondents are the real brothers and nephews of the deceased, so the deceased had not reason to deprive them from his assets and there was no reason to execute the Will in favour of strangers and hence, the Will is not genuine. She has also deposed that Shri R.P. Narang was not competent to bequeath 54% undivided share in the house bearing no. S294, Greater KailashII, New Delhi as his undivided share in the said property was only 31.25%.
10. During her crossexamination on behalf of the petitioner, she has stated that she is the wife of Late Sh. K.L. Narang who was the real brother of the deceased Shri R.P. Narang and Shri R.P. Narang was a bachelor who used to reside alone in Bombay. She has admitted that the deceased New PC No. 42429/16 (Old PC No. 121/07) Page 13/33 had bequeathed shares and mutual funds in the Will. She has also stated that her relations and relations of her husband with the deceased were good. She has stated that the deceased was residing in Bombay but sometimes he used to come to Delhi and he would stay with them.
11. The petitioners have filed the petition under Section for grant of probate under Section 276 read with section 234 of the Act on the ground that the respondent no. 2 was the executor of the Will, however, despite repeated requests, he did not execute it and hence, they have filed the petition for granting of probate else for issuing letter of administration. It is settled law that the petition for probate has to be filed within stipulated period by the executor, however, in the case in hand, the executor did not take steps for execution of Will and hence, even if the petitioners have filed the petition for issuance of letter of administration, as New PC No. 42429/16 (Old PC No. 121/07) Page 14/33 such, on that ground there is no reason to reject the petition however, the probate cannot be granted and if the petitioners are able to prove their case i.e. the Will Ex.PW2/A, letter of administration may be issued. The issues are decided accordingly in favour of the petitioners and against the respondents.
12. Issue No. 3: "Whether Will in question was validly executed by the deceased ?"
The petitioners have filed the petition for granting of the probate under Section 276 r/w Section 234 of Indian Succession Act, 1925 and in their prayer clause, they have prayed for granting of probate else for letter of administration with respect to the Will dated 03.02.2002 and also to appoint an executor.
It may be discussed that from the petition filed New PC No. 42429/16 (Old PC No. 121/07) Page 15/33 by the petitioners itself, it is stated that vide letter dated 27.05.2003, Shri K.K. Duggal who was one of the attesting witnesses and was the custodian of the Will himself had apprised the petitioners regarding the Will dated 03.02.2002 after the death of the deceased wherein respondent no. 2 was named as executor of the Will and after receiving copy of Will, the petitioner no. 1 repeatedly approached and requested respondent no. 2 to file the probate petition, however, respondent no. 2 did not file any probate petition.
Accordingly, it is clear that the Will dated 03.02.02 came to knowledge of the petitioners on 27.05.03 and the respondent no. 2 namely Sh. Vijay Kumar Khetrapal did not file any probate petition with respect to said Will. Further, he has also not filed any reply or written statement to the petition. Hence, in the given facts and circumstances and on the basis of the material as placed on the record, in considered opinion of the court, though the probate of Will dated 03.02.02 New PC No. 42429/16 (Old PC No. 121/07) Page 16/33 cannot be granted, however, letter of administration can be issued if the petitioners are able to prove their case.
13.. The petitioners in support of their case have examined Shri S.K. Sinha as PW1 who has adduced his evidence by way of his affidavit Ex.PW1/A. He has testified that he is a devotee of Ramakrishna Mission and is a regular visitor since the year 1953. He has further deposed that on 29.05.03, Swami Gandevananda who was the then Assistant Secretary of Ramakrishna Mission telephonically informed him about the demise of Sh. R.P. Narang and also told that Ram Krishan Mission had received a letter dated 27.05.03 alongwith a copy of Will dated 03.02.03 from Shri K.K. Duggal that Shri R.P. Narang had expired who, during his lifetime, had executed a Will dated 03.02.02 wherein Rama Krishna Mission was also one of the beneficiaries and thereafter, on 29.05.03, Swami New PC No. 42429/16 (Old PC No. 121/07) Page 17/33 Ganadevnanda through Sh. Ashok Mukherjee who is another devottee of Ram Krishan Mission sent him a letter dated 27.05.03 Ex.PW1/1 alongwith copy of the Will dated 03.02.03 and requested him to meet Shri K.K. Duggal on behalf of Rama Krishan Mission to know more about the said Will. He has further deposed that thereafter, he met Shri K.K. Duggal on 01.06.03 at his residence who told that apart from him, Shri G.M. Chopra had also signed on the Will as a witness and Shri Vijay Kumar Khetrapal (respondent no.
2) was appointed as the executor of the said Will. He has further deposed that on 01.06.03, he met Swami Ganadevananda at Rama Krishan Mission, Delhi and thereafter, late Shri Swami Gokulananda, the then Secy. of Rama Krishan Mission prepared a letter on 02.06.03 Ex.PW1/2 requesting Shri Vijay Kumar Khetrapal (respondent no.2) to provide the certified copy of Will dated 03.02.02. He has further deposed that in first week of July, 2003, Swami New PC No. 42429/16 (Old PC No. 121/07) Page 18/33 Gandevananda told him that no response was received from respondent no. 2 and on 11.07.03, Swamy Gokulananda prepared a follow up letter dated 11.07.03 Ex.PW1/3 whereby respondent no. 2 was again requested to provide details of assets of the deceased and thereafter, in August, 2003, he came to know that letter dated 11.07.03 was not served on respondent no. 2 and so, on 26.08.03, he met respondent no. 2 at his shop alongwith Mr. Ashok Mukherjee and requested him to initiate the probate proceedings during which respondent no. 2 confirmed that he was appointed as executor of the Will dated 03.02.02 and assured them that he would initiate the probate proceedings very soon and on the same day, he apprised Swamy Gokulananda about it. He has further deposed that on 31.08.03, he visited Rama Krishan Mission where he met Shri Swami Gokulananda who signed a letter dated 31.08.03 Ex.PW1/4 and sent it to respondent no. 2 through registered post. He has also testified that he suggested New PC No. 42429/16 (Old PC No. 121/07) Page 19/33 Swamy Gokulananda to pursue M/s J.G. Shah, Financial Consultant (P) Ltd. regarding status of shares which were bequeathed by the deceased vide his Will in favour of Rama Krishan Mission. He has further deposed that he did not witness signing of the letters dated 27.09.03 and 23.04.04 by Swamy Gokulananda as sent to M/s J.J. Shah, Financial Consultant (P) Ltd., however, being a regular visitor of Rama Krishan Mission, he identified signatures of Swamy Gokulananda on letters Ex.PW1/5 and Ex.PW1/6.
He has further testified that since respondent no. 2 did not respond, so, Swamy Gokulannand in the month of September, 2004 against requested him to meet respondent no. 2 with request to initiate probate proceedings with respect to the Will, whereupon he made a request to respondent no. 2 and thereafter, in the first week of January, 2005, Swamy Gokulananda telephonically contacted him and requested him again to meet respondent no. 2 to intiate probate proceedings New PC No. 42429/16 (Old PC No. 121/07) Page 20/33 with respect to Will and when he met respondent no. 2, he assured him that he would initiate the probate proceedings, but even thereafter, he did not initiate any probate proceedings.
He has further deposed that in August, 2006 Swamy Gokulananda telephonically informed him that Rama Krishan Mission would initiate proceedings seeking probate of Will dated 03.02.02 and being devotee, follower and regular visitor of Rama Krishan Mission, he used to interact with Swamy Gokulananand, Swami Gandevananda and Swamy Shantamananda and so, he is aware of the proceedings.
He has also deposed that he did not witness signing of the present probate petition by Swamy Shantamananda, however, he can identify his signatures on the probate proceedings as he had seen him signing on various occasions.
14. During his crossexamination as conducted on New PC No. 42429/16 (Old PC No. 121/07) Page 21/33 behalf of respondent Ms. Poonam Bhasin and respondent Sh. Darshan Narang, he has inter alia stated that he came to know about the said Will on 29.05.03 and the deceased was not known to him and has further stated that the deceased did not execute any Will in his presence and he also did not know about the share of the deceased in the property bearing no. S294, Greater Kailash, New Delhi. He has denied if he neither met respondent no. 2 nor requested him to execute the Will.
During further crossexamination, he has stated that he never met the deceased and the deceased never told him about his Will. He has stated that the Will was shown to him by Shri K.K. Duggal whom he met for the first and last time on 01.06.03 and was telephonically informed that the petitioner was also a beneficiary of the Will. He has also stated that when he met Mr. Duggal, he informed him about the Will executed by the deceased of which the petitioner was one of the beneficiaries and he was also informed about the New PC No. 42429/16 (Old PC No. 121/07) Page 22/33 executor Shri V.K. Khetrapal, however, copy of the Will was not given to him and when he saw the copy of the Will later, he came to know that petitioner is also one of the beneficiaries. He has also stated that he did not read the Will completely, but saw only its operative part. He has also stated that Shri Vijay Kumar Khetrapal informed him about his knowledge and responsibilities as the executor and he also told him that the testator i.e. the deceased was his paternal uncle. He has also stated that he had met Vijay Kumar Khetrapal at the behest of the petitioner and also stated that Mr. Khetrapal never informed him that the deceased had died intestate. It may be discussed that PW1 was not cross examined on any aspect by or on behalf of respondent nos. 3 and 7.
During his crossexamination on behalf of respondent no. 5, he has stated that he does not remember the share of respondent no. 5 in the Will as he read the Will New PC No. 42429/16 (Old PC No. 121/07) Page 23/33 cursorily at the residence of Sh. K.K. Duggal.
15. Admittedly, PW1 has testified only with respect to his communication at request of petitioner with respondent no. 2 who was the executor of the Will Ex.PW2/A to execute the Will, but respondent no. 2 did not take any steps and accordingly, PW1 does not throw any light on the merits of the case.
16. Shri G.M. Chopra who is an attesting witness to the Will is examined as PW2 who has adduced his evidence by way of his affidavit Ex.PW2/A wherein he has inter alia testified that he had met the deceased in the year 1999 during a meeting of senior citizens forum of which he was the Chairman and thereafter, he and the deceased became good friends and they used to meet often during which he came to know that the deceased was a devotee of Rama Krishan New PC No. 42429/16 (Old PC No. 121/07) Page 24/33 Mission.
He has further deposed that on 03.02.02, the deceased telephonically requested him to come to the residence of Sh. K.K. Duggal who was a common friend and so, he went to the house of K.K. Duggal where he signed the Will executed by Shri R.P. Narang as a witness and at that time, the deceased, Sh. K.K. Duggal and his wife were also present. He has further deposed that it was a typed Will which was already prepared before he reached at the house of Mr. Duggal. He has stated that the deceased had signed the Will in his presence and in the presence of Sh. K.K. Duggal after which the deceased requested them to countersign the Will as attesting witness, whereupon he and Sh. K.K. Duggal also signed the Will as attesting witnesses on 03.02.02 in the presence and supervision of the deceased which Will is proved as Ex.PW2/1. He has further deposed that after execution of Will, the deceased put the Will in an envelope and handed it New PC No. 42429/16 (Old PC No. 121/07) Page 25/33 over to Mr. K.K. Duggal and after demise of the deceased, Sh. K.K. Duggal telephonically called him at his residence to read the Will and so, he went to the gathering where the sealed cover containing the original Will dated 03.02.02 which was in possession of Mr. K.K Duggal was opened on 15.01.03 by Mr. Duggal in the presence of Mr. Khetrapal who was the executor of Will, Mr. Dileep K. Dhyani, Advocate of deceased, Mr. D.N. Chaudhary, a senior member of Senior Citizen Forum, one of the brothers of deceased and himself and the Will was read over and thereafter, there was some amicable discussion between the persons present there and the original Will was handed over to the Advocate Mr. Dileep K. Dhyani to be kept in safe custody till such time as it would be required for initiating the probate proceedings by beneficiaries of the Will.
He has further testified that at the time of signing of the Will, the deceased enjoyed good heath and was of sound mind and memory and he was completely conscious. New PC No. 42429/16 (Old PC No. 121/07) Page 26/33 He has further deposed that he came to know about the present proceedings when representatives of Rama Krishan Mission approached him as he was a witness to the Will.
It may be discussed that he was not cross examined by or on behalf of respondent nos. 3 and 5 on any aspect at all.
During his crossexamination on 02.07.2012 by respondent no. 9 and 11 which was adopted by respondent no. 8 he has inter alia stated that he is the Chairman of Senior Citizen Forum and is not a member of Rama Krishan Mission, however, Shri R.P. Narang, i.e. the deceased had told him that he was a devotee of Rama Krishan Mission. He has also stated that the deceased used to come to Delhi every year and they developed intimacy. He has admitted that deceased had called him on phone to come to house of K.K. Duggal for attestation. He has stated that when he reached the house of K.K. Duggal, the Will was already typed.
New PC No. 42429/16 (Old PC No. 121/07) Page 27/33
During further crossexamination, he has stated that "It is incorrect to suggest that Mr. R.P. Narang did not sign the Will in my presence. I did not read the Will. I do not know the contents of the Will. It is incorrect to suggest that the Will was never signed by Sh. R.P. Narang."
He has also stated that R.P. Narang and Mr. K.K. Duggal were friends but could not tell the exact reason as to why the Will was handed over to Shri K.K. Duggal and stated that the deceased might not be having good relations with his other relatives. He has stated that deceased died in 2003 and he did not talk to anybody about the said Will. He has stated that at the time of execution of Will, no advocate was present and only he, the deceased, Mr. K.K. Duggal and his wife were present and he remained there for about 15 minutes. He has denied if R.P. Narang did not execute the New PC No. 42429/16 (Old PC No. 121/07) Page 28/33 Will and further denied if he signed on the Will only later on. He has further stated that whenever R.P. Narang used to visit Delhi once in a year, he would come to see him either at his home or at Senior Citizen Forum. He has denied if the deceased could not walk alone except with the assistance of someone else and further stated that the deceased used to travel by auto also and the deceased used to travel by scooter when he used to visit his Advocate or other place. He has denied if deceased did not know or understand English. He has also stated that he came to know that Mr. Khetrapal was the executor when the Will was read over after the death of Mr. Narang. He has also admitted that Mr. Khetrapal refused to file probate petition and so, the probate petition by filed by Rama Krishan Mission.
During his further crossexamination, he has stated that "I cannot read the Will today." He further stated that "My eye sights are weak for about 1012 years New PC No. 42429/16 (Old PC No. 121/07) Page 29/33 but the same has started affecting my day to day moments for last 34 years."
It needs to be mentioned at this stage that the affidavit of this witness was prepared on 10.02.2010 wherein he has stated that "Mr. Narang had signed the Will in front of Mr. K.K. Duggal and me."
17. A bare perusal of the Will Ex.PW2/A reveals that PW2 Shri G.M. Chopra is an attesting witness to the Will and further, he is also one of the main beneficiaries of the Will being the main trustee of Sadhna Trust who is one of the respondents who has given no objection.
Further, it is revealed from the record that the affidavit of PW2 for the purpose of adducing evidence was prepared on 10.02.2010, however, he was examined as PW2 on 02.07.2012 and adduced his evidence by way of his affidavit Ex.PW2/A wherein he has stated that the deceased New PC No. 42429/16 (Old PC No. 121/07) Page 30/33 had signed the Will in his presence, however, in his cross examination conducted on the same day as already discussed earlier at length, he has very clearly stated that his eye sight had gone weak for the last about 1012 years and it had also started affecting his day to day movements for the last 34 years. It may be mentioned either at the cost of repetition that during his crossexamination, he has very clearly stated that he cannot read the Will Ex.PW2/A today i.e. on 02.07.2012 when he was examined and crossexamined.
It would not be out of place to discuss here that though he has identified signature of the deceased on the Will, however veracity of the witness and authenticity of his deposition has to be judged and determined during his cross examination and during crossexamination, PW2 has very clearly stated that his eye sight is weak for the last about 1012 years which has started affecting his day to day working/movements for the last 34 years. Accordingly, New PC No. 42429/16 (Old PC No. 121/07) Page 31/33 admittedly, at the time of deposition of PW2 in the court, PW2 could not even read even the Will Ex.PW2/A nor could identify signature of deceased on it and in the given facts and circumstances in considered opinion of the court, the petitioners could not prove on record if the Will in question was signed by the deceased as admittedly, PW2 is the most material, however, his testimony is self contradictory on material aspects of the case which is under clouds of doubt.
It may be mentioned that the petitioners have not examined any other witness pertaining to the Will in question who could prove its authenticity.
In considered opinion of the court, PW1 has not been able to depose anything material effecting the merits of the case and as discussed above, testimony of PW2 is shrouded with suspicion.
Accordingly, in view of totality facts and circumstances of this case and on the basis of material as New PC No. 42429/16 (Old PC No. 121/07) Page 32/33 placed on record, Issue No. 3 is decided against the petitioners.
18. Issue No. 4: Relief.
In view of totality of facts and circumstances of the case on the basis of material as placed on record and in view of aforesaid detailed discussion, the petitioners have failed to prove that the Will Ex.PW2/A in question was validly executed by the deceased. Accordingly, the petition is hereby dismissed. No order is passed as to cost.
File be consigned to Record Room as per rules after compliance of necessary legal formalities. Announced in open Court Dated: 07.09.2017 (BARKHA GUPTA) Addl. District Judge06 (Central), Tis Hazari Courts, Delhi New PC No. 42429/16 (Old PC No. 121/07) Page 33/33