Delhi District Court
(Pc No. 122/06) (Khem Chand vs . State & Ors.) on 27 January, 2007
(PC No. 122/06) (Khem Chand vs. State & Ors.)
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IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
PC No. 122/2006
Date of institution : 28.3.2002
Sh. Khem Chand,
S/o late Sh. Prabhu Dayal,
R/o V&PO Badli, Delhi
............ Petitioner.
Versus
1. The State (NCT of Delhi)
2. Sh. Raj Singh S/o late Sh. Prabhu Dayal,
3. Sh. Tek Chand S/o late Sh. Prabhu Dayal,
Both residents of V&PO Badli, Delhi.
4. Smt. Rami W/o Sh. Rampat,
R/o V&PO Khera Dabar,
Near Najafgarh, New Delhi.
5. Smt. Lachho W/o Sh. Lakhmi Chand,
R/o Village Harya,
Distt. Bagpat, U.P.
............ Respondents.
JUDGMENT
1. This is a petition under Section 276 of Indian Succession Act for the grant of Letter of Administration with respect to Will dated 30.11.1998, executed by late Smt. Bhagirathi @ Bhagwati Devi. Briefly (PC No. 122/06) (Khem Chand vs. State & Ors.) : 2: stated the facts as stated in the petition are that Smt. Bhagirathi @ Bhagwati Devi, wife of late Sh. Prabhu Dayal died on 18.11.1999 at the age of 96 years. During her lifetime, she executed a Will dated 30.11.1998 which was duly registered with Sub Registrar, Delhi. Petitioner is the son of deceased. Respondents No. 2 & 3 are the other two sons and respondents No. 4 & 5 are the daughters of the deceased. It has been stated that by virtue of the Will dated 30.11.1998, petitioner and respondent No. 2 are the legatees of the Will and have become the owners of plot measuring 120 sq. yards out of Khasra No. 136/2, situated in the area of Village Badli, Lal Dora, Delhi. The plot was handed over by executant Smt. Bhagirathi @ Bhagwati Devi to the petitioner and respondent No. 2 during her lifetime after execution of the Will.
2. Citation was published in Statesman and notices were sent to the respondents. Respondents No. 2, 4 & 5 filed their no objection while respondent No. 3 Sh. Tek Chand has contested the petition by filing his reply/written statement.
3. Respondent No. 3 has taken the preliminary objection that petition is not maintainable because plot measuring 120 sq. yards out of Khasra No. 136/2 situated in Lal Dora Abadi of Village Badli belongs to the respondent and therefore Smt. Bhagirathi @ Bhagwati Devi was not competent to execute the Will in respect of the said plot. It is stated (PC No. 122/06) (Khem Chand vs. State & Ors.) : 3: that father of respondent No. 3 had given the aforesaid property to him as his share when he, after marriage, started living separately and since then, he is in possession of the same. It is further stated that father of respondent No. 3 had given the shares to petitioner and respondent No.
2. It is also stated that Smt. Bhagirathi @ Bhagwati Devi was not the legally wedded wife of late Sh. Prabhu Dayal but after the death of his wife Smt. Mohan Devi, he kept Smt. Bhagirathi @ Bhagwati Devi as his concubine and in course of time, was treated as his wife. It is stated that late Sh. Prabhu Dayal, father of respondent No. 3 was the owner of the aforesaid property and that after his death, ownership has devolved on all the legal heirs and hence, Smt. Bhagirathi @ Bhagwati Devi could not execute the Will in respect of the aforesaid property.
4. In his rejoinder, petitioner has reiterated the averments stated by him in his petition. He has stated that late Sh. Prabhu Dayal had bequeathed the plot in favour of Smt. Bhagirathi @ Bhagwati Devi orally and Smt. Bhagirathi @ Bhagwati Devi executed a registered Will before the Sub Registrar in favour of the petitioner and respondent No. 2 jointly. He has denied that respondent No. 3 is in possession of the property. It has been stated that respondent No. 3 has no concern whatsoever in the said property. It has been denied that testatrix was not the legally wedded wife of late Sh. Prabhu Dayal.
5. The then learned District Judge vide orders dated (PC No. 122/06) (Khem Chand vs. State & Ors.) : 4: 01.12.2004, framed the following issues:-
i) Whether the Will dated 30.11.1998 as propounded by the petitioner was validly executed by the testatrix Smt. Bhagirathi @ Bhagwati Devi in her sound disposing mind and the same is her last Will/testament? OPP.
ii) Whether the petition is not maintainable in view of the preliminary objections taken by the objector/Respondent No. 3 in his written statement? OPR.
iii) Relief.
6. Respondent No. 3 died during the pendency of the petition.
His legal heirs were substituted, who are contesting the petition.
7. In his evidence, petitioner examined six witnesses including himself. PW-1 is Sh. Satish Kumar, LDC from the office of Sub Registrar-VI, Pitampura. He has proved the registration of the Will exbt. PW-1/1.
PW-2 is petitioner himself. He has tendered in evidence his affidavit exbt. P-1. In his affidavit, he has stated about the averments made in his petition.
(PC No. 122/06) (Khem Chand vs. State & Ors.) : 5: PW-3 is Sh. Vinod Bhardwaj. He is the attesting witness of the Will. He has tendered in evidence his affidavit exbt. P-3. He has stated in his affidavit that Smt. Bhagirathi @ Bhagwati Devi executed the Will dated 30.11.1998 in his presence as well as in the presence of Smt. Rami and that she was fully conscious, healthy and in sound mind at the time of execution of the Will. He identified his signatures at points A & B on Will exbt. PW-1/1.
PW-4 is Sh. Lal Singh. He tendered in evidence his affidavit exbt. P-4. He has stated in his affidavit that Sh. Prabhu Dayal had executed the Will dated 19.04.1977 in his presence and in the presence of Sh. Sameer Singh in sound mind and that the Will is in possession of Sh. Sameer Singh.
PW-5 is Smt. Rami. She is the second attesting witness of the Will of the deceased. She tendered in evidence her affidavit exbt. P-
5. She has also stated about the execution of Will by deceased Smt. Bhagirathi @ Bhagwati Devi in her presence and also in the presence of other attesting witness.
PW-6 is Sh. Lakhmi Chand. He is the brother in law of petitioner and respondents No. 2 & 3. He tendered in evidence his affidavit exbt. P-6. In his affidavit, he has stated that Sh. Sameer Singh due to sickness is confined to bed and is unable to produce the Will of late Sh. Prabhu Dayal and that he had handed over the Will of late Sh.
(PC No. 122/06) (Khem Chand vs. State & Ors.) : 6: Prabhu Dayal to him on 01.04.2006 at Badli. He has proved the Will of late Sh. Prabhu Dayal as exbt. PW-6/1.
8. In their evidence, objectors examined two witnesses. RW-1 Smt. Krishna is the wife of objector Sh. Tek Chand. She tendered in evidence her affidavit exbt. R-1 in support of the objections.
RW-2 is Sh. Krishan Kumar. He is the son of objector Tek Chand. He has also filed his affidavit exbt. R-2 in support of the objections.
9. I have heard arguments from the learned counsels and have given my thoughtful consideration to the submissions made before me. My issue-wise findings are as under:-
10. ISSUE NO. 2.
I take up Issue No. 2 before Issue No. 1 as it relates to the maintainability of the petition. The objection taken by respondent No. 3 regarding the maintainability of the petition is firstly that deceased Smt. Bhagirathi @ Bhagwati Devi was not the legally wedded wife of Sh. Prabhu Dayal and that she was kept as a concubine by Sh. Prabhu Dayal after the death of his wife Smt. Mohan Devi and that in course of time, she was being treated as his wife. The second (PC No. 122/06) (Khem Chand vs. State & Ors.) : 7: objection is that deceased Smt. Bhagirathi @ Bhagwati Devi was not the owner of plot measuring 120 sq. yards out of Khasra No. 136/2 situated in Lal Dora Abadi of Village Badli and therefore, she was not competent to execute the Will in respect of the said property. It has been argued that the aforesaid plot belongs to respondent No. 3 exclusively as the same was given to him by his father Sh. Prabhu Dayal as his share when he started living separately after marriage and that since then, he is in possession of the same and therefore, Smt. Bhagirathi @ Bhagwati Devi could not have made Will of the said property in favour of Sh. Khem Chand and Raj Singh. In the alternative, it is also argued that after the death of Sh. Prabhu Dayal, who was the owner of the said property, it has devolved on all the legal heirs and therefore, deceased was not competent to execute the Will in respect of the property of which, she was not the absolute owner.
11. The argument of learned counsel of petitioner is that deceased was the legally wedded wife of Sh. Prabhu Dayal. The initial stand of petitioner in his rejoinder/replication to the objections was that late Sh. Prabhu Dayal had bequeathed the said plot/property in favour of Smt. Bhagirathi @ Bhagwati Devi orally and therefore, she became the owner of the plot and was thus fully competent to execute the Will in respect of the aforesaid property. However, during the course of proceedings, petitioner relied on a (PC No. 122/06) (Khem Chand vs. State & Ors.) : 8: written Will dated 19.04.1977 of late Sh. Prabhu Dayal by virtue of which, the aforesaid plot was bequeathed to deceased by late Sh. Prabhu Dayal. It was stated that Will of Prabhu Dayal was in possession of Sameer Singh who gave it to Sh. Lakhmi Chand, brother in law of petitioner and respondents No. 2 & 3. Lakhmi Chand produced the Will in court on receipt of notice of application under Order 12 Rule 8 CPC. On the basis of this Will of late Sh. Prabhu Dayal, it has been argued that Smt. Bhagirathi @ Bhagwati Devi had become the owner of the property mentioned above.
12. It has been argued by the learned counsel of objectors that Will of Sh. Prabhu Dayal exbt. PW-6/A is a forged and fabricated document. The same was not produced nor got probated during the lifetime of Smt. Bhagirathi @ Bhagwati Devi, who is the beneficiary of the said Will but was fabricated in order to meet the objection taken by respondent Tek Chand challenging the rights and power of Smt. Bhagirathi @ Bhagwati Devi to make the Will pertaining to property of which, she was neither the owner nor had any title. It is argued that the aforesaid Will of Sh. Prabhu Dayal was brought in picture by the petitioner in conspiracy with Sh. Lakhmi Chand and Sameer Singh to help the beneficiaries of the Will of late Smt. Bhagirathi @ Bhagwati Devi. It has also been argued that Sh. Prabhu Dayal was an illiterate person and therefore could not sign and used to only put his thumb impression and that the Will exbt. PW-6/A bears (PC No. 122/06) (Khem Chand vs. State & Ors.) : 9: forged signatures of late Sh. Prabhu Dayal. It is also argued that production of the Will is suspicious in as much as, witness Lakhmi Chand without any reason got the Will translated from Urdu to Hindi at his own. The translated copy exbt. PW-6/DX bears the endorsement of certification of Notary which is dated 16.03.2005. According to witness Lakhmi Chand, he had got the Will translated from Urdu to Hindi. In cross-examination, he says that Sameer Singh had given him the custody of the Will on 01.04.2006. If it is true that the same was given to him on 01.04.2006, then how translated copy could bear the date of 16.03.2005 underneath the certification of Notary Public.
13. The onus to prove this issue was on Objector Tek Chand. He has not led any evidence to prove that Smt. Bhagirathi @ Bhagwati Devi was not the legally wedded wife of Sh. Prabhu Dayal or that she was kept as a concubine. RW-1 and RW-2 have not spoken even a single word about this in their affidavits. On the other hand in his affidavit, PW-2 Sh. Khem Chand has stated that Smt. Bhagirathi @ Bhagwati Devi was the wife of late Sh. Prabhu Dayal. There has been no cross examination on this point. Therefore, objectors have failed to prove that deceased was not the legally wedded wife of Sh. Prabhu Dayal.
14. In this case, the Will of late Sh. Prabhu Dayal has been put (PC No. 122/06) (Khem Chand vs. State & Ors.) : 10 : forward only with a view to prove the title of the deceased Smt. Bhagirathi @ Bhagwati Devi over the property which is subject matter of her Will. The vital question which now arises for consideration is as to whether the question of title can be gone into by the testamentary court. It was held by the Division Bench of Delhi High Court in the case of Har Narain (through legal representatives) Vs. Budh Ram (deceased) (through L.Rs) 1991 (3) Delhi Lawyers 144, that the question of title cannot be decided by a probate court because the court is concerned only with the due execution of the Will. In Thane Miya Vs. Shobhan Ali AIR 978 Calcutta 399, it was held that in a proceeding for grant of letter of administration, it was not for the court to decide the question of title. The court precisely is to consider whether the Will has been genuinely made by the testator out of his free volition and it has been properly executed and attested in accordance with law and the testator had testamentary capacity to execute it. Similarly, in the case of Chiranji Lal Sri Lal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507, it has been held by the Apex Court that probate court does not decide any question of title or even the existence of property itself.
15. That being the position of law, this court has not to decide as to whether deceased Smt. Bhagirathi @ Bhagwati Devi had right or (PC No. 122/06) (Khem Chand vs. State & Ors.) : 11 : title over the property, bequeathed by her to petitioner and respondent No. 2. This court is not to decide the rights of parties qua the title of the property. In view of this, objection taken by respondent No. 3 in his objections do not affect the maintainability of the present probate petition. I, therefore, decide this issue against respondent No. 3.
16. ISSUE NO. 1.
The argument of learned counsel of petitioner is that the evidence led by the petitioner and the documents proved by him have proved the genuineness of the Will of deceased Smt. Bhagirathi @ Bhagwati Devi beyond any doubt and suspicion and that both the respondents' witnesses have failed to counter the claim of the petitioner and therefore, petitioner is entitled for the grant of letter of administration. The argument of learned counsel of objectors is that at the time of alleged execution of the Will, deceased was aged about 96 years and therefore was not in a position to assess, appreciate and understand the transaction being made and was not in fit mental condition. There is no medical evidence to show that she was not in a fit mental condition. Witness Rami, daughter of deceased has stated that she did not now what transaction was taking place and therefore on the basis of this, it has been submitted that petitioner has failed to prove that the Will was duly executed by the deceased in a fit state of mind.
(PC No. 122/06) (Khem Chand vs. State & Ors.) : 12 :
17. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. The conscience of the court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a Will provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the (PC No. 122/06) (Khem Chand vs. State & Ors.) : 13 : foundation of a judicial verdict - positive or negative. The Apex Court in the case of Sashi Kumar Banerjee & Ors. vs. Subodh Kumar Banerjee, AIR 1964 SC 529, held as under:-
"The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstance, 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 the 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 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 suspicion should be completely removed before (PC No. 122/06) (Khem Chand vs. State & Ors.) : 14 : the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut of wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants has succeeded in establishing that the Will was duly executed and attested."
18. In order to prove the Will, petitioner has examined both the attesting witnesses. PW-3 Sh. Vinod Bhardwaj is one of the attesting witnesses. He has tendered in evidence his affidavit Exbt. P-3. He has stated in his affidavit that executant Smt. Bhagirathi @ Bhagwati Devi was known to him and that she executed the Will dated 30.11.1998 in his presence and also in the presence of Smt. Rami, who is other attesting witness of the Will. He has categorically stated in his affidavit that at the time of execution of the Will, Smt. Bhagirathi @ Bhagwati Devi was fully conscious, healthy and in sound mind. The second attesting witness Smt. Rami (PW-5) has tendered her affidavit exbt. P-5 in evidence wherein she has stated (PC No. 122/06) (Khem Chand vs. State & Ors.) : 15 : that deceased was her real mother and that she had executed the Will dated 30.11.1998 in her presence and in the presence of Sh. Vinod Bhardwaj and that her mother was fully conscious, healthy and in sound mind at the time of execution of the Will. There is no cross examination of the attesting witnesses regarding the mental and physical capacity of the deceased to execute the Will. There is not even a suggestion from the side of objectors that deceased was not having physical and mental capacity to execute the Will. Respondents have on their part also not led any evidence to prove that deceased was not in a fit physical and mental condition to execute the Will. There has not been much cross examination of both the attesting witnesses. There is nothing worthwhile in their cross examination which can help the objectors. The fact that Will was executed by deceased at the age of 96 years, will not automatically lead to any presumption that she was not physically and mentally fit to execute the Will.
19. One of the objections of respondent No. 3 has been that he has been in possession of the property since the time of his marriage as the same was given by his father to him as his share. The petitioner has controverted this by stating that the possession of the property was handed over to him and respondent No. 2 by his mother during her lifetime after executing the Will in their favour. In her cross examination, RW-1 has stated that she does not have any proof to (PC No. 122/06) (Khem Chand vs. State & Ors.) : 16 : show that the plot was given to her husband by her father in law. Respondents have not produced any document or independent evidence to prove their possession. RW-1 in her affidavit has spoken about the issuance of a Lal Dora Certificate in favour of Tek Chand. But the same has also not been proved. Respondents have thus failed to prove their possession of the property.
20. From the evidence led by the petitioner in support of the Will, I am of the opinion that petitioner has been able to prove the valid execution of Will by deceased Smt. Bhagirathi @ Bhagwati Devi in sound disposing mind as her last Will/testament. This issue is therefore decided in favour of petitioner.
21. ISSUE NO. 3 (Relief) In view of my findings on the aforesaid issue, I am of the opinion that petitioner is entitled to the grant of Letter of Administration. Let Letter of Administration with copy of the Will exbt. PW-6/A annexed thereto be given to the petitioner on his completing usual formalities such as filing of valuation report, deposit of requisite court fees and Administration Bond with surety for due administration of estate of the deceased as per wishes contained in her Will exbt. PW-6/A. The objections against the Will filed by the objectors are hereby dismissed. Parties are left to bear their own costs. Petition accordingly stands disposed of. File be consigned to Record Room.
(PC No. 122/06) (Khem Chand vs. State & Ors.)
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(RAVINDER DUDEJA)
ADDL. DISTRICT JUDGE: DELHI.
ANNOUNCED IN THE OPEN COURT ON 27.01.2007.