Delhi District Court
Sh. Jagmohan S/O Shri Chattar Sain vs The State (Nct Of Delhi) on 10 September, 2009
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, DISTRICT JUDGE-II CUM
ADDL. SESSIONS JUDGE : NORTH DISTRICT :DELHI
P.C. No. 188 / 06 (Old PC No.111/2000)
Date of institution: 10.05.2000
Judgment reserved on: 27.08.2009
Judgment pronounced on: 10.09.2009
1. Sh. Jagmohan S/o Shri Chattar Sain
2. Shri Brijmohan S/o Shri Chattar Sain
3. Shri Kishan Mohan S/o Shri Chattar Sain
4. Shri Ravi Mohan S/o Shri Chattar Sain
All the grandsons of late Shri Mangal Sain,
All residents of 16/682, Block I, Bapa Nagar,
Padam Singh Road, Karol Bagh, New Delhi .... Petitioner
Versus
1. The State (NCT of Delhi)
2. Smt. Rama Devi W/o Lal Bahadur Tanwar
R/o 1186 E, Khalsa Nagar, Padam Singh Road,
Karol Bagh, New Delhi
3. Smt. Som Devi W/o Shri Basant Ram Malhotra (since deceased)
Through her legal heirs;
(a) Shri Anil Kumar ( son)
(b) Shri Ashok Kumar (son)
Both R/o RZB-140, Chandan Vihar, Nangloi,
Delhi -41
(c) Shri Roshan Lal ( son)
R/o 6001, Khatik Mandi, Near Prachin Shiv Mandir,
12 Cross Road, Ambala Cantt., Haryana
Jagmnohan & Others vs. State & Ors,.
-: 2 :-
(d) Smt. Rani Devi ( daughter)
4. Shri Chattar Sain S/o Late Shri Mangal Sain
R/o 16/682, Block-I, Bapa Nagar, Padam Singh
Road, Karol Bagh, New Delhi
5. Smt. Usha Devi W/o Shri Bhoop Narain Chandel
R/o Lal Kurti, Khatik Mohalla, Bara Bazar
Meerut Cantt.
6. Smt. Kunwar Devi W/o Shri Chhote Lal
R/o 125, C Block, Madipur, JJ Colony,
New Delhi
7. Smt. Daya Wati W/o Late Shri Mahinder Singh
R/o 618, Pocket-II, Janta Flat, Madipur,
Paschim Puri, New Delhi
8. Smt. Gulshan W/o Kishan Kumar Sanwaria
R/o Mohalla Khatikan, Delhi Gate, Aligarh (UP)
9. Smt. Baby W/o Shri Devender Kumar Sanwaria
R/o Mohella Khatikan, Delhi Gate, Aligarh (UP) .... Respondents
Petition under Section 276 of the Indian Succession Act,
1925, for grant of Probate and Letters of Administration with
Will annexed in respect of the estate of late Shri Mangal
Sain
AND
P.C. No. 197 / 2006 (Old PC No.171/01)
Date of institution: 14.08.2001
Judgment reserved on: 27.08.2009
Judgment pronounced on: 09.09.2009
Smt. Dayawati
W/o Late Shri Mahinder Singh
Jagmnohan & Others vs. State & Ors,.
-: 3 :-
R/o 618, Pocket-II, Janta Flat,
Madipur, Pachimuri,
New Delhi ..... Petitioner
Versus
The State (NCT of Delhi) .....Respondent
Petition under Section 276 of Indian Succession Act for
grant of Probate of last Will of late Shri Mangal Sain dated
04.07.1999 in respect of his estate.
-- - - - - - - - - - - - - - - - - - - - - - - - - - -
JUDGMENT
By this common Judgment, I shall decide two cases bearing PC No. 188/06 and PC No. 197/06, as parties in both the petitions are same and in both the petitions testator is same.
2. In PC No. 188/06 the case of the petitioners is that the deceased testator Shri Mangal Sain son of Shri Hira Lal died on 28.11.1999 and the original death certificate has been enclosed with the petition. The deceased owned and possessed self acquired both movable and immovable properties. The detail of property left behind by the deceased is mentioned in Schedule B to the petition.
3. It is averred by the petitioners that deceased Shri Mangal Sain had executed his last Will and testament dated 20.01.1998 while being possessed of sound mind, good physical and mental health and disposing power and the same was executed by the witnesses in the Jagmnohan & Others vs. State & Ors,.
-: 4 :-presence of the deceased testator. The deceased left behind the near relatives, detail of which is mentioned in annexure A to the petition.
4. The petition has been verified by Shri Tilak Raj and Kewal Krishan, both the attesting witnesses to the Will.
5. The notice of petition was issued to State through Collector. The citation for general public was got published in the newspaper 'National Herald' dated 02.06.2000 and a copy of citation was also displayed on the notice board of the Court. Nobody appeared from the general public and no objection was filed.
6. The respondents No 2, 4 to 6, 8 & 9 file their No Objection by way of affidavits dated 11.08.2000, in favour of the petitioners.
7. The respondent No.3, Smt. Son Devi expired on 16.09.2000 and an application under Order 22 Rule 4 CPC dated 02.11.2000 was filed. The LRs of respondent No.3 were served. The LRs of respondent No.3 namely Shri Roshan Lal, Ashok Kumar and Anil Kumar filed affidavit cum no objections dated 22.05.2001.
8. Thereafter, the respondents No. 8 and 9 filed an application dated 22.05.2001 praying that no objection filed on behalf of said respondents No. 8 and 9 be treated as cancelled and objections filed by them along with respondent No.7 on 19.12.2000 be taken on record.
Jagmnohan & Others vs. State & Ors,.
-: 5 :-9. The respondents No. 7, 8 and 9 filed objections on the grounds interalia that alleged Will dated 20.01.1998 is bogus, forged and fabricated, same is unregistered. The alleged Will is neither signed by Mangal Sain nor the same is signed by witnesses nor same is duly executed. The alleged dated 20.01.1998 stands revoked and cancelled by the subsequent Will dated 04.07.1999 executed by the deceased. The deceased was lastly living with objector Smt. Dayawati at Janta Flat No. 618, Pocket-II, Madipur, Paschimpuri, New Delhi and the deceased executed the Will dated 04.07.1999 in her favour bequeathing the said flat to her. On merits, it is stated that petitioner has suppressed the movable assets as well as another property, shop at Jawalapuri near Paschim Vihar. It is denied that deceased executed Will dated 20.01.1998, alleged Will is bogus, forged and fabricated document.
10. On the pleadings of parties following issues were framed by my learned predecessor on 28.10.2003:-
1. Whether the Will dated 20.01.1998 as propounded by the petitioner was executed validly, by Shri Mangal Sain in his sound disposing mind and with free consent and that same is his last testament / Will? OPP
2. Whether the Will in question is forged and fabricated one and cannot be relied upon? OPR
3. Whether the petition is not maintainable for want of verification by the attesting witness? OPR
4. Relief?
Jagmnohan & Others vs. State & Ors,.
-: 6 :-11. In support of their case, the petitioners have examined as many as four witnesses. Pw-1 Jagmohan is petitioner No.1. He has tendered his affidavit, which is Ex.P-1. By way of affidavit, he has deposed in terms of the petition. He has deposed that Mangal Sain died on 28.11.1999, his death certificate is Ex.Pw-1/A. Deceased Mangal Sain executed his last Will and testament dated 20.01.1998, said Will is Ex.Pw-1/B. The photograph of deceased Mangal Sain from which the respondent No.7 has taken the portion and pasted on the forged Will filed by hear is Ex.PW-1/C, negative is Ex.Pw-1/D. He has proved the photocopy of election I-Card of deceased as Ex.PW-1/E, copy of ration card is Ex.Pw-1/F and copy of PAN card No. AAAPS5089B as Ex.Pw-1/G. The copy of sales tax challan as Ex.PW- 1/H. He has also proved copy of application given by the deceased to Delhi Vidyut Board as Ex.Pw-1/I, copy of possession letter issued by DDA as EX.PW-1/J-1 and other documents as Ex.Pw-1/J-2 to J-3. He has also proved copy of agreement dated 18.09.1981 as Ex.PW-1/J-4, copy of affidavit of Bhagwan Dass as Ex.PW-1/J-5, copy of receipt as Ex.Pw-1/J-6, copy of agreement dated 18.09.1981 as Ex.PW-1/J-7, copy of affidavit as Ex.PW-1/J-8, copy of General Power of Attorney as Ex.Pw-1/J-9. He has also proved copy of receipts issued by DDA as EX.Pw-1/K-1 to K-17. He has also proved medical bills for treatment of deceased Mangal Sain as Ex.PW-1/L-1 to L-84 and copy of receipt of Wood purchased at the time of funeral of respondent No.3 as Ex.Pw-1/M. In cross examination he stated that deceased Mangal Sain owned two properties, one property at Karol Bagh and other property at Madipur. He came to know about the Will at the Tehrvi Jagmnohan & Others vs. State & Ors,.
-: 7 :-ceremony of the deceased, the Will was produced by Shri Kewal Kishan. Mangal Sain had informed him about the Will during his lifetime but Will was not in his custody. He admitted that Will was not executed in his presence. Mangal Sain was suffering from Cancer in the year 1994-95. He denied that he manipulated the signatures of Gulshan and Baby on the alleged no objections. He also denied that house was bequeathed in favour of Smt. Dayawati vide subsequent Will dated 04.07.1999. He explained that deceased used to remain ill in the year 1999 and could not walk.
12. PW-2, Shri Tilak Raj is one of the attesting witness. He has tendered his affidavit, which is Ex.Pw-2. By way of his affidavit, he has deposed that he knew Mangal Sain very closely, on 20.01.1998 Mangal Sain executed Will in his presence and at that time he was in sound mind, good physical and mental health, said Will is Ex.PW-1/B. On 20.01.1998 he had gone to the Court with Shri Mangal Sain, Kewal Krishan and Shri D.K. Pawar, who was one of the relative of Mangal Sain and Mangal Sain executed Will. The Will was prepared as per instructions of Mangal Sain and was read over and explained to him, who signed the same in his presence as well as in the presence of other witnesses Kewal Krishan and Shri D.K. Pawar. Thereafter, Kewal Krishan signed and he put his signatures on the Will. He has identified the signatures of deceased Mangal Sain, his signatures and signatures of Shri Kewal Krishan. In cross examination he admitted that deceased was not related to him, he was working as Driver with Shri Kewal Krishan at Shop No. 324, Azad Market, Delhi. He was Jagmnohan & Others vs. State & Ors,.
-: 8 :-working with Kewal Krishan from 1997 to 2004 and he was turned out, Kewal Krishan is still doing business in Delhi. In January-1998 testator requested him to attest his Will and showed him Will. First of all, testator signed on the Will, then Mr. Kewal Krishan and then he signed on the same. The Will was executed at Tis Hazari Court. The testator brought the draft Will in the Court, he himself did not read the Will but the same was read over to him by Mr. Pawar. The Will was registered but he could not tell whether any registration charges were deposited. He denied that he is not an attesting witness to the Will or that deceased had not signed in his presence.
13. PW-3, Shri D.K. Pawar has tendered his affidavit, which is Ex.P-3. By way of his affidavit, he has deposed that he is relative of deceased Mangal Sain, who used to live nearby house No. 16/682, Block-I, Bapa Nagar, Padam Singh Road, New Delhi where he used to sit with his son Chattar Sain and grandsons before his death. He has also deposed that on 20.01.1998 he had gone to the Court with Mangal Sain where he executed the Will dated 20.01.1998 in his presence and it was signed by Shri Kewal Krishan and Tilak Raj as witnesses. Mangal Sain was in full senses and control of his mind when he executed the Will and put his signatures on 20.01.1998. In cross examination he stated that he did not sign the Will. The deceased was his close relative being father of his co-brother. He and Mangal Sain came to Tis Hazari Court at about 2/2.30 p.m, the Will was typed by a Typist at Tis Hazari Court in his presence and the presence of Tilak Raj and testator. The Typist was sitting at the open Jagmnohan & Others vs. State & Ors,.
-: 9 :-place near the gate opposite to Metro Station. The deceased had eight daughters and one son. He could not tell the reason why he was not called to witness the Will. The Will was not registered in his presence. He denied that he has no personal knowledge of the Will.
14. PW-4 Smt. Usha Devi is respondent No.5. She has tendered her affidavit, which is Ex.P-4. By way of her affidavit, she has deposed that Mangal Sain was not well since 1995 and was suffering from Cancer, only Mr. Chattar Sain and his sons used to take care of deceased Mangal Sain. The operation of Mangal Sain was got conducted at Jessa Ram Hospital and treatment was also got conducted by Chattar Sain and his son at AIIMS and the last rites of the deceased were performed by Chattar Sain and his sons. She has also deposed that flat No. 618, Pocket-II, Madipur was purchased by Chattar Sain in the name of his father Shri Mangal Sain. The deceased got prepared the Will in the month of January-1998 and bequeathed house No. 16/682, Block-I, Bapa Nagar Padam Singh Road, Delhi to his grands sons Jagmohan and Ravi Mohan and DDA Janta Flat No. 618, Pocket-II, Madipur, Paschim Puri, New Delhi to his other two grandsons Brijmohan and Mishan Moha. In cross examination she admitted that Dayawati and her children are residing in a flat at Madipur. Her father had executed only one Will during his lifetime, same was executed about two years before his death. She was not present at the time of execution of Will. Her father was suffering from Cancer. She denied that her father bequeathed flat at Madipur in favour of Daywati by virtue of Will dated 04.07.1999.
Jagmnohan & Others vs. State & Ors,.
-: 10 :-15. Thereafter leaned counsel for petitioner closed evidence on behalf of petitioner vide statement dated 22.09.2006.
16. The objector No.7 Smt. Dayawati examined as many as three witnesses. OW-1 Smt. Dayawati is objector No.7. She has tendered her affidavit, which is Ex.O-1. By way of her affidavit, she has deposed in terms of the objections. In cross examination she denied that shop at Jawalapuri is in the name of Shri Chattar Sain. She was confronted with the documents Ex.PW-1/J-4 to J-9. The installments of flat at Paschimpuri were paid by her father through Chatter Sain. She admitted photograph of his father, which is Ex.PW- 1/C. She denied that she had taken photograph Ex.PW-1/C and then got pasted the same on Will Ex.PW-2/A (the said Will is in file of PC No. 197/06). The funeral of her father was conducted by Chattar Sain at Prasad Nagar. She denied that she got prepared forged and fabricated Will of late Mangal Sain and filed a petition as counter blast to the petition filed by Jagmohan with a view to grab the property.
17. OW-2 Shri Mohan Lal is attesting witness to the Will dated 04.07.1999 filed by the objector. He has tendered his affidavit, which is Ex.O-2. By way of his affidavit, he has deposed that late Mangal Sain took him and other neighborer Smt. Kamlesh Devi to the Court where he executed his last Will on 04.07.1999. After reading the contents of the Will, testator signed on the Will, thereafter he signed on the Will and Smt. Kamelesh Devi also signed on the Will as attesting witness. The said Will is Ex.Pw-2/A in file of PC No. 197/06. In cross Jagmnohan & Others vs. State & Ors,.
-: 11 :-examination, he stated that Will was drafted at Tis Hazari Courts on 04.07.1999, he reached at Court at 11/11.30 a.m. and it was a working day. He has stated that this the last Will as Mangal Sain died after few days of said Will. He could not tell if the Will was registered or whether any registration fee was deposited. He know the contents of the Will, there was not reference of any other property except Paschimpuri property in the Will. He denied that at the time of alleged execution of Will, the testator was suffering from Cancer. He also denied that Will dated 04.07.1999 was not executed in his presence or that he had not gone through the Will or that Mangal Sain had not executed Will dated 04.07.1999 or he is not attesting witness to the same.
18. OW-3, Smt. Baby is respondent No.9. She has tendered her affidavit, which is Ex.O-3. By way of her affidavit she has deposed that her father executed last Will on 04.07.1999, which he had shown to her and her sister Smt. Gulshan, by virtue of said Will he had bequeathed Janta flat at Madipur to Smt. Dayawati wherein she was residing. The house at Bapa Nagar was given to Shri Chattar Sain and the shop at Jawalapuri was given to Smt. Sohan Devi. In cross examination she stated that Will was executed on 4/5.07.1999 in Hindi. Her father expired in November-99 due to Cancer. Her father told her that he had executed another Will in respect of shop at Jawalahedi. The Will of July-1999 was with regard to Janta Flat, Paschimpuri. She admitted that earlier she filed no objection in the case titled as Jagmohan Vs. State but the same was filed as she was not knowing details of said case. The affidavit of Smt. Gulshan Mark X bears her Jagmnohan & Others vs. State & Ors,.
-: 12 :-signatures at point A and B. The affidavit mark Y does not bear signatures of Smt. Gulshan. She admitted that shop is at Jawalapuri and not at Jwalahedi. She could not tell whether address of shop at Jawalaprui was mentioned in Will of July-1999. She denied that Will of July-1999 is a forged and fabricated document or photograph on the Will was pasted later on.
19. The objectors filed affidavit of Smt. Gulshan but she did not appear in the witness box. Learned counsel for objector Smt. Dayawati closed evidence vide statement dated 08.09.2008.
Facts of PC No. 197/0720. In PC No. 197/2006, the petitioner has stated that the deceased testator Shri Mangal Sain died on 28.11.1999 and the death certificate has been enclosed with the petition. The deceased owned and possessed self acquired movable and immovable properties. The details of property has been mentioned in Schedule B to the petition.
21. It is averred by the petitioners that deceased Shri Mangal Sain had executed his last Will and testament dated 04.07.1999 while being possessed of sound mind, good physical and mental health and disposing power and the same was duly attested by the witnesses in the presence of the deceased testator.
22. It is further averred by the petitioner that the petitioner is the widow daughter of late Shri Mangal Sain, whose husband died on Jagmnohan & Others vs. State & Ors,.
-: 13 :-06.07.1995 when her father was alive. The list of legal heirs left by deceased has been filed as Annexure A to the petition. The petitioner had four small children and her father bequeathed flat No. 618, Pocket- II, Janta Flat, Madipur, Paschimpuri, New Delhi in favour of petitioner.
23. The petition has been verified by Smt. Kamlesh Devi one of the attesting witness to the Will.
24. The notice of the petition was issued to State through Collector. The citation for general public was got published in the newspaper 'National Herald' dated 10.11.2001 and a copy of citation was also displayed on the notice board of the Court. Nobody appeared from the general public and no objection was filed.
25. Notice was also issued to other relatives. The other relatives namely Shri Chattar Sain, Smt. Rama Devi, Smt. Usha Devi, Smt. Kunwar Devi filed joint objections on the grounds interalia that alleged Will dated 04.07.1999 is false, forged and frivolous document, the petitioner has filed the present petition to grab the property as a counter blast and the genuine Will of deceased Mangal Sain has been filed in PC No. 111/2000. The petitioner has not impleaded LRs of deceased Smt. Som Devi in the list of near relatives. The petitioner\ had earlier filed suit for injunction titled as Dayawati Vs. Chattar Sain which was dismissed in default and for non prosecution. On merits, it is denied that deceased Mangal Sain executed last Will and testament, dated 04.07.1999, alleged Will is forged and frivolous document. The Jagmnohan & Others vs. State & Ors,.
-: 14 :-deceased executed his last Will and testament on 20.01.1998 bequeathing his properties at Paschimpuri and Karol Bagh in favour of sons of objector Chattar Sain. The photograph on the alleged Will filed by petitioner is forged and fraudulently obtained from previously clicked photograph of the deceased and same was obtained from one of LRs of deceased Smt. Som Devi. The details of properties mentioned n Schedule B is incorrect and the correct valuation of the properties is mentioned in the Will dated 20.01.1998.
26. The petitioner filed reply to the objections filed by objectors, denied the allegations made in the objections and reiterated the plea taken in the petition.
27. On the pleadings of parties following issues were framed by my learned predecessor on 28.10.2003:-
1. Whether the Will dated 04.07.1999 as propounder by the petitioner was validly executed by Sh. Mangal Sain in his sound disposing mind and with free consent and that the same is the last Will / testament? OPP
2. Whether the Will in question is forged and fabricated one? OPR.
3. Whether the petitioner has not come to the Court with clean hands? If so, its effect? OPR Jagmnohan & Others vs. State & Ors,.-: 15 :-
28. In support of her case, the petitioner has examined as many as two witnesses. Pw-1 Smt. Dayawati is the petitioner. She has tendered her affidavit, which is Ex.P-1. By way of her affidavit, she has deposed in terms of the petition. She has proved the death certificate of her deceased father as Ex.PW-1/A, death certificate of her husband as EX.PW-1/B. She has also proved the Will dated 04.07.1999 executed by her father Shri Mangal Sain as Ex.PW-1/C. In cross examination she stated that she is residing in flat No.618, Paschim Puri, Delhi since 25 years and the said flat was allotted from DDA on installments. She denied that Chattar Sain deposited the installments of the said flat after the death of her father. She also denied that deceased executed the Will in respect of property No.16/682, Bapa Nagar and 618, Paschim Puri in favour of Jagmohan and Ravi Mohan or she also denied that deceased Mangal Sain never resided with her. Shri Mohan Lal, Smt. Kamlesh Devi and her other sisters knew about the Will dated 04.07.1999 in her favour and deceased handed over the Will to her few days before his death in the presence of Kamlesh Devi, Mohan Lal, Sohan Devi, Gulshan and Baby. She denied that Will dated 04.07.1999 is forged and fabricated.
29. Pw-2 Shri Mohan Lal is one of the attesting witness to the Will. He has tendered his affidavit, which is Ex.P-2. By way of his affidavit, he has deposed that he was closely known to late Shri Mangal Sain, on 04.07.1999 deceased Mangal Sain had taken him and other neighborer Smt. Kamlesh Devi the Court, where he executed his last Will in their presence. The Will was read over and explained to Jagmnohan & Others vs. State & Ors,.
-: 16 :-him and thereafter he signed in their presence. Firstly, he signed on the Will and thereafter other witness Smt. Kamlesh Devi had signed. He has proved the Will as Ex.Pw-2/A. Deceased Mangal Sain was in full senses and control of mind when he executed the Will in his presence. In cross examination he stated that he is residing at flat No. 581, Paschim Puri since last 15 years and since then he knew Mangal Sain. The Will dated 04.07.1999 was prepared at Tis Hazari Courts. He had read the contents of the Will before signing. There is no mention of any property except property No. 618 in the Will dated 04.07.1999. He denied that Will dated 04.07.1999 was not prepared in his presence or that mental condition of deceased was not good because of Cancer.
30. Thereafter, learned counsel for the petitioner closed evidence on behalf of petitioner vide his statement dated 05.02.2007.
31. The objector Chattar Sain has examined himself as OW-1. He has tendered his affidavit, which is Ex.OW-1/A. By way of his affidavit he has deposed in terms of his objections. In cross examination he admitted that flat at Paschim Puri was allotted in the name of his father in the year 1974. His father permitted the petitioner Dayawati to reside in Paschimupri flat as her husband was unwell. He denied that his father had made the payments of installments of Janta Flat at Paschimpuri. The Will was given to him by Kewal Kishan, friend of his father on Tehravi ceremony of his father. He denied that his father was residing with petitioner at Janta Flat or that petitioner was Jagmnohan & Others vs. State & Ors,.
-: 17 :-looking her father during his last days. He denied that his father owned any house or shop at Jwalapuri or that said shop was given to his widow sister Sohan Devi. He also denied that he has fabricated the Will Ex.OW-1/1 in collusion with his sons to grab both the properties of his father.
32. Thereafter, learned counsel for objector closed evidence on behalf of objector vide his statement dated 12.02.2008.
33. I have heard Shri Sanjeev Singh, Advocate for petitioners in PC No. 188/06, Sh. V.M. Issar Advocate for petitioner/objector Smt. Dayawati and Shri H.R. Ansari Advocate for objectors Sh. Chattar Sain and others in PC no.197/06. I have also carefully gone through material on record. My issue wise findings on the above issues are as under:-
PC No. 188/06: ISSUE NO.1 & 234. Mr. V.M. Issar, Advocate, Ld. Counsel for Smt. Dayawati urged that deceased Mangal Sain had one son namely Sh. Chattar Sain and seven daughters, out of them two daughters namely Smt. Rama Devi and Smt. Sohan Devi have already died. The petitioner, Smt. Dayawati has filed the petition in respect of will dated 04.07.99 executed by deceased Mangal Sain. Smt. Dayawati has proved the said will as Ex. PW 2/A in PC no. 197/06. She has examined one of the attesting witnesses namely Sh. Mohan Lal as PW-2 who has proved the will. He also pointed out that the other two daughters of the Jagmnohan & Others vs. State & Ors,.
-: 18 :-deceased namely Baby and Gulshan have also stated that the will dated 04.07.99 is a genuine will.
35. Mr. Issar, Advocate further submitted that deceased was living with petitioner Smt. Dayawati in a Janta Flat at Paschim Puri, Delhi. The deceased Mangal Sain was owner of three immovable properties, bearing no. 16/682, Bapa Nagar, Padam Singh Road, Karol Bagh, New Delhi and Janta Flat no. 618, Pocket II, Madipur, Paschim Puri, New Delhi and a shop situated at PVC Market, Jwalapuri, Delhi. According to him the distribution of properties by the deceased in the will dated 04.07.99 is equitable, by virtue of said will the deceased bequeathed the Janta Flat at Paschim Puri to Smt. Dayawati and shop at Jwalapuri to Smt. Sohan Devi. Mr. Issar, Advocate also submitted that the distribution of properties in the alleged will dated 20.01.98 propounded by the petitioners Sh. Jagmohan and others is unequal. According to said will the property situated at Karol Bagh was bequeathed in favour of Jagmohan and Ravi Mohan and Janta Flat no. 618, Madipur, Delhi was bequeathed in favour of Sh. Brij Mohan and Bishan Mohan who all are sons of Sh. Chattar Sain.
36. Another submission of Mr. Issar, Advocate Ld. Counsel for Smt. Dayawati is that the will dated 20.01.98 is not genuine as in the said will nothing was given to the daughters of deceased. The entire properties were bequeathed in favour of four sons of Sh. Chattar Sain. He also pointed out that there is no reason as to why the deceased had not given his properties to his only son Sh. Chattar Sain.
Jagmnohan & Others vs. State & Ors,.
-: 19 :-37. Per Contra, Mr. Sanjiv Singh, Advocate appearing for Sh. Jagmohan & Others urged that the petitioners, have proved the will dated 20.01.98 executed by deceased Mangal Sain as PW 1/B in PC no. 188/06, by examining Sh. Tilak Raj (PW-2). He has deposed that on 20.01.98, he alongwith testator Mangal Sain, Sh. Kewal Kishan and D.K. Pawar went to the court and the testator Sh. Mangal Sain executed a will in his presence and in the presence of Kewal Kishan and D.K. Pawar. The will was prepared on the instructions of Sh. Mangal Sain, Same was read over and explained to him and thereafter the testator signed on the same. He has also deposed that the testator, he and Sh. Kewal Kishan signed on the will in the presence of each other. The petitioner has also examined Sh. D.K. Pawar as PW-3 who has deposed that the testator Mangal Sain signed on the will in his presence and in the presence of Kewal Kishan and Tilak Raj.
38. Mr. Sanjiv Singh, Advocate appearing for petitioners/objectors Sh. Jagmohan and others also urged that the alleged will dated 04.07.99 propounded by Smt. Dayawati is a forged and fabricated will. He pointed out that the photograph on the alleged Will dated 04.07.99 was taken by Smt. Dayawati from another photograph which is Ex. PW 1/C, there is no description of the shop situated at Paschim Puri. According to him the said shop is owned by Sh. Chattar Sain and was not owned by the testator Mangal Sain. In support of his submission, he drew my attention to the copy of agreement to sell dated 18.09.81 between Sh. Bhagwan Dass and Sh. Chattar Sain, affidavit, general power of attorney and receipt which are Jagmnohan & Others vs. State & Ors,.
-: 20 :-Ex. PW 1/J-7, Ex. PW 1/J-8 , Ex. PW 1/J-9 and Ex. PW 1/J-6 respectively. Hence, the testator could not have bequeathed said shop in favour of Smt. Sohanwati. He has also pointed out that the alleged will propounded by Smt. Dayawati is 04.07.99 which was Sunday and the courts were closed and there was no question of execution of the will in Tis Hazari Courts on Sunday.
39. Mr. Sanjiv Singh, Advocate also pointed out that the signatures on the alleged will dated 04.01.99 are forged. He submitted that the testator had signed on the sales tax returns, permanent account number issued by income tax department, copies of which are Ex. PW 1/H and Ex. PW 1/G respectively. The testator also sent a letter dated 01.11.85 in the office of DESU, copy of which is Ex. PW 1/I. The signatures of testator on the said documents do not tally with the alleged will dated 04.07.99.
40. Another submission made by Mr. Sanjiv Singh, Advocate is that according to Smt. Dayawati, the alleged will was handed over to her few days before the death of testator, as stated by Smt. Dayawati (OW-1 in PC no. 188/06). According to him the testator Sh. Mangal Sain was hospitalized before his death and he could not have delivered the will to Smt. Dayawati.
41. Yet another submission of Mr. Sanjiv Singh, Advocate is that the testator Mangal Sain was not in sound disposing state of mind at the time of execution of alleged will dated 04.07.99. In support of his Jagmnohan & Others vs. State & Ors,.
-: 21 :-submission he referred to the testimony of PW-2 Sh. Mohan Lal, in PC no. 197/06. The witness in his cross examination has admitted that the mental condition of the deceased was not good because of cancer.
42. Mr. H.R. Ansari, Advocate appearing for objectors Sh. Chattar Sain and Others in PC no. 197/06 submitted that the alleged will dated 04.07.99 produced by Smt. Dayawati is forged and fabricated document.
43. I have carefully considered the submissions made by learned counsel for both the parties. Section 63 of the Indian Succession Act reads as under:-
"63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and Jagmnohan & Others vs. State & Ors,.-: 22 :-
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."
44. On perusal of the aforesaid provisions of Section 63 of the Act, it is clear that attesting witness must state that each of the two witnesses had seen the executor sign or affix his mark to the Will or has seen some other persons signing the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the Will in the presence of the executant. These are the ingredients of the attestation and have to be proved by the witnesses. The word 'execution' in Section 63 of the Act includes attestation as required by law. The propounder can discharge the onus on proof of aforesaid essential ingredients.
45. Section 68 of Indian Evidence Act provides that 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.
46. The Apex Court in case titled as Indubala Bose & Ors Vs. Manindra Chandra Bose & Anr reported as AIR 1982 Supreme Court 133, has observed that mode of proving a Will does not ordinarily differ from that of proving any other document except to the special Jagmnohan & Others vs. State & Ors,.
-: 23 :-requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act.
47. The Apex Court in case titled as Madhukar D. Shende Vs. Tarabai Aba Shedage reported as AIR 2002 SC 637 laid down the following principles:
"8. 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 mattes before it, 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 productive 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 sought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by way-farers and way-layers. What was told by Baron Alderson to the jury in R. v. Hodge may be apposite to some extent-
"The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenuous the mind of the individual, the Jagmnohan & Others vs. State & Ors,.-: 24 :-
more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with the previous theories and necessary to render them complete".
The conscience of the Court has to be satisfied by the propounder that the Will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a Will provided that there are 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 floor closure scrutiny of evidence but suspicion alone cannot form the foundation of judicial verdict - positive or negative.
9. It is well settled that one who propounds a Will must establish the competences of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity one would leave no room for suspicion, assume significance. If there is nothing, unnatural about the transaction and the evidence adduced satisfies the requirement of proving a Will, the Court would not return a finding of "not proved"
merely on account of certain assumed suspicion or supposition who are the persons propounding and Jagmnohan & Others vs. State & Ors,.-: 25 :-
supported a Will as against the person disputing the Will and the pleadings of the parties would be relevant and of significance."
48. It is also well settled that the Will has to be proved not only by proving the signatures of the executor but it should be found to be free from any suspicious circumstance. 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. In this regard reliance can be placed on Judgment in case titled as H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors reported as AIR 1959 Supreme Court 443 and another case titled as Shasi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee reported as AIR 1964 S.C. 529.
49. The law regarding legal burden of proof was extensively dealt with by our own Hon'ble High Court in case titled as Vidhya Sagar Soni Vs . State and Ors reported as AIR 2006 Delhi 354 . In para 5 to 21 of the said Judgment the principles regarding burden of proof have been laid down. It was held that the legal burden to prove due execution always lies upon the person propounding the Will. The propounder must satisfy the judicial conscious of the Court that the instrument so propounded is the last Will of a free and capable testator. It was also held that no specific standard of proof can be enunciated which must be applicable to all the cases. Every case Jagmnohan & Others vs. State & Ors,.
-: 26 :-depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the Will which is propounded. The Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of Wills are not rules of law but are rules of practice.
50. On perusal of Section 63 of Indian Succession Act,Section 68 of Evidence Act and the aforesaid judgments the following principles emerge:
(i) Unlike other documents the will speaks from the death of the testator and therefore when it is propounded before a court the testator who has already departed from the world, cannot say whether it is a 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 true to be the last will and testament of the departed testator. Even so, in dealing with the provisions of the will, the court will start on the same enquiry as in the case of other documents.
(ii) A will is one of the most solemn document known to law. By this document a dead man intends to be living, the carrying out of wishes and as it is impossible that he can be called either to deny his/her signatures or to explain the circumstances in which it was executed. It is essential that trustworthy and an effective evidence should be given in compliance with the necessary formalities of law.
(iii) The initial burden is always on the propounder to prove due execution, attestation and a sound disposing state of mind of the testator. So, in matters of wills any plea of undue influence Jagmnohan & Others vs. State & Ors,.-: 27 :-
and/or falsity, forgery has to be sustained by the person who takes up this plea.
(iv) In case where attesting witnesses are produced and they give clear and cogent testimony regarding execution, one should have very strong ground to repel the effect of such testimony.
(v) If the propounder of will has proved due execution and attestation of the will, it is for the caveator to prove the suspicious circumstances surrounding the will.
51. The law regarding suspicious circumstances is that any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected from a normal person.
52. It is also settled law that in a case where the respondent alleges undue influence, fraud and coercion, the onus lies on him to prove the same. In this regard reference with advantage can be made to a judgment of the Apex Court in case titled as Pentakota Satyanarayan & Ors. Vs Pentakota Seetharanan & Ors reported as (2005) 8 Supreme Court Cases 67.
53. In the instant case, Sh. Jagmohan, Brij Mohan, Kishan Mohan and Ravi Mohan who were grandsons of testator Mangal Sain have propounded will dated 20.01.98. They have proved the said will as Ex. PW 1/B in PC no. 188/06, by examining Sh. Tilak Raj as PW-2. They have also examined Sh. D.K. Pawar (PW-3) who has deposed Jagmnohan & Others vs. State & Ors,.
-: 28 :-that the testator executed the will dated 20.01.98 in his presence and the same was also signed by Sh. Kewal Kishan and Tilak Raj as witnesses, Sh. Mangal Sain was in full senses and control of his mind at the time of execution of the said will. The objector Smt. Dayawati has not cross examined to PW-2 Sh. Tilak Raj and PW-3 Sh. D.K. Pawar regarding the mental capacity of the testator at the time of execution of will dated 20.01.98.
54. Ld. Counsel for Smt. Dayawati assailed the Will dated 20.01.98 on two grounds, the testator Sh. Mangal Sain executed subsequent Will dated 04.01.99 and the previous Will dated 20.01.1998 was superseded and the will dated 20.01.1998 shows inequitable distribution.
55. The submission of Mr. Issar, Advocate that there is inequitable distribution in the will dated 20.01.1998 and by said Will nothing was given to the daughter Smt. Dayawati, does not hold water. The Apex Court in case titled as Sundaresh Pai & Others Vs Mrs. Sumangala T.Pai & Another reported as JT 2001 (10) SC 92 has observed that uneven distribution of assets is no ground to treat the Will as unnatural.
56. It is settled principle of law that probate is to be granted in respect of the last will and testament of the deceased. The petitioner Smt. Dayawati has propounded Will dated 04.07.99 which is later in time. Now the question which comes up for consideration is regarding Jagmnohan & Others vs. State & Ors,.
-: 29 :-the validity and genuineness of Will dated 04.07.99. The said Will dated 04.07.99 is an unregistered document.
57. On consideration of the documents placed on record and the evidence adduced by both the parties, in my view, the petitioner Smt. Dayawati has failed to dispel following suspicion circumstances surrounding the Will dated 04.07.1999 which is Ex.PW-2/A in PC No. 197/06.
(i) The Will propounded by Smt. Dayawati is dated 04.07.1999 and was attested by Notary Public on 04.07.1999 which was Sunday.
(ii) The Notary Public, Shri R.K. Khatri who attested the said Will dated 04.07.1999 has not been examined.
(iii) The photograph of the testator on Will dated 04.07.1999 seems to have been taken from photograph and negative which are Ex.PW-1/C and Ex.PW1/D produced by petitioners Shri Jagmohan and others in file of PC No. 188/06.
(iv) The signatures of the testator Mangal Sain on Will dated 04.07.1999 do not tally with the signatures of the testator on the PAN Card Ex.PW1/G, Copy of sale tax returned Ex.PW1/H and letter dated 01.11.1985 sent by deceased to DESU, copy of which is Ex.PW1/I.
(v) In Will dated 04.07.1999 there is no reference to the previous Will dated 20.01.1998 executed by testator.
(vi) In Will dated 04.07.1999 Janta Flat No. 618, Pocket-II, Paschmpuri, New Delhi was bequeathed to Smt. Dayawati, one shop at PVC market, Jwalapuri was bequeathed to Smt. Sohan Devi. But Jagmnohan & Others vs. State & Ors,.
-: 30 :-there is no mention of house No. 16/682, Block-I, Bapa Nagar, Karol Bagh in the Will.
(vii) The complete particulars of shop situated at PVC market Jwalapuri is not mentioned. Moreover, the petitioner in PC No. 188/06 have proved the copies of documents in respect of said shop as Ex.PW1/J-4 to Ex.PW1/J-9 and the said shop is in the name of Shri Chatter Sain. Smt. Dayawati has not adduced any evidence that said shop was in the name of the testator.
(viii) According to PW-1 Smt. Dayawati in PC No. 197/06, the Will dated 04.07.1999 was handed over to her by the deceased in the presence of Smt. Kamlesh Devi, Smt. Sohan Devi, Baby and Gulshan but they have not been examined for the reasons best known to her.
(ix) PW-2 Shri Mohan Lal was examined by Smt. Dayawati in PC No. 197/06 and in his cross examination he has admitted that the mental condition of the deceased was not good because of cancer.
58. The cumulative effect of aforesaid discussion is that the Will dated 20.01.1998 was executed by the testator Shri Mangal Sain. The Will dated 04.07.1999 propounded by Smt. Dayawati is not free from suspicion. Accordingly issues no. 1 & 2 are decided in favour of the petitioners and against the objectors.
ISSUE NO.3
60. This issue was framed on the objections taken by objectors that the petition is not verified by the attesting witnesses. The Jagmnohan & Others vs. State & Ors,.
-: 31 :-objection taken by the objector is without any merit. The petition is duly verified by both the attesting witnesses namely Shri Tilak Raj and Kewal Kishan. Hence, issue No.3 is decided in favour of the petitioners and against the objectors.
RELIEF
61. In view of my findings on issues no. 1 & 2, the petitioners being beneficiary of the Will dated 20.01.1998 are entitled to the Letters of Administration.
PC NO. 197/06 ISSUE NO. 1 & 262. In view of aforesaid discussion and my findings on issues No. 1 & 2 in PC No. 188/06, issues no. 1 & 2 are decided against the petitioner Smt. Dayawati and in favour of the objectors.
ISSUE NO.3
63. This issue was framed on the objections taken by the objector. Learned counsel for the objectors did not press this issue during arguments. Hence, this issue stands deleted.
64. There is an application under Section 340 Cr.P.C. dated 11.02.2004 filed by petitioners in PC No. 188/06 and another application u/s 340 Cr.P.C. dated 11.02.2004 filed by Shri Chatter Sain in PC No. 197/06. Reply to both the applications have already filed. Arguments on both the applications were also heard.
Jagmnohan & Others vs. State & Ors,.
-: 32 :-65. The applicants have filed the application under Section 340 Cr.P.C. on the ground that alleged Will dated 04.07.1999 produced by Smt. Dayawati was not duly executed by deceased Mangal Sain, same was not witnessed by independent witnesses and the same is forged and fabricated document. Smt. Dayawati has filed forged and fabricated Will and has given false evidence and rendered herself to be prosecuted for the various offences including perjury. In the alleged Will dated 04.07.1999 deceased Mangal Sain made arrangement regarding alleged shop in PVC market, Jawalapuri, Delhi, which was bequeathed to Smt. Somdevi but the said shop was not owned by deceased Shri Mangal Sain.
66. The law regarding Section 340 Cr.P.C. is that provisions of the Code are intended to lodge against the parties, if it is expedient in the interest of justice. The powers under Section 340 Cr.P.C. should be used with care and due consideration. In case titled as Kuriakose Vs. State of Kerala reported as 1995 Criminal Law Journal 1751, it was held that proceedings under Section 340 Cr.P.C. need not be initiated as a matter of course but after considering gravity of false statement. It was also held that it is not in all the cases when witnesses speak falsehood that action shall be initiated against him for perjury by invoking Section 340 of the Code. There must be prima facie satisfaction on the part of the Court that such a proceeding should be initiated for the interest of justice and there is prima facie evidence to come to the conclusion that false evidence has been tendered. In the absence of those conditions, the Court will not be justified in Jagmnohan & Others vs. State & Ors,.
-: 33 :-proceeding matter. Also, the gravity of the false statement, circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair normal flow of the course of justice are matters for consideration when the Court decides on the propriety of instituting a complaint for perjury. It was also held that if the Court is to notice every falsehood that is sworn to by the parties, there would be very little time for the Courts for any serious work other than directing prosecution for perjury. (Para 4 & 9).
67. Applying the law laid down in the aforesaid Judgment, both the applications under Section 340 Cr.P.C. are dismissed.
68. As a result of above discussion and my findings on above issues, PC No. 188/06 titled as Jagmohan & Ors. Vs. State & Ors. is allowed. Letters of Administration in respect of Will dated 20.01.1998 executed by deceased Shri Mangal Sain be issued in favour of petitioners on furnishing administration bond cum surety bond and payment of requisite Court fees. The petition bearing PC No. 197/06 titled as Smt. Dayawati Vs. State is dismissed. The applications under Section 340 Cr.P.C. filed in both the cases are also dismissed. A copy of this Judgment be placed in the file bearing PC No. 197/06. File be consigned to Record Room.
Announced in open Court (V.P. VAISH)
on this 10th day of September 2009 DISTRICT JUDGE-II
(NORTH) DELHI
Jagmnohan & Others vs. State & Ors,.