Delhi District Court
Shri Vinod Kumar vs The State on 6 May, 2017
IN THE COURT OF SH. SANJAY KUMAR : ADDL. DISTRICT JUDGE
(WEST)-02, TIS HAZARI COURTS:DELHI
Old P.C No. 153/10/07
New P.C. No. 15988/16
1. Shri Vinod Kumar
Son of late Shri Ishwar Dutt
2. Smt. Madhu Rani
Wife of late Shri Prithvi Raj
3. Shri Manish Arora ( Mentally retarded person)
Son of Late Shri Prithvi Raj
through his mother and
natural guardian Smt. Madhu Rani
4. Shri Kapil Arora
Son of late Shri Prithvi Raj
All resident of flat No. 79,
Sarojini Nagar,
New Delhi-11023
... Petitioners
Vs.
1 The State
2. Shri Vijay Kumar
Son of late Shri Ishwar Dutt
Resident of 93,
New Venus Apartment
Pocket-43, Sector-9
Rohini, Delhi
3. Shri Anil Kumar
Son of late Shri Ishwar Dutt
PC No. 153/10/07 Vinod Kumar Vs State & others 1/40
G-57, New Venus Apartment,
Pocket-43, Sector-09, Rohini,
Delhi
4. Smt. Santosh Rani
Wife of Shari Laxmi Narain Sachdeva
Resident of 579, Devli,
New Delhi
5. Smt. Susheela Satija
Wife of Shri B.D Satija
Resident of B-108, Amar Colony,
Lajpat Nagar-IV,
New Delhi-110024
6. Smt. Pushp Lata Chugh
Wife of Shri Subhash Chugh
Resident of 127, Ground floor,
Venus Apartment, Pocket 43
Sector-9, Rohini,
Delhi
7. Smt. Poonam Chandna
Wife of Shri Ravi Chandna
17/62-B, Tilak Nagar,
New Delhi
8. Smt. Indu Malhotra
Wife of Shri Arun Malhotra
Resident of G-31, Ist floor,
Ashok Vihar, Phase-I,
Delhi
... Respondents
Date of original institution of the case : 03.02.2007
Date of reservation of order : 24.04.2017
Date of pronouncement of judgment : 06.05.2017
PC No. 153/10/07 Vinod Kumar Vs State & others 2/40
JUDGMENT:
1 A petition under Section 276 of Indian Succession Act for grant of Probate/Letter of Administration with respect to will dated 2nd May, 1991 left behind by late Shri Ishwar Dutt S/o late Shri L.Kaura Ram, R/o Flat No. 79, Sarojini Nagar Market, New Delhi- 110023 has been filed.
2 In brief the facts are that petitioner no. 1 and respondent no. 2 to 8 are real brothers and sisters and petitioner no. 2 is the sister-in-law ( Bhabi) of petitioner no. 1 and of respondent no. 2 to 8 while petitioner no. 3 & 4 are the sons of petitioner no. 2 and nephew of petitioner no. 1 and respondent no. 2 to 8. Late Shri Ishwar Dutt, father of petitioner no. 1 and respondent no. 2 to 8 and father-in-law of petitioner no. 2 and grandfather of petitioner no. 3 & 4 (hereinafter referred to as 'deceased').
3 It is stated that deceased was the absolutely and exclusive owner/lease of properties bearing shop No. 79, Sarojini Nagar Market, New Delhi-110023 and flat No. 79, Sarojini Nagar Market, New Delhi-110023 (hereinafter referred to as 'properties in question') by virtue of Lease Deeds being document no. 8449 in Additional Book No. 1, Volume No. 5964 at pages 119 to 121 on 2 nd November, 1987 and document no. 9212 in Additional Book No. 1, Volume No. 5662 at pages 73 to 75 on 10 th November, 1986 respectively. The deceased died on 18th November 1991 at Delhi leaving behind the L.Rs who all are parties before the court.
PC No. 153/10/07 Vinod Kumar Vs State & others 3/40 4 It is stated that on 17.01.2001 son Prithvi Raj expired leaving behind petitioner no. 2, wife and two sons i.e petitioner no. 3 & 4. The wife Smt. Sarla Devi also expired on 22.05.2001.
5 The deceased left behind Will dated 02.05.1991 duly registered as document No. 2042 in Additional Book No. III, Volume No. 601, at pages 199 to 203 whereby bequeathed his aforesaid properties in question in favour of of his two sons I.e the petitioner No. 1 and deceased Prithvi Raj, which consists of two rooms, open court yard, kitchen and bathroom in favour of late Shri Prithvi Raj while the open space forming part of the said flat and the right of construction over the terrace of the said flat to and in favour of petitioner no. 1. The petitioner No. 3 is mentally retarded person, therefore represented through his mother and natural guardian Smt. Madhu Rani, petitioner no. 2.
6 It is stated that deceased had a fixed place of abode at Delhi within the jurisdiction of this court. The petitioners seek a letter of administration/probate in respect of assets and estate left behind by the deceased as per Schedule B with the annexed will dated 02.05.1991 of the deceased.
7 Upon filing the petition, notices were issued to all the respondents/LRs of deceased and citation was issued in daily newspaper 'Indian Express' dated 15.02.2007. Notice was also served to State through the Chief Secretary (West).
PC No. 153/10/07 Vinod Kumar Vs State & others 4/40 8 The valuation report in respect of the suit property bearing shop No. 79, Ground floor & flat No. 79, First floor, Sarojini Nagar Market, New Delhi was also called from the concerned Collector and accordingly, Tehsildar, Vasant Vihar filed the valuation report and the value of the said property has been assessed to the tune of Rs. 25,00,000/- ( Rupees Twenty Five Lacs only).
9 In this case respondent no. 4 Smt. Santosh Rani and respondent no. 5 Smt. Susheela Satija failed to appear despite service and vide order dated 30.7.2007 they were proceeded ex- parte.
10 Respondent no. 2, 3, 6, 7 & 8 filed objections and taken preliminary objections that present petition is not maintainable as the alleged documents cited as last and final will is lacking the most material/essential ingredients of the Will. The alleged will otherwise also being unnatural, improbable, not being the language and tenor of the testator and not properly executed and attested, therefore, cannot be considered for grant of Probate and petition is liable to be dismissed with cost.
11 It is further stated that petition is hopelessly barred by limitation. The petitioners are estopped by their acquiesce, acts and conduct from filing the present petition. It is stated that apparently the will in question is subscribed by a person verifying the petition. The subscriber cannot be an attesting witness to the will. There is no cause of action, locus standi to file the present petition, PC No. 153/10/07 Vinod Kumar Vs State & others 5/40 therefore, liable to be dismissed. The petitioners have not come to the court with clean hands and suppressed the material facts and also guilty of suppressing the material facts and playing perjury with this court.
12 It is further stated that deceased did not execute any will much less the Will cited, alleged relied upon and filed by the petitioners. The deceased died intestate as such legal heirs and successors of the deceased are entitled to succeed his entire estate equally. The will so cited is otherwise forged, fabricated one and result of collusion between petitioners, subscriber of the alleged documents cited as alleged Will and the Sub-Registrar office.
13 It is stated that deceased was not even competent to make any will in respect of the properties in question which were allotted to the deceased in lieu of ancestral properties left in West Pakistan from Rehabilitation pool. The close scrutiny of the will itself proved that it is forged, fabricated, manipulated and surrounded by suspicious circumstances and deceased was not in mental status which is sound and disposing due to major and old illness deceased was put on life saving intoxicated medicines and due to ill health, feeble deteriorating physique deficient mental condition was not in a position to recognize the calls of the nature. The deceased was not in sound disposing mind and confined to the bed, therefore, cannot attend the office of Sub-Registrar for execution or registration of any document, therefore, will is forged and fabricated, manipulated and petition is liable to be dismissed.
PC No. 153/10/07 Vinod Kumar Vs State & others 6/40 14 On merit all the averments made in the petition are denied and the facts stated in the preliminary objections are reiterated. It is stated that deceased did intestate and petition is liable to be dismissed.
15 Rejoinder-cum-reply filed by petitioner and denied all the averments mentioned in the objections and reiterated the averment in the petition. It is stated that the deceased was running his business as a Tailor in Rang Mahal Bazar in Lahor, Pakistan and after partition in 1947, he shifted to Delhi, India and started business in partnership with one Shri Khan Chand at the suit property which was the original allottee to the partners as per partnership Deed of dated 22nd September, 1951. The Partnership was dissolved vide deed of Dissolution dated 02.06,1952. Therefore, all the rights fell to the share of deceased. Deceased had ultimately purchased the suit property from government of India and granted ownership right vide letter No. DE/MKT/SM 79 dated 6 th January, 1979 and deposited Rs. 13,704/-.
16 It is further stated that petitioners approached the department concerned for mutation of the suit property then department required the no objections of respondent no. 2 to 8 in writing, therefore, a request was made in this regard. Respondent no. 2 to 8 orally given their NOC for mutation but deliberately avoided in writing on one pretext or the other, therefore, petitioner got issued notice dated 16.09.2006 but respondent no. 2 to 8 failed and neglected to comply the notice. Therefore, petitioners were compelled to file the present petition.
PC No. 153/10/07 Vinod Kumar Vs State & others 7/40
17. On the basis of pleadings of the parties, my Ld. Predecessor framed the following issues vide order dated 31.01.2008:
1. Whether the Will dated 02.5.91 of Sh. Ishwar Dutt is proper and valid? OPP
2. Whether the Will dated 2.5.91 of Sh. Ishwar Dutt is forged and fabricated? OPR
3. Whether the property bequeathed is not capable of being the subject matter of the Will, if so its effect? OPR
4. Whether the petitioner is entitled to the grant of probate/letters of administration in respect of the Will dated 2.5.91 of Sh. Ishwar Dutt? OPP
5. Relief 18 The petitioners in order to prove their case, examined Shri Vinod Kumar, petitioner as PW-1, Sh. Anant Lal, the attesting witness to the will as PW-2, Sh. Babu Lal, UDC from the office of Sub-Registrar as PW3 and Sh. Mangesh Kumar, Junior Assistant from the office of NDMC as PW-4. Vide separate statement of counsel for the petitioner evidence on behalf of petitioner was closed on 12.01.2016.
19 Respondent no. 2, 3 and 6 to 8 examined Sh. Raman Dhingra, Senior Assistant as RW-1, Sh. Vijay Kumar, respondent no. 2 as RW-2 and vide separate statement of counsel for respondent no. 2, 3 and 6 to 8 evidence on behalf of respondent no. 2,3,6 & 8 was closed on 17.05.2016.
20 I have heard Sh. Sameer Mendirata, Ld. Counsel for the petitioners, Sh. Anil Kathuria Ld. Counsel for the respondent no.2, 3 PC No. 153/10/07 Vinod Kumar Vs State & others 8/40 and 7 & 8 and Sh. J.K. Jain, counsel for respondent no. 6 and there is no assistance on behalf of respondent no. 4 & 5. The respondent no. 6 and 2, 3,7 & 8 also filed written arguments and judgments.I have also gone through the written submissions and judgments as well. My issue wise findings are as under:21 Issue No. 2 & 3
The issue no. 2 & 3 are taken together as they are inter- connected. The burden to prove issue no. 2 & 3 is on the respondents. It is pertinent to mention here that respondent no. 2, 3, 4, 5, 6. 7 & 8 have filed joint written objections.
22 As per record all the respondents examined RW-1 Sh.
Raman Dhingra, Senior Assistant, New Delhi Municipal Council, Palika Kendra, New Delhi and RW-2 Sh. Vijay Kumar. Respondent no. 6 has not appeared in witness box nor examined any independent witness. But remaining respondents also neither appeared in witness box nor examined any independent witness.
23 RW-1 Sh. Raman Dhingra, brought the record with regard to property I.e flat and shop No. 79, Sarojni Nagar Market, New Delhi. He proved the certified copies which were already on record pertaining to affidavit of late Sh. Ishwar Dutta dated 20.02.1950 as Ex. RW-1/1, certified copy of reply of notice given by Sh. Mohinder Pratap dated 31.08.1964 as Ex. RW-1/2, certified copy of undertaking of Sh. Ishwar Dutta dated 25.08.1992 as Ex. RW-1/3, Certified copy of letter dated 16.09.1992 given by Sh. Ishwar Dutta PC No. 153/10/07 Vinod Kumar Vs State & others 9/40 regarding Excess Lease Money deposited as Ex. RW-1/4. Certified copy of letters dated 19.03.2004 and 05.06.2004 from Sh. Ishwar Dutta as Ex. RW-1/5 and Ex. RW-1/6, certified copy of allotment order dated 30.08.1954 in respect of shop no. 79 Sarojni Nagar Market, New Delhi, as Ex. RW-1/7. He further proved the letter issued by L & DO dated 24.11.1992 to Sh. Ishwar Dutta as Ex. RW- 1/8 and documents Ex. RW-1/9 pertaining to that it is a rehabilitation market and the applicant claimed benefit under refugees.
24 In the cross-examination he deposed that he has no personal knowledge but he has brought the record. He admitted that letter dated 17.04.1954 Ex. RW-1/P1 is the cancellation of allotment.
25 RW-2 Sh. Vijay Kumar, respondent no. 2 appeared in witness box and tendered his affidavit Ex. RW-2/A. In the cross- examination he deposed that he had joined the bank service with Punjab National Bank in the year 1977 and taken VRS in the year 2000. He got married in the year 1991 and shifted with his wife to Tagore Garden, New Delhi in the year 1992. He admitted that he was not partner in the business of dry cleaner run by his father. He admitted that Sh. Vinod Kumar and Mr. Prithvi Raj, petitioners used to work with his father full time. He admitted that initially his late father started business in the name and style of M/s Khan Chand Narain Dass with Mr. Khan as partner. He further admitted that partnership firm was dissolved and shop and house no. 79, Sarojini PC No. 153/10/07 Vinod Kumar Vs State & others 10/40 Nagar Market came to the share of his father. He does not remember whether Mr. Vinod and Mr. Prithvir Raj applied for mutation of the said flat and shop and mutated their name. He admitted that he had obtained the complete certified copy of file from NDMC and he admitted that as per record they applied for mutation.
26 In further cross-examination he deposed that he has not filed any medical regarding illness of deceased testator. He denied the suggestion that deceased testator was hale and hearty at the time of execution of the will and thereafter. He has no knowledge about the opening of FDR in PNB, Parliament Street one month prior to death of deceased testator on 25.10.1991. He further deposed that his brother Anil Kumar might have married in the year 1987-88. He denied the suggestion that he started living separately after his marriage. He admitted that his brother Anil Kumar never joined any business with his deceased father. He admitted that he had independent source of income and had no concerned with the income of his father. He denied the suggestion that will in question is genuine and executed by his father out of his free will and sound disposing mind.
27 Ld. Counsel Sh. J.K. Jain filed written arguments wherein he submitted that the will in question is not will as per Section 4 ( 64) General Clause Act and registration of the documents as Will in separate book maintained by the Sub-Registrar was illegal.
PC No. 153/10/07 Vinod Kumar Vs State & others 11/40 28 It is further submitted that there are suspicious circumstances that is why the delay in filing the probate after about 15 years. Therefore, probate petition is barred by limitation. There is violation of Section 54 of Mental Health Act because one of the petitioner Sh. Manish is mentally retarded person.
29 Ld. Counsel Sh. Anil Kathuria for respondent no. 2, 3, 7 & 8 submitted that in order to prove the Will the onus to prove that testator had executed the Will in sound disposition of mind, with free Will without any undue influence and coercion and also understood the contents and its repercussions and substances to make the testator understand that is the same is workable on the propounder of the Will. Apart from it, the propounder has to dispel all the suspicious circumstances the execution of the Will to the satisfaction of the court. The propounder has to come to the court with clean hands. It is submitted that there are vital facts have been concealed by the petitioners. In the testimony of PW-1 deposed that he got the Will Ex. PW-2/B after two three days of death of his mother. The cross-examination also mentioned by him that we found the will of 1991 on day of mother's death i.e after 10 years of the death of the deceased testator. He again in the cross- examination deposed that he got the possession of the Will Ex. PW- 1/6 after the death of his mother in the year may be 2004. However, contrary statement made by him he used to pay Rs. 200 per month apart from normal expenses as per law. It is submitted that both of them having knowledge of the Will in question in possession of the petitioner who had been acting upon the Will and PC No. 153/10/07 Vinod Kumar Vs State & others 12/40 falsely stated that Will was discover after the death of mother in the year 2001. It is suspicious and petitioner has not come to the court with clean hands and filed a probate petitioner after 16 years without explaining the reasons and falsely deposed.
30 It is further submitted that the attesting witness Sh. Ved Parkash and Sh. Anant Lal. In the cross-examination Sh. Vinod Kumar stated that he does not know the attesting witness Ved Parkash and came to know about his death when summons were issued to him remained un-served. It also raises suspicious. PW-2 Sh. Anant Lal whose address is not mentioned on the will. The verification clause also defectively typed where the address has been incorporated with a hand written and not typed it also raised suspicion.
31 It is admitted on record that attesting witness Ved Parkash did not give any affidavit to the petitioner in respect of the Will. PW-2, the other attesting witness is paid witness who was advocate and sitting outside the Sub-Registrar office and not known to the testator. It is further submitted that PW-1 was an instrumental in dealing with L & DO even after the death of late Sh. Ishwar Dutt and this fact was not disclosed. The Ex. PW-1/D5, D6, D7, D8, D9, D10 and D11, Ex. PW-4/D6 and RW-1/8 established that petitioner was in the habit of furnishing signatures of his deceased father after his death.
PC No. 153/10/07 Vinod Kumar Vs State & others 13/40 32 It is submitted that the testimony of attesting witness PW-2 and non-examination of Ved Parkash another attesting witness established that they never intended to become attesting witness because of "Animus Testandi". He further submitted that PW-2 is deposing falsely about there being thumb impression which is crucial element of registration and execution of the Will etc. In this regard the manual of Delhi Administration, Registration Department 1976 para 37 and 38 casts duty upon the Sub-Registrar to follow the procedure. He submitted that as per evidence of the parties there is admission of PW-1 of entering into correspondence on behalf of his deceased father, Sh. Ishwar Dutt, after the death by furnishing undertaking on 18.11.1991. It is proved on record that alleged will Ex. PW-1/6 as well as signatures on the will are forged and fabricated as per testimony of PW-2 Sh. Anant Lal, the attesting witness. The petitioner is not entitled to probate as will in question is surrounded by suspicious circumstances and petition filed after about 16 years of delay and there are concealment of the facts by the petitioner.
33 I have examined the respective submissions. In the joint objections of all the respondents the first objection raised with regard to limitation. As per record, it is proved that deceased testator had executed the Will in question on 02.05.1991 and there are two witnesses mentioned therein one is Sh. Ved Parkash and another Sh. Anant Lal. The address of Anant Lal, advocate is not mentioned. It is also proved on record that Ved Parkash died. It is also proved and admitted on record that deceased testator Ishwar PC No. 153/10/07 Vinod Kumar Vs State & others 14/40 Dutt died on 18.11.1991 after about six months of the execution of the Will and present petition filed on 03.02.2007.
34 Before giving my findings on point of Limitation, Let us peruse the law laid down by Appex Court. The question for consideration, is whether the petition for grant of Probate/ Letter of Administration is governed by the provision of Article 137 of the Limitation Act, Came up in the case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", (2008) 8 SCC, 463 Supreme Court of India, while answering whether Article of Limitation Act applies to the application for probate held as under
"The genesis of Article 137 of the Limitation Act can be traced from Article 181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary clause contemplates the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained from the comparison of two provisions, which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
137. Any other application for Three years when for PC No. 153/10/07 Vinod Kumar Vs State & others 15/40 which no period of right to apply accrues limitation is provided elsewhere in this Division."
Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P. Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The word 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a Civil Court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 of the 1963 Limitation Act."
Thus, an application under any specified Act before the Civil Court is application conceived under Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under Artilce 181 of the Limitation Act, 1908 have been obliterated by PC No. 153/10/07 Vinod Kumar Vs State & others 16/40 deletion and amendment of article 137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an application under special statue being filed before the Civil Court.
35 Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) 11 SCC 537, held that Article 137 of Limitation Act is applicable in case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr. Dalpatrai's contention. I summarise my conclusion thus-
(a)under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b)the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c)Such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survive and the object of the trust exists or any part of the trust, if created remains to be executed;
(d)the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death.;
PC No. 153/10/07 Vinod Kumar Vs State & others 17/40
(e)delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f)such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
36 The petitioner in the petition mentioned about relevant dates of execution of the Will in question, death of deceased and filing of the present petition. The mother of the petitioner also died on 22.05.2001. The petitioner filed rejoinder in Para 6 on merit it is mentioned that respondents were also in the knowledge of the will in question that is why they never claim any right, title or interest in the property bequeathed to petitioner no. 1 and petitioner no. 2 to
4. It is stated that when petitioners approached the department concerned for mutation then asked to furnish No Objection of the respondents. The request was made to them, The respondents orally gave their No Objection but deliberately avoided to give any writing on one pretext or the other. Consequently, a legal notice was issued was issued to respondents on 16.09.2006 but despite of the service they failed to give NOC, therefore, petitioners were compelled to file the present petition.
37 Sh. Vinod Kumar, petitioner No. 1 appeared in witness box and filed his affidavit Ex. P1. He has been subjected to cross-
PC No. 153/10/07 Vinod Kumar Vs State & others 18/40 examination from July 2008 to 12.01.2016 for about eight years. In the detailed cross-examination he deposed that he had asked for NOC on the basis of Will in question through legal notice Ex. PW- 1/R1. He further deposed that he had demanded the NOC from respondents even prior to issuance of legal notice as they refused. The respondents themselves proved the notice Ex. PW1/R-1 dated 16.09.2006 which is very detailed and elaborate all the circumstances. It is admitted on record that no reply was sent by the respondents to the said legal notice. In my considered opinion as pointed out the specific lines of cross-examination of PW-1 by Ld. Counsel Sh. Anil Kumar Kathuria, counsel for respondent no. 2, 3, 7 & 8 about the knowledge of the Will at the time of death of mother three four days or 13 days is immaterial because applying the principle of law in the present facts and circumstances as held by the Apex court in "KUNVARJEET SINGH KHANDPUR and KRISHAN KUMAR SHARMA (Supra) the cause of action arises to petitioners, when in writing specifically NOC was demanded from respondents by the petitioners and they refused to give the NOC. 38 In the present facts and circumstances of the case the real cause of action does not arise on the death of deceased testator or knowledge by the petitioner with regard to the will in question but it arouse and materialized when the respondents challenged the bequeath of property flat no. 79 Sarojni Nagar Market as per will in question and refused to give NOCs. Thereafter a legal notice was duly served, even when they refused to give NOC in the year 2006. Hence in my considered opinion the present petition is within limitation.
PC No. 153/10/07 Vinod Kumar Vs State & others 19/40 39 Now coming to the issue with regard to capability of the deceased testator late Sh. Ishwar Dutt to bequeath the property in question. At the outset, I would like to mention that Apex court has laid down the law that testamentary court cannot go into the question and decide/adjudicate the right, title or interest of the property in case of Chiranji Lal Sri Vs Jagjit Singh ( 1993) 2 SCC
507. However, in the peculiar facts and circumstances of the case where the respondents no. 2 to 8 raised this objection and examined RW-1 to discharge the onus from the department of Municipal Council, Palika Kendra, New Delhi, who produced the record of flat and shop bearing no. 79, Sarojni Nagar Market.
40 It is pertinent to mention here that petitioner Vinod Kumar when appeared in witness box also proved the property documents. Nevertheless, I would like to refer documents brought on record by respondents Ex. RW-1/1 is the affidavit of deceased testator where he had stated on oath that he was a displace person from Lahore, where he was carrying on his business as a tailor in Rang Mahal Bazar and he was displaced from Lahore in the month of August 1947. Ex. RW-1/2 is the notice by the deceased testator to the Director of Estate on 31.08.1964 with regard to the above said flat in question and return of excess amount recovered.
41 Initially as per documents the flat and shop in question was allotted to M/s Khem Chand Narain Dass. Another letter written by deceased testator to the land and Development office is Ex. RW- 1/4 is about Excess Lease money deposited. In the cross-
PC No. 153/10/07 Vinod Kumar Vs State & others 20/40 examination, it is admitted by the witness that on 17.04.1954 the allotment was cancelled vide Ex. RW-1/P1 in the name of M/s Khem Chand Narain Dass.
42 It is pertinent to mention here that the petitioner proved the Dissolution Deed Ex. PW-1/3 between Kham Chand and Ishwar Dutt whereby the flat and shop no. 79, Sarojni Nagar Market came into the share of deceased testator. EX. PW-4/2 is the allotment order dated 30.08.54 in the name of Ishwar Dutt, deceased testator and Ex. PW-4/5 is the letter in favour of deceased testator for grant of ownership right of shop/resident flat dated 6.1.1979.
43 Testimony of PW-4 Sh. Mangesh Kumar Junior Assistant further established that flat and shop no. 79 was cancelled in the name of partnership firm and transferred in the name of deceased testator Ishwar Dutt. The lease deed dated 6.09.187 and 14.09.1986 were executed in the name of deceased testator as per Ex. PW-4/D2 & D3. The testimony of RW-1 and PW-4 established that deceased testator Ishwar Dutt was capable of bequeathing the property no. 79 Sarojni Nagar Market, New Delhi.
44 Now coming to the issue with regard to forged and fabrication of the Will. Respondents examined only two witnesses as discussed in detailed herein above. The affidavit of Sh. Vijay, RW-2 testify that deceased testator died intestate on 18.11.1991 and alleged that petitioner No. 1 had forged and fabricated the Will. However, no further evidence or documentary proof brought on PC No. 153/10/07 Vinod Kumar Vs State & others 21/40 record and proved which established the forged and fabrication by the petitioner no. 1. No evidence brought on record to establish in that in what manner petitioner no. 1 forged and fabricated the Will in question. The bald allegations made in the objections as well in the affidavit of RW-2 Sh. Vijay Kumar which is not corroborated by any substantial piece of evidence, therefore, in my considered opinion respondents failed to establish that the Will Ex. PW-2/B is forged and fabricated.
45 Lastly the respondent's counsel Sh. V.K. Jain and Sh. Anil Kumar Kathuria pointed out that Will in question is not a "Will" as per Section 4 (64) General Clauses Act and read out the definition which run and produced as under: -
"Will" shall include a codicil and every writing making a voluntary posthumous disposition of property"
Section 2 (h) of Indian Succession Act also defines "Will" as under:
"Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
Both counsels emphasized that the Will Ex. PW-2/B is not fulfill the ingredients as per above two definitions, therefore, it is not a legal Will. Mr. Anil Kumar Kathuria, ld. Counsel for respondent no. 2, 3 7 & 8 further pointed out that in Para 10 of the Will there is word "inducement" which shows that it was not a free will and consent of the deceased testator.
PC No. 153/10/07 Vinod Kumar Vs State & others 22/40
46 I have gone through the definitions as mentioned here in above and the Will Ex. PW-2/B in Para 3 of the Will the deceased testator it mentioned that "nobody knows as to when the should leave the earth and as such the executant with his free Will and consent, without any pressure, threat, coercion, mis-representation from any former and having sound mind and body executing the present Will and this is the last and Final Will/Testament of the executant."
47 Further in Para 6 it is mentioned that, " whereas I hereby bequeath my partnership business as well as shop no.
79......".
The combined reading of these two paras established that the deceased testator wish, which is free from threat, coercion own will comes to effect after his death and it is the last and final will. The word " bequeath" mentioned in Para 6 itself established that this will take effect after the death of deceased testator.
48 Now coming to the Para 10 one word "inducement" is written. After reading the entire will it is nothing but a typographical error which was not corrected at the relevant time but in the light of Para 3 it cannot be of any significance. In my considered opinion, the Will Ex. PW-2/B is a legal Will as per Section 4(64) of General Clauses Act and Section 2 (h) of Indian Succession Act.
PC No. 153/10/07 Vinod Kumar Vs State & others 23/40 49 On the basis of above observation and discussions issue no. 2 & 3 are decided against respondent no. 2 to 8 and in favour of the petitioners.
50 Issue No. 1 & 4The burden to prove of these issues is on petitioners. The petitioner examined PW-1 Sh. Vinod Kumar, petitioner No. 1. PW-2 Sh. Anant Lal, attesting witness and PW-3 Sh. Babu Lal, UDC from the office of Sub-Registrar office.
51 PW-1 Sh. Vinod Kumar proved his affidavit Ex. P1 and reiterated the contents of the petition. He proved the death certificate of deceased testator Ishwar Dutt as Ex. PW-1/1, Partnership Deed dated 22.09.1951 between deceased testator and Sh. Kham Chand as Ex. PW-1/2 and Dissolution Deed Ex. PW-1/3, Death certificate of his brother Prithvi Raj as Ex. PW_1/4 who represented through L.Rs and death certificate of his mother Smt. Sarla as Ex. PW-1/5 dated 22.05.2001.
52 In the detailed cross-examination which continues as per for about 8 years. PW-1 Sh. Vinod Kumar narrated the shifting of his deceased father from Lahore in August, 1947, which is now in Pakistan. He denied the suggestion that property i.e shop and flat no. 79, Sarojni Nagar Maket, New Delhi was received by his father in lieu of properties left in Pakistan. He admitted that his father late Sh. Ishwar Dass married twice in Pakistan and from the first marriage respondent no. 4 & 5 born. He specifically admitted that PC No. 153/10/07 Vinod Kumar Vs State & others 24/40 he does not know Sh. Ved Parkash, the attesting witness to the Will. He has been expired and he came to know this fact when summons issued to him received back unserved. He further deposed that he met Sh. Anant Lal first time when he had gone to search him prior to filing of this petition.
53 He further testify that he came to know that Will was registered at Asaf Ali and not INA office. He never applied for mutation to L & DO as per Will Ex. PW-2/B. He got the Will Ex. PW- 2/B after two three days of death of his mother. He demanded NOC from respondents even prior to issuance of legal notice and they refused. The further cross-examination goes to his residence and how he acquired Safdarjung Enclave property and confronted with the marriage cards. He admitted that in the Will Ex. PW-2/B there is no mention of any conveyance deed in respect of property 79, Sarojni Nagar Market. He also admitted that they had received a show cause notice dated 18.10.1989 from L & DO and received letters Ex. PW-/D4 to Ex. PW-1/D9.
54 In further cross-examination he deposed that his mother died at Malviya Nagar, Khirki Extension, New Delhi, however, death certificate mentioned the address mentioned of 79, Sarojini Nagar Market. He again reiterated that he did not know attesting witness Ved Prakash and Anand Lal prior to filing of the petition. He explained how he had reach to the Sub-Registrar Asaf Ali after inquiry. He does not remember the date, month and year after mother's death when they found Will Ex. PW-2/B. He admitted that PC No. 153/10/07 Vinod Kumar Vs State & others 25/40 earlier Will pertains to 1989. He admitted that earlier Will pertains to year 1989 which was in favour of late Prithviraj.
55 He further deposed that he got possession of the Will in the year 2004 after the death of his mother. He admitted that from 1991 till 2004 no legal heirs of deceased testator demanded their share in the property.
56 He further deposed that he used to pay monthly expenses @ Rs. 200/- to his mother as per Will. He denied the suggestion that all other legal heirs demanded their respective shares in the property 79 Sarojni Nagar Market. He admitted that Will Ex. PW-1/6 was found by his elder brother Sh. Prithvi Raj who is not alive. He denied the signing to documents Ex. PW-4/D6 & Ex. PW-4/D7 and also denied the signatures on Ex. PW-1/D9 and D10. He denied the suggestion that he came to know about the Will in question immediately after the death of his deceased father. He deposed that he had not seen the Will of year 1989.
57 The analysis and examination of testimony of PW-1 Sh. Vinod Kumar established that he is one of the propounder of the Will. He gained the knowledge after the death of his mother but he was not sure exactly date and month. Other legal heirs from 1991 till 2004 did not demand any share in the property no. 79 Sarojni Nagar Market. No question and suggestion put about the forged and fabrication of the Will Ex. PW-2/B by PW-1 Sh. Vinod Kumar. It is pertinent to mention here that respondents himself admitted the PC No. 153/10/07 Vinod Kumar Vs State & others 26/40 service of legal notice Ex. PW1/R1 wherein no objection has been demanded by the petitioners from the respondents on the basis of the Will Ex. PW-2/B. 58 The vital witness of the present adjudication is PW-2 Sh. Anant Lal. He is attesting witness deposed that his signatures are on the Will at point A & B on Ex. PW-2/B. Same has been objected but in my considered opinion objection is over ruled because he is the attesting witness and he can proved the Will as per Section 63 read with Section 68 of Indian Evidence Act. He deposed that he is an advocate and working at Sub-Registrar office and got registered the Will. The Will was not drafted by him. He deposed that deceased testator had signed on the will and he also put thumb impression on the last page of the Will in his presence. However, the Will does not appear the thumb impression of the deceased testator. He deposed that another witness also signed in his presence and he identified his signatures. He deposed that deceased testator was in sound mind and signed the Will out of his free will and after execution the Will was produced before the Sub- Registrar for registration and again on the last page of the Will they put the signatures in the presence of Sub-Registrar.
59 During the detailed cross-examination, he deposed that will was not drafted, typed and prepared in his presence and he also does not know who prepared the same. He admitted that there is no thumb impression of the testator on the last page of the Will. He specified the time that the will was executed at about 1.32-2 P.M. PC No. 153/10/07 Vinod Kumar Vs State & others 27/40 The deceased was accompanied by 2-3 persons. He was not known to them earlier. He deposed that he has been in practice for the last 20-25 years. He deposed that he cannot recollected in how many case he deposed in the court. There is no record to show the number of Will in which he is attesting witness and author of the Will. He admitted that back side of the Will page 1 there is cutting at point X which is not initialed by Sub- Registrar. He deposed that he does not know whereabout of the second attesting witness. The deceased himself came to him he does not know the deceased testator and another attesting witness or their accompanied person. He deposed that he does not remember the contents of the Will simply he had not prepared the Will. He admitted that there is no endorsement of the Sub-Registrar on the last page of the Will. He admitted that his complete address and particulars are not mentioned on the Will. He denied the suggestion that will was fabricated in connivance with the petitioner and with Sub-Registrar.
60 PW-3 Sh. Babu Lal who produced the record of Sub- Registrar having the particulars of the registration of the Will vide registration no. 2042, Addl. Book No. III, Volume No. 601, at pages 199 to 203 on 02.05,1991. In the cross-examination he deposed that Will Ex. PW-2/B does not bears the thumb impression of the deceased testator. As per record some of the Will registered on 2.5.1991 bears the thumb impression of the testator and some does not bears. He does not know the procedure of the registration. He admitted that Will in question was earlier given registration no. a 2025 but later on it was changed to 2042 and he does not know the PC No. 153/10/07 Vinod Kumar Vs State & others 28/40 reason for change. He admitted that on page no. 4 of the registered Will there are two signatures of the testator whereas in the copy of the Will in office record there is only one signature.
61 In order to scrutinize, examine and analyze the testimony of petitioners witnesses let us peruse the law.
62 In order to prove the Will, the propounder has to show that the Will was signed by the testatrix; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testatrix is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testatrix's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is PC No. 153/10/07 Vinod Kumar Vs State & others 29/40 itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Reliance is placed on H. Venkatachala Iyengar Vs B.N. Thimmajamma, ( (1995) Supp.1 SCR 426 and Rani Purnima Devi Vs Kumar Khagendra Narayan Dev, (1962) 3 SCR 195.
63 The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testatrix has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testatrix alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Reference is made to Benga Behera and Anr. Vs Braja Kishore Nanda and Ors., MANU/SC/7673/2007; Madhukar D. Shende Vs Tarabai Shedage, MANU/SC/00162002; and Sridevi and Ors. Vs Jayaraja Shetty and Ors (2005) 8 SCC
784. PC No. 153/10/07 Vinod Kumar Vs State & others 30/40 64 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a) The testatrix shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign PC No. 153/10/07 Vinod Kumar Vs State & others 31/40 or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
20.2 Section 68 & 71 of the 1872 Act:
68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the PC No. 153/10/07 Vinod Kumar Vs State & others 32/40 signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property. 22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in PC No. 153/10/07 Vinod Kumar Vs State & others 33/40 accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied. 22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.
22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating PC No. 153/10/07 Vinod Kumar Vs State & others 34/40 the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
65 The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
66 Now applying the principle of law in the case in hand the sole vital witness is PW-2 Anant Lal, the attesting witness. His testimony established that deceased testator was at Sub-Registrar office on 02.05.1991 alongwith one attested witness and accompanied with two-three persons. PW-2 Sh. Anant Lal was not earlier known to the deceased testator he has been in practice for last 20 to 25 years at Sub-Registrar office. The Will was not drafted PC No. 153/10/07 Vinod Kumar Vs State & others 35/40 by him. His testimony established that deceased testator had signed on the Will then he signed and thereafter the other attesting witness signed. However, his testimony is not corroborated with respect to the fact of putting thumb impression by the deceased testator.
67 In the cross-examination he remained coherent, cogent and explained how he became the attesting witness on the asking of the deceased testator. In my considered opinion he has all the intentions to become the attesting witness. I do not find any lack of Animus Ascendi. In natural course he had become an attesting witness to the Will of the deceased testator. The deceased testator himself approached to him. It has to bear in mind that he had become a witness to the Will dated 2.5.1991 and appeared in witness box on 16.07.2008 after about 17 years. Therefore, after 17 years it is natural that he does not remember each and every fact especially the contents of the will that is why he specifically stated that he does not remember the contents of the will.
68 My attention has been drawn with regard to the fact that there is a cutting of the number that is why number 2025 has been cut and 2042 has been mentioned and it has come in the cross- examination of PW-3 Sh. Babu Lal as well. I have gone through the will Ex. PW-2/B. On the last page the registration no. 2042 with Vol. No. 3 and pages mentioned 199 to 203 where there is no cutting and no other number has been mentioned. The number 2025 mentioned on the first page. It has no significance because the PC No. 153/10/07 Vinod Kumar Vs State & others 36/40 number has been correctly mentioned at the relevant page having the stamp of Sub-Registrar.
69 Another point raised with regard to absence of thumb impression of the deceased testator or any attesting witness. PW-3 Sh. Babu Lal, in the cross-examination shows the record brought by him of registration of some other Wills on the same day I.e 2.5.1991 where some Wills bears the thumb impression of deceased testator and some did not. It shows that how the staff of the Sub-Registrar was working with regard to taking of thumb impression. As pointed out by ld. Counsel for the respondents about the compliance of Registration Manual by the Sub-Registrar. In case the Sub-Registrar has not followed the mannual, then deceased testator cannot be blamed for it. In my considered opinion the registration process as per procedure must have followed by Sub-Registrar and there are two witnesses to the Will and on the last page of the Will proper stamps and seal has been applied. The proper registration number given at the last page with the stamp and seal of the Sub-Registrar office. In my considered opinion the testimony PW-2 Sh. Anant Lal fulfilled the ingredient laid down by Section 63 (C) of Indian Succession Act. The second attesting witness as per record has died.
70 My attention has been drawn by the counsel for the respondents on the title of the petition where only "Will" has been mentioned and not the "Registered Will". In my considered opinion it is not a vital omission because as per record the Will is registered, PC No. 153/10/07 Vinod Kumar Vs State & others 37/40 if it is not mentioned in the title of the petition it does not effect in any manner the case of the petitioner.
71 The prayer clause mention "predecessor of the petitioners no. 2 to 4. After going through the contents of the full petition, it is a mistake because Prithvi Raj has died and his L.Rs are impleaded as petitioner no. 2 to 4. This mistake is not fatal, it conveys the real intention and sense that it is not 'predecessor' but Successor of the petitioner. In my considered opinion, it is not a fatal for the petitioners and it cannot rule out that it might be a typographical error.
72 Ld. Counsel for the respondents also has vehemently pointed out suspicious circumstances, especially, on the testimony of PW-2 Anant Lal. In my considered opinion the complete testimony of PW-2 does not raise any suspicious circumstances because it is natural when it was felt that when all the requirements of Section 63 witness to be fulfilled then the deceased testator must have asked the available advocate, Aanat Lal who willingly agreed to become the witness. He has been examined after about 18 years there is every chances that he cannot testify and remember each and every fact that is why he stated about the thumb impression taken of the deceased whereas it is not there. In my considered opinion the testimony of PW-2 Anand Lal does not create any suspicious circumstances.
PC No. 153/10/07 Vinod Kumar Vs State & others 38/40 73 On the basis of above observation and discussion and on the basis of testimony of PW-1 Sh. Vinod Kumar, PW-2 Sh. Anant Lal and PW-3 Sh. Babu Lal, UDC established that deceased had executed and registered his last will Ex. PW-2/B. It is valid and legal because there is specific para in the will for revocation of the earlier Will 22.6.1989. Hence issue no. 1 & 4 are decided in favour of the petitioner.
ISSUE NO.5 (RELIEF) 74 On the basis of findings on issue no. 1 to 4 the petitioner No. 1 Shri Vinod Kumar, petitioner no. 2 Smt. Madhu Rani, petitioner no. 3 Sh. Manish ( through petitioner No. 2) and Petitioner no. 4 Sh. Kapil Arora are jointly entitled to letter of administration in respect of property bearing shop No. 79, Ground floor & flat No. 79, First floor, Sarojini Nagar Market, New Delhi on furnishing of requisite court fee and administration bond for a sum equivalent to valuation report to be filed by the SDM i.e. 25,00,000( Rupees Twenty Five Lacs only).
75 Further, the petitioners are directed to file inventory of immovable property within 6 months and final statement of account within one year from the date of receipt of formal letter of administration.
PC No. 153/10/07 Vinod Kumar Vs State & others 39/40 76 It is further clarified that question of title, share and ownership of the property mentioned above is not decided by this Court. File be consigned to Record Room.
Announced in the open court today the 6th May, 2017 (Sanjay Kumar) ADJ-02,West/Delhi 06.05.2017 PC No. 153/10/07 Vinod Kumar Vs State & others 40/40 PC No. 153/10/07 Vinod Kumar Vs State & others 41/40