Delhi District Court
Smt. Madhur Bhashini Loyal ( vs Vipon Vinod (Non Applicant) on 21 April, 2008
1
IN THE COURT OF ASHWANI SARPAL, ADDITONAL DISTRICT
JUDGE, ROOM NO. 272, TIS HAZARI COURTS, DELHI.
Smt. Madhur Bhashini Loyal (Applicant)
vs.
Vipon Vinod (Non Applicant)
(MPC no.- 2/06/99)
IN
Vipon Vinod vs. State
(PC No.66/69)
******************************
(Application U/s 263 of Indian Succession Act for
revocation/annulment of probate granted in Probate Case no.
66/69)
JUDGMENT
Smt. Madhur Bhashini Loyal (herein referred as applicant) filed an application on 10-8-1999 u/s 263 of the Indian Succession Act, for revocation of the probate granted to Sh. Vipon Vinod (referred to as non-applicant/ petitioner) vide order dated 6- 11-1969 in PC no. 66/69 titled as Vipon Vinod vs. State by Sh. M.L. Jain, the then ld. District Judge, Delhi in respect of Will dated 18-6-1969 executed by Smt. Krishan Piari widow of Sh. Dewan Jai Chand. It is important to mention here that Court had granted probate in favour of non-applicant as all the legal heirs of the 2 deceased had given their no-objections in writing.
Allegations of the applicant:-
Applicant is a real sister of non-applicant who stated in her application that non-applicant had obtained the probate from the Court by committing fraud and playing misrepresentation in respect of the Will which is a forged document and had not been executed by testator Smt. Krishan Piari as she was seriously ill and was not in a fit physical and mental state to execute any Will. It is also stated that testator had died within 9 days of execution of alleged forged Will.
It is also stated that no notice of that probate petition was ever served upon applicant because in the petition, her address was not given when she was residing in property no. 253/254, Double Storey, New Rajinder Nagar, Delhi. It is also alleged that Vakalatnama of advocate Sh. O.N. Molai as well as no objection/reply filed in the probate case on her behalf do not bear her signatures and are forged because she had never engaged any advocate. It is also alleged that she always used to sign as 'Madhur Bhashini Loyal' and not as 'Madhur Bhashini'. A plea is also taken that both the attesting witnesses of the Will are closely related to the non-applicant and are false witnesses.
Reply of non-applicant/petitioner:-
Non-applicant in reply to the application took the defence that all other beneficiaries of the Will are not made a party who had already taken advantages and benefits under it so the application for revocation of probate is defective. It is also stated that Will was acted upon even by the applicant as she herself had taken benefits under it so this application is not maintainable. In the reply, details of plot and shares were given which applicant got transferred in her name on the basis of this Will.3
Defence of delay and time barred application is also taken besides alleging that applicant has not disclosed when and from which source she came to know about the decision of the Court in granting probate. Non-applicant also stated that this application was filed only to harass him. He also described the Will as genuine and validly executed.
Rejoinder and issues:-
Applicant filed rejoinder in which she reiterated and re-affirmed the averments made in the application. She also stated that she came to know about the probate proceedings in July, 1999. It is also stated that plot and shares were already in her name and possession which she got under a family settlement taken place couple of months prior to the death of testator. It is also stated that property no. 253/254, New Rajinder Nagar, Delhi was purchased in the name of non-applicant with the finances provided by the applicant also and it was settled that she shall have 1/3rd share in the same.
On the pleadings of the parties, the following issues were framed on 7-3-2000:
1.Whether there is just cause for revocation or cancellation of probate granted by the court vide order dated 6-11-1969 for the reasons stated in the application? OPA
2.Whether the applicant has not served with special citation and she has not put in appearance and filed reply/ objection to the petition for probate as alleged by her in the application. If so, to what effect? OPA
3.Whether the application is not maintainable? OPP
4.Relief.4
Parties were under some mistake that no issues were framed in this case (which can be revealed from the order sheet dated 17-3- 2003 as well as from the order of Hon'ble High Court dated 28-8- 2006), so the Court framed fresh issues (which now shall be referred as additional issues) vide order dated 17-3-2003 as under:
5.Whether the Will dated 18-6-1969 is a forged Will and the probate was obtained by fraud?
6.Whether the application for revocation is barred by limitation?
7.Whether the applicant has already taken the advantage of the same Will, if so its effect?
On behalf of the applicant, total three witnesses have been examined namely AW-1 Johnny Loyal who is an attorney of the applicant, AW-2 Jagmohan Singh Bajaj and AW-3 Ashok Kashyap who is a hand writing expert whereas Non-applicant also examined himself in defence.
I have heard counsels for both the parties and gone through the record as well as case laws cited. My issues-wise findings are as under:-
Additional issue no. 2 framed on 17-3-2003:-
The present applicant for revocation of probate was filed in the Court on 10-8-1999 after about 30 years of grant of probate. Though in the application itself nothing is disclosed when and from whom applicant came to know about the probate proceedings but in the rejoinder, it is stated that she came to know about the same in the month of July, 1999. Applicant herself has not stepped into 5 the witness box but in his cross examination, her son/ attorney AW-1 Johnny Loyal admitted that he came to know in the year 1994 that his maternal uncle i.e. non applicant had obtained the probate of the Will of his Nani Late Smt. Krishna Piari. He also clarified that he came to know about the probate after 2-4 days of death of his father which took place on 5-5-1994 when the non applicant had also given a copy of the probate to him.
Though from the evidence especially on point of taking of benefits under the Will by the applicant, it also appears that applicant had knowledge about the probate much before the year 1999 but even if for the sake of arguments, it is presumed that she came to know about the probate in the month of May, 1994 itself as stated by AW-1, then also the filing of this application for revocation of probate after a gap of more than five years is highly time barred because limitation for filing such application is only three years under Art. 137 of Limitation Act. The cause of action had accrued to the applicant in the month of May, 1994 and limitation period of three years was available to her to file this application in court but she filed the application on 10-8-1999 which is liable to be dismissed simply on the ground of barred by limitation. In this regard, reliance also can be placed upon the decisions of Delhi High Court titled as S.S. Lal vs. Vishnu Mitter Govil 112 (2004) DLT 877 (DB) and Kanwal Malhotra vs. State 125 (2005) DLT 281 as well as decision of Punjab & Haryana High Court given in case Hari Narain vs. Subhash Chander AIR 1985 P&H 211. This issue is thus decided in favour of non-applicant and against the applicant.
Issue no. 2 framed on 7-3-2000:-
It is important to mention here that applicant herself has not entered into a witness box and instead examined her attorney AW-1 who happens to be her son also. AW-1 stated that 6 her mother is in London and suffering from pain in her legs so could not come to court. However this justification of non appearance of applicant in court is not convincing because she could examine herself either through commission or through video conferencing but no such steps were taken. Supreme Court in case Vidhyadhar vs. Manilrao JT 1999 (2) SC 183 held that;
"When a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct."
In such circumstances, an adverse inference has to be raised against applicant that her case is not based on true facts and is liable to be rejected.
Non-applicant also challenged the validity and correctness of the power of attorney Ex. AW1/1 allegedly executed in London by the applicant. First two pages of this power of attorney are neither signed by the applicant nor are authenticated by any competent authority or Notary Public or Magistrate. AW-1 is not able to give the name of the official who attested it nor could he produce any document to show that concerned official was authorized to attest such type of documents. Notary Public who allegedly has attested the same has not made any endorsement on which basis he confirmed the identity of the executant and verified her signatures so the twin requirements of execution and authentication by the Notary are not met, hence no presumption of validity of Ex. AW1/1 can be raised under section 85 of Indian Evidence Act.
7In this regard reliance also can be placed upon decision of our own High Court given in case Electric Construction & Equipment Co. Ltd. vs. Jagjit Works 1984 RLR 549. In such situation, the power of attorney Ex. AW1/1 cannot be relied upon and it can be said that AW-1 was not competent witness to depose for and on behalf of the applicant.
Otherwise also through power of attorney, no authority or power can be given for giving statement in court for and on behalf of executant and attorney can appear and plead only but cannot act as a witness in place of person giving him attorney. In this regard reliance can be placed on the decision Ram Prasad vs. Hari Narain AIR 1998 Rajasthan 185. Supreme Court also in case Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. AIR 2005 SC 439 dealt with authority, power and limitations of attorney to depose in the court on behalf of principal. As per this decision, attorney cannot depose in place and instead of principal. Accordingly, statement of AW-1 shall be considered only to the extent of his personal knowledge of the facts and circumstances and his deposition in court cannot be read in place of the applicant as a substitute because he is not competent to depose on those facts which were in the personal knowledge of applicant.
AW-1 admitted in his statement that he was minor aged about 16 years at the time of probate proceedings and during his cross-examination, he on various aspects showed ignorance and lack of knowledge. Thus due to non examination of applicant herself, various facts relating to her as disclosed, alleged and put in the cross examination of AW- 1 by the non-applicant have not been explained and clarified 8 as well as not denied specifically so in that situation, this Court has no other option except to believe the version of the non-applicant and to treat the facts alleged by him as true and correct.
Applicant has taken a plea that she was not served with any notice of the probate petition and her signatures on the Vakalatnama filed as well as on reply/no-objection filed in that petition on her behalf are containing forged signatures. However applicant has failed to establish these allegations because AW-1 in the year 1969 when probate proceedings were conducted was minor and had no personal knowledge about the same. Secondly applicant herself has not come in the witness box to prove these allegations and to deny her signatures on Vakalatnama and no-objections. She also has not examined the concerned advocate who appeared on her behalf in the probate proceedings and filed Vakalatnama. That advocate could be the best witness to establish by whom he was engaged and at whose instance he filed Vakalatnama and reply/no-objection. The Vakalatnama was containing signatures of two other respondents and those were also not examined. Even no hand writing expert has been examined by the applicant to prove that her signatures were forged and fabricated on the Vakalatnama and reply cum no-objection. In these circumstances, it can be said that applicant has failed to prove that Vakalatnama and reply/no-objections filed in the court in the main probate proceedings were not bearing her genuine signatures.
I have gone through the old file of probate proceedings summoned from the record room. First order sheet is dated 26-9-1969 when citation was ordered to be 9 published in the newspaper 'Daily Swera' and near relations were also ordered to be issued with the notice of the petition. The next date of hearing was fixed for 10-10-1969. The order sheet of the court dated 10-10-1969 shows that process fee and publication charges were filed late so the court ordered for issue of fresh notice for 29-10-1969. The proceedings also show that counsel for the petitioner informed the court that he would produce the respondents on the next date of hearing.
On the next date i.e. 29-10-1969, Vakalatnama and no-objections on behalf of respondents including applicant were filed in the court. There is an endorsement on the side of this order sheet perhaps made by Ahlmad or Reader of the court which is partly in torn condition but from the same, it can be pointed out that process was not issued due to shortage of the fee. I also could not find any served or unserved process issued to the applicant on record though process fee was deposited. Hence there is no hesitation to say that infact no process was ever issued to any of the near relations or respondents by the court staff. Question arises when no processes was ever issued by the court then whether appearance filed on behalf of the applicant can be viewed with suspicion and deem to be improper?
Court proceedings dated 26-3-1969 says that counsel for the non-applicant had informed the court that he would produce the respondents in the court on the next date of hearing. Under Proviso of Order 9 Rule 2 CPC, if any of the party knows about the proceedings of the court and himself appears then mere fact that no process was issued to him by the court is not sufficient to treat his appearance as invalid or 10 illegal. Court also cannot be in such circumstances said to be acting beyond its jurisdiction. It might be possible that on the verbal communications of the non-applicant about the probate proceedings, respondents including applicant engaged lawyer and filed Vakalatnama and no-objections without waiting for the receipt of formal process of the court as there appeared to be no dispute at that time between the parties. Simple non receipt of any formal process of the court itself is not sufficient to presume that appearance of the applicant in the court was suspicious and Vakalatnama and no-objection were bearing forged signatures when non examination of other material witnesses by the applicant rule out the possibility of false and fabricated signatures.
Counsel for the applicant cited case laws N.G. Goel vs. O.P. Saraf 27(1985) DLT 267, M/s Durent Refrigeration Pvt. Ltd. Vs. Radio and Refrigeration Co. 48 (1990) DLT 680 and Great Punjab Agro Industries Ltd. Vs. Khujana and others (2005) 13 SCC 503 and argued that Urdu newspaper 'Daily Swera' in which citation was ordered to be published was not having any circulations in the New Rajinder Nagar area where applicant was residing and it was not recognized for publication of citations. It is also argued that applicant being Hindu lady could not be expected to read Urdu newspaper so she could not get any knowledge about the proceedings even from this newspaper and the probate granted can be revoked on this score also.
However this argument is liable to be rejected because firstly this plea is not taken up in the application itself and applicant cannot be permitted to argue on the fact or issue which is beyond pleadings and on which no evidence 11 is led. Otherwise also letters written in Urdu language Ex. AW1/X-1 to X-4 admittedly are in the handwriting of the applicant which shows that she was having knowledge of Urdu language very well. No evidence is brought on record that this newspaper 'Daily Swera' was not having any circulation in the New Rajinder Nagar area and not subscribed by the applicant or was not recognized newspaper. Moreover in probate matters, a special citation is issued for public in general and it is not required to be served on the near relations to whom notices are issued specifically. The case laws cited above by the counsel for the applicant are not of any help to the applicant as these relate to the substituted service by way of publication u/o 5 rule 20 CPC in which a person who could not be served through ordinary means of service of summons is required to be served through newspaper also having circulation at the place where defendant ordinarily resides but that is not the case in the present petition It is also submitted in the application and vehemently argued by the counsel for the applicant that the applicant always puts her full signature as 'Madhur Bhashini Loyal' and never puts her half signature as 'Madhur Bhashini' as appear on the Vakalatnama and no-objection/reply and as such her signature on Vakalatnama and no-objection/reply are forged ones. AW-1 in his cross examination has admitted that the letters Ex. AW-1/X-1 to X-4 are in the hand writing of his mother and bear her signatures. None of these four letters bear the full signature of the applicant as 'Madhur Bhashini Loyal'. The letter Ex. AW-1/X-1 bears the signature of the applicant as 'Madhur' only and the letters Ex. AW- 1/X-2 to Ex. AW-1/X-4 bear her signature as 'Madhur Bhashini'. The Vakalatnama and the no-objection/reply also bear the signatures as 'Madhur Bhashini'. Hence the plea taken that 12 applicant always used to put her signatures in full name appears to be false and incorrect. Hence there is no reason to believe that the Vakalatnama and no-objection/ reply do not bear the signatures of the applicant.
Applicant alleged that she was residing in house no. 253/254, New Rajinder Nagar, Delhi in the year 1969 and in the probate petition, her address column was left blank. However if paragraph no. 6 of the petition is seen then it can be found that at serial no. (A) the name of the applicant is mentioned and at serial no. (B) the name of Asha Deewan is given and thereafter both are shown to have been resided at house no. 253, Double Storey, New Rajinder Nagar, Delhi. The use of word 'both' under the name of Asha Deewan clearly point out that the address of applicant was not totally left blank but was given for service. Mere fact that no memo of parties was filed or in the heading of the petition, the name and addresses of all the respondents were not given was maximum an irregularity and not illegality. Since Asha Deewan who is the wife of the non-applicant was one of the beneficiaries under the Will, so there was no illegality committed in making her one of the respondents in the probate petition.
Since, the applicant was not required to be served with the special citation issued u/s 283 of the Indian Succession Act personally and she had put in appearance through an advocate in the probate proceedings who had filed single Vakalatnama on behalf of all the three respondents including the applicant herein duly signed by all the three including applicant and had filed no objections/reply to the petition duly signed by the applicant, it can not be said that the applicant was not aware of the probate proceedings and did not put appearance therein and did not file any Vakalatnama and no-objection/reply to the grant of probate. The alleged story of forged and fabricated signatures is not believable and reliable. This issue is accordingly decided against 13 the applicant and in favour of the non-applicant.
Additional issue no. 1 framed on 17-3-2003:-
Applicant has also alleged that Will executed by Smt. Krishan Piari dated 18-6-1969 is forged and fabricated. She has examined AW-3 who is a handwriting expert. Unfortunately both the attesting witnesses of the Will could not be examined as they had expired. The manner in which hand writing expert AW-3 examined the Will in question is not worthy to be acceptable and is against the ordinary norms of the examination of the disputed documents. Admittedly this expert has not seen the original Will but based his examination on the basis of the photocopy of the photocopy of the Will supplied by the AW-1. As per the endorsement of Record Room available in the original probate proceedings, original Will is lying in the 'safe' in safe custody. No effort was made by the hand writing expert to obtain the permission of the court to see the original Will. Even the photocopy of the photocopy of the Will supplied by AW-1 to this witness was not retained and returned back. Hence it cannot be said what exact document was infact supplied to the expert for examination by AW-1.
The expert even also had not seen any admitted original signatures of the testator or the attesting witnesses for the purpose of comparison. His simple opinion given on the basis of some measurements in the spacing found in photocopy of photocopy that blank signed paper of testator was misused and matter was typed lateron is without any sound basis because he had no knowledge whether the Will was typed in single space or in double space. He even did not mention in the report about space measurements or produce the notes prepared in the court. His report that signatures of the both attesting witnesses on the Will were of the same person also cannot be accepted because he had 14 neither seen the original Will nor any other admitted signatures of the witnesses. I find no ground to rely upon the report of hand writing expert Ex. AW3/A at all. The evidence of this witness is not helpful to the applicant in any situation.
It is also alleged that both the attesting witnesses were close relations of the non-applicant. There is no dispute that one of the witnesses namely S.C. Chawla was the father in law of the non-applicant and another witness Narsingh Dass was the uncle of the wife of the non-applicant. AW-1 has no knowledge that whether they were also the cousin brothers of the deceased so due to non denial of this fact, the version of the non-applicant that they were the cousin brothers of the deceased testator Smt. Krishan Piari upon whom she could trust can be relied upon. Applicant has failed to prove that Will was not genuinely executed by the deceased and manipulated with the connivance of the attesting witnesses. Since there is no averment in the application itself that blank signed paper of the deceased was misused and converted into a Will, so the argument raised in this regard and opinion of the expert obtained accordingly cannot be relied upon because applicant cannot be permitted to go beyond her pleadings.
Applicant tried to show that deceased Smt. Krishan Piari was not physically or mentally fit to execute the Will in question. AW-2 is examined only to prove her condition but if his statement is compared with the statement of AW-1, then it can be said that both are giving contradictory version about the exact health of the deceased. Admittedly deceased died after 9 days of execution of the Will. She had died due to sudden heart attack which could take place suddenly as admitted by AW-2. According to the AW-1 and 2, one Dr. Harish Chander Diwan was medically treating the deceased through homeopathy medicines but AW-2 has never seen him giving treatment. This doctor was not produced to show what treatment was being given nor was any medical 15 record of the deceased brought on record to point out that deceased was not physically or mentally fit to execute the Will. The version of AW-1 that deceased was very much ill, not in her senses, completely bedridden, dependent upon others for day to day activities and was put on oxygen before her death are the facts which are not either supported by any evidence nor pleaded in the application itself and thus deposed first time during evidence cannot be relied upon. The story of incapacity to execute the Will by the testator is not acceptable to the court especially when in the cross examination AW-1 admitted that deceased was never admitted in any hospital and was taking some medicine only for stomach problem and had no knowledge what kind of medicine she was taking prior to her death. AW-1 also admitted that deceased had been visiting to her when she might have been shifted to house no. 256 as per AW-2 so the story of this witness that she was completely bedridden and dependent upon others for day to day activities also falls on the ground.
The deceased was aged about 50-55 years at the time of her death as stated by the non-applicant. This age cannot be said as too old in which physical and mental health is normally incapacitated. Moreover only the old age is no criteria to presume that mental capacity is also affected. Supreme Court in case Sridevi vs. Jayaraja Shetty (2005) 2 Supreme Court Cases 784 upheld the validity of the Will which was duly proved and there was nothing on record any fact of poor physical health and unsound mind state of testator. Supreme Court in this case was of the view that mere age of 80 years of testator and death within 15 days of execution of Will itself is not sufficient to reject the Will.
AW-1 in his examination in chief stated that Smt. Krishan Piari was not conversant even with Hindi but in cross examination, he changed the stand that she was conversant. He at one hand stated that Will was signed by her in Hindi but at the 16 same moment, he changed his stand that it does not bear her signatures. The taking of contradictory stand and blowing hot and cold at the same moment makes this witness as unreliable and untrustworthy.
Accordingly it is held that applicant has failed to establish that Will in question executed by Smt. Krishan piari was forged and fabricated. This issue is decided in favour of non- applicant and against the applicant.
Issue no. 3 framed on 7-3-2000 and additional issue no. 3 framed on 17-3-2003:-
Applicant, if had taken the benefits and advantages under the Will and acted upon it whether without or with knowledge of the probate proceedings, then she cannot be permitted to challenge the correctness of the same. Non-applicant alleged in his reply and also stated in his statement that one plot for shop no.5 in Mukherjee Park, 1600 shares of Pioneer Knitting Mill, 150 shares of Wallford Transport and 62 shares of Indian Copper Corporation were given to the applicant under the Will of Smt. Krishan Piari and on the basis of the probate granted by the Court on that Will, applicant got transferred the plot and shares in her name. It is also stated that similarly another legal heirs who were also party in the probate proceedings while relying upon the order of the probate court got transferred the properties devolved upon them in their respective names.
Applicant however took a defence that all those properties were already owned by her under family settlement which took place much before the death of Smt. Krishan Piari. However no such family settlement is produced on record by the applicant. AW-1 initially admitted in his cross examination that his mother had filed documents for mutation of the plot in her name but lateron changed the stand by saying that she might have done 17 so but he has no knowledge. AW-1 also expressed his non- awareness as regards the transfer of shares on the basis of probate in her name. In that position, the non examination of the applicant goes against her and draws adverse inference against her. AW-1 has no knowledge about the material facts and has not only shown ignorance on various aspects but also did not specifically denied the allegations of the non-applicant so his statement cannot be taken as substitute of the statement of applicant and when on various important facts, evidence of the applicant is missing then in that circumstances, court can believe the version of the non- applicant who specifically and categorically alleged that no family settlement had taken place and Will was acted upon by the applicant and on the basis of the probate, she had taken the benefits also.
Applicant has also not given any explanation where those shares have gone which are mentioned in the Will and devolved upon her. AW-1 had no knowledge whether those shares had been utilized or got transferred by the applicant on the basis of the probate. Non examination of material witnesses in this regard especially of the applicant herself is a major set back to the case of the applicant. On the other hand, the letter Ex. PW1/E produced by the non-applicant clearly shows that 1600 shares of Pioneer Knitting Mills were got transferred by the applicant in her name in year 1971. This letter is not disputed in the cross-examination of the applicant and thus leads to the inference that after relying upon the Will of Smt. Krishan Piari and probate order passed on it, applicant took advantage and benefits under it and thus now she cannot challenge its correctness.
Applicant has alleged that she had contributed for the purchase of the property of New Rajinder Nagar which was purchased in the name of non-applicant. However this version appears to be incorrect because AW-1 admitted in his cross 18 examination that deceased Smt. Krishan Piari was not working and even applicant was not following any vocation. He also admitted that there was no regular earning member in the family but non- applicant was running a shop and earning about Rs. 100-150 per day even in the year 1969. Applicant has not brought any evidence on record that she had made any contribution in the purchase of this property in the name of non-applicant. Even if for the sake of arguments, it is presumed that any such contribution was made, then also now applicant is debarred from claiming any share in it because of bar under the provisions of Benami Transaction Act.
In view of the above discussions, it is held that when the applicant had taken the benefits and advantages under the Will on the basis of the probate granted then she cannot be permitted to challenge the correctness of the Will as well as the order of the probate court. This application is thus not maintainable on this ground also. These two issues are decided in favour of non- applicant and against the applicant.
Issue no. 1 framed on 7-3-2000:-
It is held above that applicant had already taken benefits under the Will as well as on the basis of the probate proceedings. She also had put appearance in the court through advocate and filed no-objection for grant of probate in favour of non-applicant. The will is found genuine and duly executed by the deceased and is not forged or fabricated. No fraud or misrepresentation was committed by the non-applicant during the probate proceedings so the case laws cited by counsel for the applicant titled as A.V. Papayya Sastry vs. Govt. of AP (2007) 4 SCC 221, Jai Narain vs. Pushpa Devi Saraf (2006) 7 SCC 756 are not applicable to the present facts and circumstances of this case. Even if there was an element of fraud in probate proceedings for the sake of arguments, then also applicant by taking benefits 19 under it also becomes liable for the same being a party to that fraud. Hence applicant has no just and sufficient cause to get the probate granted to the non-applicant be set aside or revoked. This issue is decided in favour of non-applicant and against the applicant.
Relief:-
There are no merits in the application of applicant for revocation of the probate as it was filed with baseless grounds on incorrect facts and is nothing but a frivolous application so the same is hereby dismissed with costs of Rs. 5000/- to be paid to the non-applicant.
There is one another application of the non-applicant under section 340 Cr.P.C. on record. In this application, some litigation in the High Court, a memorandum of an agreement of year 1997 and affidavit of applicant is referred to but that memorandum of agreement Mark-X, affidavit Mark-B are not produced in original or proved as per law. Also keeping in view the fact that applicant is an old lady and has not come in the witness box herself to explain number of things for which an adverse inference has already been taken against her as well as keeping in view the circumstances of the case especially that costs have been imposed upon her, I am of the view that it is not in the interest of justice to prosecute her, so the application under section 340 Cr.P.C. is thus dismissed.
File be consigned to record room.
(ASHWANI SARPAL) Dated:- 21-4-2008 ADDITIONAL DISTRICT JUDGE DELHI.