Delhi District Court
Bhupinder Singh vs The State / General Public on 17 April, 2018
IN THE COURT OF SH. SANJAY KUMAR:
ADDL. DISTRICT JUDGE, (WEST)-02, TIS HAZARI
COURTS:DELHI.
Probate Case No.- 196/10
New P.C. No. 16104/16
1. Bhupinder Singh
2. Davender Singh
Both sons of Late Sh. Pritam Singh
Both R/o. 14/113, Subhash Nagar
New Delhi-110027. . . . . Petitioners
Vs.
1. The State / General Public
(NCT of Delhi)
2. Ms. Jagdeep Kaur
W/o. S. Surjeet Singh
D/o. Late Sh. Pritam Singh
R/o. 663, Gali No.1, Military Road
Punjabi Basti, Anand Parbat
New Delhi-110005. . . . . Respondents
Date of institution of the case : 02.12.2010
Date reserved for judgment on : 27.03.2018
Date of pronouncement of judgment: 17.04.2018
JUDGMENT:
1. A petition for grant of Probate of the Will dated 23.11.2006 under Section 276 of the Indian Succession Act has been filed.
2. In brief the facts are that the father of the petitioners as well as of the respondent no.2 Late S. Pritam Singh was the owner of the property bearing No. 14/113, Subhash Nagar, New PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.1of 49 New No. 16104/16 Delhi-110027 (hereinafter referred to as 'property in question') and it was self-acquired property of Late Sh. Pritam Singh. It is stated that after the death of Late Sh. Pritam Singh, the aforesaid property was mutated and transferred in the name of the mother of the parties Smt. Baljeet Kaur, wife of Late Sh. Pritam Singh (hereinafter referred to as 'deceased'). It is further stated that Smt. Baljeet Kaur has also died on 17.05.2007 at Delhi leaving behind the petitioners as well as the respondent no.2 as her only legal heirs and survivors.
3. It is stated that during his lifetime, it was the wish of the father of the parties that after his death, the property in question should devolve upon his wife Smt. Baljeet Kaur and she should enjoy the property in question and she should not sell or dispose off the said property. It is further stated that Sh. Pritam Singh further made clear that after the demise of his wife Smt.Baljeet Kaur, the property in question shall devolve upon and vest with his sons i.e. petitioners who would become the absolute owners of the property in question an can dispose of the said property in any manner they liked. It is further stated that the above similar wish and desire was of the mother of the parties also.
4. It is stated that during the lifetime of the mother of the parties, the respondent no.2 had been insisting upon their mother to give share in the said property and had been harassing her and due to this reason, the mother of the parties received a great mental agony and ultimately she died. It is further stated that this fact revealed to the petitioners from the relatives after the death of their mother.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.2of 49 New No. 16104/16
5. It is stated that after the death of mother of the parties, the respondent no.2 filed a false and fabricated suit for partition, possession, mesne profits, rendition of accounts and permanent injunction against the petitioners which is pending in the Court of Sh. Pitamber Dutt, Ld. ADJ bearing Suit No. 231/08 titled Jagdeep Kaur vs. Bhupinder Singh & Anr. It is further stated that in the month of October 2010, the Phoopa of petitioners namely S. Pritam Singh, resident of 337/43, Shiv Nagar, Sodal Chowk, Jalandhar City, Punjab intimated to the petitioners through a letter sent by him to the petitioners regarding the existence of a Will dated 23.11.2006 executed by the mother of the parties i.e. deceased with regard to the property in question. It is further stated that alongwith the said letter, Sh. Pritam Singh, Phoopa of parties had also sent the original Will dated 23.11.2006 executed by the deceased mother of the parties Smt.Baljeet Kaur.
6. It is stated that by virtue of the said Will, deceased bequeathed her aforesaid entire property in question in favour of petitioners in equal shares. It is further stated that in the said Will, the deceased had specifically mentioned that the daughter i.e. the respondent no.2 shall not get any share out of the property in question. It is further stated that prior to the said letter of intimation, the petitioners were not aware about the said Will executed by deceased in favour of petitioners. It is stated that thus by virtue of the aforesaid Will, the petitioners being the sons of the deceased have become the owner of the property in question to the exclusion of all others including the respondent no.2. It is thus prayed that Probate of the Will dated 23.11.2006 in respect of the property in question be granted to the petitioners.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.3of 49 New No. 16104/16
7. Upon filing of petition, notices were issued to all the respondents, State through Collector and citation to general public got published in daily newspaper "The Statesman" dated 10.01.2011.
8. The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar, Rajouri Garden filed valuation report in respect of property bearing No. 14/113, Subhash Nagar, New Delhi and assessed the value of the same as Rs. 35,44,800/- (Rupees Thirty Five Lakh Forty Four Thousand Eight Hundred Only).
9. Respondent no. 2 Smt. Jagdeep Kaur filed her objections to the petition and taken preliminary objections that the present petition is not maintainable as the same is not verified by an attesting witness to the alleged Will and is not in accordance with law and is liable to be rejected. It is further stated that the petitioners have fabricated the alleged Will of the deceased by forging her signatures and in connivance with the attesting witnesses particularly S. Preetam Singh, Phoopa of the parties. It is further stated that the other attesting witnesses of the alleged Will of the deceased is not having any knowledge about the contents of the same and that the deceased never executed any testament during her lifetime which is admittedly owned by deceased father of parties S. Preetam Singh.
10. It is stated that the petitioners have forged and fabricated the alleged Will of deceased when the objector / PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.4of 49 New No. 16104/16 respondent no.2 filed suit for partition of the property in question against the petitioners after the death of their mother. It is further stated that the petitioners had also manipulated the alleged Will by receiving the same through post with covering letter written by one of the attesting witness S. Preetam Singh and the petitioners have chosen S. Preetam Singh deliberately and intentionally knowing well that the relation between S. Preetam Singh and the respondent no.2 are not cordial.
11. It is stated that it has already been admitted by the petitioners in their written statement filed by them in a partition suit filed by the respondent no.2/objector against the petitioners that the deceased never executed any Will during her lifetime. It is further stated that signatures appearing on the alleged Will of deceased are absolutely different on the face of it when compared with the original signatures of deceased which are in the bank. It is further stated that the deceased cannot execute the alleged Will of the entire property as she was having only 1/4th share in the property in question even in respect of the shares of other legal heirs of the deceased S. Preetam Singh, father of the parties.
12. It is stated that the respondent no.2 filed her partition suit against the petitioners on 09.07.2008 and the deceased died on 17.05.2007 and the alleged Will of deceased was allegedly executed on 23.11.2006. It is further stated that since after the death of deceased where the said Will was kept and that this fact has not been mentioned anywhere in the petition. It is further stated that the petition be dismissed as the petitioners alongwith the attesting witnesses forged and fabricated the alleged Will of deceased Smt. Baljeet Kaur.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.5of 49 New No. 16104/16
13. On the pleading of the parties, following issues were framed by my ld. Predecessor vide order dated 26.09.2011:-
1. Whether the petition is liable to be dismissed on the ground that the same has not been verified by one of the attesting witness? OPR
2. Whether the Will in question is forged and fabricated document? OPR
3. Whether the petitioner is entitled for Probate of Will dated 23.11.2006 executed by Smt. Blajeet Kaur, as prayed for? OPP
14. Petitioner in order to prove his case examined himself as PW-1 and tendered his evidence by way of affidavit Ex. PW-1/1 and relied upon documents Ex. PW1/A to PW1/B mentioned therein. He was not cross-examined by the respondent no.2 despite opportunity granted.
15. Petitioner further examined one of the attesting witness to the Will in question Sh. Pritam Singh as PW-2 who tendered his evidence by way of affidavit Ex. PW-2/1.
16. In the cross-examination, he deposed that he is 3 rd or 5th pass. He came to the Court on 01.08.2012 and even on the previous dates alongwith the petitioners and used to stay with them in their house at Subhash Nagar. He does not know what was written in his affidavit Ex. PW-2/1 and volunteered that the counsel for the petitioners read over the said affidavit to him. He had filed his affidavit Ex. PW-2/1 at the instance of the counsel for the petitioners. He was having knowledge that respondent PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.6of 49 New No. 16104/16 no.2 had filed a suit against petitioners and volunteered that he came to know very late. He further deposed that deceased expired in the year 2007 and was visiting Delhi after the death of deceased and before her death as well. He visited Delhi after the death of deceased within a gap of four to six months. He admitted that he used to stay with the petitioners house at Subhash Nagar as and when he came to Delhi. He further deposed that petitioners never discussed any dispute which was going on between petitioners and the respondent no.2 and volunteered that he came to know about the dispute after the filing of the case filed by respondent no.2 against the petitioners.
17. He further deposed that he came to know about the pendency of the present case in the year 2010 in the month of November or December and about the pendency of the case filed by respondent no.2 in the year 2010 but he cannot give the month. He admitted that his relation with the petitioners are/were very cordial. He denied that his relation with respondent no.2 was never cordial. He further deposed that he never visited the house of respondent no.2 neither before the death of deceased nor after her death. Petitioners used to discuss all the disputes with him only before the death of deceased and after the death of deceased, they never discussed any dispute with him. He has no knowledge as to whether the relation between the deceased and her daughter / respondent no.2 was cordial and where the respondent no.2 is residing. He admitted that deceased used to discuss the dispute arisen between her and her sons. He further deposed that the financial condition of deceased was not very good. He has no knowledge as to whether the deceased was having joint account with her PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.7of 49 New No. 16104/16 daughter / respondent no.2. He admitted that the property in question was the self acquired property of the husband of deceased. He has no knowledge as to whether the property in question has been mutated in MCD records in the name of the deceased, petitioners and respondent no.2. He cannot say whether the property in question was mutated in MCD records on 15.07.1985 in the name of deceased, petitioners and respondent no.2.
18. He further deposed that he met deceased lastly at Delhi in the property in question in the year 1986 and he never met deceased after the year 1987 as she expired. He admitted that when Sardar Pritam Singh, husband of deceased died, all his children were minor and that after the death of Sardar Pritam Singh, deceased had let out part of property in question to the tenants. He further volunteered that the same was let out for her livelihood. He came to Delhi of his own and not at the instance of petitioners and deceased. He does not know who is respondent no.2. He has no knowledge about the mutation of the property in question in the name of deceased after the death of her husband as mentioned in his affidavit Ex. PW-2/1 from portion A to A, the same must be in the knowledge of the counsel for the petitioners. It is further deposed that the counsel for the petitioners might be knowing about the fact mentioned in portion A to A in his affidavit Ex. PW-2/1 and that his affidavit was prepared by the counsel for the petitioners on his instructions.
19. He admitted that Sardar Pritam Singh, father of the parties did not had any discussion with him regarding the property in question and other businesses and that after the PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.8of 49 New No. 16104/16 death of Sardar Pritam Singh, the property in question at Subhash Nagar was divided amongst deceased and her children. He has no knowledge as to whether there was any written family settlement or oral family settlement between the deceased and her children. He cannot say anything regarding the fact mentioned at portion B to B in his affidavit Ex. PW-2/1. He did not raise any objections regarding the facts mentioned at portion A to A and at portion B to B in his affidavit Ex. PW-2/1 at the time of preparation of same by the counsel for the petitioners. He admitted that Sardar Pritam Singh never showed his wishes that after his death, the property in question should devolve upon his wife Smt. Baljeet Kaur and his sons as mentioned at portion C to C in his affidavit Ex. PW-2/1 and that Sardar Pritam Singh also never said that after his death, Smt. Baljeet Kaur and her sons would become absolute owners of the property in question and could dispose of the said property in any manner they like as mentioned at portion D to D in his affidavit Ex. PW-2/1.
20. He further deposed that Smt. Baljeet Kaur had called him in November, 2006 and he came to know through Sh.Bhupinder Singh i.e. petitioner no.1 for some matter and in the night, he came to know from the deceased that he has to sign her Will. He further deposed that in the morning, deceased had produced one Will and the contents of the said Will were explained to him and the same was signed by her and then, he had signed the same in the property in question. He further deposed that there were no other talk between him and the deceased at the time except the signing of the Will and that the said sign was carried out on the Will at about 9.00 am. He admitted that when the Will was signed, at that time the PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.9of 49 New No. 16104/16 petitioners, their respective wives and their children were present in the house but they were not present when the same was signed by them. It is further deposed that the said Will of deceased was handwritten and it was written in Hindi and again said, it might be in Hindi language. There were only two persons present when he signed the Will, one of those persons were himself and the nick name of another person was Pappu and he does not remember his real name.
21. He further deposed that the date of November, 2006 is 21st and the said Will of deceased was of single page. He cannot say whether the said Will was on a plain paper or lined paper. After the execution of the said Will, he took the same with himself as the same was handed over to him by the deceased and he kept it with himself in his safe custody. He admitted that he cannot write nor read but can sign only. He further deposed that he once or twice visited Delhi after the death of deceased and he came to Delhi once before the execution of the present affidavit. There was no other discussion between him and the deceased at the time of execution of the said Will. In the Will of deceased, it was written that she had already given enough money to respondent no.2, so she is bequeathing the property in question to her sons / petitioners. He admitted that petitioner no.2 is deaf and dumb and that he came to Delhi one day prior to the execution of the Will which has already drafted by deceased. He cannot say whether deceased is conversant with Hindi language or not. He admitted that deceased knows English language very well and she could read and write English language.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.10of 49 New No. 16104/16
22. He further deposed that the said Will was signed by him on the first floor in the interior room of the property in question and the entire family of the petitioners were staying on the ground floor of the property in question. The tenants could be on the second floor or the third floor. He cannot give any date, month or year when construction was raised on the first floor, second floor or on the third floor of the property in question. He denied that on the ground floor, petitioner no.1 and his family members were residing and on the first floor, there was a tenant on the rear portion of the property and on the front portion, petitioner no.2 and his family members were residing in the year 2006.
23. He further deposed that the person whose nick name is Pappu informed him regarding the pendency of the suit filed by respondent no.2 against the petitioners. He had sent the said Will to petitioner no.1 by registered post and had requested one person to write address on the registered envelope and thereafter, posted the same and the said address was written by the said person either in Hindi or in English. He thereafter put the said Will in the said registered envelope and sent the same to petitioner no.1. He further deposed that the address of Subhash Nagar property is 113/114, Subhash Nagar, New Delhi. He sent the said Will of deceased through registered post either in September or October, 2010. He admitted that alongwith the Will, he never sent any document to petitioner no.1 by registered post and he is having the postal receipt of the said registered cover and he can produce the same. He further deposed that he had signed the said Will of deceased at one place and the petitioners were not aware of the Will in question prior to his PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.11of 49 New No. 16104/16 sending the same. He denied that neither deceased had signed the said Will at point 'X' nor the same was executed by her. He further denied that the said Will is a forged document and the same has been fabricated by the petitioners in connivance with him and others. He further denied that he was deposing falsely at the instance of petitioners.
24. Petitioners examined another attesting witness to the Will in question Sh. Gursharan Singh as PW-3 who tendered his evidence by way of affidavit Ex. PW-3/1.
25. In the cross-examination, PW3 deposed that he is 10 th pass and do not know English language and the affidavit ex. PW3/1 was prepared by his counsel on his instructions and he is well conversant with the facts in his affidavit Ex. PW3/1. He further deposed that he has not attended the cremation ceremony of deceased as well as her Bhog ceremony and he has also not attended the marriage ceremony of any of her children. He further deposed that he came to the Court as per the instructions of PW2 Sh. Pritam Singh and he has not file any other affidavit similar to ex. PW3/1 in any other Court at Delhi. He visited deceased house about 6-7 months before her death and came to Delhi about two years after the death of deceased and stayed with the petitioners. He stayed with the petitioners more than 10-12 times after the death of deceased and he never informed the petitioners as well as respondent no.2 about the Will in question. He did not inform about the Will in question to the petitioners as well as respondent no.2 as deceased told him that he should not inform about the Will to anyone and also as he did not deem it necessary to do so. He never visited the house of PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.12of 49 New No. 16104/16 respondent no.2 and never attended any function of any ceremony in the family of respondent no.2 till date. He had not visited Delhi after July, 2008 till 2010 and after the year 2010, he had visited Delhi about 10-12 times. He further deposed that the there is no dispute between the petitioners as well as respondent no.2 and he came to know about the pendency of the suit filed by respondent no.2 against the petitioners from his sister Smt.Surender Kaur who is residing in Australia in the month of September of October, 2010 and he never contacted the petitioners thereafter.
26. In reply to a specific question of ld. Counsel for respondent no.2, PW3 deposed that he had not informed about the Will to the petitioners as he was directed by the deceased when he came to know about the pendency of the suit filed by respondent no.2 against the petitioners.
27. He further deposed that he came to Delhi in the month of November, 2010 and stayed with the petitioners alongwith PW2 Sh. Pritam Singh and went to PW2 Sh. Pritam Singh in the month of September, 2010 when he came to know about the filing of the suit by respondent no.2 against the petitioners. He further deposed that neither he had talked to the petitioners on telephone nor PW2 Sh. Pritam Singh had talked to the petitioners on telephone in his presence and PW2 Sh. Pritam Singh might have talked to the petitioners in his absence when he informed about the dispute between respondent no.2 and the petitioners. He further deposed that when he came to Delhi and visited the deceased during her lifetime, the property in question was constructed upto 3 to 4 storeyed and till her death, the PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.13of 49 New No. 16104/16 property in question remained as it is up to 3 to 4 stoyered. He further deposed that he had no knowledge whether there were any tenants in the said property during the lifetime of deceased and as and when he came to Delhi, he stayed with the petitioners or deceased for 2 to 3 days continuously.
28. He further deposed that the property in question at Subhash Nagar was mutated in the name of the petitioners after the death of deceased and he has not seen any documentary proof regarding mutation of the property in question in the name of petitioners and PW2 Sh. Pritam Singh told him about this fact in the year 2010. He further deposed that his mother had informed him that after the death of husband of deceased, the property in question was mutated in the name of deceased and he had not seen any document in this regard. He further deposed that he several times came to Delhi during the lifetime of husband of deceased but he cannot given the exact numbers and he never visited Delhi in the year 2004, 2005, 2007, 2008 and 2009 though he came to Delhi in 2006 towards end. He further deposed that his sister Ms. Surinder Kaur who is staying in Australia informed him that deceased is calling him at Delhi in the end of the year 2006 and her sister used to visit deceased as and when she visited Delhi.
29. He denied that Smt. Surinder Kaur has no relation / contact with the deceased and admitted that deceased was having family relations at Delhi and voluntarily deposed that she was not having cordial relations with them. He further deposed that there was no discussion with husband of deceased about the distribution of the property in question with him. He had a PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.14of 49 New No. 16104/16 discussion with the deceased about the distribution of the property in question and showed her intention to give the property in question to the petitioners in the year 2006 and this discussions were carried out in the presence of PW2 Sh. Pritam Singh, deceased and himself only. He cannot tell whether deceased had made any family settlement in respect of the property in question in his presence. Her further deposed that deceased never called her children or Sh. Pritam Singh and expressed her desire regarding distribution of the property in question. He denied that after the death of Sh. Pritam Singh, the property was mutated in the name of deceased and her children.
30. He deposed that he was called by the deceased in November, 2006 at Delhi and again said, his brother Sh. Jasbir Singh was called by deceased at Delhi but he did not come to Delhi as he was not having spare time and that is why he came to Delhi alongwith PW2 Sh. Pritam Singh in the year 2006. He has never seen any document which show that deceased was absolute owner of the property in question. He further deposed that deceased was well educated. He reached Delhi at about 2.00 PM on 22.11.2006 and on the next day at about 9.30 Am, deceased showed him a document consisting of two pages and it was in Hindi language and he read the same and thereafter, deceased signed the said document and after her, Sh. Pritam Singh signed it and lastly he signed the said document. He further deposed that all three of them signed the said document at one place on the third page and the said document was a typed one and the same was not a handwritten document and all three of them had signed on the right side of the page.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.15of 49 New No. 16104/16
31. He admitted that he had filed similar affidavit before the Court of Sh. Pitamber Dutt, Ld. ADJ, Delhi in a suit filed by respondent no.2 and he has already been cross-examined in the above said Court on 22.05.2014 and the certified copy of his aforesaid cross-examination is Ex. PW3/R2-1 which bears his signatures at point 'X'. He further deposed that it might be correct that the day when his affidavit Ex. PW3/1 was prepared by the counsel for petitioner, the affidavit of Sh. Pritam Singh's affidavit Ex. PW2/1 was prepared. He denied that the Will Ex. PW1/A does not bear the signature of deceased and further denied that deceased had not signed ex. PW1/A in his presence. He further denied that the Will is false and fabricated document and that the said Will has been fabricated by the petitioners and he and other attesting witness by forging the signatures of the deceased.
32. Petitioners examined PW4 Sh. Amanprit Singh, the son of the petitioner no.2 who tendered his affidavit in evidence as Ex. PW4/1.
33. In his cross-examination, he has gone through the contents of his affidavit already Ex. PW4/1 and he knew English language a little. His grandmother informed him that after the death of his grandfather Sh. Pritam Singh, the property in question was mutated in her name and he does not know in which department, the property in question was mutated in the name of his grandmother.
34. He admitted that the ownership documents of property in question as well as mutation documents are lying PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.16of 49 New No. 16104/16 with the petitioner no.1 i.e. his uncle Sh. Bhupinder Singh and he does not have any documentary proof to show that his father was working since his childhood. He deposed that he heard it that his father was working since his childhood. There was no written family settlement arrived at in the family in respect of property in question. He further deposed that at the time of the said family settlement, his uncle Sh. Bhupinder Singh, his father Sh.Davinder Singh, his grandmother Smt. Baljeet Kaur, his aunt (Bhua Ji) Smt. Jagdeep Kaur, Sh. Pritam Singh (Phoopa of his father) and Sh. Gursharan Singh were present on 22.11.2006. Thereafter, his Phoopa Ji Sh. Pitam Singh came to Delhi several times even after the death of his grandmother. He further voluntarily deposed that after long period of death of his grandmother. He cannot say any date, month and year when Sh. Pritam Singh came to Delhi. He has seen the property in question already constructed upto second floor since he attained the age of understanding (jab se maine hosh sambhala). He does not remember when the third floor was constructed in property in question and he cannot say the date, month and year when it was constructed. He deposed that the loan was taken from Ramgarhia Co-operative Bank, Paharganj, Delhi only and it was not taken in his presence.
35. He admitted that one suit for partition, etc. was filed by the respondent no.2 against his father and Sh. Bhupinder Singh and that he has given his statement in that suit also. He has also filed the similar affidavit in that case and the property in question had not been partitioned till date. He admitted that objector is one of the LRs of his grandfather and grandmother and that the property in question was owned by his grandfather Sh. Pritam Singh. He further deposed that his grandmother died PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.17of 49 New No. 16104/16 when he was aged about 17 years and objector / respondent no.2 used to visit in the property in question before the death of his grandmother and occasionally after the death of his grandmother. He further deposed that his grandmother remained ill for about one year or so before her death as she remained under tension and that his grandmother was treated for the said ailments however he does not possess any documentary proof tot his effect. He does not know whether both the petitioners are having any documentary proof regarding the treatment of his grandmother.
36. He denied that his grandmother not remained ill for about one year or so before her death as she was under tension. He further denied that his grandmother was not treated for the said ailments. He further deposed that he used to take his grandmother to Dr. Sehgal at Subhash Nagar and his grandmother remained under tension before her death due to the petitioners and respondent no.2/objector. He does not know if his grandmother was having any bank account in Punjab & Sind Bank, Rajouri Garden. He admitted that his cross-examination was conducted in partition suit and he had made a statement in the Court of Sh. Pitamber Dutt, Ld. ADJ, Delhi on 10.12.2012 where it is mentioned in his cross-examination "my grand mother was having one bank account in Punjab & Sind Bank, Rajouri Garden Branch, New Delhi through which she was receiving pension". He deposed that this statement which was given on 10.12.2012 is correct.
37. He admitted that the document marked as Mark X-4 bears the photograph of his grandmother at point 'A' and PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.18of 49 New No. 16104/16 photograph of objector at point 'B'. He does not remember how many times his Phoopa Ji came to Delhi before giving his statement in the present case. He admitted that whenever he came to Delhi, he stayed with them. He further deposed that the Will in question was given by his Phoopa Ji Sh. Pritam Singh to the petitioner no.1 through courier. He admitted that the said courier was not received by the petitioner no.1 in his presence.
38. He deposed that he had not gone through the contents of the said Will and the said Will is written in Hindi however he does not remember if it was handwritten or typed. He further deposed that the Will was about 2 or 3 pages and he had seen only 2 or 3 pages only. He does not remember when he saw this Will when it was received by the petitioner no.1. He has seen the said Will which was signed by his grandmother but other's signature on the said Will, he does not know. He further deposed that the said Will was signed by his grandmother on the right side of the Will and as far as he remember the said Will was signed at one place on the last page by his grandmother. He does not know the qualifications of his grandmother. He has seen his grandmother writing, signing and reading. He does not know if the property in question was registered in the name of his grandmother at any stage in any department. He does not know if the property in question was mutated after the death of his grandmother in the name of both the petitioners as well as the objector/respondent no.1 and his grandmother. He further deposed that the property in question have been mutated in the name of deceased and her minor children in MCD records on 15.07.1985. He denied that the contents of para 4, 5, 6, 7 & 8 of his affidavit are absolutely false and not within his knowledge. PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.19of 49 New No. 16104/16
39. Vide separate statement of ld. Counsel for petitioners, evidence of petitioners stand closed.
40. Respondent no.2 examined Sh. Gurcharan Singh, Officer, Punjab & Sind Bank, Rajouri Garden, New Delhi who has proved the attested copy of the joint saving account No. 22574 dated 30.11.1999 in the name of Smt. Baljeet Kaur and Smt.Jagdeep Kaur as Ex. RW1/1 (OSR) bearing the signature of Smt. Baljeet Kaur at point 'A' and the signature of Smt. Jagdeep Kaur at point 'B'.
41. In the cross-examination, RW1 deposed that he has been authorized by the AGM to appear and depose in the Court today. He does not have any documentary proof in this regard and he was verbally directed in this regard. He denied that the directions for appearance in the Court are given to them by the AGM in writing. He further deposed that the abovesaid account No. 22574 is still continuing but inoperative. He cannot tell when the last transaction in the said account took place and voluntarily deposed that it can be verified from the statement of account. He does not have any personal knowledge about the visit of the deceased to the bank qua the above said account and voluntarily deposed that he was in this branch in May, 2013 and he does not have nay other documents or record of the above said account in their bank except account opening form and the death certificate of deceased Smt. Baljeet Kaur. He denied that the document Ex. RW1/1 has been attested without seeing the original document and voluntarily deposed that it was attested by him after seeing the original.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.20of 49 New No. 16104/16
42. Respondent no. 2 further examined RW2 Sh. Virender Gupta, UDC from House Tax Department (West), Ashok Nagar, New Delhi and proved copy of mutation letter dated 15.07.1985 vide No. Tax/WZ/85/2953 and its copy is Ex. RW2/1 (OSR).
43. In the cross-examination, RW2 deposed that he has been posted in this office since 15.09.2014 and admitted that as per record, there is no official seal of MCD on this document Ex. RW2/1. He cannot say that the original document Ex. RW2/1 was given to whom. He further deposed that the house tax of the property in question was deposited by Sh. Bhupinder Singh on 21.05.2012 and by Smt. Malkit Kaur on 02.06.2011 and by Smt. Baljit Kaur on 25.06.2005, 27.06.2006 and 27.10.2004 as per their record which has been brought by him in the Court. He has been authorized by higher officer of MCD to depose before the Court on the summons received by the office.
44. Respondent no.2 examined herself as RW-3 and tendered her evidence by way of affidavit Ex. RW-3/A.
45. In the cross-examination, RW3 deposed that she does not know the year in which her father purchased the property no. 14/113, Subhash Nagar, New Delhi-110027. She deposed that she was married in the year 1994 and remained in the said property prior to that. She further deposed that her father died in April, 1981, could be 17th of April and when she was married, the property was already built up to three floors i.e. ground, first and second. She further deposed that all her family members were residing on the ground floor of the property only including petitioners. Her mother was able to read Hindi and English PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.21of 49 New No. 16104/16 language and she also knew Punjabi. She further deposed that her mother was house wife and was having a joint bank account in Punjab and Sind Bank and there is one more bank account in Subhash Nagar as a joint account with her. She does not know any other bank account of her mother. Her mother used to take her to the bank for operation of the said bank account till she was alive. She does not remember the exact year and again said, it may be 1999. He denied that after the death of her father, the petitioners were maintaining the house and that the entire expenses of her marriage were born by the petitioners. She further deposed that the contents in para no.4 in her affidavit Ex.RW3A are correct.
46. He denied that after the death of her father in the year 1981 till filing of partition suit in the year 2008, she never pressed for her share in the property in question. She stated that on the Will Ex.PW1/A, signature of her deceased mother are forged on the basis of her signatures available in the bank documents in the joint bank account. She further denied that signatures of her deceased mother are genuine. She deposed that her mother used to sign in English language. This witness was shown the Will Ex. PW1/A. She deposed that she cannot say whether at points Y and Z, there are signatures of attesting witnesses, namely, S. Pritam Singh and S. Gurcharan Singh. She denied that Ex. PW1/A is not prepared and executed in collusion with attesting witnesses and petitioners. She has not filed any police complaint against petitioners and attesting witnesses till date with regard to alleged fabrication of forged Will.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.22of 49 New No. 16104/16
47. Respondent no.2 further examined Sh. B. N. Srivastava as DW-3 which ought to read as RW-4 who tendered his evidence by way of affidavit Ex. DW-3/A and relied upon the report Ex. DW3/1, the disputed and comparative signatures Ex.DW3/2 & DW3/3, photographs of lower part of the last page of Will Ex. DW3/4, photograph of Account Opening form Ex.DW3/5 and negative CD Ex. DW3/6.
48. In the cross-examination, DW3 deposed that he is a Science graduate and has done one year Certificate Course in Forensic Science from University of Delhi in the year 1970. He has not filed the copy of the said Certificate with his affidavit however he has brought the original Certificate in the Court. He has been working as a Handwriting Expert since 1967-68 after receiving training from an expert Mr. M. K. Mehta and he is not having any certificate of his experience except from Mr. M. K. Mehta. He admitted that he has filed reports in many cases in this particular Court also. He is on consultation panel of banks particularly State Bank of India. He has also been engaged by Government Body.
49. He further deposed that his report Ex. DW3/1 is dated 24.03.2016 and he took sufficient time to prepare the report and he cannot specifically tell the exact days. He further deposed that report Ex. DW3/1 was typed by him and prepared in his chamber No. M-6, Civil Side, Tis Hazari Court, Delhi. He used magnifying lenses, small microscope and geometrical instruments and his report is based upon the scientific method detailed in the books written by Mr. Brewester, Mr. Mehta, Mr. Harrison, Mr. B. L. Saxena, etc. In reply to a specific question of PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.23of 49 New No. 16104/16 ld. Counsel for petitioner, he stated that his opinion is cased on the examination of the writing characteristics, writing habits and the formation of the letters.
50. He admitted that some minor variation occur in the writing of every individual with the passage of time. He denied that fundamental variation will be in the writing written with different type of pen. He has not mentioned pen pressure in the present case as the signatures have been done with ball pen. He has been engaged through counsel for examination of signatures and filing expert report. He denied that he has no experience of working as Handwriting Expert and he has filed an incorrect report and that he is not qualified to work as Handwriting Expert.
51. I have heard Sh. Ritesh Oberoi, counsel for the petitioner, Sh. Daljinder Singh, counsel for respondent no.2 and perused the record.
52. Before appreciating the respective contentions of both the counsels, let us peruse the law laid down by the Apex Court.
The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean 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". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.24of 49 New No. 16104/16 Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.25of 49 New No. 16104/16 Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.26of 49 New No. 16104/16 "67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
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:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
53. The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.27of 49 New No. 16104/16 understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.
Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.28of 49 New No. 16104/16 adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.29of 49 New No. 16104/16 influence fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
( emphasis supplied)
54. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.30of 49 New No. 16104/16 circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court.
The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied)
55. In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar ( supra), the Supreme Court culled out the following propositions:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.31of 49 New No. 16104/16 (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally , the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a susbtantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.32of 49 New No. 16104/16 and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circusmtances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is connection with wills, the execution of which
is surrounded by suspicious circumstances that the
test of satisfaction of the judicial conscience has
been evolved. That test emphasises that in
determining the question as to whether an
instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied) PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.33of 49 New No. 16104/16
56. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.34of 49 New No. 16104/16 off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied)
57. Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
58. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.35of 49 New No. 16104/16 "31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution;
nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied)
59. In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"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 PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.36of 49 New No. 16104/16 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 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.
PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.37of 49 New No. 16104/16 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 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 PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.38of 49 New No. 16104/16 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 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 PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.39of 49 New No. 16104/16 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 the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
60. Findings on issue no. 1 The issue no. 1 is framed on the basis of objection taken by respondent no. 2 that the petition is not verified by the attesting witness and liable to be dismissed as per Section 281 of Indian Succession Act. The petition has not been verified by either of the attesting witness Sh. Gurushran Singh and Sh. Pritam Singh. However, during the trial both the attesting witnesses appeared in witness box as PW-2 Sh. Pritam Singh and PW-3 Sh. Gurushran Singh and opportunities given to respondent no. 2 to cross-examine and to rebutal all the facts with regard to execution of the Will Ex. PW-1/A. The non-compliance of Section 281 Indian Succession Act is an irregularity which can be cured by examining the attesting witness. In this case the irregularity PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.40of 49 New No. 16104/16 for non-compliance of Section 281 of Indian Succession Act has been cured by petitioners by examining both the attesting witnesses, therefore, on this ground, petition is not liable to be dismissed.
On the basis of above observation and discussion, issue no. 1 is decided against respondent no. 2 and in favour of the petitioners.
61. Findings on Issue no. 2 Issue no. 2 is framed on the basis of objections taken by respondent no. 2 that Will in question Ex PW-1/A is forged and fabricated. The onus is on the respondent no. 2 who examined in total three witnesses i.e RW-1 Sh. Gurcharan Singh, RW-2 Sh. Virender Gupta, RW-3 Ms Jagdeep Kaur and RW-4 Sh. B.N. Srivastava, ( wrongly mentioned as DW-3). The testimonies of all the witnesses have been discussed hereinabove in detail.
62. RW-3 Ms Jagdeep Kaur taken the main objection in the objections as well as in the witness box that Will Ex. PW-1/A bears the forged and fabricated signatures of her deceased mother Smt. Baljeet Kaur on the basis that in the joint bank account her signatues are totally different. RW-1 Sh. Gurucharan Singh is the witness from Punjab & Sindh Bank who appeared and proved the attested copy of joint account of late Smt. Baljeet Kaur and Smt. Jagdeep Kaur as Ex. RW-1/1. RW-2 Sh. Virender Gupta proved the mutation record of property bearing no. 14/113, Subhash Nagar, New Delhi, however, this witness is not testified any material fact with regard to the allegations of forged and fabrication of Will in question.
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63. The main witness is RW-4 ( wrongly mentioned as DW-3) Sh. B.N. Srivastava, hand writing expert who compared and examined the disputed signatures of late Smt. Baljeet Kaur on the Will Ex. PW-1/A and comparative signatures from the account opening form of Punjab National Bank. He proved his report Ex. DW-3/1. He further proved the photographs Ex. DW3/2 to Ex. DW3/5 and C.D Ex. DW-3/6 in the detailed cross- examination already discussed.
64. The hand writing expert Sh. B.N. Srivastava in Para 2 of his report Ex. DW-3/1 categorically mentioned that he compared the disputed signatures of Baljeet Kaur from the photocopy. The handwriting expert has not made any efforts to get the original from Bank and then take the photographs available of the original Account Opening form and, therefore, the comparative signatures on the photocopy copy of a document, prima facie does not become a reliable source of comparison with the disputed, therefore the opinion based on examination by the expert on the photocopy is not in accordance with the science of handwriting examination. Therefore, in my opinion, the report and expert opinion cannot be given weightage.
65. It is admitted that the Will was signed by the deceased Baljeet Kaur on 23.11.2006. The bank account was opened on 30.11.99. There is a gap between both the signatures is of seven years. By comparing the disputed signatures on Will Ex. PW-1/A and on bank opening form Ex. RW-1/A which is a photocopy, one cannot conclude any expert opinion that it is not been written by the same writer. The opinion given by the handwriting expert that disputed signatures is a product of PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.42of 49 New No. 16104/16 imitation forgery, however, this opinion is not purely sustainable because no original signatures were examined by the handwriting expert.
66. On the basis of above observation and discussion, in my opinion, the opinion of handwriting expert does not establish any forgery or fabrication. It is not established on record scientifically and legally that disputed signatures of late Smt. Baljeet Kaur on Will Ex. PW-1/A is the product of imitation forgery. Hence on the basis of observation and discussion, issue no. 2 is decided against the respondent no. 2 and in favour of the petitioners.
67. Findings on Issue no. 3 At the outset it is admitted case of the parties that respondent no. 2 had filed a partition suit titled Jagdeep Kaur Vs Bhupinder Singh & Anr, bearing No. 231/08 pending in the court of Sh. Rajnish Bhatnagar, the then Ld. ADJ till 11.05.2015 and transferred to this court on 14.05.2015 and registered as C.S. No. 48/15/08, for seeking partition and petitioners appearing are contesting the said partition suit. As per pleadings in that suit, initially, petitioners did not disclose about the Will, however, later on this fact was disclosed and present petition has been filed. The petitioners in their petition specifically pleaded that in October 2010, the Phoopha of the petitioners, namely, S. Pritam Singh, one of the attesting witness to the Will Ex. PW-1/A, resident of Jalandhar City, Punjab intimated them through a letter with regard to the Will of late Smt. Baljeet Kaur, mother and also sent a letter and original will, therefore, the present petition has been filed.
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68. Sh. Pritam Singh appeared in witness box as PW-2 and his testimony is discussed hereinabove in detail. In the detailed cross-examination, it is established on record that on the day of examination he was aged around 86 years. He is studied up to 3 or 5 class. My attention has been drawn that he testified that he does not know what is written in the affidavit Ex. PW-2/1. He admitted that he cannot read or write but only sign. His signatures appeared on affidavit in Urdu language as well as on the Will Ex. PW-1/A in Urdu language. It established that he knew only sign in Urdu language. However, witness in reply to a specific question deposed that his affidavit Ex. PW-2/1 was prepared by the counsel at his instructions. Though the witness is not well versed with the writing and reading of English language, however, he accepted that his affidavit was prepared at his instructions. He also voluntarily explained that the contents were read over to him by the counsel of petitioners.
69. PW-2 denied the knowledge about the mutation of the property in the name of deceased Baljeet Kaur after the death of her husband. He denied that he had no cordial relations with the husband of the deceased. He also explained that the financial condition was not good of late Baljeet Kaur. He further explained that in the year 2010, he came to know about the pendency of the case filed by Jagdeep Kaur. He admitted that is relations with the petitioners were cordial.
70. PW-2 S. Pritam Singh proved the letter of intimation with regard to the will of late Smt. Baljeet Kaur Ex. PW-1/B and the registered envelope Ex. PW-1/C. The contents of the letter are in Hindi and signed by Sh. Pritam Singh in Urdu language. PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.44of 49 New No. 16104/16 The registered envelope bears the postal stamp of Punjab which is also appearing writing in Urdu it means that it was written by S. Pritam Singh. The witness, PW-2, S. Pritam singh corroborate the fact of intimating the petitioners about the existence of Will in October, 2010. He further explained that the address of the petitioners was written by one person either in Hindi or English. In the cross-examination he reiterated and established about the intimating the petitioners of the Will and sending them through registered post.
71. The crucial aspect with regard to the execution of the Will Ex. PW-1/A. The witness explained that Smt. Baljeet Kaur called him in November 2006 through petitioner no. 1. In the night he came to know from her that she wanted to sign a Will. In the morning she produced the Will and explained and signed. It was around 9 A.M in the morning. He further clarified that petitioners were present in the house but not in the room where the Will was executed by the late Baljeet Kaur. However, he deposed that Will was handwritten in Hindi and there were only two persons present i.e himself and other person was Pappu and it was single page. My attention has been drawn that it was typed and consist of two pages. In my opinion, keeping in view the 6 years gap i.e from the date of execution of the Will in the year 2006 and his examination in the court in the year 2012-13 and the age of the witness the minor differences in answering in witness box is a natural and sign of truth. The will is in Hindi language but it is typed in two pages. In my opinion these minor contradictions does not effect the truthfulness of the attesting witness.
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72. He further explained that after execution it was handed over to him by the late Smt. Baljeet Kaur to keep with him in safe custody and later on he intimated and handed over the original will to petitioners. He further explained that will was signed at the first floor in interior room of Subhash Nagar property. There were tenant at the second and third floor. The entire family of petitioners were at the ground floor, In my opinion, the witness cogently and coherently established the execution of the Will by late Smt. Baljeet Kaur in his and in the presence of other witness. He further proved that it was in his safe custody after the execution when handed over by the deceased Smt. Baljeet Kaur. It is further established through registered post when he came to know about the civil suit filed by respondent no. 2, the original will was handed over through post by him to the petitioners. In my opinion, the testimony of attesting witness S. Pritam Singh has established the legal execution of the Will dated 23.11.2006 of late Smt. Baljeet Kaur.
73. The another attesting witness PW-3 S. Gursharan Singh also appeared in witness box. He testified that he did not inform the Will in question to the petitioners and respondent no. 2 as told by late Smt. Baljeet Kaur not to inform. However, he explained that he never attended any marriage ceremony or function of family of deceased Baljeet Kaur. He further testified that he came to Delhi and visited Baljeet Kaur during his life time at Subhash Nagar which is building constructed up to 3 to 4 storeyed. He further testified that his sister who is resident of Australia informed him that Baljeet Kaur calling him to come to Delhi and his sister used to visit Baljeet Kaur.
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74. He further explained that late Baljeet Kaur was well educated. On 22.11.2006 about 9.30 A.M late Baljeet Kaur showed him a document consisting of two pages in Hindi language. He further testified that Baljeet Kaur signed the said document and after her Sh. Pritam Singh signed it and lastly he signed the said document. All three of them had signed the said document at one place on the third page. The said document was a typed one. PW-3 S. Gursharan Singh further corroborated the fact with regard to the execution of the will of late Baljeet Kaur. His testimony further established and corroborates the testimony of PW-2 S. Pritam Singh as well the petitioner's case.
75. In my considered opinion on the basis of above observation and discussion the attesting witnesses PW-2 S. Pritam Singh and PW-3 Sh. Gurusharan Singh, both established and proved that deceased Baljeet Kaur had executed the Will Ex. PW-1/A which is typed in Hindi consisting of two pages and they signed in the presence of each other. It is pertinent to mention here that there is no challenge to the soundness of the health and mind of the deceased on the date of execution of the Will. Hence all the ingredients of Section 63 Indian Succession Act are established and proved on record. Hence issue no. 3 is decided in favour of the petitioners and against the respondents.
76. Relief It is pertinent to mention here that though no issue of relief has been framed on 26.09.2011 when the issues were framed, however, in the interest of justice same is here framed and answered.
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77. In the present case, the petitioners are seeking Probate in respect of the Will dated 23.11.2006 executed by Late Smt. Baljeet Kaur W/o late Sh. Pritam Singh, however the perusal of the said Will ( Ex. PW-1/A) reveals that petitioners have not been named as Executor therein and as such the probate in respect of the Will in question cannot be granted in favour of the petitioner in accordance with the provisions of Section-222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the Will. In these circumstances and in view of the provisions of Section-232 of Indian Succession Act, the petitioner shall be entitled only to Letter of Administration in respect of the property mentioned in the said Will.
78. In view of above observation and discussion, the petitioners, namely, Sh. Bhupinder Singh and Sh. Davender Singh are jointly entitled to letter of administration in respect of property No. 14/113, Subhash Nagar, New Delhi-110027 mentioned in Schedule-A after obtaining requisite Court fee and administration bond to the total tune of Rs. 35,44,800/- ( Rupees Thirty Five Lakh Forty Four Thousand Eight Hundred only) in equal share as agreed by petitioners.
79. Further, the petitioners are directed to file the inventory of the immovable property within six months and final statement of account within one year from the date of receipt of formal letter of administration. The formalities of issuance of Letter of Administration shall completed by the petitioners within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act. PC No. 196/10 & Bhupinder Singh & Anr. Vs State & Ors. Page No.48of 49 New No. 16104/16
80. It further clarified that the question of title, share or ownership of movable property mentioned herein above is not decided by this Court. File be consigned to the Record Room.
SANJAY Digitally signed by
SANJAY KUMAR
KUMAR Date: 2018.04.17
22:20:12 +0530
(Announced in the open (SANJAY KUMAR)
court on 17th April, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
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