Delhi District Court
Sudarshan Kumar vs State And Ors on 28 November, 2023
IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
PC NO. 93/2016
CNR No. DLSW010054862016
IN THE MATTER OF:
Sudarshan Kumar
S/o Sh Aseel Singh @ Aseel Kumar
R/o House No. 57
VPO Rawta New Delhi -73 .... Petitioner
vs.
1. State ... Respondent No.1
2. Dariyawati
W/o Late Sh. Kuldeep Singh
D/o Chait @ Chain Kaur
R/o VPO Chhawala, Najafgarh
New Delhi ... Respondent No. 2
3. Aseel Singh @ Aseel Kumar
S/o Late Karan Singh
R/o H.No. 57, VPO Rawta
New Delhi - 110073 ... Respondent No. 3
Date of institution of suit: 06.12.2016
Date of judgment reserved: 15.09.2023
Date of pronouncement of judgment: 28.11.2023
JUDGMENT
1. The present petition is filed under Section 276 of the Indian Successions Act, 1925 (hereinafter "the act") for grant of Probate/ letters of administration of the Will dated 22.05.2013 PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.1/24 duly registered with Sub Registrar IX, Delhi vide registration No. 465 in Book No. 3, Vol. No. 623 on page No. 145 to 147 executed by Late Smt. Chait Kaur @ Chain Kaur (hereinafter referred as 'deceased/ testatrix) in favour of the petitioner.
2. Briefly stated, it is the case of the petitioner that petitioner is the grandson of the Late Smt. Chait Kaur @ Chain Kaur w/o Late Sh. Karan Singh and the respondent Nos. 2 and 3 are the married daughter and son of Late Smt. Chait Kaur @ Chain Kaur. It is further averred that testatrix died on 06.04.2014 at Village Rawta, Delhi leaving behind the respondent Nos.2 and 3 as her children.
3. It is further averred in the petition that testatrix was the owner/ bhumidar/ occupier and in possession of immovable property to the extent of ½ share of the agricultural land total area measuring 24 bigha 18 biswa previous Khewat No. 320, previous khasra No. 31/19 min, 31/20, 19/10, 11, 19,20, 21min, 20.6, 15, New Khewat No. 322 min, New Khasra No. 75/63(2-8), 14/10 (10-14), 11(3-18), 19 (2-10), 20(4-16), 21/1(1-12), 15/6(4-
4), 15(4-16) situated in the Revenue Estate of Village Rawata, Tehsil Najafgarh, New Delhi (herein after referred as 'subject property'). It is further averred in the petition that at the time of execution of the Will the testatrix was in sound disposing mind. It is further averred that the value of the subject property is Rs 1,50,00,000/- (one crore fifty lakh only) as per the circle rate. Hence, it is prayed that letter of Administration be issued in favour of petitioner with respect to the Will dated 22.05.2013.
4. Notice of the petition was issued to the respondents, citations were published in English daily 'The Statesman' dated PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.2/24 07.10.2016 and Hindi daily 'Rashtriya Sahara' dated 06.10.2016. Notice was also issued to the concerned Collector/SDM for filing the valuation report of the subject property in accordance with law. The notice was also displayed at the notice board of this Court. No objections were received to the petition from any quarter despite publication of citations in newspaper.
5. Pursuant to the receipt of notice, Tehsildar, Kapashera, filed valuation report qua the subject property wherein the same has been valued at Rs 2,74,93,749/- (Rupees Two crore seventy four lakh ninety three thousand and seven hundred forty nine only).
6. Further, pursuant to service of notice respondent No. 2 and 3, they appeared before this Court and respondent No. 3 gave his NOC in favour of petitioner. His statement to this effect was recorded separately.
7. Whereas, respondent No. 2 contested the present petition and filed her objections and it is contended by her that testatrix had inherited the property in her name from her son, namely, Rakam Singh and therefore, she was not competent in law to execute the Will as the subject property is governed by provisions of Delhi Reforms Act, 1954 as the testatrix was only bhumidar under the said Act especially under Section 48 of the Act.
8. It is further contended that the alleged Will dated 22.05.2013 is forged and fabricated Will and testatrix was an illiterate lady. It is further contended that testatrix was about 100 years old at the time of her death and was residing with the PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.3/24 petitioner and therefore, petitioner has obtained the said Will in a fraudulent manner.
9. It is further contended that the testatrix was not in a sound state of mind at the time of her death and she was physically weak and had lost her mental balance to understand the things in right perspective. It is further contended that the petitioner in order to deprive the respondent No. 2 from his legal right in the subject property left behind by testatrix. Hence, it is prayed that the petition of the petitioner be dismissed.
10. In rejoinder the petitioner has denied the contentions as raised by the respondent No. 2 in her objections and reiterated and reaffirmed the stand taken by him in the petition. He has specifically denied that the testatrix was not competent to execute the Will as per the provisions of Delhi Land Reform Act, 1954 (DLR) and averred that she was competent to make the Will as per Section 14 of the Hindu Succession Act, 1954 (HSA) as per the amendments made in the HSA in year 2005 and also as per the various judgments of the Apex Court.
11. On the basis of the pleadings of the parties, the following issues were framed:-
(i) Whether the execution of the Will dated 22.05.2013 was barred by Section 48 of the Delhi Land Reforms Act, 1954? ...OPR2
(ii) Whether the Will dated 22.05.2013 is forged and fabricated? ...OPR2
(iii) Whether the Will dated 22.05.2013 was executed by Late Smt. Chait Kaur @ Chain Kaur in a sound and disposing state of mind? ...OPP PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.4/24
(iv) Relief
12. In order to prove its case, petitioner examined four witnesses. Petitioner himself stepped into the witness box and in his evidence by way of affidavit Ex.PW1/A, he deposed in tandem with the averments made by him in the petition and he also relied upon the following documents:
(i) Copy of driving license - Ex PW1/1 (OSR)
(ii) Death certificate of Late Smt. Chait Kaur @ Chain Kaur - Ex PW1/2, and
(iii) Will dated 22.05.2013 executed by Late Smt. Chair Kaur- Ex PW1/2, and
(iv) attested copy of Khata Katoni - Ex PW1/4.
13. Thereafter, PW-1 is cross examined and discharged.
14. Mr. Raj Kumar has appeared in the witness box as PW-2 and proved the summoned record i.e. Will executed by Smt. Chait Kuar @ Chain Kaur - Ex PW2/1. He further deposed that the counter part is already exhibited as Ex. PW1/3, which is registered with Registrar No. IX, Kapashera vide registration no. 465 in Book NO. 3, Volume No. 623 on pages 145 to 147 on dated 22.05.2013. He further deposed that the said Will was witnessed by two witnesses, namely, Raj Kumar s/o Sh.Bhoop Singh and Rajender s/o Sh. Rishal Singh. Thereafter he was cross examined and discharged.
15. Thereafter, both the attesting witnesses to the Will, namely, Rajender and Raj Kumar were examined as PW-3 and PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.5/24 PW-4, respectively. They have proved their Aadhar card as Ex PW3/1 (OSR) and Ex PW4/1 (OSR), respectively and the Will dated 22.05.2013- Ex PW1/3. Both the witnesses are cross- examined and discharged and thereafter, petitioner closed his evidence and case was fixed for respondent's evidence.
16. In order to prove her case, respondent No.2 herself entered the witness box as D2W1/A and deposed in tandem to the averments in the petition in her evidence by way of affidavit Ex.D2W1/A. She was cross-examined and discharged and thereafter, respondent No.2 closed her evidence and matter was fixed for final arguments.
Arguments
17. The Ld. Counsel for the petitioner argued at the outset that the no doubt the testatrix inherited the right of his deceased son in the subject property which is governed by DLR Act,1954 but the testatrix was very well within her right to execute the Will in question in favour of the petitioner and has relied upon the judgment titled as Nirmala and Ors vs. GNCTD 7 Ors. WP© 6435/2007 delivered by the Hon'ble High Court of Delhi. The ld. Counsel futher argued that as per the ratio of Babu Ram vs. Santokh Singh (Civil Appeal no. 2553 of 2019) of Hon'ble Supreme Court of India and Roshan Lal vs. Pritam Singh (RSA No. 258 of 2012-F) delivered by Hon'ble Himachal Pardesh High Court, Hindu Succession Act, 1954, is applicable to Agricultural lands and therefore, there was no impediment on the testatrix to dispose of her share in the agricultural land by way of testamentary disposition.
PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.6/2418. The Ld. Counsel further argued that as far as the validity of the Will is concerned, the petitioner has duly proved the Will in question by calling both the attesting witnesses in the witness box and as the Will in question was a registered Will, it also raises a presumption in favour of the petitioner that Will was executed by the testatrix in her sound disposing mind. He also argued that petitioner is the grandson of the testatrix and he was taking care of her and in the Will, the testatrix has duly mentioned the reasons for disinheriting the objector herein.
19. Per contra, the Ld. Counsel for the objector has argued that on joint reading of Section 50 (d) and Section 48 (2) of the Delhi Land Reforms Act, 1954, the testatrix was not entitled to bequeath the subject property in favour of the petitioner. He further argued that there are glaring contradictions in the testimony of the witnesses of the petitioner and in addition thereto the petitioner himself admitted in the cross examination that the testatrix was having cordial relationship with objector and therefore, no occasion arose with the testatrix to disinherit the objector from the subject property. He further argued that on the date when the Will in question was executed the petitioner was present at home but he has deposed that he was not aware that the testatrix went to the office of Registrar to execute the Will in question in his favour which is not gulpable as how can a person cannot be aware of leaving of an elderly person from home while both of them living together.
20. The Ld. Counsel further argued that in the entire Will no reason whatsoever has been mentioned by the testatrix for PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.7/24 disinheriting her own son and daughter and executing the Will in favour of the petitioner/ grandson. He further argued that the petitioner has failed to prove the thumb impression of the testatrix on the Will by calling any expert and that on one hand the petitioner has deposed that due to old age the testatrix was not in a position to visit her daughter and on the other hand the testatrix even went to the office of Sub Registrar to execute the Will in favour of the petitioner. Lastly, he submitted that both the witnesses are interested witnesses and therefore, their testimony cannot be relied upon. To buttress his arguments Ld. Counsel relied upon the judgment titled as Kavita Kanwar v. Pamela Mehta (2021) 11 SCC 209.
21. I have heard the arguments and have gone through the judicial file.
22. My issue-wise findings are as under
Issue No.1 Whether the execution of the Will dated 22.05.2013 was barred by Section 48 of the Delhi Land Reforms Act, 1954...OPR2
23. At the outset it is relevant to mention that even though the jurisdiction of probate Court is limited to decide only the validity of the Will and to see whether it was executed as per Secton 63 of the Indian Succession Act, 1925, by the testator/testatrix in sound disposing mind and that the Will is not surrounded by suspicious circumstances and is duly proved before the Court or not and Probate Court cannot venture into the issue whether the PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.8/24 testator/testatrix was having either the interest in the subject property or capacity to make the bequest.
24. However, this case is peculiar one as admittedly, the respondent no. 2/objector herein has also filed a separate suit bearing no.CS DJ ADJ 517496/2016 titled as Smt. Darayawati v. Sudarshan Kumar, which is also pending before this Court and has sought the relief to declare the Will in question as null and void on the same grounds as raised by her in the present objections apart from the relief of partition of the subject property and also two other properties which are not part of the Will. The said suit was filed subsequent to the present probate petition and the following issues were framed in the aforesaid suit on 28.02.2018 in respect of the Will in question :-
i) whether Smt. Chait Kaur @ Chain Kaur was fully competent to make her Will dated 22.05.2013 as per Section 14 of Hindu Succession Act.? ....OPD
ii) Whether the Will dated 22.05.2013 executed by Smt. Chait Kaur @ Chain Kaur is liable to be declared as null & void? OPP
iii) xxxx
25. Thus, as this Court is exercising both the jurisdictions of a Probate Court as well as that of Civil Court to decide the common question of fact and law regarding the Will in question, therefore, instead of relegating the parties to lead fresh evidence in the suit and also in order to avoid conflicting decisions, this Court deemed it appropriate to decide the controversy in the present probate case itself and on 27.04.2023, in the presence of PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.9/24 Counsel for the parties, in the Civil Suit, following order was passed:-
1. Fresh vakalatnama filed on behalf of the plaintiff. Same is taken on record.
2. The learned counsel for the parties apprised this Court that the issue nos.1 and 2 as framed in the present suit on 28.02.2018 regarding the competency of the testator and the validity of the WILL dated 22.05.2013 are directly and substantially the same as involved in the connected probate case bearing PC No.93/16 titled as Sudarshan Kumar v. State & Ors., pending before this Court and which is now at the stage of final arguments and on the other hand the present suit is still at the stage of cross-examination of PW1 and therefore, both the cases as far as the competency and validity of the WILL is concerned be clubbed together.
3. On perusal of the present suit it is observed that the plaintiff is seeking declaration to declare the WILL null and void and partition of the properties out of which some of them are the subject matter of the WILL and some are not.
4. Thus, this Court is of the view that as far as the partition of the properties which are the subject matter of the WILL are dependent upon the validity/non validity of the WILL dated 22.05.2013.
5. Therefore, in above circumstances, this Court is of the view that as far as the evidence on the issue nos.1 and 2 as framed in the present suit is concerned, there is no need to relegate the parties to lead evidence afresh as they have already led the evidence in the connected probate petition on these two issues.
Accordingly, the evidence in the present suit on the remaining issues excluding issue nos.1 and 2 be kept in abeyance subject to the outcome of the connected probate petition qua the validity of the WILL dated 22.05.2013.
6. List along with connected probate petition for final arguments on 03.06.2023.
PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.10/2426. Thus, in view of the factual position as discussed above, now, coming to the issue in hand, it is observed that in the petition, petitioner himself mentioned that the testatrix was the owner/bhumidar/occupier and in possession to the extent of 1/2 share of agricultural land fully described in para no. 4 of the petition (the subject property) and it was contended in the objections by the respondent no.2/objector that the subject land was governed by the provisions of Delhi land revenue Act, 1954 and the testatrix inherited the 1/2 share of her deceased son Rakam Singh in the agricultural land in the capacity of her mother and the petitioner neither rebutted this fact in his evidence and nor the same is disputed by the Ld. Counsel for the petitioner at the time of arguments.
27. Thus, it has to be seen that whether as per the provisions of DLR act, testatrix was entitled to bequeath the subject property in favour of the petitioner?
28. Section 50 of the Delhi Land Reforms Act, 1954 provides that subject to Section 48 and 52, when a bhumidar or Asami being a male dies, his interest in his holding shall devolve as per clause (a) on male lineal descendants in the male line of descent and it is only when no male lineal descendants how low soever is available, the property of the bhumidar devolve upon his other legal heirs and as per clause (d) of Section 50, a mother being a widow is entitled to inherit.
29. In the present case the agricultural land governed by DLR Act, originally belongs to the husband of the testatrix and after his death, as per Section 50 of the DLR Act, the same devolve PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.11/24 upon in equal shares on his sons, namely, Rakam Singh (since deceased) and Aseel Singh (respondent No. 3 herein). It has also came in the evidence that Rakam Singh was unmarried and issueless and therefore, after his death on 06.01.1988, as no male lineal descendant was alive in his branch to inherit his share, the same devolved upon the testatrix as she was the mother of the deceased Rakam Singh and also a widow as per clause (d) of Section 50 of the DLR Act.
30. Section 48 (2) of the DLR provides that no Bhumidhar entitled to any holding or part in the right of a widow, mother step- mother, father's father, father' mother, unmarried daughter, or unmarried sister, may bequeath by will such holding or part.
31. Admittedly, Section 50 of the DLR opens with words "Subject to section 48 and 52" meaning thereby that Section 48 and 52 shall have overriding effect and prevail over Section 50 and thus, on conjoint reading of Section 50 (d) with Section 48 (2), there is no iota of doubt that if the interest of a male bhumidhar devolved upon a widow mother, she is not entitled to bequeath the same by way of Will.
32. Ld. Counsel for the petitioner has relied upon the judgment of Nirmala (Supra) to buttress his argument that the Hon'ble High Court of Delhi has held that after deletion of Section 4(2) of the Hindu Succession Act, 1956 by amendment Act of 2005, Hindu Succession Act, 1956 (hereinafter "HSA") shall prevail over DLR Act, 1954 (hereinafter "DLR") and therefore, as by virtue of Section 14 of the of HSA, testatrix had become the absolute owner of property and she was very well within her PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.12/24 right to make the bequest in favour of the petitioner by virtue of Section 30 of the HSA,1956.
33. In the aforesaid case (Nirmala), directions were sought to quash/set-aside Section 50 of the DLR Act on two grounds, firstly, that it is violative of Art. 14, 16 & 19 of the Constitution of India and secondly, on the ground that it is also impliedly repealed by the Hindu Succession (Amendment) Act, 2005. For the just decision of the issue in question, it is also relevant to mention in brief the facts of the case.
34. In the said case Late Sh. Inder Singh was having the bhumidhari rights in respect of agricultural land, he had three children from the first marriage ( respondent no. 3,4&5) and after the death of first wife, he solemnized second marriage with the Smt. Nirmala (petitioner no. 1) and had two minor daughters from the second marriage (petitioner no.2&3) and he died intestate on 15.12.2006, leaving behind the petitioners and the respondents. Thereafter, petitioners moved an application before the concerned Tehsildar for mutation of the land in their favour but same was refused in view of Section 50 of the DLR Act. Thereafter, settlement arrived between the parties before panchayat and 1/3rd land was given to the petitioners but respondents still continue to create hindrances in the enjoyment of land by the petitioners, thus petitioner approached the concerned SDM and DC but her application was not entertained. Hence, they approached the Hon`ble High Court.
35. Before the Hon'ble Court three previous judgments passed by the Hon'ble High Court of Delhi itself were cited, first case PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.13/24 was of Ram Mehar v. Mst. Dakhan: 1973(9) DLT44 and the same was distinguished by the Hon'ble Court in para no. 14 of the judgment, on the ground that the said judgment was passed while section 4(2) of the HSA was in force and only on the ground of Section 4(2) of the HSA, it was held that DLR Act shall have the supremacy.
36. The second case cited before the Hon'ble Court was of Mukesh V. Bharat Singh & Ors.: 2008 (149) DLT 114, which was delivered after the HSA amendment act of 2005 but in the said case, it was held that since the succession opened before the amending act of 2005 and it is not given retrospective operation, thus, successions which had taken place prior to the promulgation of the amendment act of 2005 cannot be disturbed and the appeal was dismissed and Hon'ble Court in para no. 19 & 20 of Nirmala (supra) also distinguished Mukesh (supra) on the ground that in the said case, the owner of the land had expired on 10.06.1993 and thus it was on that date, the succession to his property was opened but in the case in hand, Inder Singh died on 15.12.2006 i.e. after the amendment act of 2005 had already came into force.
37. The third decision referred was of Smt. Har naraini Devi & anr. V. Union of India 7 Others-W.P.(C) 2887/2008, passed by the Hon'ble Court itself, wherein it was held that since the DLR act had been placed in the Ninth Schedule of the Constitution of India, it is covered by the immunity, provided in Article 31B and thus, beyond the pale of challenge on the ground of violation of any rights conferred in Part III of the Constitution PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.14/24 and it was upheld that DLR will prevail over HSA in respect of agricultural land governed by DLR.
38. But in Nirmala (supra), the Hon'ble Court by referring to Smt. Har Naraini Devi (supra) in concluding para no. 34 & 35 of the judgment has held that HSA, would, after the amendment (act) of 2005, have over-riding effect over the provisions of Section 50 of the DLR Act and the latter provision would have to yield to the provision of the HSA, the relevant extract is reproduce herein for better understanding:-
34. We shall now deal with the contention of the learned counsel for the respondent Nos. 3 to 5 that in view of the decision of this Court in Smt. Har Naraini Devi (supra), Section 50 of DLR Act cannot be the subject matter of challenge because of Article 31B of the Constitution and because the DLR Act had been placed in the Ninth Schedule to the Constitution in 1964. It is true that in Smt Har Naraini Devi (supra), we had concluded that Section 50(a) of the DLR Act could not be challenged because of Article 31B but, we must not forget that in that case, the challenge was on the ground of alleged violation of Articles 14, 15 and 21 of the Constitution. Here, the challenge is also based on an amendment of the statute. We have seen that the immunity granted under Article 31B is subject to the power of any competent legislature to repeal or amend the protected Act (in this case the DLR Act). The HSA and the Amendment Act of 2005 have been enacted by Parliament and there is no challenge to Parliament's competency. We have already indicated as to how the effect of omission of sub-section (2) of Section 4 of the HSA is to abrogate the provisions of the DLR Act to the extent of inconsistency with the provisions of the HSA. Clearly, the immunity under Article 31B is not a blanket immunity and is subject to the power of any competent legislature to repeal or amend the protected Act.
This is exactly what Parliament has done. Thus, the argument PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.15/24 raised on behalf of the Respondent Nos. 3 to 5 is clearly untenable.
35. For the aforesaid reasons, we hold that the provisions of the HSA would, after the amendment of 2005, have over- riding effect over the provisions of Section 50 of the DLR Act and the latter provisions would have to yield to the provisions of the HSA, in case of any inconsistency. The rule of succession provided in the HSA would apply as opposed to the rule prescribed under the DLR Act. The petitioners are, therefore, entitled to succeed to the disputed agricultural land in terms of the HSA. The respondent Nos. 1 & 2 are directed to mutate the disputed agricultural land, to the extent of Late Shri Inder Singh's share, in favour of the petitioners and respondent Nos. 3, 4 and 5 as per the HSA.
39. Thus, firstly, no doubt as per the ratio of Nirmala (supra), after the deletion of Sectno 4(2) of HSA, it will prevail over DLR but the judgment of Nirmala (supra) is distinguishable from the facts of the case in hand as in the said case the succession was opened after the Hindu Succession Amendment Act of 2005, whereas in the present case, succession was opened before the amendment act of 2005 i.e. in the year 1968 when son of the testatrix, Rakam Singh, had died and therefore, the case of the petitioner is governed by the dictum of Mukesh (supra) as rendered by the Hon'ble High Court of Delhi before the decision in Nirmala (supra).
40. Secondly, the decision rendered by the Hon'ble High Court in Smt. Har Naraini Devi (supra) was assailed before the Hon'ble Supreme Court of India and the division bench of the Hon'ble Apex Court vide its judgment dated 20.09.2022 titled as Har Naraini Devi & Anr. versus Union Of India & Ors. Cited PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.16/24 as 2022 LiveLaw (SC) 783, upheld the dictum rendered by the Hon'ble High Court of Delhi and from para no. 15 onwards has held as follows:-
On Repugnancy - Article 254 of the Constitution It was argued before the Court that Succession provided in 1956 Act will prevail over the succession provided in 1954 Act in view of Article 254 of the Constitution, as there is clear repugnancy. The Court rejected this submission and held that the question of repugnancy arises only if both the Parliament and the State legislature have made law with respect to any one of the matters enumerated in the Concurrent list (List III). However, in the present case two enactments of 1956 and 1954 are relatable to Entries in List III and List II respectively. Thus, no question of repugnancy would arise in view of Article 254 of the Constitution.
On Special Law - The argument relating to 1956 Act being a special law and 1954 being a general law is completely misconceived as, it has been expressed by the Supreme Court as well as High Courts, on several occasions, that any State enactment relating to Agricultural land tenures is a special law.
On Repeal of an enactment - Effect The Court also rejected the contention that Section 4(2) of the 1956 Act having been deleted by an amendment in 2005, there would be no justification to apply the provisions of succession given in the 1954 Act as the same would now be governed by the 1956 Act as by virtue of Section 6 of the General Clauses Act, the repeal of an enactment would not affect the previous operation of such an enactment. In the case at hand, the deletion of Section 4(2) took place w.e.f 09.09.2005. Therefore, the effect of the deletion can only be in respect of successions which opened on or after 09.09.2005. This is because under Section 6(b) and 6(c) of the General Clauses Act repeal cannot affect the previous operation of any enactment so PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.17/24 repealed and cannot affect the previous operation of any enactment so repealed and cannot affect any right which may have been acquired or accrued. In the present case, as the succession has opened prior to 09.09.2005, the rights of the descendants in terms of Section 50 became crystallized on account of the said Section read with Section 4(2) of the 1956 Act, therefore, the deletion of Section 4(2) cannot have retrospective effect.
Also, the 1954 Act is a special law, dealing with fragmentation, ceiling, and devolution of tenancy rights over agricultural holdings only, whereas the 1956 Act is a general law, providing for succession to a Hindu by religion as stated in Section 2 thereof. The existence or absence of Section 4(2) in the 1956 Act would be immaterial.
(Emphasis supplied) Gender Bias - While it was argued before the Court that the provisions of Section 50(a) of the 1954 Act are violative of Articles 14 and 15 of the Constitution of India as there is clear discrimination on the ground of sex, the Court held that the argument was invalidated once it was held that there can be no challenge to the 1954 Act as the said legislation is included in the Ninth Schedule of the Constitution of India....
41. Hence, once in the aforesaid judgment, the Hon'ble Apex upheld the supremacy of DLR Act over HSA even after the deletion of Section 4(2) by the amendment act of 2005 and therefore, by virtue of doctrine of precedence, the judgment rendered by the Hon'ble Apex Court shall prevail over the judgment of Nirmala (supra) delivered by Hon'ble High Court, therefore, on both counts, the judgment of Nirmala (supra) is not of any help to the case of the petitioner. Two other judgments relied upon by the petitioner i.e. Babu Ram (supra) & Roshan Lal PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.18/24 (supra) are distinguishable from the issue involved in the present case as in both the judgments the issue was applicability of Section 22 of the HSA to the agricultural lands, which is not an issue in the present case.
42. Consequently, in view of the legal position discussed above, as the testatrix inherited the interest of her deceased son Rakam Singh in the subject property under section 50(d) of DLR Act, 1954 on his death on 06.01.1988, therefore, by virtue of Section 48 (2) of the Act, the testatrix had no right to make the bequest in respect of the subject property by way impugned Will in favour of the petitioner and the inheritance has to be governed by Section 51 of the DLR Act,1954.
43. Accordingly, the issue in question is decided in favour of the objector and against the petitioner.
44. Issue Nos. 2 and 3.
(ii) Whether the Will dated 22.05.2013 is forged and fabricated? ...OPR2
(iii)Whether the Will dated 22.05.2013 was executed by Late Smt. Chait Kaur @ Chain Kaur in a sound and disposing state of mind? ...OPP
45. Both the issues are taken up together being interconnected and require appreciation of common evidence and even the finding of the one is direct bearing on other.
46. In the celebrated judgment of H. Venkatachala Iyengar v. B.N. Thimmajamma, (1959) Supp. 1 SCR 426, Hon'ble Apex Court has laid down the following guiding principles for proof of Wills:
PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.19/24(i) Ordinarily, 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 and proof of mathematical accuracy is not to be insisted upon.
(ii) Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
(iii) The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.
(iv) However, presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(v) If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
(vi) A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.20/24 expected of a normal person'. The suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind'.
(vii) As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the will o by the beneficiary thereunder etc. are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will.
(viii) On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
(ix) The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?
(x) In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will."PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.21/24
47. In light of the legal principles reproduced above, coming to the case in hand, it is observed that the Will in question bears the thumb impression of the testatrix (as claimd by the petitioner) and the same is attested by two witnesses and thus, it fulfils the mandatory requirement of Section 63 of the Indian Succession Act, 1925 in respect of unprivileged Will.
48. Now it has to be seen that whether the petitioner has duly proved that Will bears the thumb impression of the testatrix and the same was executed by the testatrix in sound disposing mind after understanding its contents thereof and whether the Will is surrounded by any suspicious circumstance which can invalidate the Will in question.
49. After going through the testimony of both the attesting witnesses, it is observed that both of them remained firm in their cross examination and have duly proved that the testatrix affixed her thumb impression on the Will in their presence at the office of the sub-registrar kapashera. They have also deposed that the Will was prepared at the instance of the testatrix and she was carrying the documents of the property and her aadhar card alongwith her. It is also deposed that the contents of the Will were narrated to her by the typist. The second attesting witness also deposed that the testatrix had told her that she is not giving any share to her daughter i.e. objector herein as she had already married her daughter and given lot of gits as per custom/riti riwaz. Both of them have also deposed that she was in good health at the time of the execution of the Will at the office of sub- registrar Kapashera.
PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.22/2450. On the other hand, objector had not led any evidence to prove that the testatrix was not having sound disposing mind at the time of execution of Will in question and that she was ill treated by the petitioner and his father and rather in her cross- examination she has duly admitted in answer to the specific question that her mother was in fit state of mind at the time of execution of Will but she was not able to walk for a long distance. She also admitted that she has not filed any document to with regard to the state of health be it physical or mental of her mother at the time of execution and registration of the Will.
51. In addition thereto the fact that the Will in question has been duly registered before the Sub-registrar by the testatrix herself also raises a valid presumption that the Will in question was executed by her in sound disposing mind without any pressure or undue-influence in favour of the petitioner.
52. As far as the suspicious circumstances are concerned it was argued by the Ld. Counsel that the testatrix was 100 years old and have not mentioned any reasons in the Will for disinheriting her daughter despite the fact it has duly came in the testimony of the petitioner that she was having a cordial relationship with the daughter. Firstly, no evidence has been led before the Court by the objector that testatirx was 100 years of age at the time of execution of Will ans Secondly, this Court has gone through the contents of the Will and in running para no.2 on page 2, it is duly mentioned by the testatrix that as she had already married the objector with best of her capabilities and resources and gifted sufficient Jewellery, cash & other required household items and my daughter are well settled by grace of PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.23/24 god/almighty they do not need anything more from me or from my moveable and immoveable properties. Merely because instead of using singular phrase 'daughter', the word 'daughters' is used in the Will, does not render the Will as invalid as no the first page of the Will it is duly mentioned that the testatrix have one daughter namely Dariyawati (objector) and Aseel Singh (father of the petitioner).
53. In view of detailed the discussion and observations made, petitioner has duly proved the Will in question and accordingly, both the issues no. 2 and 3 are decided in favour of the petitioner and against the objector.
Relief
54. In view of my issue wise findings on issue no. (ii) to (iii), even though petitioner has duly proved the Will in question but as per the findings on issue no. (i), as the testatrix was not having the capacity to bequeath the subject property in favour of the petitioner by virtue of Section 48 (2) read with Sectiion 50 (d) of the DLR, Act, 1954, the present probate is hereby dismissed.
55. Decree sheet be drawn accordingly, as per law.
56. File be consigned to record room only after completion of all necessary compliance and due formalities, as per Rules. This judgment contains twenty four pages and bears my signature. Digitally signed Sachin by Sachin Jain Date:
Jain 2023.11.28 16:06:08 +0530 Pronounced in the open (Sachin Jain) Court on 28.11.2023 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi PC No. 93/2016 Sudershan Kumar vs.The State & Ors Page No.24/24