Delhi District Court
Averments Made In The Petition vs Jasjit Singh (1993) 2 Scc 507. If on 7 January, 2009
1
In the court of ASHWANI SARPAL, Additional District
Judge,
Tis Hazari Courts, Delhi.
Suresh Chander Sharma
vs
State & others
(PC no.-311/06)
Date of filing of petition=2-3-2006
Date of decision=7-1-2009
(Petition under section 276/278 of the Indian Succession Act
for grant of Probate/Letters of Administration)
***************************************************
JUDGMENT:-
The question involved in the present petition filed on 2-3- 2006 is whether the Will dated 6-11-1995 executed by Sh. Mukhtiar Chand Sharma (hereinafter referred as deceased) in respect of his property no. WZ-411-A/A-234, Hari Nagar, Clock Tower, New Delhi is genuine and validly executed or not.
Averments made in the petition:-
Petitioner is the younger son of deceased who expired on 7- 8-1999. Sh. Ramesh Chander Sharma, elder son of deceased had expired during his life time and respondent no. 2 is the widow daughter in law of deceased whereas respondent no. 2 (a) and (b) are his grand daughters. Respondent no. 3 is the married daughter of the deceased. According to the petitioner, deceased had executed a registered Will dated 6-11-1995 in favour of the petitioner in respect of his property who had already disowned respondents no. 2, 2(a) and 2(b) due to strained relations by giving public notice in the newspaper dated 27-10-1995. Petitioner on 2 basis of the Will of the deceased prayed for grant of Probate or Letters of Administration.
Objections of the respondents:-
Two separate written statements of the respondents have come on record in which genuineness, legality and validity of the Will in question is disputed. The physical and mental capacity of the deceased to execute the Will is also challenged on the ground that he was not in sound disposing mind and was suffering from acute depression besides was not keeping good health. It is also stated that the Will was not attested by two witnesses as per requirements of section 63 of Indian Succession Act because it was actually attested by only one witness. The ground of time barred petition is also taken besides referring to some suspicious circumstances surrounding the Will. Respondents no. 2, 2(a) and (b) additionally raised dispute about correctness of public notice of disowning them and showed ignorance about it. They also stated that property in question was already orally partitioned by the deceased himself and first floor came to their share, so present petition is not maintainable.
Rejoinder and issues:-
Petitioner in reply to the objections, affirmed the contents of his petition while denying the allegations of the respondents and on the basis of the pleadings of the parties, the following issues were framed by my ld. Predecessor vide order dated 12-5-2007:
1. Whether the Will dated 6-11-1995 of Sh. Mukhtiar Chand Sharma is proper and valid? OPP
2. Whether the petitioner is entitled to the grant of Probate/Letters of Administration in respect of the Will dated 6-11-1995 of Sh. Mukhtiar Chand Sharma? OPP
3. Relief.
In order to prove his case, petitioner examined himself as PW-1, Sh.
3Prakash Chand Sharma, attesting witness of the Will as PW-2, Sh. Om Prakash, official from office of Sub-Registrar as PW-3 and Sh. H.C. Mehta, Manager of newspaper Punjab Kesri as PW-4. Respondent no. 2 and 3 also stepped into the witness box as R2W-1 and R3W-1 respectively. I have heard counsel for the parties and gone through the record as well as case laws cited. My decision on the above issues is as under:
Issues no. 1 and 2:-
Both these issues are interconnected and required to be dealt with together. The Will purported to be executed on 6-11-1995 by the deceased Sh. Mukhtiar Chand Sharma is Ex. PW1/5. It is English typed Will consisting of five pages registered on the same day. This Will purported to bear signatures and thumb impression of the deceased whose photograph is also affixed on it. There is specific endorsement of Sh. K.K. Sikka, advocate at the end of last page at almost extreme right side corner that it was drafted by him. The Will is witnessed by PW-2 but major controversy has arisen whether Sh. K.K. Sikka, advocate who is allegedly drafter of the Will also can be termed as second attesting witness of this Will or not. The following points raised during arguments are being discussed one by one.
a) Oral partition of the property and dispute of title:-
Respondents have taken a plea that deceased had orally partitioned the property during his life time among his children and the first floor came to the share of respondent no. 2 and her husband. There is no denial of the fact that property in question was in the name of the deceased. R2W- 1 deposed that in the year 1988-89 after the partition, she and her husband had raised some constructions over the first floor and obtained separate water and electricity connections as evident from bills Ex. RW-
1/1 to 4. Admittedly no writing work in respect of this alleged oral partition had taken place. Respondents alleged that after the oral partition and relinquishment of right, interest and share in the property, deceased had lost his competency to execute any Will in respect of the 4 same. It is also alleged by the respondents that property in question was purchased by the deceased not from his own exclusive earnings but also from the funds of the ancestral property so they have also equal share in the same but this issue of right, title, share and ownership is not to be decided in the probate proceedings. Law in this regard is very clear as per the judgment of Supreme Court given in case Chiranjilal Shrilal Goanka vs. Jasjit Singh (1993) 2 SCC 507. If respondents claim that property in question is deemed ancestral property and they have equal right and share in it, then they can file separate civil proceedings in this regard to establish their rights but in the present proceedings, it is not to be seen by this court whether this property was self acquired property of the deceased or was brought from the funds of an ancestral property. According to this judgment of Supreme Court, even question whether property exists or not is also not to be considered by the probate court and its only concern is to see whether the Will in question is genuine or not. Accordingly this dispute as well as issue of alleged oral partition or fact who had raised constructions, in which year, by spending what amount, who was making payment of electricity, water and house tax bills etc. are not to be looked into in the present proceedings. The controversy whether respondent no. 2 and her family were permitted to live at the first floor due to disputes or due to alleged oral partition are foreign to the present proceedings. Similarly no adverse inference can be drawn against the respondents simply from the fact that they had not applied for mutation of the property in govt. record on basis of acquiring ownership due to alleged oral partition. I deem it proper not to consider the question regarding title and alleged oral partition of the property in question in the present proceedings as it is beyond the scope of jurisdiction of probate court.
b) Signatures of deceased on the Will:- R2W-1 in para no. 7 of her affidavit and R3W-1 in para no. 2 of her affidavit did not raise any dispute about the forged signatures of the deceased on the Will but have alleged that signatures were obtained under pressure or fraud. Simple admission of undisputed signatures itself on the Will is not sufficient to presume that it was executed voluntarily. Supreme Court in B. 5 Venkaramuni vs. C.J. Ayodhya Ram Singh (2006) 13) SCC 449 held that court must satisfy its conscience as regards due execution of the Will by the testator and court would not refuse to probe deeper into the matter only because the signatures of the propounder on the Will is otherwise proved.
Though respondents have failed to establish on record by any evidence the use of pressure, influence or fraud committed upon the deceased by the petitioner in executing the Will in question but still I find number of other circumstances which leads to the inference that it was not executed in the manner as prescribed under section 63 of Indian Succession Act and cannot be termed as valid Will. Hence no benefit of simple deemed admission of genuine signatures of the deceased on the Will can be given to the petitioner.
c) Mental capacity of the deceased:- Respondents have disputed the soundness of mind of the deceased at the time of execution of Will on the ground that the wife of deceased expired in year 1991 and his elder son i.e. husband of respondent no. 2 died in road accident in year 1994 so due to shock and setback, suffering of some depression and mental imbalance is natural phenomena. They also pointed out that in the Will, name of only daughter (i.e. respondent no. 3) is wrongly typed as Vimal instead of Neelam. It is not the case of petitioner that respondent no. 3 was ever known as Vimal or her real name was ever changed. The mentioning of wrong name of only daughter in the Will leads to the inference that either it was not executed by the deceased after fully understanding the contents and was not dictated according to his own wordings or at the time of its execution, the deceased was not in full senses and unable to distinguish between right and wrong.
However, after going through the record, I am of the view that respondents have failed to establish that the deceased was of unsound mind at the time of execution of the Will. Even if for the sake of arguments, it is presumed that he had suffered some depressions due to deaths in family, but it is not proved that on the day of execution of the Will itself, his mental condition was not sound. Respondent no. 2 6 admittedly had filed a MACT case in respect of death of her husband in which deceased was also joined as one of the party. R2W-1 admitted that deceased used to accompany her to the court in that proceedings and he also received cheque of compensation amount from the court in year 1995. Deceased was also getting pension till his death which was used to be deposited in his account as per this witness. Respondents also admitted that deceased used to read newspaper. R3W-1 further admitted in her statement that her father used to run milk diary business. From these facts, it can be said that the deceased who was attending court proceedings, receiving money from the court, reading newspaper and withdrawing money from his bank account cannot be of unsound mind person in any circumstances.
Further more, R2W-1 and R3W-1 admitted that they are not in possession of any medical record of the deceased to show that he was mentally disturbed or depressed. Husband of R3W-1 allegedly was taking the deceased to different doctors but neither he was examined nor any treatment card of deceased produced. Hence due to non examination of material witness and non production of any medical record, an adverse inference can be raised against the respondents and it can be held that at the time of execution of Will, deceased was not suffering from any ailment or unsoundness of mind to make him incapacitate to execute the Will. The absence of knowledge on the part of R2W-1 whether deceased used to deposit his life certificate in the bank every year, doing all correspondence with different offices, conducting transactions in bank himself etc. on the other hand proves that deceased was not under any grave depression to make him incapable to execute Will. Illness of the deceased at the time of death happened after four years of execution of Will is not a relevant fact as the soundness of mind is to be seen at the time of execution of Will and not any other remote time. Accordingly it is held that defence of unsound mind position of the deceased is not established.
d) Public notice:- Case of the petitioner is that deceased during his life time due to strained relations with respondents no. 2, 2(a) and 2 (b) had disowned and debarred them through a public notice Ex. PW1/4 in the 7 newspaper 'Punjab Kesari' dated 27-1-1995. The contents of this notice reveals that it was allegedly got published under signatures of Sh. K.K. Sikka, advocate on behalf of his client Sh. Mukhtiar Chand Sharma.
R2W-1 alleged ignorance about the Will and the public notice. R3W-1 also did not know about giving of instructions by her father to advocate for issuing of this notice but ignorance about existence of notice is not sufficient to say that respondents had accepted the same.
Sh. K.K. Sikka, advocate who got this notice published in the newspaper allegedly on behalf of deceased has not appeared in the witness box to prove it though he throughout remained counsel for the petitioner in this case. Petitioner examined PW-4 manager of the newspaper to prove this notice but this witness could not produce any record relating to this publication on the ground that it was destroyed. He did not know who had come to his office for getting this notice published, which of official of his newspaper including of legal cell verified the contents and who exactly had dealt with this publication. He also admitted that newspaper do not verify the genuineness of the signatures of the person who submits the matter for publication. In my opinion, the evidence of PW-4 is not sufficient to prove that public notice Ex. PW1/4 was got published by the deceased through his advocate and by none else. Statement of PW-4 that matter written on the letterhead of the advocate with stamp and signatures are normally published itself is not sufficient to prove that this notice was infact got published as per instructions of Sh. K.K. Sikka, advocate in absence of any record especially when PW-1 has stated in his statement that he was having an application signed by his father showing that he got the notice dated 27- 10-1995 published in the newspaper, but no such application was brought on record and proved. Petitioner since beginning knew that respondents are disputing the correctness of this notice. In that situation, production on record, this application was very much necessary but conduct of the petitioner in withholding that application bearing signatures of his father draws an adverse inference against him. Non examination of Sh. K.K. Sikka, advocate under whose signatures this public notice was got published in these circumstances is also fatal to the case of the petitioner especially when PW-1 in his cross 8 examination further admitted that his father had not authorized any person to get the notice published. The argument advanced on behalf of the petitioner that words 'any person' appearing in the above admission of PW-1 do not cover advocate is not acceptable.
It is also not the case of petitioner that copy of this notice was sent to the respondents after publication or brought to their notice by him or anyone else. PW-2 in his affidavit has alleged that he along with the deceased had gone to the office of advocate for the said notice but his version in this regard is highly vague and unreliable. He had not disclosed the date when he had gone and the place where he had gone. Even he has not disclosed the name of advocate to whom they wanted to meet in connection with this notice. The best witness to prove the public notice Ex. PW1/4, authority given to an advocate by the deceased to get it published, handing over the matter of publication along with some application etc. was Sh. K.K. Sikka, advocate who has not stepped into the witness box, so accordingly it is held that petitioner is not able to prove the correctness of the public notice debarring respondents no. 2, 2(a) and 2 (b) as well as the fact that it was got published as per the instructions of the deceased.
Counsel for the petitioner argued that in the Will itself, there is a reference of the disowning notice which shows that it was got published by the deceased himself. However when the Will in question is being held as not valid and duly executed and also is surrounded by some suspicious unexplained circumstances then no benefit of reference of this public notice in the Will can be given to the petitioner.
e) Execution of Will and second attesting witness:- Requirement of attestation of the Will by minimum two witnesses is mandatory under section 63 of Indian Succession Act. Delhi High Court in Sunita Shivdasani vs. Geeta Gidwani AIR 2007 Delhi 242 also held so. In another case Sumitra Devi vs. State 2007 (98) DRJ 617, it is held that where Will is found attested only by one witness, then the same cannot be held as valid Will.
In the present case, Will is attested by PW-2 whose signature, name and particulars of address are appearing against the relevant 9 column of witness no. 1. The space against column pertaining to witness no. 2 is lying vacant. At the end of the last page, almost on extreme right corner, the signatures of Sh. K.K. Sikka, advocate is appearing under the endorsement 'Drafted by'. Here question has arisen whether signing of the Will by Sh. K.K. Sikka, advocate under specific endorsement of drafting amounts to his attestation of the Will also or not.
Sh. K.K. Sikka, is an advocate, highly qualified and successful lawyer who knew the importance of the attestation. Had he really intended to become an attesting witness of the Will, then he must have signed against the relevant column of witness no. 2 and not merely had left the same column blank by simply signing under the words 'drafted by' in the extreme corner of the last page of the Will. The observations made in para no. 20 of the case decided by Supreme Court titled as Benga Behera vs. Braja Kishore Nanda AIR 2007 SC 1975 regarding role of an advocate for purpose of becoming attesting witness are fully applicable in the present facts and circumstances of the case and it can be inferred that Sh. K.K. Sikka just drafted the Will and had no intention to become attesting witness.
Counsel for the respondent cited case law Arun Kumar Sharma vs. Ashok Kumar Sharma 2007 (95) DRJ 314 wherein the position was same as in the present case. The space against column of witness no. 2 was lying blank and on one corner the Will was attested by notary public. Here in the present case also, space against column of witness no. 2 is left blank and instead of signatures by notary public, there is signatures of drafter of the Will namely Sh. K.K. Sikka on almost corner of the Will. While relying upon this judgment, Will can be held as invalid due to its non attestation by two witnesses.
Sh. K.K. Sikka himself has also not appeared in the witness box so it cannot be held that his endorsement on the Will being drafter of it was also in the capacity of an attesting witness. It cannot be presumed from this endorsement of Sh. K.K. Sikka that he had appended his signature in the capacity of an attesting witness also. Though under section 68 of Indian Evidence Act, examination of one attesting witness of the Will is sufficient but in the present circumstances of the case where a major dispute has arisen what is the actual status of Sh. K.K. 10 Sikka whether of simple scribe or of attesting witness, his appearance in the witness box was necessary but his non examination draw an adverse inference against the petitioner. In this regard, some reliance also can be placed upon the decision of Supreme Court given in case Janki Narayan Bhoir vs. Narayan Namdeo Kadam JT 2002 (10) SC 340 and decision of Delhi High Court in case S.S. Srivastava vs. State 2007 (95) DRJ
377. Presence of draftsman or scribe of the Will at the time of execution as well as his signatures on the Will in that capacity does not make him an attesting witness as per the view given by Supreme Court in case N. Kamalam vs. Ayyaswamy AIR 2001 SC 2802. However Delhi High Court in case Hari Chand vs. Jeet Pal 2007 VII AD (Delhi) 341 held that a scribe who also acts as an attesting witness and was remained present throughout can be treated as an attesting witness, however it has to be shown that the scribe put his signatures for the purpose of attesting the document.
PW-2 is an attesting witness of the Will. As per PW-1 and PW-2, the Will was prepared by Sh. K.K. Sikka, advocate as per instructions of the deceased who after getting it typed handed over the same to testator. Deceased after reading the same found it correct and then signed it in presence of witnesses and thereafter it was presented before Sub-Registrar for its registration. One thing is thus clear from these facts that Will was executed and signed first and lateron it was presented before Sub-Registrar for the purpose of registration. From the statement of PW-1 and 2 nothing has been revealed specifically that Sh. K.K. Sikka, advocate also put his signatures on the Will in the capacity and with intention to become attesting witness.
The endorsement of Sub-Registrar on the back side of page one of the Will describe Sh. K.K. Sikka as an attesting witness of the Will. But evidence of PW-2 shows that Will was already signed and executed before it was presented to Sub-Registrar for purpose of registration. Law is well settled that registration of the Will does not prove that it was also duly executed. The Sub-Registrar signs the Will for the purpose of its registration and not for purpose of its attestation. In this regard reliance can be placed upon the decision of Supreme Court given in case Bhagat 11 Ram vs. Suresh AIR 2004 Supreme Court 436 wherein it is held that the Registrar who has registered a document in discharge of his statutory duty does not become an attesting witness on the deed solely on account of his having discharged the statutory duties relating to the registration of a document. In the above case, Supreme Court also held that on account of registration of a document including of Will or codicil, a presumption as to the correctness or regularity of attestation cannot be drawn. Registration of the Will is no guarantee that it was executed duly and validly as per the provisions of section 63 of Indian Succession Act. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved. Presumption attached to the registered documents is only in respect of matters of the registration only as per requirement of provisions of Indian Registration Act but not in respect of factum of attestation within the meaning of section 63 (c) of Indian Succession Act and section 68 of Indian Evidence Act. Accordingly petitioner is not entitled to any special benefit simply on the account that Will was registered one. No presumption of due execution of the Will can be raised in his favour due to its registration.
PW-1 in paragraph no. 7 of petition as well as of his affidavit of evidence only specifically stated about signing of Will by PW-2 in the capacity of attesting witness and has not stated about signing of the same by any second witness, though it is stated that deceased had signed in presence of PW-2 and Sh. K.K. Sikka. Mere signing of Will in presence of two or more than two persons by testator is not sufficient compliance of the provisions of section 63 of the Indian Succession Act but it must be also established that Will is also signed by two attesting witnesses. The sequence of signing of Sh. K.K. Sikka on the Will also becomes important. It appears from the statement of PW-1 that he had handed over the Will to the deceased by signing the same and mentioning about his endorsement of drafting. When Will was already executed first then mere mentioning of name of Sh. K.K. Sikka, advocate as a witness in the endorsement of Sub-Registrar is of no consequence because his marking of presence and referring as of witness does not confer him the status of attesting witness of the Will which had already 12 been executed.
Opinion of PW-3 who is simple a lower class official of Sub- Registrar that drafter of the Will can be treated as second attesting witness is not sufficient to give Sh. K.K. Sikka, status of an attesting witness as it is for the court to ascertain whether the person signing the Will can be said as an attesting witness or not. On the other hand, admission of PW-3 that word 'drafted and attested by' is not written above the signatures of Sh. K.K. Sikka further demolish his own opinion.
Sh. K.K. Sikka, who claims to be an attesting witness besides drafter of the Will himself has not stepped into the witness box so it is difficult to believe that he had not just drafted the Will but his intention was to attest the same also. The use of word 'witnesses' in the last page of the Will is not sufficient to make Sh. K.K. Sikka, advocate as an attesting witness who only had drafted the Will as per his own endorsement.
The evidence of attesting witness PW-2 is also not worthy to be believable. He in his cross examination stated that the Will was executed at Kashmiri Gate but his version in this regard is contradictory from his own affidavit which says that Will was executed and signed in the office of advocate and thereafter they went to office of Sub-Registrar, Kashmiri Gate for its registration. He again at the same time did not remember whether he had signed the Will in the presence of Sub- Registrar or at the time of its registration. His version given in statement regarding the place where the Will was drafted whether in the office of advocate or in the office of Sub-Registrar in Kashmiri Gate is also contradictory.
Accordingly it is held that Sh. K.K. Sikka, advocate had simply drafted the Will and had not signed on it in the capacity of and with intend to become attesting witness. Will is held as invalid as not signed by minimum two attesting witnesses. The condition of attestation of Will by two witnesses as per requirement of section 63 of Indian Succession Act is not fulfilled in this case so the Will in question cannot be enforced. The signing of the Will by Sh. K.K. Sikka, advocate at the time of its registration does not confer him the status of being an attesting witness because Will was already executed and signatures of 13 the parties were obtained again by the Sub-Registrar for purpose of its registration only. The mentioning of name of Sh. K.K. Sikka by the Sub- Registrar in the column of witness in an endorsement in the form of stamp itself is not sufficient to treat him an attesting witness of the Will at the time of its actual and real execution. Some support in this regard can be found from the case Arun Kumar Sharma vs. Ashok Kumar Sharma 2007 (95) DRJ 314 decided by Delhi High Court. Will Ex. PW1/5 thus is held as not valid and duly executed.
f) Strained relations of deceased with the respondents:- There is no dispute that the public notice Ex. PW1/4 does not mention about respondent no. 3 anywhere and she was not disowned. Petitioner could not show from any evidence that relationship of deceased with the respondent no. 3 were not cordial. In the Will, no benefit out of the estate of the deceased is given to her. There is nothing on record to show that there were some special reasons available with the deceased for excluding the respondent no. 3 from the Will also. The story of alleged second marriage of the respondent no. 3, being the root cause of alleged strained relationship between deceased and her itself falsify from the suggestion given by the petitioner to R3W-1 that he had forgiven her when her mother became sick who ultimately died in year 1991 much before the execution of the Will. Petitioner has also failed to show from any evidence that respondent no. 3 had remarried against the wishes of her deceased father who had also not attended the marriage. Mere performing marriage ceremonies in the temple in a very simple manner do not draw a presumption of remarrying against the wishes of the deceased to make it a ground of strained relationship. Admission of R3W-1 that she received a cheque of Rs. 75000/- from her father as a gift itself is not sufficient to presume that she had relinquished her share in the property.
No evidence is placed on record by the petitioner to show that relationship of deceased with the respondent no.2 and his daughters were also strained and not cordial. No specific instance pointing out towards bad relations between them is brought on record. Simple alleging that respondent no. 2 was not looking after the deceased itself is 14 not sufficient to presume the existence of strained relationship of such an extent that deceased had make up a mind to debar them from the benefit of his estate. On the other hand, PW-1 admitted in his statement that they were residing in the same property though on different floors. PW-1 also did not spoke any word about his strained relationship with the respondents.
One instance of alleged quarrel in December, 1995 (that is also after the alleged execution of the Will) is sought to be brought on record by the petitioner in suggestion given to R2W-1 in which police was also called but simple one instance is not sufficient to debar respondents. Moreover it is not proved that this quarrel had taken place between respondent no. 2 and the deceased. Petitioner has not brought on record any proceedings conducted by the police at the spot to prove between whom that quarrel took place, for what reasons and what happened to that quarrel ultimately. On the other hand, R2W-1 stated that the quarrel had taken place between her and wife of the petitioner and that version is not further denied or challenged. Living in the same house on different floors itself is not a ground to presume that deceased was not being looked after by the respondents.
PW-2 admitted in his cross examination that deceased was having love and affection for his elder son also though he was not properly looking after him. He also stated that deceased was having cordial relations with his daughter also. The Will also appears to be unnatural in the present circumstances as deceased had chosen only one son and ignored his daughter and grand daughters with whom he had no grievances in absence of any evidence. Such unnatural and unfair disposition under the Will can be also treated as one ground to reject the same and in this regard reliance can be placed upon the decision of Supreme Court in case Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao AIR 2007 SC 614. Hence the debarring of natural heirs without any sound reason creates a suspicious circumstance around the Will. Petitioner is unable to remove this suspicion by any cogent evidence.
g) Non disclosure of Will:- Will is dated 6-11-1995 whereas deceased 15 expired on 7-8-1999. Respondents came to know about this Will from the notice issued by the petitioner in January, 2006. Petitioner admittedly had not disclosed about the Will to anyone for more than six years. R2W- 1 has stated in her statement that petitioner had obtained their 'no- objection' for the purpose of withdrawl of pension amount from the account of the deceased after 4 years of his death. This fact is admitted by the petitioner in his cross examination. He also admitted that he did not disclose about the Will even to bank officials while submitting the NOC of respondents. Giving of no-objection by respondents in favour of the petitioner for withdrawl of the pension amount from bank account of deceased on the other hand does not show that respondents had knowledge about the Will and their conduct was improbable. Had there been a disclosure, then there would not have any occasion available to the respondents to give no objection certificate in favour of the petitioner. Concealing the Will for several years by the propounder from other legal heirs of the deceased itself is a big suspicious circumstance. The version of the petitioner that every body knew about the Will, so he did not disclose it to any one is not acceptable. Concealing the existence of Will for such a long period and not bringing the same to light also create doubt about the genuineness of the same.
h) Question of limitation:- The death of deceased took place on 7-8- 1999 whereas the present petition was filed in the court after about 6½ years of death. Though in Delhi, obtaining of probate of the Will is not necessary but delay in approaching the court becomes one of the suspicious circumstances in certain situations. Delay itself is not sufficient to throw away the case but when Will is surrounded by other suspicious circumstances, then it becomes an additional ground to discard the Will. In this regard reliance can be placed upon the decision of Delhi High Court given in case Prem Sagar vs. State 2007 IV AD (Delhi) 332.
The arguments of the petitioner that when dispute about the property arose then he approached the court cannot be said as justified ground to explain the delay especially when it is not disclosed when the dispute started arising. The alleged dispute between deceased and respondent no. 2 had 16 already taken place in the life time of the deceased. Separate connections of electricity and water were obtained due to property dispute. As per the petitioner, once the quarrel took place during the life time of deceased when police was allegedly called. Respondent no. 2 and her children were even disowned by giving public notice as per the case of the petitioner. Thus in view of the above disputes and alleged strained relations, cause of action in favour of petitioner to file the petition on basis of Will had arisen just after death of the deceased as he knew that respondent would seriously dispute about the genuineness of the Will as and when they came to know about its existence. As per decision of Supreme Court given in recent case Kunvarjeet Singh vs. Kirandeep Kaur 2008 XII AD (SC) 580, law of limitation is applicable even in probate proceedings and petition has to be filed within period of three years under Art. 137 of Indian Limitation Act to be counted from the period when right to apply accrues. The present petition filed is beyond the period of three years as cause of action deemed to have arisen at the time of death of the deceased. This petition thus is barred by limitation and is liable to be rejected straightway.
i) Other circumstances:- Some other points have been raised during arguments by both the parties which in my opinion are not so important but still the same are being discussed in brief.
According to the petitioner, death of deceased had taken place at his residence but this fact is incorrect as PW-1 admitted that death had taken place in the nursing home and the address given on death certificate is different. It is very strange that PW-1 did not know cause of death of his deceased father. Why petitioner has given wrong information to the court about the place of death and wrong address of resident is not explained.
There are contradictions about the ancestral properties of the deceased as well as running of factory on the ground floor by the petitioner in the property in question in the statements of PW-1 and 2.
The affidavits of respondents cannot be rejected simply on the ground that there is some discrepancy about the date and place of its execution and attestation. Minor typographical mistake of undisputed 17 facts i.e. date of death of deceased occurring in the affidavit of respondent no. 3 is of no consequences and it cannot be totally rejected on this account. The statement of R3W-1 cannot be discarded mainly on the reasons that in her affidavit, she deposed about oral partition of the property among three persons including herself whereas in cross examination, she deposed about the intention of the deceased to divide the property between two sons only.
Respondent no. 2(a) and (b) had also filed their objections along with their mother respondent no. 2 but they had not stepped into the witness box nor had authorized their mother to depose in the court on their behalf. This ground itself is not sufficient to allow this petition against them in piecemeal when other circumstances create doubt about the genuineness and due execution of the Will.
The arguments of counsel for the petitioner that the Will was executed in year 1995 whereas deceased expired after about 4 years of its execution and during this period no steps were taken by the deceased to get it changed or revoked so it can be relied upon in view of the decision of Supreme Court given in case Savithri vs. Karthyayani Amma (2007) 11 SCC 621 but I find no ground to rely upon the same or to get it enforced in view of the above discussions. Will in question Ex. PW1/5 is held not a valid Will in the eyes of law being not executed in the manner as prescribed under section 63 of the Act so no relief on its basis can be granted to the petitioner. These two issues are decided in favour of the respondents and against the petitioner.
Issue no.-3 (Relief):-
In view of above discussions, petition is hereby dismissed. Petitioner is directed to pay costs of Rs. 5000/- each to respondent no. 2 and 3. File be consigned to the Record Room.
. (ASHWANI SARPAL)
Dt.- 7-1-2009 ADDITIONAL DISTRICT JUDGE
DELHI.