Delhi District Court
Smt. Dropti Devi vs Smt. Shanti Devi on 3 February, 2009
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IN THE COURT OF SHRI RAKESH TEWARI:
ADDL. DISTRICT JUDGE: DELHI.
SUIT NO.1318/08 (old nos. 276/92 & 176/82)
1. Smt. Dropti Devi
w/o late Sh. Ram Kishan
r/o 11/43, Old Rajinder Nagar,
New Delhi - 110060.
2. Smt. Krishna Devi (since deceased)
through legal heirs
(i) Sh. Bhagwan Dass (since deceased)
through legal heirs
(ii) Smt. Renu Malik
w/o Sh. Jagjit Malik
r/o B-9/6261, Vasant Kunj,
New Delhi.
(iii) Smt. Vijay Marwah
w/o Sh. Jitender Marwah
r/o G-1/111, Uttam Nagar,
opp. State Bank of India,
New Delhi.
....PLAINTIFFS
VERSUS
Smt. Shanti Devi
w/o late Sh. Kishan Chand
r/o 11/44, Old Rajinder Nagar,
New Delhi - 110060. ....DEFENDANT
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Date of Institution : 16.04.1982
Date when the case reserved for order : 23.01.2009
Date of Order : 03.02.2009
ORDER
1. Before dealing with the issue involved in the suit on merits, it is necessary to give background of this suit. The suit was dismissed on 31.7.1992 by my Ld. Predecessor against which the plaintiffs went in appeal by way of RFA No. 435/92 before the Hon'ble High Court and vide its order dated 7.11.2003, the Hon'ble High Court set aside the judgment of the Ld. Trial Court and remanded the case back to the Ld. Trial Court under Order 41 Rule 23 CPC with the direction to recast the issue no.4 in affirmative and to give liberty to the parties to lead evidence on the said issue and to adjudicate the same and further directed the Ld. Trial Court to decide the suit de-novo if necessary in the light of its findings on issue no.4. In para 20 of the judgment, the Hon'ble High Court of Delhi further observed that onus to prove the issue no.4 be put on the defendant and as the issue no.4 was with regard to the validity of a Will, it was further observed by the Hon'ble High Court of Delhi that the Ld. 3/40 Trial Court should also look into the aspect as to the effect of the Will, it being not probated as provided under Section 213 of the Indian Succession Act.
2. Against the said order passed by the Hon'ble High Court of Delhi, the defendant went to Hon'ble Supreme Court in Civil Appeal no. 5813/06 wherein the Hon'ble Supreme Court modified the said order of the Hon'ble High Court of Delhi to the extent that the suit should not have been remanded back to the Ld. Trial Court in its entirety and since one issue was involved with regard to the validity of the Will executed by late Smt. Budho Bai, the remittance of the case back to the Ld. Trial Court in said RFA be taken to have passed in terms of Order 41 Rule 25 CPC and further modified the order by directing the Ld. Trial Court to take further evidence of the parties after reframing the issue and record its findings and reasons therefor within four months from the date of communication of the order and return the same to the Appellate Court whereupon the Hon'ble High Court may proceed to determine the appeal on its own merit. This order was passed by the Hon'ble Supreme Court on 14.12.2006.
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3. Pursuant to the said order of the Hon'ble Supreme Court, my Ld. Predecessor recorded further evidence of the parties but inadvertently could not reframe the issue which was framed after recording the evidence of the parties, on 28.11.2007, as follows:
"Whether the Will dated 22.2.1997 is valid Will as alleged by the defendant? (OPD)"
4. On 12.12.2007, my Ld. Predecessor allowed an application of the defendant to summon the clerk of the Sub- Registrar Office with relevant record to prove the registration of the Will.
5. Against the said order dated 12.12.2007, the plaintiff went in revision to the Hon'ble High Court of Delhi vide CM(M) No. 1640/2007 wherein the Hon'ble High Court of Delhi vide order dated 29.8.2008 allowed the defendant to place the certified copy of the Will from the office of Sub- registrar on the record and observed as follows:
".......The court will take cognizance of the fact that certified copy has been obtained from public office in respect of a document which was registered with public office and the document was more 5/40 than 30 years old at the time of obtaining.
In view of the legal position that if a document is more than 30 years old and emanates from the custody where it should be, its genuineness has to be considered. There is no necessity of examining the clerk........"
6. It was in this background that the said issue no.4 was reframed and matter was remanded back to this court for deciding the same together with two aspects as to whether the probate of the Will was necessary as observed by the Hon'ble High Court of Delhi in RFA no. 435/92 (para 20) and the Will in question being a document more than 30 years old as observed in CM (M) no. 1640/2007.
7. The suit came to me as transferee court on 24.12.2008 vide order of the Hon'ble High Court of Delhi no. 24/DHC/Gaz./VI.E.2(a)/2008 dated 22.10.2008 and of Ld. District Judge bearing No. 74519/599/5483/F.3(4)/ADJ/08 dated 30.10.2008.
8. The brief facts as gathered from the plaint, written statement and the replication are that the father of the initial 6/40 plaintiffs and the defendant who are sisters, namely Sh. Tara Chand owned the land in West Pakistan, who migrated to India after partition and was allotted land at Delhi measuring 47 Bighas 1 Biswa in lieu of the land left in Pakistan. Sh. Tara Chand was also allotted land in Punjab which he sold. He subsequently also sold the land at Delhi and from the sale proceeds, he purchased one house bearing no. 16/26, Rajinder Nagar, New Delhi, in the name of his wife Smt. Budho Bai on 14.6.1965.
9. Smt. Budho Bai allegedly executed a Will on 21.2.1977 in favour of the defendant excluding her other two daughters who are plaintiffs initially and bequeath the said house to the defendant and Smt. Budho Bai died on 20.4.1980 at the age of 90 years.
10. The plaintiffs have alleged that the Will executed by Smt. Budho Bai is invalid, inoperative and that she was not capable of executing the said Will which is fictitious and void ab-initio and the plaintiffs have further averred that the suit property was a joint family property and therefore, Smt. Budho Bai had no legal right to bequeath the property in favour of the defendant and that all the three daughters of 7/40 Smt. Budho Bai, the plaintiffs and the defendant, are entitled to inherit the property in equal shares.
11. The defendant contested the suit taking many preliminary objections besides assailing the claim of the plaintiffs on merits, interalia, on the grounds that the suit property was self acquired property and the Land & Development Office also sanctioned the mutation of the property in favour of the defendant, who being in exclusive possession of the property, no relief as claimed by the plaintiffs be granted.
12. The defendant further objected that the sale deed executed in favour of Smt. Budho Bai was never challenged by the plaintiff during her life time and as such the suit is time-barred and Smt. Budho Bai as self acquirer of the property was capable of dealing with the same in any manner who chose to execute the Will in favour of the defendant.
13. The stand of the plaintiffs is that the property in fact was purchased by late Sh. Tara Chand who gave substantial consideration for purchasing the same prior to his death on 21.3.1964 and the sale deed could be executed in the name of Smt. Budho Bai who was merely a Benamidar of the 8/40 property as she was having no source of income.
14. With regard to issue no.4, as reframed with regard to the validity of the Will of late Smt. Budho Bai, the onus to prove the same was on the defendant who examined three witnesses as DW1, DW2 and DW3. On the other hand, the plaintiffs examined 6 witnesses as PW1 to PW5 and PW5A. Besides the defendant was allowed to place on record the certified copy of the Will from the office of concerned Sub- Registrar. It is pertinent to mention here that DW2, DW3 and PW5A were examined after the case was remanded back as mentioned above by Superior Courts.
15. During the pendency of the hearing after the case was remanded back, the plaintiff no.2 expired and her legal heirs were allowed to be brought on record by my order dated 24.12.2008.
16. I have heard the Ld. Counsels for the parties at length and perused the record and also gone through the written arguments filed on record by both the parties and my finding on the issue is as under:
17. At the very outset, the question of probate of the Will is taken up by me. Both the parties have relied upon the 9/40 judgment of the Hon'ble Punjab High Court (AT DELHI) titled M/s Behari Lal Ram Charan Vs. Karam Chand Sahni & Others reported as AIR 1968 Punjab 108 wherein it was held that suit instituted at Delhi for recovery of certain sum on the basis of unprobated Will was competent in view of Section 213(1) read with Section 57(a) and (b) of the Indian Succession Act, 1925, exempting such a case from its rigour and the probate of the Will was not necessary in case where both the persons and property of any Hindu, Budhist, Sikh or Jain are outside the territories specified in Section 57(a) of the said Act.
18. Similar view was again expressed by the Hon'ble High Court of Delhi in case titled Hans Raj Vs. Jeet Kaur reported as 2002, Rajdhani Law Reporter, 121 that in Delhi, it is not necessary to obtain probate of a Will.
19. Ld. Counsel for the plaintiffs has further contended that in all the said cases wherein the Hon'ble High Court of Delhi has held that in Delhi, the probate of a Will is not necessary, the Hon'ble High Court of Delhi was dealing with situations such as claim of recovery of a debt from a third 10/40 party under a Will or claim of being legal heirs of the deceased under a Will left by the deceased Landlord against a tenant in a case before the Rent Controller but in none of the cases the situation of the present case has been dealt with because in the present case the defendant is claiming her exclusive right to the property under the Will of Late Smt. Budho Bai to the exclusion of the plaintiffs who are otherwise the legal heirs of the said deceased and entitled to equal share in the property otherwise but for the existence of the alleged Will in question and further the Will in question has been assailed by the plaintiffs as fictitious and void ab-initio and in this situation Section 213 of the Indian Succession Act is attracted and defendant is bound to take the probate of the Will, though the State of Delhi may not have been covered under the territories prescribed under Section 57 of the said Act. To support her contention, the Ld. counsel for plaintiffs has relied upon the judgments of two High Courts.
20. First judgment is that of Hon'ble High Court of Rajasthan titled Balkishan and another Vs. Prabhu and others reported as AIR (37) 1950 Rajasthan 27 wherein it was held by a Division Bench that where the plaintiff proves 11/40 that he is entitled to succeed to the property of the deceased in case of intestacy, the defendant cannot defeat the plaintiff's right by merely saying that under a Will of the deceased the property is bequeathed to him and that he must take a probate of the Will.
21. The second judgment is that of Hon'ble Patna High Court, titled Babulal Mandal & Others Vs. Smt. Abala Bala Dasya and others reported as AIR 1955 Patna 126 wherein a Division Bench has held that a defendant resisting a claim made by the plaintiff, as heir at-law, cannot rely, in defence, on a Will executed in his favour when the Will is not probated and no letters of administration have been granted.
Because, Section 213 of the Indian Succession Act, is a bar to everyone claiming under such a Will whether as plaintiff or as defendant, although this section does not bar proving of the Will for other purposes. In this case the Hon'ble High Court followed the Full Bench judgment of the Hon'ble Madras High Court reported as AIR 1927 Madras 1054.
22. The said contention of the Ld. counsel for plaintiffs could not be repelled by the Ld. counsel for defendant either 12/40 at the time of oral arguments or in his written synopsis of arguments nor any judgment against the said proposition of law laid down by three Hon'ble High Courts, namely Rajasthan, Patna and Madras was brought to my notice. Hence, I am of the considered opinion that when serious challenge was made against the Will of Smt. Budho Bai by the plaintiffs and in view of the admitted position that both the initial plaintiffs were also the daughters of the said deceased and as such are entitled to inherit the property of the deceased in case of her intestacy, the defendant was bound to get the Will probated and she cannot defeat the rights of the plaintiffs by unprobated Will of late Smt. Budho Bai.
23. Coming to the question as to whether the due execution of the Will of late Smt. Budho Bai has been proved by the defendant, let me examine the evidence on the record.
24. The DW1, Sh. Kishan Chand being the attorney of the defendant Smt. Shanti Devi proved his attorney as Ex.DW1/1 and deposed that the suit property was purchased by Smt. Budho Bai in 1965 and that Sh. Tara Chand, husband of Smt. Budho Bai died in March 1964 and that Smt. Budho Bai paid 13/40 twice the amount towards sale price in 1965 from her own account which she had in Post Office since 1955 at Karol Bagh Post Office and that she withdrew amount of more than Rs. 11,000/- from the said Post Office and that she had also sold her jewellery in 1963 and that he had brought the Pass Book of the Post Office and that Smt. Budho Devi herself entered into sale agreement and that Sh. Tara Chand was ill for 4/5 years before his death and that he (Sh. Tara Chand) was selling 5/10 kg soap before his death at his house and that some of the amount taken by Sh. Tara Chand was used on his illness, payment of his debts and that Sh. Tara Chand had also his account in Karol Bagh Post Office and after his death a sum of Rs. 4,000/- was taken from his account and that Smt. Budho Bai withdrew all balance i.e. Rs. 4,000/- from the account of her deceased husband Sh. Tara Chand and that the property in dispute was in possession of defendant in which one tenant was inducted by the defendant and the property in suit is worth Rs. 1¼ Lakh and that the present plaintiff also filed a suit earlier and was dismissed in 1981 and appeal of that case was also dismissed and that the suit land is on lease with L&DO which was mutated in the 14/40 name of defendant after the dismissal of the earlier suit and the mutation letter is Ex.DW1/2 and that House Tax also stands in the name of the defendant and that Smt. Budho Bai had got purchased the plot to Smt. Krishna Devi at Gurgaon and paid a sum of Rs. 5,000/- by cheque to Smt. Dropdi Devi which is entered in her passbook which he had brought to court and that Smt. Budho Bai, deceased had relinquished relations from Dropdi Devi by publishing in the Hindustan Times which is Ex.DW1/3 and that deceased Smt. Budho Bai had left a Will duly registered in favour of defendant Smt. Shanti Devi, which is Ex.DW1/4 and that all funds were provided by the deceased Smt. Budho Bai in purchase of suit property.
25. In his cross-examination, he replied that stamp papers were purchased in the year 1965 and Smt. Budho Bai paid sale consideration in three installments from her own account and was having Rs. 11,000/- or Rs. 12,000/- in the Post Office account which is Ex.DW1/5 and that the Passbook of the account of Sh. Tara Chand was deposited with the Post Office and he was having receipt of the same and that the suit property was purchased for Rs. 20,000/- which was paid 15/40 by Smt. Budho Bai from her account Ex.DW1/5 and that she sold 25 tolas of gold, moti and silver coins for Rs. 7,000/- or Rs. 8,000/- but he did not accompany her when the jewellery was sold but he has the receipt of sale of jewellery which is Ex.DW1/6 but the same was not prepared in his presence and the same was found after her death. He further answered that the fact to whom the jewellery was sold by Smt. Budho Bai, was not mentioned by him. He further replied that Smt. Dropdi Devi was debarred by her mother in the year 1973 and the Will in dispute was got written by herself and not through him and that he did not accompany Smt. Budho Bai at the time of registration of the Will but her nephew Sh. Kishan Chand accompanied her and Sh. Kishan Chand had died and that he did not know if Sh. Tara Chand had received land if any in lieu of claim in Delhi or that Sh. Tara Chand sold the land received in claim to four different persons in Delhi. He further replied that Smt. Budho Bai used to prepare some "Bariyan" and she was earning Rs. 300/- or Rs. 400/- p.m but he did not tell this fact of earning of Smt. Budho Bai to his Advocate. He further replied that Smt. Budho Bai had constructed a room in Hardwar spending Rs. 16/40 2,500/- in memory of her husband which she had withdrawn from her bank account and the passbook of the same is Ex.DW1/7. He denied any knowledge of Sh. Tara Chand having any home in Bhagal Pur, West Pakistan. He denied the suggestions that Will was forged and that the suit property was out of claim amount received by Sh. Tara Chand and that Smt. Budho Bai did not sell any jewellery.
26. Before dealing with the deposition of DW2, it is made clear and not disputed by the parties that DW2 namely Sh. Ashok Kumar is the son of Sh. Kishan Chand who appeared as DW1 and Sh. Ashok Kumar is the son of DW1 and his mother is the defendant and that DW2 has deposed about one Sh. Kishan Chand who was the nephew of late Smt. Budho Bai and is a separate person from DW1.
27. DW2 Sh. Ashok Kumar filed his examination-in-chief by way of affidavit which is Ex.DW2/A wherein he deposed that he was present at the time of registration of the Will Ex.DW1/4 and that Sh. Kishan Chand Virmani, nephew of Smt. Budho Bai, who was son of her brother, witnessed at the time of registration besides one Sh. Yogender Pal, Advocate and both had died and that on enquiry he had come to know 17/40 that both the attesting witnesses of the Will, Sh. Kishore Lal and Sh. Sunder Singh, Advocate had also died. He further deposed that at the time of registration of the Will, the Sub- Registrar read-over the Will and explained to her in Hindi and then Smt. Budho Bai admitted it as correct and that few days before that due to paralytic, her hands had started shaking but after admitting the Will as correct, she signed and put her right hand thumb impression in his presence and that he identified the signatures of Sh. Kishan Chand Virmani, in Urdu, and so also signatures and thumb impression of Smt. Budho Bai on the Will and that she was in sound disposition mind at the time of registration of the Will and remained so thereafter also till about 3/4 days before her death in April 1980.
28. However, in his cross-examination, the DW2 has replied that he could read and understand English and his date of birth was 10.10.1950. He further could not tell the day, date, month and year in which Smt. Budho Bai had paralytic attack and further answered that she never had paralytic attack. He denied the suggestion that on 18.11.1976 Smt. Budho Bai had paralytic attack. Again said 18/40 that paralytic attack took place in January 1977. He had no knowledge if Sh. Tara Chand stayed at Bhawal Pur, West Pakistan before partition and that he migrated to India. He had no knowledge of land allotted to Sh. Tara Chand at Delhi which was sold by Sh. Tara Chand to different persons through sale deeds. He could not tell the sale consideration of the suit property nor the date of purchase of the same. He had no knowledge if Sh. Tara Chand deposited Rs. 10,000/- in his account and Rs. 10,000/- in the account of Smt. Budho Bai out of sale proceeds of land allotted to him in Delhi. He admitted as correct that talks of purchase of property in question started during the lifetime of Sh. Tara Chand. He had no knowledge that on 5.8.1963, late Sh. Tara Chand withdrew Rs. 8,000/- from his account and Rs. 11,000/- was withdrawn from the account of his wife on 1.8.1963. It was not in his knowledge that Sh. Tara Chand paid 99% of the sale consideration on 4.7.1963 and 22.8.1963. It was not in his knowledge that the sale deed could not be executed as seller did not get the permission from the Land and Development Office to sell the property. He had no knowledge that the seller of the property in question got the 19/40 permission to sell the property on 5.6.1965. He had no knowledge that sale deed was executed in the name of Smt. Budho Bai because of the fact that Sh. Tara Chand expired prior to the execution of the sale deed.
29. The DW2 further replied that the Will was registered on 22.2.1977 at 12 p.m and Sh. Joginder Pal, Kishore Lal, one Advocate Surender Pal and Kishan Chand Virmani were present before the Sub-Registrar at the time of registration of the Will. The Will in question was written by Sh. Sant Ram Arora, the petition writer as told by Smt. Budho Bai. The said persons had gone to the residence of Smt. Budho Bai but could not tell as to who made the application before the Sub-Registrar nor he could tell as to why the Sub- Registrar was called at home. He could not tell as to where the Will was got typed or time consumed in typing the Will but the petition writer was residing in the neighbourhood and Smt. Budho Bai told him the contents of the Will and that he was not present when the Will was typed nor he knew as to when the Will was typed or firstly written in shorthand or directly typed.
30. He further answered that Sh. Kishan Chand Virmani 20/40 was his father-in-law. He could not tell the name of the Sub- Registrar and he could not tell as to who signed first or in the last on the Will and that he did not sign the Will. He admitted that Sh. Kishan Chand Virmani did not sign at the place meant for witnesses. He could not tell at what time, the Sub-Registrar reached at the house of Smt. Budho Bai or for how much time he stayed there. He showed his ignorance of the fact that Smt. Budho Bai was the Benamidar and actual amount for the purchase of the property in question was spent by Sh. Tara Chand during his lifetime. He admitted as correct that the Will did not contain the photograph of Smt. Budho Bai.
31. DW3 Smt. Gyan Devi has filed her examination-in- chief by way of affidavit as Ex.DW3/A in which she has deposed that her daughter was married with elder brother of Sh. Ashok Kumar, i.e., the eldest son of Smt. Shanti Devi (the defendant) and Sh. Ashok was residing in the house of Smt. Budho Bai and her daughter was also residing in her house and that Smt. Budho Bai had been in sound disposing mind throughout her life who told her that she (Smt. Budho Bai) had bequeathed her house in dispute in favour of Smt. Shanti 21/40 Devi.
32. In her cross-examination, the DW3 has categorically admitted that she has deposed at the instance of the defendant. She further replied that Smt. Budho Bai did not attend the marriage of Sh. Ashok (the DW2) nor she herself attended the marriage of Sh. Ashok. She admitted that whenever she met Smt. Budho Bai, she met her at H. No. 11/44, Rajinder Nagar, New Delhi. She admitted that Smt. Budho Bai had paralytic attack in her leg. She did not remember if Smt. Budho Bai had paralytic attack from leg to brain at one side. She admitted that due to paralytic attack Smt. Budho Bai could not walk and used hands. She had no knowledge if after paralytic attack Smt. Budho Bai was able to sign and speak or not.
33. Since the onus to prove the Will was on the defendant, it is necessary to scrutinize the evidence as reproduced by me above deliberately. The DW1 who is the father of the DW2, had mentioned that nephew of Smt. Budho Bai, namely Sh. Kishan Chand accompanied her at the time of registration of the Will, but he did not mention the glaring fact that his own son, the DW2 was also present during the registration 22/40 proceedings. This is because of the use of expression "accompanying". Admittedly the DW1, the husband of the defendant were residing with late Smt. Budho Bai and as per deposition of DW3, all the sons of Smt. Shanti Devi, the defendant, were residing in the same house allegedly belonging to Smt. Budho Bai, and if it was so, then no question arose of accompanying the deceased Smt. Budho Bai by nephew Sh. Kishan Chand because the Will in question was got registered at the house of the deceased as alleged and DW1 could have very well narrated that DW2, his son was also present at the time of the registration of the Will. Even if it is to be assumed that DW1 was not present in the house in question where the Will was got registered for the time being, then he should not have deposed in his deposition as DW1, that Sh. Kishan Chand had accompanied the deceased for the registration of the Will.
34. Surprisingly DW1 knew Sh. Kishan Chand Virmani as nephew of Smt. Budho Bai but did not identify his signatures on the Will Ex.DW1/4 but his son DW2 identified the same on the Will but presence of DW2 was not mentioned by the DW1 in his deposition at the time of registration of the 23/40 Will.
35. Another remarkable feature of the case is that Smt. Shanti Devi, the defendant did not appear in the witness box, though I am conscious of the fact that none of the plaintiffs also appeared in the witness box, but after remand of the case, particularly in view of the observations made by the Hon'ble High Court of Delhi in RFA no. 435/1992 in para 14, 15, 16 and particularly in para 18 and 19 of the judgment, the defendant should have appeared in the witness box herself to remove the doubts and contradictions in the depositions of DW1, her husband and DW2, her son and the self contradiction in the deposition of DW2 and his ignorance of so many facts, though he claimed to be present at the time of the registration of the Will, because as per her own case, the Will was got registered at the house of Smt. Budho Bai which at the time of filing the suit and prior to that was in her exclusive possession.
36. The only inference to be drawn is that DW2 is a projected witness who deposed according to convenience of her mother, the defendant and about the presence of whom, not even a single word was uttered in the written statement 24/40 nor in the deposition of DW1. The bare reading of his deposition, particularly cross-examination, as reproduced above goes to establish that he prepared himself for the deposition according to the requirements of the law, particularly knowing fully well that the case has been ultimately remanded back by the Hon'ble Supreme Court and as he identified the signatures of only Sh. Kishan Chand at the back of the first page of the Will Ex.DW1/4 in Urdu and did not utter even a single word with regard to the signatures of the attesting witness, namely Sh. Kishore Lal and Sh. Sunder Singh or the signatures of the Registrar concerned or the time of registration and he answered that scribe of the Will was Sh. Sant Lal Arora, the petition writer but he did not care to depose that even Sh. Sant Ram Arora is no more in this world or he also enquired about the whereabouts of Sh. Sant Ram Arora, all go to establish that DW2 is not a trustworthy witness.
37. From the said analysis of the witnesses for the defendant, it is evident on record and admitted also that attesting witnesses of the Will had expired and none of the witnesses for the defendant right from DW1 to DW3 was 25/40 himself an attesting witness of the Will or even circumstantially proved the Will allegedly left by the deceased Smt. Budho Bai.
38. The next question arise as to how a Will is to be proved. It is the test laid down in Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act which has to be passed before a Will can be said to have been propounded and proved. Catena of judgments of Hon'ble Supreme Court has time and again laid down the said proposition of law. Some of them may be referred as AIR 1955 SC 346 titled Girja Datt Singh Vs. Gangotri Datt Singh wherein it was held that in order to prove the due attestation of the Will the propounder of the Will has to prove that "A" and "B", the two witnesses saw the testator sign the Will and they themselves signed the same in the presence of the testator and that Section 68 of the Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the Will and that this provision should be complied with in order that those two persons might be treated as attesting witnesses.
39. Another judgment of the Hon'ble Supreme Court is 26/40 reported as AIR 1959 SC page 443 titled H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others which was to the same effect and has dealt the same issue in a detailed manner.
40. Now, in the present case admittedly both the attesting witnesses stated to have expired and even the person namely Sh. Kishan Chand, who allegedly identified the testator while signing in Urdu at the back of the first page of the Will Ex. DW 1/4 is also stated to have expired.
41. In the said circumstance the Ld. Counsel for the defendant has contended that the Will was registered and was more than 30 years old and thus a presumption of genuineness arises in favour of the execution of the Will. I shall deal these aspects later on in this judgment.
42. Ld. Counsel for the defendant has next contended that when the original Will was exhibited as Ex. DW1/4 it was not objected to on behalf of the plaintiffs and now the plaintiffs are estopped from denying the due execution of the said Will and in this regard Ld. Counsel for the defendant has placed reliance upon the judgments reported as AIR 27/40 1988 Allahabad 57 titled Ali Hasan (deceased by L.R.) Vs. Matiulah (deceased by L.Rs) and others and AIR 1972 SC 608 titled P.C. Purushothama Reddiar Vs. S. Perumal.
43. In the first judgment the Hon'ble Allahabad High Court was dealing with the sale deed and similarly the Hon'ble Supreme Court was dealing with two reports of the Head Constables in an election petition which were allowed to be marked without any objection and in those circumstances Hon'ble Supreme Court held that it was not open for the respondent subsequently to object to their admissibility. Admittedly, Hon'ble Supreme Court or the Hon'ble Allahabad High Court were not dealing with the case of a Will.
44. Contrary to the said proposition, Ld. Counsel for the plaintiffs relied upon the judgment of Hon'ble Supreme Court reported as AIR 1971 SC 1865 wherein it was held that mere marking of a document as an exhibit does not dispense with its proof. Accordingly, I am of the considered opinion that said contention of the Ld. Counsel for the defendant is not 28/40 tenable under law and in case of a Will, even if it is admitted by the opposite party, still the law requires that it should be proved in the manner as provided under the said law.
45. The next question arises as to how to prove the Will when both the attesting witnesses are dead. Ld. Counsel for the defendant has failed to show any laid down law in this aspect whereas Ld. Counsel for the plaintiffs has relied upon two judgments in this regard. The first judgment is titled as Balwant Vs. Mainabai reported as AIR 1991 Madhya Pradesh 11 wherein it was held that where the attesting witnesses are dead the Will can certainly be proved in the manner provided for proving of a document.
46. The next judgment relied upon on behalf of the plaintiffs is titled S.M. Nooruddin Vs. Mahomed Oomer Mahomed Nurulla reported as AIR 1956 Bombay 641 wherein it was held that the document was signed by the petitioner and it was attested by two witnesses and both these attesting witnesses were dead before the question of the genuineness or otherwise of this document arose and that the person in whose favour the document had been made also 29/40 died and that the petitioner denied the signature on this document and that in such a circumstance the signatures of the attesting witnesses were proved by two of their relatives who knew their handwriting and it was further held that this evidence was by itself sufficient to establish that the document was executed by the petitioner, because there was no other conceivable way in which proof of the document could have been given.
47. Although the DW2 has deposed that the attesting witnesses and identifying witness are dead on his enquiry but no effort was made on behalf of the defendant either to summon or produce the persons who would have known or identified the signatures of the attesting witnesses on the Will Ex. DW1/4. Moreover, the DW2 has not disclosed as to from whom he enquired or how he enquired with regard to the death of the said witnesses and this go to establish that the version of the DW2 that he made enquiries becomes doubtful otherwise the very nature of the enquiry regarding the death of a person, the near and dear of the deceased are bound to come into picture and who would have been easily available to identify the signatures of the respective deceased 30/40 witnesses on Ex. DW1/4. In view of the said law laid down by the said two Hon'ble High Courts of Madhya Pradesh and Bombay, I am of the considered opinion that neither the requirement of Section 68 of the Evidence Act has been fulfilled nor the said Will has been proved as otherwise documents are proved in normal course as provided under the Evidence Act.
48. The next contention raised by the Ld. Counsel for the defendant is that of the registration of the Will and he has submitted that the Will Ex. DW1/4 was duly registered and no formal proof of the same was required and it is presumed to be a genuine Will of the deceased Smt. Budho Bai and in this regard he has relied upon the judgment of Hon'ble High Court of Delhi reported as 22 (1982) DLT (SN) 3 titled as Prem Chand Gupta Vs. Mool Chand and another wherein it was held that where a Will has been registered, that is a circumstance which may, having regard to other circumstances, prove its genuineness but the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists without submitting the evidence of registration to a close 31/40 examination.
49. I have gone through the said short note of the judgment of the Hon'ble High Court of Delhi carefully and I am of the opinion that the proposition of law laid down in the said judgment of the Hon'ble High Court of Delhi rather goes against the contention of the Ld. Counsel for the defendant. Mere registration of a Will cannot take place the proof of the Will. This aspect was dealt by the Hon'ble Supreme Court in the case titled Dharam Singh Vs. Aso & Another reported as AIR 1990 SC 1888 wherein the Hon'ble Supreme Court was dealing with a situation where the two attesting witnesses did not support the execution of the Will and the trial court relied upon the statement of the registering authority and on the basis of decision of the various High Courts, came to the conclusion that Will had been proved. Setting aside the order of the ld. Trial Court and upholding the orders of the lower appellate courts, the Hon'ble Supreme Court has held that the Registrar could not be a statutory attesting witness and that therefore, the conclusion that the Will had not been duly proved cannot be disturbed. The same proposition of law was again reiterated by Hon'ble Supreme 32/40 Court in the judgment titled Bhagwan Kaur Vs. Kartar Kaur and others reported as (1994) 5 SCC 135 wherein the Hon'ble Supreme Court held that endorsement made by the Sub Registrar does not satisfy the requirements of Section 63 of the Succession Act and does not reach up to the level of proof required under Section 68 of the Evidence and hence mere registration of the Will was of no consequence.
50. In view of the said law laid down by the Hon'ble Supreme Court the registration of the Will Ex.DW1/4 does not come to the help of the defendant.
51. The next question arises with regard to the observation of the Hon'ble High Court of Delhi in CM(M) no. 1640/07 with regard to the Will being a 30 years old document. Ld. counsel for defendant has contended that since the Will was registered and executed in the year 1977 the presumption that the signatures and every other part of the document is correct, arises. On the other hand, Ld. counsel for plaintiffs has opposed the said contention on the ground that this suit was filed in the year 1982 and at that time the Will cannot be said to be 30 years old and as Smt. 33/40 Budho Bai died on 20.4.1980 and the Will is a document which takes effect after the death of a person and from this point of view also the Will Ex.DW1/4 cannot be said to be a 30 years old document.
52. Even if it is to be taken that the Will Ex.DW1/4 was 30 years old document the question is whether this fact justifies the presumption under Section 90 of the Evidence Act which reads as under:
"90. Presumption as to documents thirty years old - Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation - Documents are said to be in proper custody if they are in the 34/40 place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.
This explanation applies also to Section 81."
53. This aspect was dealt by the Hon'ble Punjab High Court in the case titled Mehtab Singh Gurbachan Singh Vs. Amrik Singh and others reported as AIR 1957 Punjab 146 wherein the Will was held proved by the statement of the Registrar and relevant paras of the said judgment may be reproduced as below.
"A certified copy of the original will executed by a Hindu in the Punjab in 1901 was produced by the registration clerk from his office. It bore the endorsement of the sub-Registrar to the effect that the testator, whom he personally knew, admitted before him that he had written and completed the will and that he thumb- marked it in his presence.35/40
Further, there was the statement of the sub-Registrar who had deposed in court that he had made the endorsement on the will, and that he knew the testator previously who had admitted its execution before him. He had also stated on oath that the testator was in a disposing mind and the will had been read out to him.
Held, (i) that the endorsement under S.66, Registration Act was admissible in evidence for the purpose of proving that the executant admitted the execution of the will produced before him.
(ii) that the evidence of the sub-
Registrar conclusively proved the execution of the will and the disposing mind of the testator.
(iii) that the formalities laid down in S.50 of the Succession Act 1865 or in S.63 of the 1925 Act were not applicable to the will as it was made in 1901 and along before 1927. Once it was proved that testator had in fact executed the will it must be held to be a legal devise in accordance with its terms even if it was not 36/40 proved that the will was attested by witnesses according to the formalities laid down in the Indian Succession Act."
But still the Hon'ble High Court further held in para 4 as under:
"The production of a certified copy of a will more than thirty years old from the Registration Office cannot be considered to be sufficient to justify the presumption of due execution of the original will under the provisions of S.90 Evidence Act. AIR 1935 PC 132, Rel. on."
54. From the said judgment of the Hon'ble Punjab High Court, it is clear that ratio of the judgment was that a certified copy of a Will more than 30 years old from the office of Registrar is not sufficient to prove the Will or to draw a presumption in its favour as per Section 90 of the Evidence Act.
55. The defendant never took this stand in her written statement nor the witnesses deposed to the effect that the Will was more than 30 years old. Admittedly, the Registrar 37/40 is not a witness in the present case and only a certified copy is on the record besides the alleged original Ex. DW 1/4 nor the endorsement of the sub-Registrar mentioned that he knew Smt. Budho Bai previously.
56. Thus, even the contention of the defendant that the Will Ex.DW1/4 was a thirty years old document so as to raise a presumption of its genuineness under Section 90 of the Evidence Act cannot be upheld.
57. Ld. counsel for plaintiffs has further raised an objection that Smt. Budho Bai was not competent under the law for executing any Will because she held the property in question as benami as the same was purchased by the resources made available to her by her late husband Sh. Tara Chand who invested the money in purchasing the property by selling his land in Tehsil Mehrauli, Delhi, which he received from the government after his migration from Pakistan to India after the partition. On the other hand, Ld. counsel for defendant has vehemently opposed the said contention on the ground that the property was purchased by late Smt. Budho Bai from her own resources of income which she was having in her Post Office account as well as by selling her jewellery 38/40 and as such she cannot be held as Benamidar of the property in question. Ld. counsel for defendant has further taken me through the judgment dated 31.7.1992 passed by my Ld. Predecessor whereby this suit was earlier dismissed wherein my Ld. Predecessor also held that the deceased was not a Benamidar.
58. The judgment and decree of my Ld. Predecessor is dated 31.7.1992 and relying upon Section 4 of the Benami Transactions (Prohibition) Act, 1988, he held Smt. Budho Bai not as a Benami holder of the property and further held that plaintiffs have no right to claim or bring any action to enforce any right in respect of the said property.
59. Although the said Benami Transactions (Prohibition) Act, 1988 was amended subsequently to the said judgment of my Ld. Predecessor by Act no.22 of 1996, Section 30 w.e.f. 20.9.1995 whereby clause (2) was inserted in Section 3 of the Act, whereby a property could be purchased benami by a person in the name of his wife or unmarried daughter and presumption has been raised, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. Some of the Hon'ble 39/40 High Courts are of the view that Section 3 and 4 of the Benami Transactions (Prohibition) Act, 1988 have to be read together and understood together as they are not disjunctive provisions in a comprehensive legislation intended to prohibit benami transactions and that both section 3 and 4 are complementary to each other to achieve the same object i.e. prohibition of benami transactions. Reference can be made to the case cited as AIR 1989 Kerala 317 and it can also be said that by saying the property as a benami in the hands of deceased Smt. Budho Bai, the plaintiff was not claiming anything but was raising suspicious circumstance towards the execution of the Will Ex.DW1/4. However, as I have already held that the Will Ex.DW1/4 was not proved as per requirement of the law, there is no need of going into the question as to whether the character of the property in question in the hands of the deceased was benami or not. Hence, the issue no.4 as reframed is decided in favour of the plaintiffs and against the defendant.
60. In view of the order of the Hon'ble Supreme Court in Civil Appeal no. 5813/06, Ahlmad is directed to send this file to the Hon'ble High Court of Delhi through Ld. District Judge 40/40 so that the RFA No. 435/92 may be heard on merits by the Hon'ble High Court of Delhi.
ANNOUNCED IN THE OPEN COURT ON 03.02.2009 (RAKESH TEWARI) ADDL. DISTRICT JUDGE:
DELHI.