Delhi District Court
Sh. Harjinder Pal Singh vs State on 31 January, 2020
IN THE COURT OF MS. SAVITRI : ADDL. DISTT. JUDGE-02,
WEST DISTRICT : TIS HAZARI COURTS: DELHI.
PC-16046/16
Sh. Harjinder Pal Singh
S/o Late Sh. Inderjeet Singh
R/o D-60, Fateh Nagar,
New Delhi-110018.
........Petitioner
Versus
1. State
2. Sh. Harbhajan Singh
S/o Late Sh. Santa Singh.
3. Sh. Ravinder Singh,
S/o Late Sh. Santa Singh.
Both residents of :-
32/3, Double Storey,
Ashok Nagar, Delhi.
........Respondents
PROBATE PETITION U/S 276 OF INDIAN SUCCESSION ACT FOR
GRANT OF PROBATE/LETTER OF ADMINISTRATION TO THE
WILL DATED 30.10.2009 EXECUTED BY LATE SARDAR
SANTA SINGH
Date of institution of the case : 25.05.2011
Date of reserving the judgment : 24.01.2020
Date of pronouncement of Judgment : 31.01.2020
JUDGMENT
1. The present petition has been filed by petitioner Sh. Harjinder Pal Singh with respect to an unregistered and un-notarized will dated 30.10.2009 executed by one Sardar Santa Singh (father PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 1 of 35 of objectors) in his favour with respect to land measuring 7 bigha 6 biswas (7300 sq. yds. Approx.), out of Khasra No. 2144, situated at village Tihar, New Delhi, (hereinafter referred as suit property). It is important to take note of the fact that the petitioner has been appointed as executor of the will. Further, one important aspect is that petitioner is in no way related to the deceased, who was survived by his two sons Sh. Harbhajan Singh and Sh. Ravinder Singh (respondents no. 2 and 3, respectively) when he expired on 20.12.2009 while residing at Delhi, within just 51 days of executing the will.
2. After the notice of the petition was issued, the respondents entered appearance and filed joint objections to the will taking a ground that deceased never executed the alleged will and it was a false and fabricated document prepared in connivance with alleged attesting witnesses.
3. Another ground has been taken that the deceased was not exclusive owner and in possession of suit property, hence, was not competent to execute will with respect to entire property. Further, that the co-sharers Sh. Asanand and others were not impleaded in the present petition. Since, probate judgment does not decide the issue of title, this ground is irrelevant.
4. One more ground on which the will in question has been assailed is that the deceased was not in sound mental condition at least more than one year prior to his death, due to old age. The petitioner came into contact with the deceased as the deceased used to visit gurudwara almost every day for prayers.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 2 of 35Further, the petitioner is not a man of integrity and honesty and had filed a false petition just to extort money from the objectors.
5. On merits, an objection has been taken that there was no occasion for the deceased to execute the alleged will in favour of petitioner because he was living with the objectors at House No. 32/3, Double Storey, Ashok Nagar, Delhi, till his last breath and they were taking good care of him. The deceased was very happy with his family and had no complaints against his sons.
6. Petitioner filed reply to the objections, wherein, he denied the contentions of objectors and reiterated the averments made in the petition, taking a stand that the deceased was healthy and having sound mind and did not suffer from any incapacity. The allegations contained in objections were denied in toto.
7. After completion of pleadings, following issues were framed by my Ld. Predecessor Judge vide order dated 04.02.2016 :-
ISSUES
1) Whether the deceased Sh. Santa Singh S/o Sh. Sher Singh executed a valid and enforceable Will dated 30.10.2009 as claimed by the petitioner? OPP
2) Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP
3) Whether the petition is liable to be dismissed for the objections raised by the respondent/ objector no. 2 & 3 in the written statement/ objections. OPD
4) Relief PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 3 of 35 PETITIONER'S EVIDENCE
8. In order to prove its case the petitioner has examined himself as PW-2 on affidavit Ex PW-2/A, which is on the lines of his petition. He has relied upon the will in question and death certificate of deceased Ex PW-3/2. There is no dispute about date of death.
9. It is mentioned in evidence affidavit that the will was handed over to petitioner by the attesting witnesses, namely Sardar Gurmit Singh Abot and Sardar Jaswant Singh Dhillon, the then General Secretary and Senior Vice President (respectively) of gurudwara Shri Singh Sabha, Ashok Nagar, New Delhi. It is also important to note that the petitioner himself was president of gurudwara at that time.
10. During his cross-examination by Ld. Counsel for objectors, he deposed that the will was handed over to him by the management people of gurudwara at the time of पपठ observed after Salana (बरसस) of deceased. The witness could not tell how he came to be in possession of death certificate of deceased. In response to further cross-examination, he deposed that he had known deceased for long time before his death. He had never gone inside his house but had met him outside his house many times. Regarding family details of deceased, the witness deposed that he knew that deceased had two sons because he often complained against them for not taking care of him nor providing him food, medicines etc. Regarding the age of deceased, the witness deposed that he might be around 80 PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 4 of 35 years of age. He deposed that the deceased was mentally absolutely perfect and denied the suggestion to the contrary. He denied that signatures and thumb impression of deceased were forged and fabricated on the will in question or that he did not execute the same. The witness did not know if the deceased knew English or not. He denied knowledge if the deceased was only aware of Gurmukhi and Hindi language.
11. PW-1 Sh. Gurmeet Singh Abot has been examined as an attesting witness to the will and has led his evidence vide affidavit Ex PW-1/A. It is mentioned, therein, that on 30.10.2009 the deceased, who was a regular visitor to gurudwara, had come to gurudwara with a prepared will and met the witness and Sardar Jaswant Singh Dhillon (PW-3) while they were discussing the affairs of gurudwara. The deceased had shown the will to both of them and asked them to explain the contents of the same. The PW-3 explained the contents and after hearing and understanding the same, he admitted the same as correct and was fully satisfied with the said will. Thereafter, he signed and put his thumb mark on the said will on each page in the presence of this witness and PW-3. Thereafter, the witness and PW-3 signed and put their thumb marks on the will, in presence of deceased and of each other.
12. He has relied upon the will Ex PW-1/3. Perusal of will reflects that it is neither registered nor notarized. Also, it does not bear even photograph of deceased. Further, the entire suit property has been bequeathed in favour of petitioner and in the event he decided to sell this property, he was required to give a sum of PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 5 of 35 Rs. 2 Lakhs to Gurudwara Shri Guru Singh Sabha, Ashok Nagar and Rs. 2 Lakhs to Master Tara Singh Public School, located at the gurudwara itself. He was also required to pay a sum of Rs. 16 Lakhs to both the sons of deceased equally. In the event, either of the sons did not want to take this money, it was to be divided equally between the gurudwara and school.
13. The justification for executing will in favour of petitioner is also mentioned in the will. It is that the petitioner used to take care of deceased and provided him with necessities of life on regular basis and also took him to the doctor. The reason for exclusion of his sons as mentioned is that they did not take care of him in his whole life so he decided not to give a single penny to them after his death.
14. It is further mentioned in evidence affidavit that the deceased had executed the will of his free will while he was in sound disposing mind and without any force, fear, influence, coercion etc.
15. Thereafter, it is mentioned in the evidence affidavit of this witness that deceased gave the will to PW-3, Sr. Vice President of gurudwara, after its execution; for keeping the same in safe in gurudwara. Accordingly, PW-3 had kept the said will in one of the files of administration of gurudwara. After death of deceased, at the time of his last भभग and अरदपस, the will was entrusted to the petitioner.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 6 of 3516. The witness identified signatures and thumb impressions of deceased, himself and that of other attesting witness on the will.
17. During his cross-examination by Ld. Counsel for objector, he denied the suggestion that there was no date written on the will on 30.10.2009 or that it was written subsequently. He also deposed that he did not inform the sons of deceased before putting signatures on the will. He denied the suggestion that signature and thumb impression of deceased were forged on the alleged will or that its contents were not read over to the deceased or that he never executed the alleged will nor visited the said gurudwara on the said date. The witness denied knowledge if deceased knew English or not or if he was only aware of Gurmukhi and Hindi languages. He also denied that the deceased was not mentally fit or was incapable of moving.
18. PW-3 Sh. Jaswant Singh Dhillon has been examined as second attesting witness vide evidence affidavit Ex PW-3/A. His evidence affidavit is exactly same as PW-1 except for necessary consequential changes. His evidence is also on the same lines, hence, not reproduced here for the sake of brevity. Additionally, he has denied the suggestion that the deceased knew nothing about the contents of will.
19. PW-4 is official witness, who brought the record regarding the attesting witnesses and the petitioner being office bearers of Gurudwara Management Committee.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 7 of 3520. PW-5 is the handwriting expert examined by the petitioner to bring home the point that the will was bearing genuine signature and thumb impression of the deceased.
RESPONDENT'S EVIDENCE
21. Objector Harbhajan Singh has examined himself as RW-1 vide evidence affidavit Ex RW-1/A, which is on the lines of his objections. It is mentioned, therein, that the petitioner is a property dealer and is involved in money laundering. He is a person of criminal tendency and had involvement in more than 70 criminal cases and 30 civil cases. He was declared B.C. of P.S. Karol Bagh and was arrested previously for procuring forged documents and obtaining signatures and thumb impressions of public persons on the pretext of giving them loan. Later on, he prepared forged GPA, Will and Possession Letter etc. on the basis of signature and thumb impression. He was also involved in property grabbing matters. He obtained signatures of people on blank papers on the pretext of giving loan. There were some criminal cases registered against him and detailed investigation was ordered by Punjab & Haryana High Court.
22. It is further mentioned that the deceased had died intestate and alleged will was never executed by him. He suffered from diabetes and high BP for more than one year prior to his death and was not in position to execute any will. He was not in sound and healthy mind at that time.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 8 of 3523. During his cross-examination by Ld. Counsel for objector, the witness denied that the will in question was bearing signature of the deceased while admitting that he always used to sign in Punjabi (Gurmukhi). He could not produce any document of mental illness of deceased. He denied the suggestion that he had mentioned wrongly about integrity of the petitioner or that he was not involved in about 100 cases or that he was deposing falsely. He deposed that he used to drop his father at gurudwara but never went inside personally except when he performed a ceremony there after one year of his father's death. His children used to bring the deceased back from gurudwara as he himself used to leave for work.
24. He denied the suggestion that his children were well aware of the fact that the deceased had executed the will in question in favour of gurudwara Ashok Nagar. He also denied the suggestion that the deceased had disclosed to him and other family members, during his lifetime, that he had executed the will in question in favour of gurudwara. At this stage, it is important to note that the will was not executed in favour of gurudwara but in favour of petitioner, in his personal capacity. This suggestion is not in accordance with the petitioner's case.
25. He deposed that he was in possession of passport of his deceased father and an original lease deed executed by deceased, which he had shown to the handwriting expert on court direction. He denied the suggestion to the contrary. He denied if he knew either the petitioner or any of the two attesting witnesses.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 9 of 3526. When cross-examined with respect to mental capacity of deceased, the witness deposed that he used to forget things due to old age but was not suffering from any mental disease prior to his death.
27. In support of their case, objectors have examined their neighbour Sh. Rajinder Kumar as RW-7. He has led his evidence by way of affidavit Ex RW-7/A. It is mentioned in his evidence affidavit that his father and deceased were good friends and he had known the deceased very well. Both the old persons used to visit gurudwara. The deceased lived with his sons and was having good relations with his both sons and other family members. They used to take care of deceased in all respects and provided him good food, clothes and other necessary facilities etc. to the best of their means. Objector Harbhajan Singh also used to financially support the deceased. After the deceased expired, all the related ceremonies were performed by his sons.
28. It is further mentioned in evidence affidavit that the deceased was a very simple, humble and friendly person and both his sons, very obedient to him. The deceased used to talk to the witness about his personal affairs and used to tell him that he wanted to give the suit property to his both sons after litigations in respect to the same would be over. The deceased had no intention to give his movable and immovable properties to any other person except his sons. He never indicated any intention regarding execution of any will in favour of any other person.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 10 of 3529. During his cross-examination by Ld. Counsel for petitioner, the witness deposed that his father was older than the deceased and had predeceased the deceased. While the deceased used to visit gurudwara daily, his father was not so regular. He denied the suggestion that since the deceased was 20-25 years old than him, there is no possibility of his discussing personal affairs about his properties with the witness. He denied any knowledge about execution of any will by the deceased during his lifetime either favouring his children or relatives or any other person. He also denied knowledge about properties of deceased or that the deceased had filed cases against his relatives for properties. He denied the suggestion that he was deposing falsely at the instance of objector Harbhajan Singh.
30. RW-2 is the handwriting expert examined by objector to bring home the point that the will in question did not bear the signature and thumb impression of deceased.
31. RW-3 is the official witness from the bank where the deceased maintained his bank account and witness produced the bank account opening form signed by the deceased.
32. RW-4 is official witness from DC Office, Rampura, where the suit property is located and has produced the documents relating to the same. These documents are irrelevant as the issue of title is not to be adjudged in probate proceedings. But, the objectors have relied upon these documents to show suspicious circumstance. Their stand is that when the deceased did not own the entire property, there was no PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 11 of 35 question why he would have executed the will of entire suit property. In that limited context, the documents have relevance.
33. RW-5 is another official witness from Record Room, Tis Hazari Courts, Delhi, who brought the record of litigations between deceased and one Asanand. This is also irrelevant for the reason already mentioned above, with respect to RW-4.
34. RW-6 is the official witness from EOW, Delhi Police. He produced the record regarding FIR No. 236/13, dated 28.11.2013, registered in P.S. EOW u/s 420/467/468/471/120-B IPC against the petitioner, his son Pawandeep Singh, his brother Ravinder Pal Singh alongwith some other accused persons. Petitioner was arrested in this case on 30.10.2013 and later on released on bail. Perusal of the chargesheet submitted in this FIR shows that following criminal cases were registered against the petitioner previously:-
Sl. No. FIR No. P.S. Under Sections 1. 150/1976 Karol Bagh 452/427/323/506/34 IPC 2. 1235/1977 Karol Bagh 433 IPC 3. 612/1979 Rajender Nagar 147/186/435/120-B IPC 4. 552/1980 DBG Road 307/324/353/332/186/302/506/ 34 IPC 5. 272/1981 Janak Puri 324/34 IPC 6. 17/1997 Hari Nagar 323/34 IPC 7. 207/1999 Karol Bagh 341/323/506/34 IPC 8. 355/2003 Hari Nagar 323/341/506 IPC 9. 565/2006 Hari Nagar 420/506/120-B/34 IPC 10. 08/2008 Karol Bagh 420/406/506 IPC 11. 236/2013 EOW 420/467/468/471/120-B IPC PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 12 of 35
35. Further, it is mentioned in the above referred chargesheet that petitioner ha defrauded large number also, than the complainant Sh. Narinder Nangia and was involved in number of criminal and civil cases dealing with property related fraud.
36. Before proceeding to decide the present probate petition let me discuss in nutshell, the relevant legal provisions and judicial pronouncements.
37. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 13 of 35 from intoxication or from illness or from any other cause, that he does not know what he is doing.
38. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
39. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 14 of 35
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
40. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 15 of 3541. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
42. Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 16 of 351. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested , it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 17 of 35 and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion, etc, in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounded the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. "
In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 18 of 35 Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied) PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 19 of 35
43. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 20 of 35 [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied)
44. Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that :-
"Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
45. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 21 of 35 unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied)
46. Naveen Bhatia through LRs, Vs. Raj Kumari Bhatia & Ors.
decided by late Hon'ble Justice Valmiki J. Mehta of our own High Court and reported as 2017 (165) DRJ 511, holding as follows :-
"A trial court commits legal error by going into issues of title of the properties because a Probate Court only decides the validity or invalidity of execution of the will. Whether or not the testator did or did not have title to the properties which were subject of bequests under the will or that actually someone else had title or that the testator had title only of some of the properties and not all of the properties or that testator had only part interest and not full interest in the bequeathed properties etc. etc. are all issues which have to be decided by a civil court in a civil suit between the parties whenever and where ever disputes will arise with respect to title of a particular property."PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 22 of 35
CASE LAWS CITED BY PETITIONER
47. Counsel for petitioner relied upon the following judgments alongwith some other judgments with respect to expert evidence, which have been discussed elsewhere in the judgment at hand :-
i. Shewantabai Vs. Arun Damor (SC) C.A. No. 412/16, decided on 28.05.2019; holding that merely because the testator executed the will in favour of a neighbour, the genuineness of will cannot be doubted.
ii. Naveen Bhatia (since deceased) through LRs. Vs. Raj Kumari Bhatia & Ors. 2017 (4) CLJ 86 Delhi; holding that if a will was validly executed and attested, it cannot be challenged on the ground that the son of testator was unhappy with the same, having been disinherited.
iii. Radhamma & Ors. Vs. H.N. Muddu Krishna & Ors.
SC; CA No. 7092/2010; and Sanjeev Desai Vs. state NCT of Delhi & ors., 2016 Law Suit (Delhi) 5255, decided on 08.09.2016; both these are judgments on their own facts and not applicable in the case in hand.
iv. Nani Gopal Bhattacharjee (deceased) vs. Priyanshi Bhattacharjee, AIR 2019 Cal-228; lays down the requirements of execution and attestation of a valid will.
v. Anvar P.V. Vs. P.K. Basheer & Ors. (2014) 10 SCC 473;
it is irrelevant in the facts and circumstances of the PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 23 of 35 present case as I have not relied upon the opinion of either of the finger print experts.
vi. Harpal Singh @ Chhota Vs. State of Punjab, 2017 Crl.
J. 551 (SC); it is irrelevant in the facts and circumstances of the present case.
vii. Jasdeep Singh Kalsi Vs. State, FAO (OS) 15/18, decided on 18.12.2018 and Kala Devi Vs. Jagdish Chand, CA-6154/2009, SC (Civil), decided on 15.02.2018; the judgment is on its own facts and not applicable in the case in hand.
viii. Jai Singh Vs. State, Test Case. 20BJ/2003 & IA 7197/2010, decided on 13.05.2019; Laying down the law regarding due execution, attestation and proving a valid will. The judgment is on its own facts and not applicable in the case in hand.
CASE LAWS CITED BY OBJECTORS/RESPONDENTS
48. Counsel for objectors relied upon following judgments in support of his arguments :-
i. Usha Jain & Ors. Vs. Snehalata Kumudini Barnabas, CS (OS) No. 2186/2011, decided on 29.04.2019;
ii. Kishan Lal Dilawari Vs. State, (2014) 210 DLT 349, decided on 02.04.2014;
iii. Sant Prasad Rai Vs. Ramawati Devi, First Appeal No. 215/2005, Patna High Court, decided on 15.05.2012; iv. Kishan Singh Ahluwalia Vs. Smt. Sheela Saxena & Ors., AIR 2001 MP 250;
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 24 of 35v. Mrs. Indira Rai Vs. Sh. Bir Singh, (2011) 176 DLT 301, decided on 23.11.2010;
vi. Ashok Kumar Uttamchand Shah Vs. Patel Mohamad Asmal Chanchad, AIR 1999 Gujrat 108;
vii. Gurswaroop Joshi Vs. Beena Sharma & Ors., AIR 2006 SC 1999;
viii. Bheri Nageswara Rao Vs. Mavuri Veerabhadra Rao & ors., AIR 2006 AP 314;
ix. Mrs. Neera agarwal Vs. Mahender Kumar Agarwal, (2009) 4 ALD 607; and x. Nallabothu Purnaiah Vs. Garre Mallikarjuna Rao (died) & Ors. AIR 2003 AP 201.
ISSUEWISE FINDINGS
49. I have gone through the record of case file and have heard the arguments advanced by Ld. Counsel for parties and considered the case laws cited above and written arguments. My issue- wise findings are as follows :-
ISSUES NO-1 & 3
1) Whether the deceased Sh. Santa Singh S/o Sh. Sher Singh executed a valid and enforceable Will dated 30.10.2009 as claimed by the petitioner? OPP AND
3) Whether the petition is liable to be dismissed for the objections raised by the respondent/ objector no. 2 & 3 in the written statement/ objections. OPD
50. Both these issues are connected with each other, hence, taken up together.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 25 of 35There are quite a few suspicious circumstances about execution of the will in question in present case viz :-
i. The will is not registered.
ii. It is not even notarized.
iii. It does not bear even photograph of deceased. iv. Though the will is neither notarized nor registered but even then no date was typed on the same. In case of a notarized or registered will, it is possible that no date is written on the day when the document is typed because it may be presented for notarization or registration on some later day. But, there is no obvious justification for writing the date in hand on the will in question. v. The will was drafted in English language but it bears the signatures of deceased in Gurmukhi. Neither the petitioner nor the attesting witnesses were aware if the deceased knew only Hindi and Punjabi and did not know English language. The attesting witnesses have deposed that he had brought a prepared will on 30.10.2009 to gurudwara and had asked them to read it and explain its contents to him, whereafter, PW-3 had read the document and explained the contents to deceased. This fortifies the stand of objectors that the deceased did not know English language and knew only Hindi and Punjabi languages. Further, that he always used to sign in Gurmukhi. Under these circumstances coupled with the attendant facts, it is quite likely that the signature of deceased was obtained on the document putting him under some mistaken impression, if it bore his genuine PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 26 of 35 signature, though the objectors have taken a stand that the document does not bear the genuine signature of deceased at all.
vi. As per the will, the deceased has bequeathed the suit property exclusively in favour of petitioner, who is a stranger to his family and has disinherited his both sons, who are the only legal heirs of class-I, surviving him. They were to get some money only if the petitioner intended to sell the suit property. Otherwise, they were not entitled to even a single penny from the assets of deceased. The objector Harbhajan Singh has taken a stand that his younger brother Ravinder Singh is mentally weak. This stand has remained undisputed as no suggestions to the contrary has been put to the witness. It has come during arguments that Ravinder Singh is mentally weak to such an extent that he could neither do any work for earning his living nor could he get married. Despite this fact, the deceased did not make any provision in the will in favour of Ravinder Singh. It is a very important suspicious circumstance.
vii. The will makes mention of only one son of deceased, using the words "my real son" and even his name is not mentioned in the entire will. Whereas, the deceased was admittedly blessed with two sons, both of whom had been arrayed as respondents in the present petition. The objector has taken a stand that he even did not know the petitioner. The petitioner has admittedly never gone inside the house of deceased, where the deceased had PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 27 of 35 been living with his family members. In these circumstances, it is very much clear that even the petitioner is not much acquainted with the family details of the deceased.
It was he alone, who stood to gain by execution of the will in question by deceased. He was involved in a number of criminal cases and civil disputes dealing with property related fraud. It appears in this light that he had definitely played some important role in execution of the will in question, wherein, complete, proper and correct details of sons of deceased were not mentioned, most probably for the reason that petitioner was not much aware of the same and wanted to avoid any factual mistakes.
51. Apart from the will itself, there are many other facts present here, which caste a shadow of suspicion around the case of the petitioner. The petitioner was in possession of death certificate of deceased, with whom he was in no way related. He could not offer any reasonable explanation to the question put to him in this regard, during cross-examination, as to how he got to possess this document.
52. The case of the petitioner has been that he did not know about the will in his favour till the same was not handed over to him by PW-3, Sr. Vice President of gurudwara, on the day when Salana of deceased was performed by the objectors at gurudwara. PW-3 and PW-1, who was General Secretary of gurudwara, not only witnessed the will but were also aware of its contents since the day of its execution. Considering the PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 28 of 35 nature of relationship between the three people i.e. the petitioner and the other two witnesses, in as much as all of them were office bearers of managing committee of gurudwara and can be presumed to be meeting almost daily; it is impossible to believe that the details of will were not shared with the petitioner by the attesting witnesses. It is totally false stand, which cannot be sustained. Rather, the petitioner being president of the committee, was even in a position to influence the other two people. In these circumstances, coupled with the criminal antecedents of petitioner, it appears to me that while the petitioner was the mastermind behind the will in question, PW-2 and PW-3 facilitated the same by appending their signatures as attesting witnesses. All these aspects adversely affect their credit as witnesses and are sufficient to impeach their testimonies.
53. Both the sides have examined handwriting experts, who have furnished their detailed reports in favour of the party, which engaged them. The expert of petitioner has reported that the purported signature of deceased on the will are his genuine signatures, whereas, as per the report of the expert examined by objectors, the will does not bear the genuine signature of the deceased. It has been held in number of judgments that handwriting expert evidence is a very weak type of evidence for the obvious reason that in almost 100% cases they invariably furnish their opinion in favour of the party which pays their fees and engages them. I am fortified by the judgments of (i) V. Gopala Gowda & R.K. Agarwala J.J. SPS Rathore Vs. CBI & Anr., 2017 Crl. L.J. 537 (SC); and (ii) Chennadi Jalapathi PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 29 of 35 Reddy Vs. Badam Pratapa Reddy (deceased) & Anr., CA No. 7818-7819/2009, decided on 27.08.2019 (relied upon by the Ld. Counsel for petitioner with a view to persuade the court to discard the evidence of handwriting expert examined by other side).
54. The court is expert of experts and is empowered to compare disputed writings with admitted and proved writings to reach a conclusion. My view is supported by the judgment Murarilal Vs. State of MP, AIR 1980 SC 531 (again cited by Ld. Counsel for petitioner). Therefore, in view of conflicting opinions by the handwriting experts, I have myself compared the admitted signatures of deceased available on record with the disputed signature on will.
55. His original signatures are available on his account opening form and his passport. Both these documents are available in original on record. The account opening form was produced on court orders on 24.01.2020.
The signatures are also available on the backside of memorandum dated 20.12.1960. Perusal of this document reflects that it was a document relating to the Ministry of Rehabilitation, Office of Settlement Commissioner with respect to allotment/lease of a property in favour of one Smt. Pritam Kaur (wife of deceased, as informed on the ground being a displaced person during partition of India). The signature appears on point-A, on a paper which bears some averments in form of stamp.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 30 of 3556. I have compared the signature on above three documents with the signature on will in question. I am unable to conclusively decide either way but seen at first glance, it appears doubtful that the signature on the will belongs to the deceased. It has been observed that on first page of the will, the signature has been written as 'Sant Singh' instead of "Santa Singh".
57. In this view of the matter, I hold that it cannot be said if the will bears genuine or forged signature of deceased. Considering, that the will in question is neither registered nor notarized, there arises no presumption of its due execution as a document. Therefore, this fact was required to be proved by the petitioner.
58. Ld. counsel for petitioner has relied upon Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, 1963, Law Suit (SC) 191, decided on 13.09.1963; in support of handwriting expert evidence led by the petitioner. I have perused the same. The judgment is on its own facts and not applicable in the case in hand. Neither I have not relied upon the opinion of either of the finger print experts.
59. Petitioner has examined both the attesting witnesses to bring home that the will was bearing genuine signatures and thumb impression of deceased. But, there are number of factors, already discussed in preceding paras, which show that they were not independent witnesses and it is quite likely that they were in collusion with the petitioner and had co-operated with him in preparation of the will in question.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 31 of 3560. Not only this, the objectors have alleged that petitioner was a dishonest man and had doubtful integrity and many criminal cases were registered against him and he was declared BC of PS Karol Bagh. Also, about 30 civil suits were pending against him. In this regard, the Ld. Counsel for petitioner has produced before the court the certified copy of order dated 01.08.1994, passed by Division Bench of Hon'ble Delhi High Court. The same reads as follows :-
"1.8.94 Present: Mr. P.P. Grover for the petitioner.
Mr. P.S. Sharma for the State.Cr. w.403/94
Mr. Sharma appearing on behalf of the state states that in view of the fact that the petitioner is not involved in any case after 1986, the history sheet of the petitioner has been directed to be closed and his name has been removed from register No.10 by order dated 27th of July 1994 made by DCP (Central).
In pursuance of the said order of the DCP, the history sheet of the petitioner shall be destroyed. The prayer made in the petition, therefore, stands satisfied.
The writ petition is disposed of in the above terms.
Sd/-
Arun B. Saharya, J.
Sd/-
August 1,1994. C.M. Nayar, J."
61. The bare perusal of above shows that the petitioner was in fact declared a history sheeter and a good number of criminal cases were registered against him. Since, he was not found to have been involved in any criminal case after 1986, the history sheet was directed to be closed and his name removed from list of PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 32 of 35 Bad Characters (BC). In fact, this document proves the contention of objectors that the petitioner had been involved in criminal cases previously. This fact makes the execution of will in question even more doubtful or rather improbable in the given facts and circumstances.
62. Further, the petitioner has neither placed on record any document nor examined any witness to show as to how he was the one, who had been taking such good care of the deceased that the old man decided to bequeath suit property in his favour, which is a huge chunk of land. He has not filed on record even a single document or medical prescription which would show that he had ever taken the deceased to doctor or had spent a single penny on his maintenance, treatment or otherwise. The deceased must have been visiting gurudwara only for an hour or two on any given day. Rest 22-23 hours he spent at his home, living with the objectors. The petitioner never even entered inside his house. Under these circumstances, one fails to understand as to what special care and service he used to render to the deceased so as to merit a stupendous bequeath in his favour by way of present will. This contention of the petitioner has, therefore, remained only a bald assertion.
63. Not only this, he has also not been able to prove on record by leading any cogent evidence as to how the objectors had been neglecting and ill treating their father. On the other hand, the objectors have examined their immediate neighbour RW-7, who would have been a natural witness about the aspect as to how was the relationship between the deceased and his sons.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 33 of 35There is nothing on record, which would impeach the credit of this witness. He appears trustworthy and reliable and has been able to stand the test of cross-examination also. Therefore, I hold that the objectors and deceased shared a warm relationship. They (specially Harbhajan Singh) took good care of him and he had no cause of complaint against any of his family members. Further, that he never wanted to execute any will in favour of any third person and also wished to hand over the suit property to the objectors alone and none else.
64. Though, the objectors asserted that the deceased was not in sound position of mind even prior to the day on which the will in question was alleged to have been executed but during his own cross-examination, objector Harbhajan Singh/respondent no-2 has admitted that he did not suffer from any serious mental incapacity but only old age physical diseases and forgetfulness. Therefore, objectors have failed to establish if the deceased suffered from any mental incapacity.
65. That apart, there are number of suspicious circumstances;
some of which have been pleaded by the objectors and the other have been observed by me from the record. The burden to explain the above mentioned circumstances rested upon the shoulders of petitioner, which he miserably failed to discharge. Rather, he did not offer any explanation at all; what to talk of an explanation worthy of acceptance.
66. In absence of any evidence to dispel the suspicious circumstances, I hold that the petitioner has not been able to PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 34 of 35 prove that the deceased had executed a valid and enforceable will dated 30.10.2009 in his favour, as claimed by the petitioner. Accordingly, the issues no. 1 and 3 are decided in favour of objectors and against the petitioner.
Issues No. 2 & 42) Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP AND
4) Relief
67. The natural corollary of the above discussion is that the petitioner is not entitled for probate/Letter of Administration on the basis of aforesaid will. Both these issues are decided in favour of objectors and against the petitioner. The petition fails and is dismissed.
68. File be consigned to record room.
Digitally signed by SAVITRI SAVITRI
CHAUDHARY
CHAUDHARY
Announced in the open court ATTRI
ATTRI
Date: 2020.02.06
on 31st day of January 2020 16:26:01 +0530
(SAVITRI)
Addl. District Judge-02 (West)
Tis Hazari Courts: Delhi
Note :- The above judgment has been dictated directly on computer and shorthand dictation was not given to the stenographer.
PC No. 16046/16 Sh. Harjinder Pal Singh Vs. State & Anr. Page 35 of 35