Delhi District Court
Baljeet Singh vs Ram Kishan (Since Deceased) on 4 September, 2018
IN THE COURT OF SH VISHAL GOGNE:ADDL.
DISTRICT JUDGE02: SOUTHWEST DISTRICT:
DWARKA COURTS:NEW DELHI
Civil Suit No. 15293/16
1.Baljeet Singh S/o Late Sh. Mange Ram
2. Virender Singh S/o Late Sh. Mange Ram
3. Pradeep S/o Late Sh. Mahabir
4. Karambir S/o Late Sh. Mahabir
5. Ved Prakash S/o Late Sh. Mahabir
6. Jai Singh S/o Late Sh. Kamlu
7. Bhiku Ram S/o Late Sh. Sri Ram
8. Shailender S/o Late Sri Ram
9. Rakesh S/o Late Sh. Sri Ram All residents of Village and PO Jharoda Kalan New Delhi110072 ....Plaintiffs VERSUS
1. Ram Kishan (since deceased) CS NO. 15293/16 Page no.1/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 Through his LRs.
(i) Smt. Bharpai, widow of late Sh. Ram Kishan R/o VPO Jharoda Kalan, Delhi
(ii) Smt. Rajwati, W/o Prem, D/o Sh. Ram Kishan R/o Village Girawar
(iii) Smt. Rajesh, W/o Satya Parkash@Chini D/o Late Sh. Ram Kishan
(iv) Smt. Anita W/o Sh. Jai Parkash @ Pappu D/o Late Sh. Ram Kishan Both R/o village Chawla, Najafgarh, Delhi
2. Surender S/o Late Sh. Ram Kishan
3. Krishan S/o Late Sh. Ram Kishan (Both residents of VPO Jharoda Kalan, Delhi)
4. Narender Rana S/o Sh. Kela Singh R/o H. No. 62, Village Mungesh Pur, Delhi
5. Rakesh S/o Sh. Sultan Singh R/o VPO Nahara Distt. Sonepat (Haryana) ...Defendants CS NO. 15293/16 Page no.2/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 Date of institution of the suit : 01.09.2008 Date of reserving the judgment : 02.08.2018 Date of pronouncement : 04.09.2018 JUDGMENT
1. The present suit is a ten year old matter having been instituted on 01.09.2008.
2. The plaintiffs seek declaration as null and void of the two wills executed by one of their predecessors in interest namely Rishal Singh on 03.06.1986 and 28.05.2008 respectively. The first of these wills was a registered instrument whereas the second will was unregistered. It was the contention of the plaintiffs that the wills are forged and fabricated.
3. To elaborate on the facts, Rishal Singh was a cosharer in land in khata khatoni number 159/164, measuring 95 bighas and 16 biswas situated in the Revenue Estate of village Jharoda Kalan, New Delhi apart from certain Lal Dora properties and movable assets.
4. The common ancestor of the parties was Shiv Dayal who had two sons namely Sahaj Ram and Indraj. Rishal Singh is CS NO. 15293/16 Page no.3/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 the only son of Sahaj Ram and was never married. The plaintiffs are descendants from Indraj and so are defendants no. 1 to 3.
5. Indraj was succeeded by four sons namely Mir Singh, Hira Lal, Shri Lal and Kamlu. Whereas the plaintiffs are apparently successors of the line of Indraj having descended from Hira Lal, Shri Ram and Kamlu, defendant no.1 is one of the sons of Mir Singh. Defendants no.2 and 3 are the sons of defendant no.1.
6. Defendants no.4 and 5 are not related to the parties by way of blood relations and are not a part of the pedigree table. Whereas defendants no.4 and 5 are not related to Rishal Singh, they are stated to be near relatives of defendant no.1.
7. The plaint recorded the averment that defendant no.1 had claimed a share of the land of Rishal Singh by way of will dated 03.06.1986 executed by the later. The second will, dated 28.05.2008, records defendants no.3 to 5 as the beneficiaries. Further, the second will recorded defendant no.1 as the adopted son of Rishal Singh.
8. On the basis of the second will, defendant no.1 namely Ram CS NO. 15293/16 Page no.4/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 Kishan filed an affidavit of no objection to the land holdings of Rishal Singh being transferred to defendants no.2 to 5. This no objection was tendered by way of an affidavit by defendant no.1 before the Tehsildar, Najafgarh, Delhi. The plaintiffs raised objections before the Tehsildar. The plaint maintains that the Tehsildar is not empowered to sanction mutation on the basis of these wills. The plaint further states that defendant no.1 employed forgery to get his name mutated in the place of his father i.e. Mir Singh.
9. The averments regarding the first will being forged were that since the second will sought to make the first will redundant and the second will also showed defendant no.1 as the adopted son of Rishal Singh, the first will was forged as no adoption deed had been filed by defendant no.1. The plaintiffs averred that both wills are forged and fabricated.
10. It was further averred in the plaint that an order of partition of the holdings between the parties had been effected by the SDM vide order dated 28.07.2003.
11.However, an appeal had been preferred by the plaintiffs against the said order before the Deputy Commissioner, CS NO. 15293/16 Page no.5/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 South West, Kapashera, New Delhi.
12.The plaintiffs were therefore of the averment that the shares of the parties were not clear.
13.The prayers in the suit were recorded as under:
Pass a decree of declaration whereby the wills which are annexed with this plaint as an Annexure A1 and A2 which may kindly be declared as null and void in so far as these wills relate to movable assets and immovable properties, more so, Lal dora properties which are shown in the site plan. As these two wills are forged and fabricated.
A decree in terms of above may kindly be granted in favour of plaintiff/applicants and against the defendants. However, as regard to Bhoomidari right, the Revenue Authorities shall take care thereof as the same are also under challenge before Revenue authorities.
The suit of plaintiff/applicants may be decreed with cost through against the defendants.
14.In response, the joint written statement of the defendants stated that the plaintiff had not approached the court with clean hands and there was no stay order passed by the Deputy Commissioner on 22.06.2004. Also, that the suit was not maintainable in the present form as the relief was CS NO. 15293/16 Page no.6/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 being sought only qua a part of the property mentioned in the will i.e. a lal dora plot and some movable assets. The suit was also represented to be not maintainable for reason of non joinder of certain necessary parties i.e. the other LRs shown in the Pedigree Table.
15.On merits, although the pedigree table was not denied, it was stated that Rishal Singh was not married and was looked after by his nephew i.e. defendant no.1 namely Ram Kishan. Both wills were stated to be genuine. It was also revealed that the suit property had been partitioned by the SDM vide order dated 28.07.2003 at the instance of Rishal Singh and the said order had been reflected in Revenue records. Subsequently,vide order of the Tehsildar dated 06.06.2008, the share of Rishal Singh had been separated from the joint khata of Indraj and his LRs and had been separately recorded in the revenue record.
16.The written statement maintained that the plaintiffs had now became dishonest in order to grab the share of the defendants.
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17.It was also stated in the written statement that the plaintiffs had challenged the order of the SDM dated 28.07.2003 before the concerned Deputy Commissioner.
18.The replication filed by the plaintiff denied the averments made in the written statement and stated that the Deputy Commissioner had granted a stay in the present proceedings against the order of the Tehsildar dated 02.01.2009. Also that the Deputy Commissioner had passed another stay order dated 17.03.2010.
19.The suit was tried on the following issues.
(i). Whether the plaintiffs have not approached the Court with clean hands and have concealed material facts as alleged in preliminary objection No.2 of the written statement? OPD
(ii).Whether the plaint has not been properly valued for the purpose of Court fees as alleged by the defendants? OPD
(iii). Whether the suit is not maintainable in its present form? OPD
(iv) Whether the suit is bad for nonjoinder of necessary parties? OPD
(v) Whether the plaintiffs are entitled to a decree of declaration, thereby declaring the CS NO. 15293/16 Page no.8/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 Wills dated 28.05.2008 and 03.06.1986 as non est? OPP
(vi) To what relief, if any, is the plaintiffs entitled?
20.Two witnesses were examined on behalf of the plaintiffs i.e. PW1 namely Jai Singh (Plaintiff no.6) and a Hand Writing Expert i.e. PW2.
21.PW1 relied on the following documents:
(i) The original khatoni in respect of the land in question (Ex. PW1/1).
(ii) The will dated 03.06.1986 (Ex. PW1/2).
(iii) The will dated 28.05.2008 (Ex. PW1/3).
22.PW2 filed his report regarding the thumb impressions of Rishal Singh as Ex. PW2/1.
23.Three witnesses came to be examined on behalf of the defendants.
24.The first of these witnesses was Umesh Dahiya (DW1) who did not tender any document apart from stating that he was the witness to the will of Sh. Rishal Singh dated 28.05.2008 (Ex.PW1/3).
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25.The second witness was defendant no.5 namely Rakesh who deposed as DW2 to state that he was one of the beneficiaries in the will dated 28.05.2008.
26.The Kanoongo from the office of SDM, Najafgarh, Delhi who filed the documents Ex. DW3/A which was Mishal No./file no.M340/co/TNG 20072008 was the last witness as DW3.
27.During the course of final arguments, the ld counsel for the plaintiffs led great emphasis on the circumstance of defendants No.4 and 5 not being related to the testator to argue that the second will was forged. The counsel raised a question as to how the testator would will away a large part of his property in favour of two unrelated persons. It was also submitted that no witness to the first will had been examined by the defendant whereas the second will, though being affirmed by one attesting witness i.e. DW1, was executed only a few days prior to the death of Rishal Singh. The counsel submitted that the will was therefore forged.
28.In response, the ld counsel for the defendants submitted that not only was the first will in favour of one of the CS NO. 15293/16 Page no.10/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 acknowledged LRs of Rishal Singh i.e. defendant no.1 but that the second will also in favour of related persons i.e. the sons of defendant no.1 (i.e. defendants no.2 and 3) and the relatives of defendant no.1 (Defendants no.4 and 5). It was thus submitted that the half share which Rishal Singh intended to go to defendant no.1 i.e. Ram Kishan through the first will dated 03.08.1986 had remained in the hands of defendant no.1 through the second will dated 28.05.2008. The counsel agitated that the operation of the second will was not so materially different from intent of the first will that suspicion could be cast upon this will only by the circumstance of two other persons i.e. defendants no.4 and 5 being added as beneficiaries.
29.The counsel for the defendants also argued that the remedies of partition and mutation which were not only within the scope of revenue authorities but had also been duly contested by both parties before the SDM and Tehsildar respectively were being admitted to be reagitated before this civil court through the present suit for declaration. The counsel added that the second will, which was the final will CS NO. 15293/16 Page no.11/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 of Rishal Singh had been proved by one of the attesting witnesses i.e. Umesh Kumar (DW1).
30.The court has considered the arguments advanced by the respective counsels in light of the evidence on record. The issues are decided as under.
ISSUE No.(i) Whether the plaintiffs have not approached the Court with clean hands and have concealed material facts as alleged in preliminary objection No.2 of the written statement? OPD
31.The present issue related to the purported concealment of facts by the plaintiff. The defendants submitted in preliminary objection No.2 in the written statement that there was no stay granted by the order of the DC, SW after 22.06.2004.
32.The court does not find any evidence to suggest that the plaintiffs concealed the said proceedings. Infact, the plaint recorded the averment that the SDM had pronounced an order of partition between the parties on 28.07.2003 against which an appeal had been filed by the plaintiffs before the DC, South West, Kapashera, New Delhi. The replication of the plaintiff maintained that certain stay orders had been CS NO. 15293/16 Page no.12/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 passed by the DC.
33.Hence, there is sufficient disclosure by the plaintiffs regarding the other proceedings. Infact, the mutation proceedings were also clarified in the plaint itself.
34.The court would observe that it is one thing for the parties to be hotly contesting various proceedings before different fora and even having different versions regarding the operation and finality of proceedings or stay orders but quite another to mislead the court. The ld counsel for the defendants failed to point out how this court had been misled by the plaintiffs or any adverse order passed against the defendants which could be ascribed to concealment of facts by the plaintiffs.
35.Issue no.(i) is decided in favour of the plaintiffs and against the defendants.
ISSUE No.(ii).Whether the plaint has not been properly valued for the purpose of Court fees as alleged by the defendants? OPD
36.Again, no specific evidence was led by the defendants to fault the valuation of the relief of declaration by the CS NO. 15293/16 Page no.13/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 plaintiffs.
37.Issue no.(ii) is decided in favour of the plaintiffs and against the defendants.
ISSUE No. (iii). Whether the suit is not maintainable in its present form? OPD
38.This issue was apparently framed with an eye upon preliminary objection no.4 in the written statement. This objection was to the effect that since the suit related only to a portion of the properties mentioned in the will, the suit was not maintainable.
39.The court would notice that the prayer in the suit seeks declaration, in toto, of the two wills as null and void. Infact, the prayer specified movable assets, movable properties and the Lal Dora properties.
40.The objection of the defendants as well as the issue at hand are both perfunctory.
41.Issue no.(iii) is decided in favour of the plaintiffs and against the defendants.
ISSUE No. (iv) Whether the suit is bad for nonjoinder of necessary parties? OPD CS NO. 15293/16 Page no.14/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018
42.This issue pertains to the non joining of certain other LRs of Rishal Singh (i.e. LRs other than the present parties).
43.The court would first highlight that as specified by section 35 of the Specific Relief Act,1963 a decree of declaration is binding only between the parties to the suit. Such a declaration would not operate in rem. Hence, the non impleadment of the other LRs or descendants of the common ancestor i.e. Shiv Dayal is not a constraint upon the decision of any material issue between the parties or the passing of a decree.
44.The LRs who were not joined to the present proceedings are not stated to be the beneficiaries of the two wills and there has admittedly been a partition between the parties before the court of SDM. In this scenario, the present suit, which relates to declaration of the wills in favour of three LRs i.e. defendant nos. 1 to 3, can be decided on the touch stone of forgery or otherwise between the existing parties.
45.Issue no.(iv) is decided in favour of the plaintiffs and against the defendants.
CS NO. 15293/16 Page no.15/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 ISSUE No. (v) Whether the plaintiffs are entitled to a decree of declaration, thereby declaring the Wills dated 28.05.2008 and 03.06.1986 as non est? OPP
46.The first witness for the plaintiffs in support of the averments regarding forgery of the two wills was plaintiff no.6 i.e. Jai Singh (PW1). The tenor of his affidavit regarding the allegation of forgery was in the nature of bald assertions regarding the two wills being forged. However, PW1 admittedly not being any manner of a handwriting expert, his deposition in this regard was a fruitless exercise.
47.Also, his deposition, much like the plaint, was argumentative. It was asserted that if the second will is taken to be correct, then defendant no.1 would be the adopted son of Rishal Singh. Resultantly, there would be no necessity of executing any will in his favour as defendant no.1 would have automatically inherited the property of Rishal Singh being his adopted son.
48.The argument, apart from being flawed, is also self serving.
It is entirely the volition of a testator as to how many wills he decides to execute in his life time. The revocation of an CS NO. 15293/16 Page no.16/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 earlier will is entirely the prerogative of a testator. The defendants had not recorded any averment that defendant no.1 is the adopted son of Rishal Singh. Infact, the pedigree table, which is not challenged by either party shows defendant no.1 i.e. Ram Kishan to be the nephew of Rishal Singh i.e. the testator. The operation of a will is such that the property devolves as per the wishes of the testator. The reference to defendant no.1 namely Ram Kishan as the adopted son of Rishal Singh in his second will dated 28.05.2008 (Ex. PW1/3) as his adopted son would not unsettle the devolution of property intended in the said will. While intending that a property should devolve on a certain person, the will is only acquired to identity the said person. The description of defendant no.1 as a adopted son of Rishal Singh was only a red herring and not of any diminishing effect to the terms of the will dated 28.05.2008.
49.The last aspect of the deposition of PW1 was that the testator namely Rishal Singh was in a critical physical and mental condition from 28.05.2008 i.e. the date of execution of the second will.
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50.Admittedly, Rishal Singh expired a few days later in the first week of June 2008 (as an admitted by DW1 in his cross examination). Yet, this circumstance does not by itself indicate that the will was forged or that Rishal Singh was not in a sound physical and mental condition on 28.05.2008. It is not uncommon for wills to be executed by testators at the fag ends of their lives. Infact, the perception of the impending end of one's life may itself be a trigger for a person to record a will. After all, a will is recognised as a valid mode of inheritance of property only because it expresses the desire or wish of the person in question. The will recorded in the last days of a testator's life is not necessarily invalid. Infact, the contrary may be more true. It would take strong and assertive evidence for the court to displace the assumption that the testator intended anything other than what is recorded in the will.
51.In the present trial, PW1 did not offer any medical evidence to substantiate the purported critical condition of Rishal Singh on 28.05.2008.
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52.The will was infact proved by one of the attesting witnesses i.e. Umesh Yadav (DW1).
53.The plaintiffs had sought to challenge the credibility of this witness on the ground that he was the brother of one of the beneficiaries in the will i.e. defendant no.5 namely Rakesh. The counsel for the plaintiffs added that Rakesh was not even related to Rishal Singh.
54.The court would reject the above argument for the said reason that the last wishes of a testator cannot be supplanted by the reasoning of an objector unless the will is shown to be forged. The circumstance of unrelated persons being beneficiaries is not by itself evidence of forgery.
55.Similarly, there is no reason to assume that the brother of the beneficiary would depose falsely only because the later stood to receive some property under the will. The deposition of DW1 is credible.
56.The other witness for the plaintiffs had been a handwriting expert (PW2) who furnished his report Ex. DW2/1 based upon comparison of the thumb impressions of Rishal Singh on the two wills dated 28.05.2008 and 03.06.1986.
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57.The report concluded that the disputed signatures of Rishal on the two wills were not identical with the admitted signatures available with PW2.
58.The court finds the deposition of PW2 to be inadmissible.
This witness did not compare the original wills. What was compared was only the thumb impression on the photocopies of both wills. DW1 also admitted during cross examination that the thumb impressions were not clear on either will. He clarified that the report had been submitted only on the basis of those features of the thumb impressions which were clear and legible. The court finds that the expert did not have the availability of sufficient material for rendering the opinion Ex. PW2/1.
59. Hence, the deposition of PW2 did not lend any support to the allegation of forgery of either of the two wills.
60.The court finds that whereas the plaintiffs have failed to prove the forgery of either will, the status of the two wills as proved to be genuine versus forged is required to be clarified by the court as under.
CS NO. 15293/16 Page no.20/22 Vishal Gogne ADJ2, Dwarka, N.Delhi/04.09.2018 Will dated 03.06.1986 (Ex. PW1/2)
61.Sine a will is required to be proved under section 68 of the Indian Evidence Act, 1872 by the deposition of at least one attesting witness, the will dated 03.06.1986 remains not proved as no attesting witness to this will was examined by the defendants.
62.However, the evidence led by the plaintiffs has not established this will to be a forgery either.
63.Therefore, the will dated 03.06.1986 is not found to be a forgery though the same has not been proved in the present trial.
Will dated 28.05.2008 (Ex. PW1/3).
64.The court has, in the preceding part of this judgment, recorded the finding that there is no evidence on record to treat this will as forged and that one of the attesting witnesses i.e. DW1 has proved the same.
65.Thus, the will dated 28.05.2008 is held to be proved as per law and found to be not forged.
66.In view of the above findings on the two wills, the plaintiffs are not entitled to a declaration of the same as null and void.
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67.Issue no.(v) is decided against the plaintiffs. RELIEF
68.In view of the findings upon issue no.5, the plaintiffs are not entitled to any relief.
69.The suit is dismissed.
70.Let decree sheet be drawn up accordingly.
71.The parties shall bear their own costs.
72.File be consigned to the record room.
Pronounced in the open (Vishal Gogne)
court on 04.09.2018 Addl. District Judge02/SouthWest,
Dwarka Courts Complex, New Delhi
Digitally signed
by VISHAL
VISHAL GOGNE
GOGNE Date:
2018.09.04
17:21:12 +0530
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ADJ2, Dwarka, N.Delhi/04.09.2018