Delhi District Court
Pawan Kumar vs State on 6 June, 2024
Pawan Kumar Vs. The State & Anr.
IN THE COURT OF DISTRICT JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC No. 5998/2016
Filing No. 5322/2010
CNR No. DLST01-000412-2010
In the matter of
Pawan Kumar
S/o Late Sh. Dharam Shil
R/o E-2/57, Sector-11, Group-6,
Rohini, Delhi-85 ...Petitioner
Versus
1. State
2. Raman Kumar
S/o Late Sh. Dharam Shil
R/o S-129, Greater Kailash-I,
New Delhi
Also at
AGM
SBI Commercial Branch
65, Neelam Bata Road
NIT, Faridabad-121001. ...Respondents
PC No. 5998/2016
CNR No. DLST01-000412-2010
Page 1 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024
Pawan Kumar Vs. The State & Anr.
Date of Institution : 18.02.2010
Date of reserving the judgment : 10.05.2024
Date of pronouncement : 06.06.2024
Decision: Dismissed : Dismissed
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, 1925 FOR GRANT OF PROBATE IN
RESPECT OF THE WILL DATED 17.08.1999 EXECUTED
BY SH. DHARAM SHIL
JUDGMENT
1. The present petition has been filed by the petitioner under Section 276, the Indian Succession Act, for obtaining Probate in respect of a registered Will duly executed by late Sh. Dharam Shil, S/o Sh. Jai Gopal, R/o S-129 Greater Kailash Part-I New Delhi-48 (since deceased) (hereinafter referred to as 'testator'). The case of the petitioner, as per the petition, is as under:-
1.1. The petitioner is a law abiding citizen of India and is filing the present petition for probate in respect of a registered Will dated 17.08.1999 duly executed by late Sh.
Dharam Shil, S/o Sh. Jai Gopal, R/s S-129, Greater Kailash-1, New Delhi-48.
1.2. Sh. Dharam Shil was the resident of S-129, Greater Kailash-I, Delhi and he died on 12.02.2009.
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1.3. Prior to his death Sh. Dharam Shil executed the registered Will in favour of the petitioner in respect of property bearing no. S-129, Greater Kailash-I, Delhi vide registration no.365 Additional Book No. III, Volume No.8 Page No.67 to 69 on 17.08.1999 onto his two sons i.e. the petitioner and his brother.
1.4. The mother of the petitioner Smt. Swaran Lata died on 04.08.2008 and she did not leave any Will and thus her share also devolved upon the petitioner and his brother in equal share as they are the only surviving legal heirs of Sh. Dharam Shil and Smt. Swaran Lata, w/o Sh. Dharam Shil.
1.5. The present petitioner along with his brother Raman Kumar are the legatee in respect of property No. S- 129, Greater Kailash-I, New Delhi-48.
1.6. The aforesaid Will was duly attested by the attesting witnesses and signatures were put by the executer namely Sh. Dharam Shil in the presence of attesting witnesses and the attesting witnesses signed the aforesaid Will in the presence of testator all being present together before the office of Sub Registrar, Delhi. 1.7. The executer namely Sh. Dharam Shil was in sound disposing mind at the time of execution of the Will PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 3 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
which was duly executed by him.
1.8. The said Will was executed by Sh. Dharam Shil voluntarily and without any outside pressure and in full possession of his mental faculties.
1.9. The executor was resident of Greater Kailash at the time of his death.
1.10. The executor left behind the two Class-I legal heirs i.e. petitioner and his brother, who has been impleaded as respondent no.2. The above said Will is the last Will of the deceased.
1.11. The petitioner had not earlier filed any other petition for probate in respect of the above said property on the basis of registered Will dated 17.08.1999. The petitioner is entitled to the grant of probate of the Will dated 17.08.1999 in respect of House No. S-129 Greater Kailash-I, New Delhi-48.
1.12. There is no legal bar or impediment which may debar the petitioner from being granted probate in respect of the Will dated 17.08.1999 in respect of the above said property. Hence, the present petition has been filed with the following prayers:-
"(i) It is, therefore, prayed that the Hon'ble Court may kindly be pleased to grant probate in respect of the PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 4 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
Will dated 17.08.1999 executed by Dharam Shil in the interest of justice.
(ii) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case may also kindly be passed in favour of the petitioner."
2. Vide order dated 21.01.2011, the citation was directed to be published in the newspaper for general public. The citation was published in the newspaper "The Statesman" dated 30.07.2011. Both the respondents were served.
3. The petition is opposed by respondent No.2 i.e. brother of the petitioner. Respondent No. 2 appeared and filed his objections on 01.02.2012.
4. Objections / Written Statement: -
4.1. The Will which has been propounded by the Petitioner in the present Petition has already been revoked by the Testator i.e. Dharam Shil, who was the father of the petitioner and respondents No. 2 vide registered Will dated 01.10.2008 duly registered with the Registrar V on 03.10.2008 with document No. 5859 in Addl. Book No. I Vol. No. 1665 on Pages 192-193.
4.2. This fact of execution of abovesaid Will was duly conveyed to the petitioner and a copy of the said Will was duly supplied after the death of the Testator i.e. Dharam PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 5 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
Shil in front of many relatives and the family members of both the sons i.e. petitioner and respondents no. 2 and there was an annoyance by the petitioner on reading of the contentions of the Will, where it was specifically mentioned the remarks passed by petitioner's wife which was duly recorded in the said Will.
4.3. The petitioner herein has filed the Probate pertaining to the Will dated 17.08.1999 that has already been revoked and the last Will of the testator has duly been executed and registered i.e. Will dated 01.10.2008 where the father of the petitioner and respondents no. 2 had bequeathed only ground floor to the petitioner and the first floor and roof of the second floor in the latest Will i.e. 01.10.2008 is bequeathed in favour of respondents no. 2 and further more there is a rider that if the petitioner sells the ground floor then only respondents no. 2 has right to purchase the same at the circle rate and that too within a period of two years. Further more there are many more riders against petitioner and in favour of respondent no. 2. 4.4. The intention of the petitioner was malafide at the very out set at the time of filing of the petition where the respondent No. 2 i.e. the brother and class-I legal heir was not made a party and concealed the fact in the present PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 6 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
petition and thereafter he was made a party on the contention of the Court.
4.5. The petition is not in the format prescribed under the Succession Act and not verified as per the procedure laid down where the witnesses have to be contended in the petition itself with the proper verification. On this objections, the petition is liable to be dismissed.
5. On the basis of the record, following issues were framed vide order dated 05.11.2012: -
1. Whether the Will dated 17.08.1999 executed by Late Shri Dharam Shil, S/o Late Shri Jai Gopal is legally and validly executed? OPP
2. Whether petitioner is entitled for grant of probate in respect of Will dated 17.08.1999 in his favour? OPP
3. Whether the objections filed on behalf of respondent No.2 are valid and maintainable? OPR
4. Relief.
6. Vide order dated 06.04.2013, the matter was dismissed in default and also on account of non-prosecution. On 06.05.2013, an application was filed on behalf of applicant under Order IX Rule 4 CPC r/w Section 151 CPC for restoration of petition. Vide order dated 05.02.2014, the petition was restored to its original position.
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7. The petitioner examined himself as PW-1. He tendered his evidence by way of affidavit which is Ex. PW-1/A. He has relied upon the following documents: -
a) Death certificate of Sh. Dharam Shil as Ex.PW1/1.
b) Certified copy of the Will dated 17.08.1999 of Sh. Dharam Shil as Ex.PW1/2.
c) Death certificate of Smt. Swaran Lata as Ex.PW1/3.
7.1. PW1 deposed on the lines of his petition. During his cross examination he deposed as under:
"I am 72 years old. I am residing at the address mentioned above (E-2/57, Sector-11, Group 6, Rohini, Delhi) since the year 1993. Present house was owned by him, which was an LIG flat. The said flat was purchased after disposing off the jewellery of my wife. The jewellery of my wife were disposed off by my father for raising the funds. I was 39 years old at that time (at the time of purchasing the property). My father was already retired at that time. I had handed over jewellery of my wife to my father as I was working and have no time whereas my father was already retired from his job. I do not know as to which jeweller, my father had sold the jewelery of my wife. It is wrong to suggest my father had sold the jewelery of my wife against our wishes. (vol. My father was authorized by me and my wife). In addition to the funds raised by disposing off the jewellery of my wife, my mother-in-law had also gave some money. My wife was also having her own savings as she was in Government Employment. I do not remember as to in which year I have filed the present probate petition, however, about 13 years have passed. I had not impleaded my brother (respondent no.2) as party to the present petition initially. I do not know as to why my brother was not impleaded as a party initially. The Will annexed to the petition was handed over to me by PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 8 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
my father when my father and mother were alive. My father had handed over me the copy of the Will after about 4/5 years of execution of the Will, it was handed over to me in Greater Kailash house itself. It was handed over to me in presence of my mother. There was no other person present with us, at that time. There was no any specific occasion but my father had stated that he had executed a Will and he should keep a copy of the same. Original Will was kept by my father in his own Almirah. Original Will (dated 17.08.1999) as on today was in the custody of my brother Raman Kumar. Since after death of my wife all keys of Almirahs were in custody of my brother Raman Kumar. My father had died in February, 2009. Sh. Lalit Bahl was the Advocate of Sh. Raman Kumar. I do not know if Lalit Bahl was a very close friend of my father. After the death of my father in initial four/five days, in addition of me and my wife, my brother Raman Kumar and his wife were in the Greater Kailash House. However, the people from the colony and relatives used to visit us occasionally. It is wrong to suggest that Sh. Lalit Bahl used to visit our house regularly in those four/five days. I had shown copy of Will dated 17.08.1999 to my wife. I had not disclosed about the copy of the Will to any person other than my wife. For the first time copy of the said Will i.e. dated 17.08.1999, was annexed with the present petition. I had come to know about the Will propounded by Sh. Raman Kumar only when he filed the probate petition. It is wrong to suggest that the Will propounded by Sh. Raman Kumar had come to my notice during those four/five days when I was in Greater Kailash House, after the death of my father. I do not remember as to when I lastly met Sh. Lalit Bahl. It is wrong to suggest that Will dated 17.08.1999 was not the last Will of my father Late Sh. Dharam Shil00000000000. I cannot say that the Will propounded by Sh. Raman Kumar is the last Will executed by my father. It is wrong to suggest that he had deposed falsely."
7.2. The petitioner also examined Sh. Naveen Gandas, Record Keeper, Department of Delhi Archives as PW-2.
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"I have brought the summon record which is Registered Will dated 17.08.1999 registered as document No. 365 in additional book number III, Volume No.8 on pages 67 to 69. I have seen document Ex.PW1/2 which is the certified copy of the registered will referred above. I have compared the same with the original".
8. The petitioner did not examine any other witness. Therefore, the PE was closed.
9. On behalf of the respondent No. 2 Raman Kumar, he was examined as RW-1 who tendered his evidence by way of affidavit Ex. RW1-/A. He had relied upon the document already exhibited as Ex.PW1/1.
9.1. RW-1 Raman Kumar was cross- examined by Ld. Counsel for the petitioner as under :-
"I am aware that my late father had executed a registered Will dated 17.08.1999, however, earlier I was not aware about it and I came to know about it in the year 2008. (Vol. I came to know about the first Will when my father executed the second Will). (on seeing Ex.PW1/2) It appears to be correct that signature at point A, B, C and D are that of my father. It is correct that my father committed suicide on 12.02.2009 at House No. S-129, Greater Kailash- I, New Delhi. It is correct that I had not mentioned about the factum of committing suicide by my father, either in my objections in the present case nor in my affidavit in evidence Ex.RW1/A. It is correct that my brother Pawan Kumar and his family has never resided permanently at House No. S-129, Greater Kailash-I, New Delhi after August, 1999. I am not aware if my father and mother used to visit the family of my brother Pawan Kumar at his residence in Rohini, Delhi, even after the year PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 10 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
1999. (Vol. After the year 1991 my brother and his family shifted to Rohini, Delhi, and never came to Greater Kailash, New Delhi, permanently. I cannot say as to in which year, month or day, my brother and his family visited my parents after the year 1991. They have never came to Greater Kailash house in my presence. It is wrong to suggest that me and my family never wanted that petitioner and his family should reside in Greater Kailash house. (Vol. My father and mother did not want that my brother Pawan Kumar, should stay in Greater Kailash house, Pawan Kumar and his wife used to have fights with my parents). It is wrong to suggest that my brother and his wife never had any quarrel with my parents, and my parents have equal love for my brother and his family. I am not aware if my parents used to visit my brother and his family as they have equal love and affection with my brother and his family. I am not aware about any of visit of my parents to the family of my brother. (Vol. My brother Sh. Pawan Kumar and his wife used to torture my parents which is also mentioned in the second Will). It is wrong to suggest that the factum of torture has been mentioned at my instance. It is further wrong to suggest that the second Will has been dictated by me.
My mother was never hospitalized for any illness. My father remained hospitalized for Hernia Operation for 2/3 days only. I do not remember, the year, month or date, when he was hospitalized. Apart from Hernia Operation, my father never remained hospitalized. I do not have any document to show hospitalization of my father for Hernia Operation. It is wrong to suggest that my father was never hospitalized nor any such operation was ever conducted upon him and that is the reason I have no document to show that he was hospitalized. I came to know about existence of document Ex.PW1/2 only in the year 2008, when the second Will was executed. It is wrong to suggest that PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 11 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
original of Ex.PW1/2 is in my possession. (Vol. I have not even seen the said Will). I do not remember as to when I had first seen document Ex.PW1/2, when petitioner filed the present petition and I was not a party to the said petition. It is correct that I am deposing in the same matter. It is correct that I have filed objections in the present case when I was made a party to the petition.
It is wrong to suggest that the facts mentioned by me in my affidavit Ex.RW1/A have not been mentioned by my in the objection filed by me in the present petition. It is wrong to suggest that I had got a gift deed executed from my father in respect of the roof right of first floor of property No. S-129, Greater Kailash-I, New Delhi. (Vol. My father had executed the gift deed of his own). It is wrong to suggest that my father had executed Will Ex.PW1/2 in August, 1999 as he was apprehending that the way I got the gift deed executed in respect of the terrace of the first floor in my father, I might also get the entire property transferred in my favour by using my influence. (Vol. The entire suggestion is false and based on wrong averments).
It is correct that my mother had died on 04.08.2008. It is wrong to suggest that till my mother was alive I could not influence my father to execute Will in my favour as she has always opposed that idea. It is wrong to suggest that my mother has always opposed the idea of bequeathing the property exclusively in my favour and not to give anything to Pawan Kumar. (Vol. No such communication was ever made in my presence). It is wrong to suggest that my father was under severe depression since the year 2000 and he was under medication for that. I have no document in respect of the treatment of my father relating to depression or any other physical or mental condition. It is wrong to suggest that I am intentionally concealing all medical documents which are in my power and possession. It is wrong to suggest that I never wanted that my brother PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 12 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
Pawan Kumar should have share in property No. S- 129, Greater Kailash-I, New Delhi. It is correct that my father had committed suicide within four months of execution of Will of the year 2008. It is wrong to suggest that my father had committed suicide within four months of the execution of the Will, as he was not aware earlier that the Will has been got executed by me and the moment he came to know about the factum of the Will, he had committed suicide. (Vol. In the year 2008 when my father disclosed about the fact of the execution of the second Will to my brother, he started torturing my father, which was the reason for his committing suicide). It is correct that I had never made any complaint to the police complaining that my brother had started torturing my father after the year 2008 and it was reason for his committing suicide. It is wrong to suggest that it was because of the continuous harassment and torture by me and my family, my father has committed suicide. It is correct that neither my brother nor his family resided in Greater Kailash after the year 1991 except on few occasions. I do not know if any Cataract operation was conducted on the eyes of my Bhabhi in September, 2004 and she along with my brother remained in Greater Kailash House for about two months. I am not aware if my father has taken my Bhabhi to Patnayak Eye Hospital in Greater Kailash-I, New Delhi, for eye treatment. I do not remember if my brother was treated in Mool Chand Hospital for Fracture in his leg and he remained in hospital from 13.12.2004 to 16.12.2004, as my father had got him admitted there. It is wrong to suggest that my brother slipped in Greater Kailash-I house and suffered fracture. I do not remember that if my brother and his family remained in Greater Kailash-I house for 15 to 20 days. It is correct that I have never voluntarily asked my brother to shift into Greater Kailash-I house after the death of my father".PC No. 5998/2016
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"It is wrong to suggest that gift deed in my favour, executed by my father in the year 1999, was due to my pressure and persuasion. It is wrong to suggest that my father had executed registered Will dated 17.08.1999 as he was apprehending that I might be forcing him to transfer the entire property in my favour.
I do not want my brother to occupy the property bearing no. S-129, Greater Kailash Part 1, New Delhi as the matter regarding Will dated 17.08.1999 and Will dated 01.10.2008 are subjudice. As per Will dated 01.10.2008, Sh. Pawan Kumar has been given only conditional right in respect of the ground floor of property bearing no. S-129, Greater Kailash Part 1, New Delhi.
It is wrong to suggest that Will dated 01.10.2008 was obtained by me by misusing the faith of my father and taking benefit of his old age and frazile physical and mental condition.
It is correct that I have been in occupation of the first floor of property bearing no. S-129, Greater Kailash Part 1, New Delhi after the first floor was constructed in the year 2000. If drawing of House Rent Allowance was permissible, I might have been drawing the same but I am not aware. It is wrong to suggest that I have been regularly drawing House Rent Allowance from State Bank of India despite the fact that I was occupying the property of my father.
I do not know as to what was the reason for not giving my brother equal share in the property bearing no. S-129, Greater Kailash Part 1, New Delhi. It was his sweet Will only. Further said, that Sh. Pawan Kumar has bad relation with my parents which is mentioned in the Will dated 01.10.2008. It is wrong to suggest that it was only at my instance that it has been mentioned in the Will that Pawan Kumar had bad relations with my parents whereas Pawan Kumar had very good relations with my PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 14 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
parents. It is wrong to suggest that as per my influential position in the year 2008 that my father was forced to write that my brother will get a nominal share in the property bearing no. S-129, Greater Kailash Part 1, New Delhi. It is wrong to suggest that my father had committed suicide as the Will dated 01.10.2008 was got executed under duress, force and influence. It is wrong to suggest that my father was having very good relations with the petitioner and his family from 17.08.1999 till my father had committed suicide.
I am not aware if my parents used to visit the family of petitioner occasionally. I cannot say as I was posted in Agra, U.P. from the year 2000 to 2004. I am not aware if my parents used to visit the petitioner and his family at Rohini even after the year 2004, since I have been in the office throughout the day, so I do not know if they used to visit the family of the petitioner. After the death of my father, I have not offered my brother to occupy the ground floor of property as per the Will propounded by me. My brother was trying to forcibly occupy the entire property. (Vol. I had made a police complaint in respect of the same). I have written in my affidavit that my brother was trying to forcibly occupy the entire property. (At this stage, witness is confronted with evidence affidavit Ex. RW1/A).
The witness states that no such fact regarding my brother was trying to forcibly occupy the entire property was mentioned in my evidence affidavit. Q. Is it correct that after the death of your father when petitioner ask you to occupy the ground floor by the petitioner and his family, you said that he can only come to the property after getting a order from the Court?
Ans. When he wanted to forcefully entered the entire property based on the 1999 Will, I requested my brother to come through the Court order besides PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 15 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
his son filed a case against us telling us stating that petitioner should not be allowed to occupy the property as the property as he also has a share in the property and my father should not dispose of the property.
The name of the petitioner's son from his first marriage is Gaurav Shil. I have been in the contact with Sh. Gaurav Shil from the year 1990. It is wrong to suggest that my father used to weep while sitting in home after the Will dated 01.10.2008 was obtained by me. (Vol. I have not obtained the Will). It is correct that Gaurav Shil had filed a suit in respect of the property no. S-129, Greater Kailash Part 1, New Delhi and I was made a party to the said suit. (Vol. Me and my brother were made a party in the said suit). It is correct that Gaurav Shil has sought a relief against property no. S-129, Greater Kailash Part 1, New Delhi but however I have not aware if any relief was sought in respect of Rohini property. I have filed reply to stay application filed by Sh. Gaurav Shil. I do not know the name of my lawyer who had represented me in the said suit. It might be correct that Sh. Lalit Bahl, Advocate might have represented me in the said suit.
At this stage, Ld. Counsel for the petitioner wants to show the witness the certified copy of reply filed on behalf of witness in Civil Suit No. 855/2009 titled as Gaurav Shil Vs. Pawan Kumar & Anr. The counsel is permitted to confront the witness with the said document. The document is exhibited as Ex. RW1/DX1.
The witness after seeing the document affirms that the document bears the signatures of the witness at Point A and the signatures of Sh. Lalit Bahl, Advocate at Point B. Affidavit in support of Ex. RW1/DX1 also bears my signatures at Point A and B and signature of my lawyer Sh. Lalit Bahl at Point C. PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 16 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
At this stage, Ld. Counsel for the petitioner wants to show the witness the certified copy of order dated 18.12.2010 passed by the Court of Sh. Anu Aggarwal, Civil Judge- 02, South, Saket, the then Ld. Judge in Civil Suit No. 855/2009 titled Gaurav Shil Vs. Pawan Kumar & Anr. The counsel is permitted to confront the witness with the said order. The document is exhibited as Ex. RW1/DX2 (in 6 pages).
I am not aware that the said civil suit was dismissed for non prosecution. It is wrong to suggest that said suit by Sh. Gaurav Shil at my instance. It is correct that in Ex. RW1/DX1 which is the reply to application under Order XXXIX Rule 1 and 2 CPC filed by Gaurav Shil, there is no reference of Will dated 01.10.2008. (Vol. Since, the same is the para wise reply to the application of Gaurav Shil, that is why there is no reference of Will dated 01.10.2008). Gagan Sheel is my son, aged about 40 years. I cannot say without seeing record that my son had withdrawn a sum of Rs. 45,000/- from my father's Bank of Baroda bearing saving bank account no. 960100007427 on 17.02.2009, after the death of my father. I cannot produce the bank statement or the passbook of my father pertaining to Bank of Baroda account.
It is wrong to suggest that I had taken my father to Standard Chartered Bank, Greater Kailash on 09.02.2009 and closed the said bank account after withdrawing the sum of Rs. 16,639/-. It is wrong to suggest that I am in possession of the entire jewellery of my mother as well as entire household article belonging to my parents.
It is correct that my mother had not executed any gift deed in respect of her jewellery nor I am aware that she had not gifted any jewellery to anyone else. (Vol. My mother had told me that she had sold the jewellery to acquire a house for the petitioner). It is wrong to suggest that no jewellery was sold by mother for acquiring the house in the name of the PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 17 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
petitioner. I have no documentary proof to that effect but my mother had verbally told me that. I do not remember the exact date, month and year when my mother had told me the said fact.
It is correct that some of the jewellery was sold by my mother when House No. S-129, Greater Kailash Part 1, New Delhi was constructed. (Vol. At the time of construction of the Greater Kailash house, my father dispose of one property at Raja Garden and raising loan from a bank). It is correct that I have not disclosed this fact either in my pleadings or in affidavit as same was not required at all. My father was not dependent on me for his day to day needs or for his food and other amenities. (Vol. He had his pension of about Rs. 9,000 per month). It is wrong to suggest that my father was forced to execute the Will dated 01.10.2008 at my instance. It is wrong to suggest that my father was not in sound disposing mind and in good health in the year 2008. It is correct that I am the party in the present proceedings. It is correct that the petitioner had impleaded me a party later on. I have no idea whether my father had brought the wife of the petitioner to Greater Kailash house in the year 2004 for her cataract operation and she remained there for 2 months after discharging from the hospital. It is correct that the petitioner was hospitalized in Mool Chand Hospital in the year 2004. It is wrong to suggest that my father had brought the petitioner to Greater Kailash house in the year 2004 after he was discharged from the hospital and I was not there in Delhi during that period and therefore, I am denying that suggestion. I am not aware if my father had sent his domestic helper to Rohini for looking after the petitioner and his family in the year 2004 and said domestic helper remained in Rohini for 2 months. I do not know as to what was the reason of execution of the second Will by my father that too within two months of the death of my mother. (Vol. I do not know why the second Will was executed, PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 18 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
however, immediately after the petitioner came to know about the second Will, he started torturing my father). It is wrong to suggest that the petitioner had not tortured my father at any point of time as stated by me hereinabove and that it is a false statement. It is wrong to suggest that I was in a hurry to get a Will in my favour that I forced my father to execute the second Will within 2 months of my mother death.
It is wrong to suggest that my father was having very good relations with the petitioner and his family. It is wrong to suggest that my father used to suggest that the petitioner and his family should also reside in Greater Kailash house and it was because of my resistance, he was not allowed to join us. It is wrong to suggest that I have not disclosed existence of Will dated 01.10.2008 to anyone prior to filing of the present petition. It is wrong to suggest that my parents were suffering with prolonged illness and they remained hospitalized and that the said fact is also mentioned in the Will dated 01.10.2008. My parents never remained hospitalized for long period and he was admitted for his operation of hernia.
It is wrong to suggest that I remained in continuous touch with Sh. Gaurav Shil and his mother who is a divorced wife of the petitioner from the year 1990 till filing of the present proceedings. It is correct that I had participated in the wedding of Sh. Gaurav Shil along with my family members. It is wrong to suggest that I have arranged the marriage of Sh. Gaurav Shil. The wife of Sh. Gaurav Shil was settled in U.S.A. It is correct that Sh. Gaurav Shil had filed a civil suit no. 855/2009 in Patiala House Courts immediately after the death of my father. It is correct that the said suit was filed by Sh. Gaurav Shil through his mother Smt. Veena Shil. I do not remember if Sh. Gaurav Shil had claimed that Late Sh. Dharam Shil had not executed any Will. I am not aware if I had not controverted PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 19 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
said factum of execution of Will in my reply Ex. RW1/DX1.
It is correct that the Court has restrained us from selling, transferring or selling of the property bearing no. S-129, Greater Kailash Part 1, New Delhi. It is also correct that no order was passed in respect of the Rohini property. The name of my lawyer in the said case is Sh. Lalit Bahl. It is correct that the objections dated 31.01.2012, in the present case, has been filed through Sh. Lalit Bahl, Advocate and same is also signed by me as respondent no. 2. It is correct that Sh. Lalit Bahl was my counsel in the present case before 21.02.2019. It is also correct that Sh. Lalit Bahl is an attesting witness in the Will dated 01.10.2008.
I am not in possession of any document pertaining to medical history of my father. I also not in possession of any document pertaining to the investment, bank statement and fixed deposits etc. of my father. It is correct that my father was residing with me till he committed suicide, but I do not know anything about the document relating to his medical history, his savings and investment. I am not in possession of Will Ex.PW1/2. I have not seen Will dated 17.08.1999 and same was seen by me first time when the present case was filed by the petitioner.
My father had told me in the year 2008 that he has cancelled the Will dated 17.08.1999. (Vol. This was informed to me and my brother Sh. Pawan Kumar simultaneously. I do not know about the factum of information to my brother whether it was prior to 2008 or some other date. I do not know exactly when my brother was informed). It is wrong to suggest that my father has never told me or my brother about cancellation of the Will dated 17.08.1999. I do not know the reason for not disclosing this fact, now disclosed by me, either in my petition or in my affidavit of evidence. It is wrong to suggest that my father was having cordial PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 20 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
relations with my brother Pawan Kumar. I cannot tell as to why my father had given a share in the property, to my brother, despite not having good relations with my brother and his family. It is wrong to suggest that Will of 2008 was got executed from my father by me under undue influence, force and pressure. It is wrong to suggest that my father was fully dependent on me in the year 2008 due to his advance age and physical condition. (Vol. He was having his domestic help to help him in his day to day affair. I used to visit him). It is wrong to suggest that Will dated 17.08.1999 is the last Will of Late Sh. Dharam Shil which was executed by him as per his free will and in perfect physical and mental condition. It is wrong to suggest that Will of the year 2008 is result of fraud as Late Sh.Dhram Shil was not in his perfect physical and mental condition and was not even in the position to understand the contents of the documents.
I cannot recollect as to in which year, month or date, my brother or his family have misbehaved with my father. (Vol. It was in the year 1990 when when my brother got second marriage, there used to be fights with my parents and my brother with his family have left the house at Greater Kailash and shifted to Shalimar Bagh). It is wrong to suggest that there was no fighting between my brother and my father in the year 1990 or subsequent thereto. It is wrong to suggest that my brother had shifted from Greater Kailash to Shalimar Bagh for the reason that his wife got Government Employment near Shalimar Bagh and Greater Kailash was far away from her place of employment. It is wrong to suggest that reference of fighting between my father and brother has not been mentioned in the Will dated 17.08.1999. It is wrong to suggest that there is no mention of any fight or quarrel between my father and my brother in the Will dated 17.08.1999 as there was no such fighting or quarrel.
It is wrong to suggest that I am deposing falsely".PC No. 5998/2016
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10. The respondent No.2 did not examine any other witness. Accordingly, RE was closed. Therefore, the matter was fixed for final arguments.
Arguments and findings:
11. I have heard Ld. Counsel for the parties. I have also gone through material available on record.
12. Time now to deal with the issues.
Issue no. 1 Whether the Will dated 17.08.1999 executed by Late Shri Dharam Shil, S/o Late Shri Jai Gopal is legally and validly executed? OPP
13. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. 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 as under:
"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.PC No. 5998/2016
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"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 from intoxication or from illness or from any other cause, that he does not know what he is doing."
14. 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 clear 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 as 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.
15. The execution of an unprivileged Will, as the case at PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 23 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"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:
"(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 direction.
"(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."
16. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 24 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 25 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
17. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"1. 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 ease 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 63 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.PC No. 5998/2016
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"4. Cases in which the execution of the will is surround- ed 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 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 circumstance 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 surrounding 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."
18. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 27 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC)
567). 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 signature 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 indication 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 suspicion 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 substantial 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. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
19. Similarly in Navneet Lal Alias Rangi vs Gokul and PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 28 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v.
Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
"(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator.
Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 29 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
20. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"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 provisions 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.
21. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 30 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as CHeeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
22. Petitioner's narrative is that his father late Sh. Dharam Shil executed registered Will Ex. PW-1/2 on 17.08.1999. The testator expired on 12.02.2009 and was survived by his two sons being class-I legal heir. His wife late Smt. Swaran Lata expired on 04.08.2008. The Will was attested by two attesting witnesses namely Sh. Swarn Singh and Sh. K.C Bahree. On 01.12.2021, petitioner's application under order VII rule 14 CPC for placing on record the certified copy of Will dated 17.08.1999 was allowed as Ld. counsel for petitioner contended that original Will was not in his possession. On 04.05.2022, an application under order XXVI CPC as filed by the petitioner PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 31 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
was allowed for examination of one of the attesting witness namely Sh. Swarn Singh through Local Commissioner. It was submitted by the petitioner that he was compelled to file the application as another attesting witness namely Sh. K.C. Bahree had expired on 28.02.2020. Copy of his death certificate was also placed on record. It was mentioned in the Ld. Local Commissioner's report that the witness could not be examined as the witness was incoherent and not fit to be examined as a witness in the present case and it would be a futile exercise to attempt for him to recognize/ verify the signature of the testator in the event placed before him.
23. It is the duty of the propounder of the Will to prove the Will in question in accordance with the law. In the present case, the petitioner examined total two witnesses in PE. He examined himself as PW-1 and he examined an official witness as PW-2, who brought summoned record i.e. registered Will dated 17.08.1999.
On identification of signatures of testator and attesting witnesses on the Will:-
24. Petitioner examined himself as PW-1 and deposed through his affidavit of evidence Ex. PW-1/A. He reiterated the contents of his petition in the affidavit. In para 6 of the affidavit, it is submitted that the Will was duly attested by PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 32 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
attesting witness Sh. K.C. Bahree and signatures were put by executant namely Sh. Dharam Shil in the presence of aforesaid attesting witness and the attesting witness signed the aforesaid Will in the presence of testator, all being present together before the office of Sub-Registrar, Delhi. In para 7 of the affidavit, it is submitted that Sh. Dharam Shil was in sound disposing state of mind at the time of exeuction of the Will, which was duly executed by him. In para 8 of the affidavit, it is further submitted that said Will was executed by Sh. Dharam Shil voluntarily and without any outside pressure and in full possession of his mental faculties. However, perusal of cross- examination of PW-1 shows that he categorically answered that his father (testator) in the presence of his mother had handed over to him the copy of the Will after about 4-5 months of the execution of the Will. He answered that original Will was kept by his father in his own almirah and the same is in custody of his brother Raman Kumar/ respondent no. 2. His examination as well as cross-examination nowhere suggested that he was an eye witness of the execution of the Will or at the time of execution of the Will he was having such knowledge of the execution by the testator. So it can safely be concluded that PW-1 cannot be said to be a witness to the Will and as per his own version he came to know about the Will only after 4-5 PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 33 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
years of its execution.
25. PW-2, who appeared as a summoned witness and brought the record of the Will dated 17.08.1999, only verified that document Ex. PW-1/2 was the certified copy of the registered Will after comparison with the original. Accordingly, PW-2 also can not be termed as an attesting witness of the will Ex. PW-1/2.
26. It is the petitioner's case that one of the attesting witness Sh. K.C. Bahree had expired on 28.02.2020. Copy of his death certificate was also placed on record. On his application u/o XXVI of CPC, Local Commissioner was also appointed for examination of an attesting witness namely Sh. Swarn Singh. However, as per the report of Local Commissioner, the witness was observed to be incoherent and not fit to be examined as a witness in the present case. Accordingly, no attesting witness could be examined by the petitioner to identify the signature/ attestation on the Will.
27. However, Section 69 of Indian Evidence Act, 1872 provides that if any attesting witness cannot be found, it must be proved that the attestation of one attesting witness at least is in his hand writing and that the signature of the person executing the document in the handwriting of that person. No such effort to prove the Will by proving the signature of atleast one of the PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 34 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
attesting witness and the testator as per requirement of Section 69 of Indian Evidence Act was also ever made by the petitioner due to the reasons best known to the petitioner.
28. In view of the above discussion, material on record and on analysis of the examination of petitioner's witnesses, I am of the considered opinion that the petitioner failed to prove the valid attestation of the Will in question. On sound and disposing mind and free will of the testator: -
29. In H. Venkatachala Iyengar case (supra), Hon'ble Supreme Court of India has observed that the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind;
(iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will.
It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signatures as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. Hon'ble Supreme Court further held that it is PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 35 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
necessary to remove suspicious circumstances surrounding the execution of the Will.
30. Petitioner examined himself as PW-1 and he submitted in para 7 and 8 of his affidavit Ex. PW-1/A regarding sound disposing mind and free will of the testator at the time of execution of the Will. However, in view of the above said discussion and considering the fact that as per his own response in his cross-examination, petitioner was also not residing along with the testator at the relevant point of time, some corroborative evidence was still required to prove the sound and disposing state of mind and free will of the testator at the time of execution of the Will. However, no such evidence was ever led by the petitioner to statisfy this mandatory requirement.
31. In view of the above discussion, material on record and on analysis of the examination of petitioner's witnesses, I am of the considered opinion that the petitioner failed to prove the sound and disposing state of mind and free will of the testator at the time of execution of the Will.
Effect of registration:-
32. During final arguments much emphasis relied upon by Ld. Counsel for the petitoiner that the alleged Will was a registered Will. However, registatration of a Will is not mandatory. It is well settled that merely because the Will is a PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 36 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
registered Will, it is no assurance that same is genuine and validly executed document with a sound disposing state of mind and free will. (Reliance is placed on Pratap Singh & Anr. vs. State & Anr. decided on 12.08.2010, 173 (2010) Delhi Law Times, 132 (DB), Delhi High Court).
33. In view of the abovesaid discussion, material on record, I am of the considered opinion that petitioner failed to prove that Will dated 17.08.1999 executed by Late Sh. Dharam Shil, S/o Late Sh. Jai Gopal was legally and validly executed. Accordingly, issue no. 1 is decided against the petitioner.
Issue No.2: Whether petitioner is entitled for grant of probate in respect of Will dated 17.08.1999 in his favour? OPP
34. As issue no. 1 has already been decided against the petitioner, so petitioner is not entitled for grant of probate in respect of Will dated 17.08.1999 in his favour. Accordingly, issue no. 2 is also decided against the petitioner.
Issue No.3 : Whether the objections filed on behalf of respondent No.2 are valid and maintainable? OPR
35. In my considered opinion this issue is liable to be struck off in exercise of power u/o XIV rule 5 CPC, 1908 because at first it is the propounder of the Will, who needs to prove the Will in question in accordance with law. Onus to prove issue PC No. 5998/2016 CNR No. DLST01-000412-2010 Page 37 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024 Pawan Kumar Vs. The State & Anr.
no. 1 & 2 was on the petitioner and issues no. 1 & 2 have already been decided against the petitioner.
36. In view of the aforesaid, issue no. 3 is hereby struck off in exercise of power u/o XIV rule 5 CPC.
Issue No.4: Relief?
37. In view of the findings given qua issues no. 1, 2 & 3, this petition is dismissed, leaving parties to bear their own costs.
38. The Will Ex. PW-1/2 shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925.
Digitally signed by
Pronounced in the open Court YADVENDER YADVENDER SINGH
SINGH Date: 2024.06.07
on this 6th day of June 2024. 18:01:19 +0530 (DR. YADVENDER SINGH) DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
PC No. 5998/2016CNR No. DLST01-000412-2010 Page 38 of 38 Dr. Yadvender Singh /DJ-02/South/Saket/ND/06.06.2024