Delhi District Court
Sh. Dil Sukh (Since Deceased) vs State on 8 May, 2023
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
PC NO. 49/2016
CNR No.DLSW010021562015
IN THE MATTER OF:
1. Sh. Dil Sukh (Since deceased)
Through its legal heir
(i) Sh. Manjeet Singh
S/o Late Dil Sukh Gahlot
R/o Village and Post Office Kakrola
New Delhi - 110078
(ii) Sh. Sanjeet Kumar
S/o Late Dil Sukh Gahlot
R/o Village and Post Office Kakrola
New Delhi - 110078
(iii) Sh. Kuljeet Gahlot
S/o Late Dil Sukh Gahlot
R/o Village and Post Office Kakrola
New Delhi - 110078
(iv) Sh Ajay Gahlot
S/o Late Dil Sukh Gahlot
R/o Village and Post Office Kakrola
New Delhi - 110078
(v) Smt. Kavita
D/o Late Dil Sukh Gahlot
S/o Late Dil Sukh Gahlot
R/o Village and Post Office Kakrola
New Delhi - 110078 ... Petitioners
CS DJ ADJ No. 23/16 Page No. 1/28
vs.
1. State ... Respondent No. 1
2. Sh. Dharmpal
S/o Late Shish Ram
R/o Village and Post office Kakrola
New Delhi - 110078 ... Respondent No. 2
3. Sh. Pawan ... Respondent No. 3
4. Sh. Aman
Both Son of Late Rajender Singh
S/o Shish Ram
R/o Village and Post Office Kakrola
New Delhi - 110078 ... Respondent No. 4
5. Smt. Prem Wati
W/o Sh Sukhbir Singh
R/o 17/66 Gali No. 5
Mahavir Park, Near Ice Factory
Bahadurgarh, Haryana ... Respondent No. 5
6. Smt. Kamla
W/o Sh Raj Singh
R/o Village and Post Office
Sidipur Lowa, District Jhajjar
Haryana ... Respondent No. 6
7. Sh. Suraj Bhan
S/o Late Siri Chand
R/o H NO. 138, Village and Post office
Kakrola, New Delhi - 110078 ... Respondent No. 7
8. Sh. Ranbir Singh ... Respondent No. 8
9. Sh. Satbir Singh ... Respondent No. 9
CS DJ ADJ No. 23/16 Page No. 2/28
10 Sh. Vijender ... Respondent No. 10
11. Sh. Surjit
All sons Late Sh. Om Prakash
S/o Late Siri Chand
R/o H NO. 137, Village and Post office
Kakrola, New Delhi ... Respondent No. 11
Date of institution of suit: 26.08.2015
Date of judgment reserved: 17.04.2023
Date of pronouncement of judgment: 08.05.2023
JUDGMENT
1. The present petition is filed under Section 276 of the Indian Successions Act, 1925 (hereinafter "the act") for grant of letters of administration/ probate of Will dated 10.05.2011 executed by Late Smt. Sarbati Devi (hereinafter as 'testatrix'), who died on 11.11.2011.
PLEADINGS
2. Briefly stated, it is the case of the petitioner that deceased Smt. Sarbati Devi w/o Late Sh. Sis Ram during her life time executed a Will dated 10.05.2011 in favour of petitioner and by virtue of said Will, She bequeathed all her movable and immovable properties in his favour.
3. It is further averred in the petition that husband of testatrix had already predeceased her. It is further averred in the petition that testatrix had left behind petitioner and respondent Nos. 2 to 11 as her legal heirs.
4. It is further averred in the petition that testatrix in order to CS DJ ADJ No. 23/16 Page No. 3/28 avoid any controversy after her death among legal heirs had executed a registered Will dated 10.05.2011 bearing document No. 95-98 in book No. 3, Vol. No. 568, page Nos. 95-98 with the Sub Registrar (South West) Kapashera, New Delhi, Hence, it is prayed that Letter of Administration be granted to the petitioner with respect to the property mentioned in Schedule A of the petition i.e. (A) Property bearing khasra No. 10/24(4-12), 25/5-6 min. (7-16), 27/2-3 min.(3-10), 8min.(5-12), 10 min.(1-
11),195/10(1-6) total area 24 bighas 7 biswas situated within Revenue Estate of village Kakrola having 1/12th share and (B) Property measuring 1200 sq yds situated in Old Lal Dora of Village Kakrola, Delhi having 1/24th share (hereinafter referred as 'Subject Properties') as per the registered Will executed by the deceased Late Smt. Sarbati Devi.
5. Notice was issued to the State through Collector, to the SDM concerned for filing the valuation report and also to the respondents, citations were ordered to be published in English daily 'The Statesman' and Hindi daily 'Rashtriya Sahara' for notice to the general public. The notice was also displayed at the notice board of this Court.
6. Pursuant to the notice, the citations were published in newspapers i.e. 'The Statesman' an English daily dated 07.10.2015 and 'Rashtriya Sahara' a Hindi daily dated 11.10.2015, respectively. No objections were received to the petition, from any quarter despite publication of citations in newspaper.
CS DJ ADJ No. 23/16 Page No. 4/287. SDM concerned filed the valuation report qua the subject properties which is as under:-
S.No. Description of property Valuation of the property
1. 1/12 share of bearing khasra No. Rs 63,41,145/-
10/24(4-12), 25/5-6 min. (7-16), 27/2- 3 min.(3-10), 8min.(5-12), 10 min.(1-
11),195/10(1-6) total area 24 bighas 7 biswas situated within Revenue Estate of village Kakrola
2. 1/24th share of property measuring Rs 19,31,499/-
1200 sq yds situated in Old Lal Dora of Village Kakrola, Delhi
8. Pursuant to service of notice upon respondents. Respondent No. 6 appeared in court and deposed that she has no objection if the petition is allowed in favour of petitioner. Her statement to this effect has been recorded separately.
9. However, respondent Nos. 2 to 5 and 7 to 11 appeared in court and filed their objections to the petition.
10. Four set of objections were filed by respondent No. 2 & 5 individually, by respondent no.3 & 4 jointly as well as by respondent nos. 7 to 11 jointly but all of them have more or less taken the same grounds in their respective objections, challenging the validity of the impugned Will inter-alia on the grounds that at the time of execution of the Will, testatrix was approximately 98 years of age and as she was illiterate, she was not in position to understand the contents of the said Will as the same was in English language. It is further contended that at the time of death testatrix/ deceased was residing with the petitioner and the CS DJ ADJ No. 23/16 Page No. 5/28 petitioner has taken advantage and prepared the alleged Will by taking her thumb impression. It is further contended that the thumb impression of the testatrix was obtained, managed and manipulated by fraud, deceitful means and undue influence etc. It is further contended that in the alleged Will, testatrix has not mentioned the reasons for depriving the other legal heirs from her properties. It is further contended that the alleged will is incomplete as the testatrix was having the cash, bank balance and also jewellery and movable which have not been mentioned in the alleged Will and in the Schedule-A of the petition.
11. It is further contended that petition of the petitioner is liable to be dismissed in view of the fact that on one hand he petitioner has filed suit for partition bearing Suit No. 63/10/09 tilted as Dilsukh vs. Suraj Bhan in respect of the properties mentioned in Schedule A of the petition, stating therein that the properties are not yet partitioned and on the other hand the petitioner has filed the present petition on the basis of Will dated 04.05.2011 allegedly executed by Smt. Sarbati Devi w/o Late Sh. Sis Ram. In the partition suit, he has not informed the court that a Will was executed by the Smt. Sarbati Devi and even in the partition suit testatrix was one of the party and the said suit is pending before this Court.
12. It is further contended that in the main suit bearing No. 63/10/09, petitioner has filed an application under Section 151 CPC for deleting the name of defendant No.11, namely, Smt. Sharbati Devi from the array of the defendants on the ground of CS DJ ADJ No. 23/16 Page No. 6/28 her death. It is further contended that defendant No. 11 (testatrix) was also exparte before the said court in the year 2011 and the Ld. Court ordered to implead the LRs of defendant No. 11 on 26.08.2014 but the plaintiff never filed the amended memo of parties. It is further contended that the plaintiff never filed the application during life of Smt. Sharbati Devi (deceased/ testatrix) to set-aside the ex-parte order. It is further contended that Last Smt. Sharbati Devi, executed two Wills, the previous Will dated 30.06.2003 in favour of petitioner, respondent no.2 to 4 but during the pendency of the main suit for the partition, the plaintiff got executed the 2nd Will at the age of 94 years from the testatrix in respect of all the movable & immovable properties exclusively in his favour.
13. It is further contended that the property mentioned belong to the Delhi Land Reform Act, 1954 and as per Khatoni the agricultural land pertains to the jurisdiction of revenue Courts. It is further contended that the Will dated 04.05.2011 allegedly executed by Late Sarbati Devi is nothing but a forged document and the same was never executed by Late Smt. Sarbati Devi with her free Will, consent and desire. Hence, it is prayed that petition of the petitioner is liable to be dismissed.
14. Thereafter petitioner filed the rejoinder to the objections filed by the respondent Nos. 2 to 5 and 7 to 11, wherein he denied the contentions raised by them in the objections and reiterated and reaffirmed the stand taken by him in the petition.
CS DJ ADJ No. 23/16 Page No. 7/28ISSUES
15. On the basis of the pleadings of the parties, the following issues were framed:-
(i) Whether the Will dated 10.05.2011 was the last testament of Sharbati Devi and same has been validly and legally executed by testatrix in favour of petitioner? ... OPP
(ii) Whether the testatrix Sharbati Devi was having sound disposing mind at the time of execution of the Will ? ... OPP
(iii) Relief
16. In order to prove its case, petitioner examined four witnesses.
17. Mr. Prem Kishore (PW-1), Data Entry Operator from the office of Sub Registrar IX, Kapashera, New Delhi has appeared in the witness box and deposed that he has brought the summoned record i.e. the Original will registered as document No. 1200 Book No. III, Vol. No. 568, page No. 95 to 98 dated 10.05.2011 and the same is Ex PW1/1 (OSR). Thereafter, he was cross- examined and discharged.
18. Petitioner himself entered the witness box and tendered his evidence by way of affidavit - Ex. PW2/A, thereafter he was cross-examined and discharged. In his evidence he relied upon the following documents:
CS DJ ADJ No. 23/16 Page No. 8/28(i) Will of the deceased Sarbati Devi - Ex PW1/1, and
(ii) death certificate of Smt. Sarbati Devi - Ex PW2/1 During his cross examination, PW-2 has relied upon the the following additional documents:-
(I) Voter Id card of deceased Sarbati Devi - Ex PW2/PX-1 (OSR);
(ii) PAN card alongwith covering letter dated 31.05.2010 - ExPW2/PX-2 (Colly) (OSR) and
(iii) Saving bank pass book issued by Axis bank - A/c No. 910010024234718 - Ex PW2/PX-3 (OSR) and the following documents were put to him during his cross-examination but he has not admitted them :-
(i) Voter Id card no. DL/03/030/255244- Ex.PW2/DX- 1(OSR).
(ii) Bank passbook of A/c no. 20131- Ex. PW2/DX-2 (OSR).
19. Mr. Surender Kumar Gautam (PW-3), one of the attesting witness to the Will entered the Witness box as PW-3 and tendered his evidence by way affidavit as Ex. PW3/A, wherein in nutshell he has deposed that the Will was executed by the testatrix on 04.05.2011 and the same was registered on 10.05.2011, the contents of the Will were read over to her in Hindi language which she admitted to be true and correct. The testatrix had put her thumb impression on the Will in his presence at Mark 'A', he signed as a witness at point at 'C' and the Will was also signed by another witness Sumer Singh in his presence at point 'B'.
20. During his cross-examination he tendered his Aadhaar card as Ex. PW3/1 (OSR) and Voter identity card as EX.PW3/2 CS DJ ADJ No. 23/16 Page No. 9/28 (OSR). Thereafter, the witness was cross-examined and discharged.
21. Second witness of the Will namely Mr. Sumer Singh entered the Witness box as PW-4 and tendered his evidence by way of affidavit as Ex PW4/A, wherein in nutshell he has also deposed that the Will was executed by the testatrix on 04.05.2011 and the same was registered on 10.05.2011, the contents of the Will were read over to her in Hindi language which she admitted to be true and correct. The testatrix had put her thumb impression on the Will in his presence at Mark 'A', he signed as a witness at point at 'C' and the Will was also signed by another witness Sumer Singh in his presence at point 'B'. Thereafter, the witness was cross-examined and discharged.
22. Thereafter petitioner closed his evidence and the case was fixed for respondent's evidence.
23. Respondent No.2, namely, Dharam Pal appeared in the witness box as R2W1 and tendered his evidence by way of affidavit - Ex. R2W1/A, thereafter, he was cross examined and discharged.
24. Respondent No.8, namely, Ranbir Singh appeared in the witness box as R8W1 and tendered his evidence by way of affidavit - Ex. R8W1/A, thereafter, he was cross-examined and discharged
25. Thereafter respondent close his evidence and matter was fixed for final arguments.
CS DJ ADJ No. 23/16 Page No. 10/28Arguments:
26. The Ld. Counsel for the petitioner argued that the petitioner has duly proved the impugned Will of the testatrix by calling both the attesting witnesses before the Court and the respondents have miserably failed to cause any dent in the case of the petitioner and they have also failed to lead any evidence to show that the testatrix was not maintaining good health at the time of the execution of the Will in question or that the petitioner has played any kind of fraud or exercise any undue influence on the testatrix and got her thumb impression on the Will. The Ld. Counsel further argued that the registration of the Will by the testatrix before Sub-registrar raises a strong presumption of validity and authenticity of the Will. He relied upon the judgment titled as Arjan Dev Mittra v. Sada Nand & others AIR 2000 Delhi 236.
27. Per-contra, the respective Ld. Counsel for the respondents have argued that the Will is surrounded by suspicious circumstances as the date of the Will is 04.05.2011 and the same was registered only on 10.05.2011 and no explanation has been for registration of the Will after 6 days of its execution. The testatrix was 98 years of age at the time of execution of the Will and there is fitness certificate filed alongwith the Will and further she died on 10.11.2011 just five months after the alleged date of execution of the impugned Will. It is further argued that the present petition is filed after only on 26.08.2015 that is after CS DJ ADJ No. 23/16 Page No. 11/28 expiry of 3 years and 9 months from the date of death of the testatrix and therefore the case of the petitioner is also barred by limitation. It is further argued that there are material contradiction in the testimony of the witnesses as on the one hand PW-3 has deposed that firstly, testatrix had affixed her thumb impression on the Will and thereafter, the same was signed by PW-4 and lastly, he signed the Will as a witness, whereas, PW-4 has deposed that firstly, he signed as a witness, thereafter, PW-3 signed as witness and lastly, testatrix affixed her thumb impression on the Will.
28. It is further argued that even PW-4 failed to identify the thumb impression of the testatrix at point A2 as well as on the last page of the Will. The Ld. Counsel further argued that the witness called by the petitioner from the office of Sub-registrar IX, Kapashera in order to prove the Will has also deposed that as per record testatrix did not appear before Sub-registrar on 10.05.2011. It is argued by the Ld. Counsel that both the attesting witnesses are known to the petitioner only and they have attested the Will on his instance and as the petitioner is sole beneficiary of all the properties of the deceased is itself a self explanatory circumstance that creates suspicion on the impugned Will and therefore, it also raised the presumption that the Will is not genuine but procured by the petitioner to deprive other legal heirs from the properties of the testatrix. Ld. Counsel has relied upon the following judgments: Neeraj Katyal & others v. State & Ors. 2016 (229) DLT 466, Ved prakash v. Omparaksh 2012 lawpack CS DJ ADJ No. 23/16 Page No. 12/28 (Del) 53737 and Sardar khushwant Singh v. Kirpal Singh 2010 Lawpack (Del) 38844.
29. In rebuttal arguments the Ld. Counsel for the petitioner submitted that all the pleas raised by the respective Ld. Counsel for the respondents have been duly explained and answered by the petitioner in his evidence and merely because the attesting witnesses are known to the propounder does not make the Will suspicious and in order to buttress his argument he relied upon the judgment titled as Ashok Kumar Dua v. Ranbir Kumar Dua, AIR 2008 Delhi 171.
30. I have heard the arguments and have gone through averments, oral & documentary evidence lead by the parties.
Findings & Conclusion Issue no.1 i.e.
(i) Whether the Will dated 10.05.2011 was the last testament of Sharbati Devi and same has been validly and legally executed by testatrix in favour of petitioner? ... OPP
31. Before dwelling upon the issue in question, it will be apposite to discuss the broad principles of law relating to the proof of Wills and recently the Hon'ble Supreme Court in its judgment titled as Kavita Kanwar v. Pamela Mehta (2021) 11 SCC 209 after discussing almost all the relevant judgments on the proof of Wills such as H. Venkatachala Iyengar v. B.N. CS DJ ADJ No. 23/16 Page No. 13/28 Thimmajamma, AIR 1959 SC 443: 1959 Supp (1) SCR 426; Purnima Debi v. Kumar Khagendra Narayan Deb, (1962) 3 SCR 195: AIR 1962 SC 567: Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20; Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321; Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529; Mahesh Kumar v. Vinod Kumar, (2012) 4 SCC 387: (2012) 2 SCC (Civ) 526; Leela Rajagopal v. Kamala Menon Cocharan, (2014) 15 SCC 570: (2015) 4 SCC (Civ) 267; Shivakumar v. Sharanabasappa, (2021) 11 SCC 277, summarised and appliedHarmes v. Hinkson, 1946 SCC OnLine PC 20 AIR 1946 PC 156: (1945-46) 50 CWN 895: P.PK. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, 1995 Supp (2) SCC 664; Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459 has laid down the following guiding principles:
The principles governing the adjudicatory process concerning proof of will are:
(i) Ordinarily, 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 and proof of mathematical accuracy is not to be insisted upon.
(ii) Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
(iii) The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was CS DJ ADJ No. 23/16 Page No. 14/28 executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.
(iv) However, presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(v) If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
(vi) A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. The suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind'.
(vii) As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the will o by the beneficiary thereunder etc. are some of the circumstances which may give rise to suspicion. The circumstances above-
noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which CS DJ ADJ No. 23/16 Page No. 15/28 may give rise to legitimate suspicion about the execution of the will.
(viii) On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
(ix) The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?
(x) In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will."
32. Coming to the case in hand as far as the execution of the impugned Will is concerned the same is a validly executed document as per Section 63 of the Indian Succession Act,1925 as the Will bears the thumb impression of the executor and also the signatures of two attesting witnesses. Now it has to be seen that whether the propounder has successfully proved that the thumb impression on the Will in question is that of the testatrix and she has executed the Will after understanding the contents of the same in sound disposing mind and that whether there are no suspicious circumstances which render the Will as invalid.
CS DJ ADJ No. 23/16 Page No. 16/2833. Petitioner at the first instance called the official from the office of Sub-registrar IX, kapashera i.e. Mr. Prem Kishore (PW-
1), Data Entry Operator. In cross-examination he deposed that the Will was not registered in his presence and the Will was signed by the sub-registrar on 10.05.2011, the same was not registered on 04.05.2011. As per record testatrix did not appear before sub- registrar on 10.05.2011. He cannot tell why the Will was signed by the sub-registrar after five days of presentation. He don't know why correction was made at point X on the Will but the similar correction exists on copy of Will brought by him.
34. Petitioner (PW-2), deposed that the Will was not executed in his presence and he came to know about the Will in question about 13 to 20 days after demise of the testatrix, while he was making search. He also deposed that he came to know about the previous Will and its cancellation thereof only on perusal of the Will in question. He also deposed that he came to know about the registration of the Will on 10.05.2011 only after going through the Will which was prepared on 06.05.2011 and he don't know why it was registered after 4 days of preparation and same may be known only to the testatrix or the registration authority. He also deposed that he came to know about the particulars of the attesting witnesses only after going through the contents of the impugned Will. He admitted that he knows both the attesting witnesses and also deposed that the testatrix also knew them socially. He was unable to say when both the witnesses last visited his home or met the testatrix. He also admitted about CS DJ ADJ No. 23/16 Page No. 17/28 pendency of 4-5 legal proceedings among family members regarding partition of the family properties. He also deposed that he don't know whether the mother disowned any of her children but as they did not treat her properly therefore, she used to live with him. Even though he deposed that the testatrix was living with him since beginning but as per the Aadhaar card, voter card and bank passbook produced by him (Ex. PW-1/PX-1 to Ex.PW- 1/PX-3) during cross examination, he was only able to prove that she was residing with him since 2009 and not since beginning. He also shown his inability to produce any document prior to 2009 in order to show that the testatrix was residing with her since beginning. Respondent no.2 by putting voter ID and one passbook of Allahabad bank to the witness (Ex. PW2/DX-1 to Ex. PW2/DX-2) tried to establish that the testatrix was living with the respondent no.2 since 1995 but the witness denied that the photograph is of her mother on the confronted documents. He also denied the suggestion that the testatrix was earlier residing with respondent no.2 and he is intentionally not identifying the photograph of her mother no the confronted documents. He admitted that both the attesting witnesses are not from his village. He also admitted that the testatrix was illiterate and she was 94- 96 years old at the time of execution of the impugned Will. In answer to the Court question about when he filed the suit for partition, he answered that "In the year 2009, I was aware about the existence of the Will and it is then I had filed the partition suit against my brother. Vol. A verbal partition had taken place CS DJ ADJ No. 23/16 Page No. 18/28 amongst the family member. During that verbal partition my mother said that she would give her entire share to me." He also admitted that he impleaded his mother (testatrix) as a party in the partition suit and he had moved an application in the court post the demise of her mother and mentioned that after the demise of the mother, her share devolved upon him as per the impugned Will.
35. Now coming to the testimony of the attesting witnesses. Both the attesting witnesses in their evidence by way of affidavit deposed in verbatim of each other that they are attesting witnesses to the Will executed by Testatrix on 04.05.2011 and the same was got registered on 10.05.2011. Testatrix executed the Will in their presence and the same was read over to the Testatrix in Hindi language. She put her thumb impression in their presence at Point A and they have signed as witnesses at Point B and C.
36. In cross examination, first attesting witness Surinder Kumar Gautam deposed that he knows the petitioner from last 12 to 13 years. Initially, he deposed that he came to court to depose as a witness on the asking of Sarbati Devi but on repeating of the question he deposed that he came at the instance of Sanjeet i.e. son of the petitioner. He has duly explained that how they went to the office of the sub-registrar on 04.05.2011 and also that the Will was typed by the typist on the instructions of the testatrix and thereafter, the typist read over the Will in Hindi and explained to the testatrix, to him and also to Sumer Singh and she appended CS DJ ADJ No. 23/16 Page No. 19/28 her thumb impression in his presence and thereafter, the second attesting witness and after him he signed the Will as a witness but as the Will was presented late before the sub-registrar for registration therefore, appointment of 10.05.2011 for registration was given and on the said day they again went to the office of the sub-registrar and all signed the document before sub-registrar on 10.05.2011. He also deposed that the testatrix informed them that she is bequeathing her all movable and immovable property in favour of the petitioner. Petitioner was not present with them either on 04.05.2011 & 10.05.2011 and only the testatrix, he himself, another witness Sumer Singh and one driver whose name he don't know went to the office of the sub-registrar for preparation and registration of the Will on both days.
37. Second attesting witness Sumer Singh (PW-4) in his testimony deposed that he know the petitioner as he is friend of his father. The Will was signed by him and PW-4 as a witness and none else. The Will was prepared on the asking of the testatrix by the typist on 04.05.2011. The document was read over and explained to the testatrix and both of them and also one more person who accompanied them to the registrar office but as they appeared late before the sub-registrar on 04.05.2011, the date of 10.05.2011 was given. Initially he deposed that the document was not signed on 04.05.2011 but again said that on 04.05.2011 the document was signed firstly by him, then by PW-3 and thereafter, testatrix put her thumb impression on the said document. He further deposed that on 10.05.2011 only photographs of both the CS DJ ADJ No. 23/16 Page No. 20/28 witnesses and the testatrix were taken and neither the thumb impressions nor the signatures of either both the witnesses or the testatrix were taken in the office of the sub-registrar on that day. When the witness is confronted with signatures at point 'A2' & 'A3' he failed to identify them. He identified the thumb impression of the testatrix on first three pages of the Will but he failed to identify the encircled thumb impression alleged to be of the testatrix on the last page of the Will and stated thatl deposed that the sub-registrar did ask the testatrix on 10.05.2011 that whether she is making the Will in question out of her own choice. He denied all the suggestions which were favorable to the respondents.
38. Now coming to the evidence of the respondents. It is relevant to point out that the respondents have not relied upon any of the documents in their evidence. In affidavit by way of evidence only the contentions raised in the objections have been reiterated.
39. Respondent no.8 entered the witness box as R8W1. In his cross-examination, he deposed that testatrix was her grandmother. Name of her first husband was Sri chand and second husband was Sis ram. He don't know the date of death of Sri Chand as at the time of his death even his father was only 6 months old. Testatrix was the mother of the petitioner and he has no share in the property of the testatrix and only Lrs of Sis Ram are entitled to share in the property of the testatrix. He has no medical document CS DJ ADJ No. 23/16 Page No. 21/28 to show that the testatrix was not mentally fit at the time of execution of the impugned Will.
40. Next respondent no.2 entered the witness box as R2W1 and in his evidence by way of affidavit reiterated the stand taken by him in the objections. In cross-examination he deposed that he has no medical record to show that the testatrix was not mentally sound. He also admitted that on the basis of earlier Will dated 30.06.2003 in which he was also the beneficiary, no probate was filed. Even he admitted that her mother informed him that she had canceled the Will dated 30.06.2003.
41. From the relevant portion of the testimony of all the witnesses as reproduced above and the documentary evidence lead by them, the following facts emerge.
42. In the testimony of both the witnesses, there is no contradiction to the extent that the Will was typed by the typist on the instructions of the Testatrix on 04.05.2011 and the same was read over to the Testatrix by the typist in Hindi and thereafter, she affixed her thumb impression on the Will and they have also signed as witnesses and the Will was not registered on 04.05.2011 as the same was presented late and date of 10.05.2011 was given by the sub-registrar.
43. However, there is contradiction in their testimony regarding the events happened on 04.05.2011 and 10.05.2011 that is:-
A: There is contradiction in the testimony of the attesting witnesses to the effect that they have mentioned a different CS DJ ADJ No. 23/16 Page No. 22/28 sequence to the effect that the PW3 has deposed that firstly the testatrix affixed her thumb impression and thereafter the same was signed by PW4 and lastly by him and on the other hand PW4 has deposed that the Will was firstly signed by him and PW3 and lastly the testatrix has put thumb impression on the Will.
B. As per PW-3 the Will was presented before the sub-registrar at around 12.00 PM, whereas PW-4 deposed that the same was presented at 3.00 PM and therefore, the same was not registered on 04.05.2011, however, this Court has not come across any endorsement on the Will and neither any appointment receipt is placed on record to establish that appointment of 10.05.2011 was given by the sub-registrar and so much so that even the PW-1 was not examined on this aspect by the petitioner that due to late presentation of the Will no 04.05.2011.
C. Further, as per PW-3 on 04.05.2011, the Testatrix put her thumb impression and he himself and the second attesting witness appended their signatures on the Will before the typist and also on 10.05.2011 all of them signed before the sub-registrar whereas PW-4, second attesting witness has deposed that he signed the Will only on 04.05.2011 and no signatures were taken before the sub-registrar on 10.05.2011 and only photographs of all of them were taken and only thumb impression of Testatrix was taken but their thumb impressions were not taken. Additionally, PW-4 when confronted with the thumb impressions of the testatrix, he identified them on first three pages of the Will but he failed to identify them on the last page of the Will which is encircled with CS DJ ADJ No. 23/16 Page No. 23/28 red pen and the same is fatal to the case of the petitioner, as the thumb impression on the last page are material for due execution of the Will. Futher, PW-4 failed to identify thumb impressions at point A2 & A3 on back side of the Ist page of the Will, which seems to be the one alleged to be of the Testatrix taken on the date of registration of the Will in question and even on perusal of the said page it is observed that on bottom even name of the witnesses is also mentioned and it bears their alleged thumb impressions whereas neither the PW-3 not PW-4 identified them and so much so that even PW-4 deposed that on 10.05.2011 their thumb impressions were not taken and only the thumb impressions of the Testatrix were taken before the sub-registrar.
-Additionally there are suspicious circumstances surrounding the validity of the impugned Will that is:-
D. Both the attesting witnesses as well as the petitioner admitted that they are known to each other. Even though petitioner has deposed that both the witnesses are socially known to the Testatrix also but both the witnesses have not deposed so in their respective testimony. Both the witnesses have not explained that on whose call they appeared as a witness on the Will. They have simply stated that both of them went together to the house of the testatrix on 04.05.2011 and 10.05.2011 but on whose instance they went there is never explained, which raises suspicion that both the witnesses have signed the Will at the instance of the petitioner. It also stands admitted by them as well as by the petitioner that they are not resident of Village kakrola and this CS DJ ADJ No. 23/16 Page No. 24/28 fact also raises a suspicion that both them were called to attest the Will in order to suppress this fact form the respondents.
E. Further PW-1, who was called by the petitioner to prove the registration of the Will, has deposed in his cross-examination that as per record Testatrix never appeared on 10.05.2011 before the sub-registrar. Petitioner never confronted him on this aspect. Thus, the very presence of the Testatrix on 10.05.2011 before the sub-registrar stands disputed.
F. In the impugned Will, the factum of cancellation of the earlier Will by the Testatrix dated 30.06.2003 is found mentioned, which as per petitioner came to his knowledge only on perusal of the Will in question. The copy of the said Will dated 30.06.2003 is on judicial file and on perusal of the same it is observed that the subject properties were equally given to the petitioner, respondent no.2 and respondent no. 3&4 (being LRs of her 3rd deceased son Rajinder Singh) and it also mentioned in the 3rd paragraph that She (Testatrix) has three sons, petitioner, respondent no.2 and Rajinder Singh (father of respondent no. 3& 4) and also two daughters (respondent no. 5&6) who are married & well settled. She is living with petitioner and respondent no.2 and all her family members serving her very well. However, in the impugned Will, reason for exclusion of the daughters from any share in the subject properties is duly mentioned but no specific reasons for disinheriting the respondent nos. 2 to 4 from the subject properties is mentioned in the impugned Will.CS DJ ADJ No. 23/16 Page No. 25/28
G. The above fact not only raises a suspicious circumstance but also demolishes the stand taken by the petitioner that since beginning the Testatrix was living with him and all the other Legal heirs were not treating her well during her lifetime as had it be in so, the Testatrix could not have mentioned in the Will dated 30.06.2003 that all her family members are serving her very well and even such a statement on the part of the Testatrix is missing in the impugned Will.
H. On the converse the petitioner himself admitted that he has filed a suit for partition in respect of the subject properties and he also impleaded the testatrix as defendant no.11 in the said suit and therefore, had the testatrix have already executed the Will in favour of the petitioner she could herself have disclosed this fact either to the petitioner or to the Ld. Court where the Suit for partition was filed. Thus, it leads to two presumptions that either the Will is forged or she was not aware about the contents or form of the document.
44. The judgment of Ashok kumar Dua (supra) relied upon by the Ld. Counsel for the petitioner is distinguishable as in the said case it was deposed by the attesting witness that he was on visiting terms with the family of the propounder including the Testator and the registration of the Will was duly proved in the case but both these aspects are missing in the present case. Similarly, the second judgment i.e. Arjan Dev Mittra ( supra) is also of no help to the case of the petitioner as in the said case the registration of the Will before the sub-registrar was duly proved CS DJ ADJ No. 23/16 Page No. 26/28 and there are no suspicious circumstances surrounding the validity of the Will.
45. On the other hand the ratio of the judgments relied upon by the objectors is already reiterated by the Hon'ble Supreme Court in the judgment kavita kanwar ( Supra) cited by this Court, thus the said judgments does not require to be discussed herein.
46. Accordingly, in view of the discussion and observations made above as there are material contradictions in the testimony of the attesting witnesses and there are suspicious circumstances surrounding the due execution and validity of the Will, the Issue in question is decided against the petitioner and in favour of the respondents.
Issue no.2 i.e.
(ii) Whether the testatrix Sharbati Devi was having sound disposing mind at the time of execution of the Will ? ... OPP
47. From the evidence of the petitioner, respondents failed to prove that the Testatrix was suffering from unsound mind due to old age or any infirmity. On the other hand no evidence either oral or documentary is lead by the respondents to prove that the testatrix was suffering from unsound mind.
48. Hence, the issue is decided in favour of the petitioner and against the respondents.
CS DJ ADJ No. 23/16 Page No. 27/2849. Further, the plea of the respondent that petition is barred by limitation as the same is filed after expiry of the limitation of three years is also not sustainable in light of the judgment of the Hon'ble Supreme Court in the case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and Others (2008) 8 SCC 463 in which it was held that no doubt limitation period for filing of a petition for probate is three years under Article 137 of the Limitation Act, 1963 however, the period of three years commences when the cause of action accrues or the right to apply accrues. The need to file the probate petition i.e the cause of action to file the probate petition arises when the subject Will is specifically denied by the objectors and not either from the date of death of the Testator or from the date of the knowledge of the propounder.
Relief In light of the finding on issue no.1, the present petition is hereby dismissed.
50. Decree sheet be drawn as per rules.
51. File be consigned to record room after due compliance and necessary action as per Rules.
Pronounced in the open (Sachin Jain)
Court on 08.05.2023 Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi
CS DJ ADJ No. 23/16 Page No. 28/28