Delhi District Court
District Judge vs State on 9 July, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 118/10/09
New P.C. No. 16055/16
1 Shri Rajinder Kumar
Son of Shri Bal Krishan
Resident of H. No. 971,
Village & P.O. Mundka,
Delhi- 110041
2 Shri Sant Ram
Son of late Shri Prabhu Dutt,
Resident of H. No. 489,
Village & P.O. Mundka,
Delhi- 110041
3 Shri Devanand
Son of late Shri Prabhu Dutt,
Resident of H. No. 970,
Village & P.O. Mundka,
Delhi- 1100041
..........Petitioners
Vs.
1 State
2 Shri Rama Nand ( Since Deceased)
through his L.Rs
(i) Pandit Gyaneshwar Dass Gaur
Son of late Shri Rama Nand
Resident of G-138,
Sarojini Nagar,
New Delhi-1100023
(ii) Pandit Bhim Singh Gaur
Son of late Shri Rama Nand
Resident of Plot No. 494,
Valmiki Chaupal, Mundka,
Delhi- 110041
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 1/30
(iii) Ms Anita Gaur
Daughter of late Shri Rama Nand
Telephone Exchange Gali,
Gaon Parhladpur Bangur,
Delhi- 110042
(iv) Ms Vinita
Daughter of late Shri Rama Nand,
Resident of house no. 1/7F,
Upper Anand Parbat,
Kala Pahar,
New Delhi
3 Shri Bal Krishan
Son of Shri Sadhey Ram,
Resident of H. No. 971,
Village & P.O. Mundka,
Delhi - 110041
4 Shri Mangal Sain ( Since deceased)
through his L.Rs.
(i) Shri Sandeep Kumar
Son of late Shri Mangal Sain
(ii) Shri Pradeep Kumar
Son of late Shri Mangal Sain
(iii) Ms Suman
Daughter of late Shri Mangal Sain
(iv) Ms Poonam
Daughter of late Shri Mangal Sain
All Residents of House No. 464,
Village & P.O. Mundka,
Delhi- 110041
5 Shri Ram Niwas
Son of Shri Sher Singh
Resident of H. No. 610,
Village & P.O. Mundka,
Delhi- 110041
6 Shri Bal Raj
Son of Shri Banwari Lal
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 2/30
Resident of H. No. 609
Village & P.O. Mundka,
Delhi-110041
7 Shri Raj Kumar
Son of Shri Banwari Lal
Resident of H. No. 609,
Village & P.O. Mundka,
Delhi-110041
8 Shri Rajbir
Son of Shri Banwari lal
Resident of H. No. 609,
Village & P.O. Mundka,
Delhi- 110041
9 Shri Birbal
Son of Shri Banwari Lal
Resident of H. No. 609,
Village & P.O. Mundka
Delhi - 110041
10 Shri Sumer
Son of Shri Banwari Lal
Resident of H.No. 609,
Village & P.O. Mundka
Delhi- 110041
......Respondents
Date of institution of the case : 06.04.2009
Date reserved for judgment on : 07.07.2018
Date of pronouncement of judgment: 09.07.2018
JUDGMENT:
1 A petition/application under Section 276 & 278 of the Indian Succession Act, 1925 for grant of Probate/letter of administration in respect of the Will dated 29th October, 1980 regarding the estate of late Shri Tika Rma @ Tek Ram S/o late Shri Pooran has been filed.
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 3/30 2 In brief the facts are that Sh. Tika Rama @ Tek Ram S/o late Shri Pooran (hereinafter referred to as "deceased" ) died on 03.09.1985 at Delhi and was a resident of House No. 489, Village & P.O- Mundka, Delhi with his brother Shri Sada Ram. The deceased remained bachelor throughout his life.
3 It is stated that deceased left his last Will dated 29 th October, 1980. The Will was duly signed by the testator in the presence of two witnesses named therein who signed the same in the presence of Testator and in the presence of each other. The deceased got the will registered in the office of Sub- Registrar-Ii of documents, Delhi as document no. 4642 in Addl. Book No. 3, Volume No. 164 from pages 143 to 144 dated 29.10.1980.
4 It is stated that at the time of his death, the deceased left behind the following near relations:-
1. Shri Rama Nand Grandson of Late Shri Devi Ram brother of late Sh. Tika Ram
2. Shri Bal Krishan Grandson of Late Shri Sade Ram brother of late Sh. Tika Ram
3. Shri Mangal Sain Grandson of Late Shri Devi Ram brother of late Sh. Tika Ram
4. Shri Ram Niwas Grandson of Late Shri Devi Ram brother of late Sh. Tika Ram
5. Sh. Rajvender Grandson of Late Shri Sade Ram brother of late Sh. Tika Ram PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 4/30
6. Sh. Sant Ram Grandson of Late Shri Sade Ram brother of late Sh. Tika Ram
7. Sh. Deva Nand Grandson of Late Shri Sade Ram brother of late Sh. Tika Ram
8. Sh. Bal Raj Grandson of Late Shri Devi Ram brother of late Sh. Tika Ram
10. Shri Rajbir Grandson of Late Shri Devi Ram brother of late Sh. Tika Ram
11. Shri Birbal Grandson of Late Shri Devi Ram brother of late Sh. Tika Ram
12. Shri Sumer Grandson of Late Shri Devi Ram brother of late Sh. Tika Ram
5 It is stated that Will was executed by the deceased late Shri Tika Ram in full sense and in good health without any coercion, influence or pressure. The testator had a sound disposing mind and perfect mental and physical health at time time of execution of the said Will. At the time of death of deceased he owned properties detailed in Schedule A and bequeathed the aforesaid properties as under:-
a) Residential House bearing No. 489, measuring about 150 sq. yards at Village Mundka, Delhi was given and devolved on Shri Sant Ram Son of Shri Prabhu Dutt, petitioner no. 2
b) Half share of the deceased testator in agricultural land out of Mustatil No. 16, Killa No. 1, 10,11 and PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 5/30 Mustatil No. 4, Killa No. 11 situated in the revenue estate of Village- Mundka, Delhi or any alternative land or compensation allotted by the Government in lieu of the aforesaid agricultural land was given/devolved on Shri Rajinder Kumar( Petitioner No.
1) Shri Sant Ram ( Petitioner no. 2) and Shri Dev Nand ( petitioner No. 3) in equal share.
6 It is stated that land in question has since been acquired by the government of Delhi against Award No. 3/05-06 delivered by the Land Acquisition Collector in 2005-06 and compensation amount of Rs. 46,76,024.50 falling to the share of late Shri Tika Ram is lying deposited with the office of L.A.C in the Hon'ble High Court of Delhi in Civil Writ No. 6834/2007. Petitioners seeks for grant of Probate/Letter of Administration of the Will dated 29.10.1980 executed by the deceased late Shri Tika Ram.
7 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Times of India " dated 01.05.2009.
8 The valuation report in respect of immovable property was called from the concerned SDM/Tehsildar (Punjabi Bagh) filed valuation report in respect of property bearing No. 997, Village & P.O. Mundka, Delhi- 110041 and assessed the value of the same as Rs. 1,21,64,520.50 PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 6/30 9 It is pertinent to mention here that respondent no. 2 and respondent no. 3 had not filed their written statement or objections, therefore, vide order dated 03.02.2010 their right to file the same was closed.
10 As per record only respondent no. 4 to 10 are the contesting respondents and they filed a joint reply/objections and taken preliminary objections that present petition is hopelessly barred by time and therefore not maintainable and liable to be dismissed.
11 It is stated alleged Will was against the settled provision of law as the property which was the subject of Will was not self acquired property of executor of Will. The property in question is the ancestral property which was inherited by him from their ancestors, therefore, he was not having any right to execute the alleged Will in respect of ancestral property inherited by him.
12 It is stated that present petition is barred by Section 10 CPC as the disputed of partition of the ancestral property of the parties and is still pending in the Hon'ble High Court of Delhi. The Will in dispute is a forged, fabricated and manipulated because in the Will there is no mention of entire property owned by Tika Ram as the land comprised in Khasra No. 4/20/1 ( 1-15) and 709/2 and 710/2 was also owned by the deceased.
13 It is stated that present petition has also not been filed in accordance with law as the probate petition must be accompanied with attestation or verification by any of the PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 7/30 attesting witness to the Will. As there is no such verification or attestation by any witness of the Will, therefore, the petition is not maintainable and liable to be dismissed with costs.
14 On merit all the contents of the petition has been denied. It is stated that deceased had no right to bequeath the land and he was not competent to execute any such alleged Will. It is stated that aforesaid residential house and the acquired land were inherited by Sh. Rama Nand, Bal Kishan and respondents no. 4 to 10 on demise of deceased, according to law as Ram Nand is the son of real brother of Sh. Tika Ram. Similarly Bal Kishan son of Sh. Sada Ram who is also son of another brother of Sh. Tika Ram. The answering respondents had laid their claim on the compensation assessed by L.A.C. in lieu of the land falling in the share of Sh. Tika Ram, therefore the compensation of the said land is lying in dispute with the Hon'ble High Court in terms of order passed by the High Court in writ petition No. 6834/2007. The contents of remaining paragraphs are also denied.
15 Petitioner filed replication to the written statement of respondent no. 4 to 10 and reiterated the contents of his petition and denied the averments mentioned in the written statement.
16 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 03.02.2010:-
1. Whether the Will dated 29.10.1980 executed by testator Sh. Tika Ram is a legal, valid and genuine Will executed in his sound disposing mind? OPP
2. Whether the petition filed is time barred? ORP 4 to 10 PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 8/30
3. Whether the petition is liable to be rejected due to absence of verification of the same as required Under Section 281 of the Indian Succession Act? OPR 4 to 10.
4. Whether the petitioners are entitled for grant of Probate/letter of Administration on the basis of Will dated 29.10.2980? OPP
5. Relief
17 Petitioners in order to prove their case examined Shri Prithi Singh as PW-1 who tendered his evidence by way of affidavit Ex. P-1 and rely upon the documents i.e death certificate of late Sh. Ram Kala S/o Late Shri Lehri Singh as Ex. PW-1/1 and Will dated 29.10.1980 of deceased as Ex. PW-1/2.
18 Petitioner no. 2 Sh. Sant Ram appeared in witness box as PW-2 and tendered his evidence by way of affidavit Ex. PW-2/A and he rely upon the documents i.e Death certificate of late Sh. Tika Ram Ex. PW-2/1 and death certificate of late Sh. Attar Singh Ex. PW-2/2.
19 Petitioners further examined Sh. Raj Kumar, LDC from the office of Sub-Registrar-II, as PW-3 who proved the registration of the Will Ex. PW-1/2 dated 29.10.1980 of late Sh. Tika Ram registered as document no. 4642, Vol. No. 164 from pages 143 to 144 on 29.10.1980. Vide separate statement of counsel for the petitioners, the evidence on behalf of petitioners was closed on 03.09.2013.
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 9/30 20 Respondent no. 6 Sh. Balraj in order to prove his case appeared as RW-1 and tendered his evidence by way of affidavit Ex. RW-1/1 and he relied upon the certified copies of the application for mutation, its supporting affidavit and mutation order dated 15.3.1999 passed by the Tehsildar Punjabi Bagh as Ex. RW-1/A. 21 Thereafter Smt. Leelawati, mother of respondent no. 6 to 10 appeared as RW-2 and tendered her evidence by way of affidavit Ex. RW-2/A. Vide separate statement of counsel for respondent no. 4 to 10, evidence on behalf of respondent no. 4 to 10 was closed on 08.05.2104.
22 I have heard Sh. V.P. Sharma, counsel for the petitioners and Sh. I.S. Dahiya, counsel for respondent no. 4 to 10 and perused the record. I have also gone through the written synopsis filed on behalf of respondent no. 4 to 10. Findings on issues as under:-
23 Issue No. 2First I am taking issue no. 2 which is framed on the basis of preliminary objection taken by respondent no. 4 to 10 that the present petition is barred by limitation as will in dispute is dated 29.10.1980 alleged to be executed by Sh. Tika Ram who expired on 03.09.1985 and the present petition filed by the petitioners on 05.10.2010. The onus to prove this issue is on respondent no. 4 to 10.
24 In the reply filed by the petitioner's to the objections of respondent no. 4 to 10 it is stated that the cause of action for PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 10/30 filing the present petition arise only after the acquisition of land in question of the award of LAC. The objections were raised by a false claim with regard to the compensation amount awarded in respect of award land and came to the beneficiaries of land executant of deceased testator Tika Ram.
25 Respondents no. 4 to 10 examined two witnesses i.e RW-1 Sh. Balraj and RW-2 Smt. Leela Devi, mother of respondent no. 6 to 10.
26 RW-1 Sh. Balraj proved his affidavit Ex. RW-1/1. In the affidavit in Para 5 he testify that petitioner has the knowledge of the present will even before the death of its executant and got mutated on the basis of alleged will on 15.03.1999 and present petition filed after more than 23 years of his death, therefore, petition is beyond the statutory time. RW-1 proved mutation application dated 10.11.1998 and mutation order dated 15.03.1999 respectively. However, RW-2 Smt. Leela Devi has not mentioned any fact with regard to plea of bar of limitation of present petition.
27 In the detailed cross-examination of RW-1 Sh. Balraj he deposed that respondent no. 4 to 10 did not file any application for mutation after the death of deceased testator Sh.
Tika Ram as he was Bhumidar of the acquired land.
28 He further testified that when he came to know about the will Ex. PW-1/2 in the year 2001 and thereafter filed application challenging the Will in the SDM office, Rampura but no copy of the said application filed on record. RW-1 Sh. Balraj PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 11/30 admitted that he had filed a writ petition vide No. 6834 of 2007 in the Delhi High Court wherein he challenged the Will in question. He admitted that the mutation of the will in favour of the petitioners prior to raising their claim for compensation never challenged.
29 RW-2 Smt. Leela Devi in her cross-examination also admitted that Rama Nand or respondent no. 4 to 10 after the death of deceased testator Tika Ram did not file any application for mutation with regard to the land left by him. She further admitted that no application filed for partition or demarcation of land belonging to deceased Tika Ram. She further testified that a writ petition filed by them in the Hon'ble High Court in September, 2007. They did not challenge the mutation or will in question in favour of petitioners before the filing of the writ petition in September, 2007 in the High Court of Delhi.
30 Petitioner examined PW-2 Sh. Sant Ram who proved his affidavit Ex. PW-2/A. In his affidavit Ex. PW-2/A in Para no. 6 PW-2 deposed that before the Revenue Authority Shri Prithvi Singh appeared as a witness of the Will Ex. PW-1/2. He proved the mutation order dated 15.05.1999 as Ex. PW-2/3. He further testified that order dated 27.08.2007 passed by LAC was challenged by respondent no. 4 to 10 in the Hon'ble High Court by filing writ petition no. 6834/07. The writ petition was not maintainable and dismissed by the order of Hon'ble High Court on 03.11.2008. The copy of the order of the Hon'ble High court is proved as Ex. PW-2/4.
31 In the cross-examination he admitted that a suit was PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 12/30 filed by Sh. Mangal Sain and others for partition and declaring the Will null and void in the High Court. But he does not know whether that suit was filed prior to the present petition or not. However, no question or suggestion put by respondent no. 2 to 4 with regard challenging of the mutation order and LAC order and dismissal of the writ petition on 03.11.2008.
32 I have gone through the respective written submissions of both the parties and perused the record. In order to appreciate respective contentions, first, I would like to refer to the principle of law on limitation as laid down by the Apex Court.
33 The question for consideration, is whether the petition for grant of Probate/ Letter of Administration is governed by the provision of Article 137 of the Limitation Act. Come up in the case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, Supreme Court of India, while answering whether Article of Limitation Act applies to the application for probate held as under "The genesis of Article 137 of the Limitation Act can be traced from Article 181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary cluase contemplates the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 13/30 from the comparison of two provisions, which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
137. Any other application for Three years when the which no period of right to apply accrues limitation is provided elsewhere in this Division."
Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P. Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The word 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a Civil Court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 of PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 14/30 the 1963 Limitation Act."
Thus, an application under any specified Act before the Civil Court is application conceived under Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under Artilce 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of article 137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an application under special statue being filed before the Civil Court.
34 Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) SCC, held that Article 137 of Limitation Act is applicable in case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr. Dalpatrai's contention. I summarise my conclusion thus-
(a)under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b)the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c)Such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as along as as the right to do so survive and the object of the trust exists or any part of the trust, if created remains to be executed;
(d)the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 15/30 of the deceased's death.;
(e)delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f)such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
35 Now applying the principle of law in the present facts and circumstances of the case it is admitted on record that deceased/testator Tika Ram had left a will Ex. PW-1/2 dated 29.10.1980. It is further admitted that he died on 03.09.1985 vide original death certificate Ex. PW-2/1. The testimony of witnesses discussed hereinabove RW-1 Sh. Balraj and RW-2 Ms Leela Devi and PW-2 Sh. Sant Ram, it is established on record that on the basis of will in question, petitioners got the mutation of the agricultural land vide order dated 15.05.1999.
36 It is also admitted on record that respondent no. 4 to 10 never applied for mutation or their predecessor in interest after the death of deceased Tika Ram. The application of mutation filed by petitioners. The Ex. RW-1/A is proved by respondent no. 4 to 10 and they never challenged the mutation order. It established that there was no dispute arose with regard to Will in question because mutation was carried out on the basis of the Will.
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 16/30 37 It is admitted on record that the land, subject matter of the Will in question was acquired by the government. The respondent no. 4 to 10 have filed objections for disbursement of compensation to the petitioners. The objections were decided by Ld. LAC/ADM vide order dated 27.08.2007. Accordingly to this order Ex. PW-2/3 the mutation on the basis of registered will was found to be correct and order was passed in favour of petitioners.
38 It is further admitted that respondent no. 4 to 10 have challenged the order of LAC vide writ petition no. 6834/07 Ex. PW2/4. The writ petition was decided by Hon'ble High Court vide order dated 03.11.2008 of Hon'ble Mr. Justice A.K Sikri and Hon'ble Mr. Justice Manmohan Singh. I would like to quote the relevant para of the order which is as follows:
"Since the petitioners are disputing the Will, it would be open to the petitioners to file appropriate proceedings in this behalf, more so when the land acquired was not the only subject matter of the appeal but there is another residential house as well. In these circumstances, the petitioners can file suit for partition and in those proceedings rights of the parties can be determined. We are persuaded to pass this order in view of the judgment dated 20.03.2003 passed by this court in Barto & Ors. v. Union of India & Ors, (CWP No. 1125/2003)."
39 In my considered opinion the right of the petitioners and the Will Ex. PW-1/2 of deceased/testator Tika Ram was clearly challenged and confronted by respondent no. 4 to 10 PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 17/30 when the land in question was acquired by the government. As per order of LAC dated 27.08.2007 Ex. PW-2/3 the petitioners' right on the basis of registered will was vindicated and confirmed. There is no question of seeking determination of rights under Indian Succession Act, however, respondent no. 4 to 10 challenged the order of LAC which culminated into the order dated 03.11.2008 whereby writ petition was dismissed. Para 7 of the judgment, reproduced hereinabove, clearly mentioned that respondent no. 4 to 10 disputed the will only in these proceedings.
40 In these special and peculiar circumstances of the case, applying the judgment KRISHAN KUMAR SHARMA and "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", , (Supra), the cause of action arose in favour of the petitioners to file the present petition is on 03.11.2008 and thereafter the present petition filed on 06.04.2009. According to Article 137 of Limitation Act, it is within three years, hence present petition is within the limitation and not time barred.
On the basis of above observation and discussion, issue no. 2 is decided in favour of the petitioners and against the respondents.
41 Issue No. 3Issue no. 3 is also framed on the preliminary objection taken by respondent no. 4 to 10. The objection taken is that the present petition is not verified as per Section 281 of Indian Succession Act, therefore, liable to be rejected.
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 18/30 42 I have gone through the petition. The present petition is not verified by any of the attesting witness as per legal requirement of Section 281 of Indian Succession Act. The registered will is signed by two attesting witnesses, namely Sh. Ram Kala and Sh. Atar Chand, Advocate.
43 PW-2 Sh. Sant Ram in the affidavit Ex. PW-2/A testified that both attesting witnesses Sh. Ram Kala and Sh. Atar Chand have died. The death certificate of Sh.Atar Chand, Advocate is Ex. PW-2/2. PW-1 Sh. Prithi Singh proved the affidavit Ex. P1 and proved the death certificate of Sh. Ram Kala, his father, as Ex. PW-1/1. It is proved on record that both the attesting witnesses died prior to filing of the present petition. However, Sh. Prithi Singh, son of one of the attesting witness, Sh. Ram Kala appeared in witness box. In these peculiar circumstances, I do not find that non-verification of the petition as per Section 281 falls any fatal consequences. The petition, in the above circumstances cannot be rejected.
On the basis of above observation and discussion issue no. 3 is decided in favour of petitioners and against the respondents.
44 Issue No. 1 & 4In order to appreciate the contentions of counsel for the parties and the judgments relied by the parties let us peruse th law laid down by the Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13 th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 19/30
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 case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested , it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound 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 PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 20/30 normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6 If a caveator alleges fraud, undue influence, coercion, etc, in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounded the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. "
45 In order to appreciate the detailed discussed testimony of all the witnesses of both petitioner and respondents let us glance the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 21/30 and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, 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 testatrix 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 testatrix, 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 testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix 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 testatrix, but it shall not PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 22/30 be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
20.2 Section 68 & 71 of the 1872 Act:
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:
71. Proof when attesting witness denies the execution -
If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 23/30 no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property. 22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 24/30 through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.
22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
46 The onus of issue no. 1 & 4 is on petitioners who examined PW-1 Sh. Prithi Singh, son of late Sh. Ram Kala, one of the attesting witness, PW-2 Sh. Sant Ram, one of the petitioner and PW-3 Sh. Raj Kumar, LDC from the office of Sub-Registrar. It is proved on record that both the attesting witnesses, namely, Sh. Ram Kala and Sh. Atar Chand, Advocate have died on 04.11.1987 and 28.11.1998 respectively vide their death certificate Ex.PW-1/1 and Ex. PW-2/2 respectively.
47 The Section 69 of Indian Evidence Act is applicable in these circumstances. In order to satisfy Section 63 read with Section 69 of Indian Evidence Act, petitioners' vital witness is PW- 1 Sh. Prithi Singh who proved his affidavit Ex. P1. PW-1 Sh. Pirthi Singh has proved the factum of death of his father Sh. Ram Kala by proving death certificate Ex. PW-1/1. He specifically deposed that he can identify the signatures of his father on the Will Ex. PW-1/2 on seeing the Will and he identified the same.
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 25/30 48 He further testified that the deceased/testator, late Sh. Tika Ram was quite friendly with his late father Sh. Ram Kala and they were on visiting term and he also knew deceased/testator Sh. Tika Ram who ws of sound physical and mental health in the year 1980.
49 During the detailed cross-examination there is no challenge to the identification of signatures of Sh. Ram Kala by PW-1 Sh. Prithi Singh, his son. He further explained that both the attesting witnesses and deceased testator were used to live in the same village and work together in the Village Punchyat office bearer. Another aspect that deceased testator Tika Ram was of sound mental and physical health, there is no specific cross- examination on behalf of respondent no. 4 to 10.
50 Further PW-1 Sh. Prithi Singh corroborates that his father was able to could read and write only Urdu language. The Will Ex. PW-1/2 in original appears the signatures of Sh. Ram Kala in Urdu language. It further corroborates the fact that Sh. Ram Kala had signed the Will in the presence of late Sh. Tika Ram and other attesting witness in Urdu language. The whole cross- examination does not challenge the fact deposed in affidavit Ex. P1 whereby PW-1 Sh. Prithi Singh has proved the signatures of his father late Sh. Ram Kala as attesting witness on Will Ex. PW-1/2 dated 29.10.1980.
51 The registration of the Will is proved on record on the basis of testimony of PW-3 Sh. Raj Kumar who proved the record of registration from the Sub Registrar, Kashmere Gate. The particulars of the original will and record produced from Sub Registrar are found to be true and correct.
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 26/30 52 PW-2 Sh. Sant Ram also appeared in witness box and identified the signatures of deceased testator Tika Ram as he had seen him writing and signing and identified the same on the Will Ex. PW-1/2. In the detailed cross-examination, initially, counsel for respondents concentrated on the family tree. He deposed that the Khatas with revenue authorities of Sh. Devi Ram, Sh. Sada Ram and Sh. Tika Ram were separate before his birth. He further deposed that Tika Ram was the Prashan of Village for the period of 13-14 years. Thereafter cross-examination was on the joining of service of PW-2 Sh. Sant Ram and when he was starting living separately from his father.
53 PW-2 further explained that late Tika Ram died as natural death and never hospitalized and have love and affection towards the petitioners. It further established that deceased Tika Ram was physically and mentally sound on the day of execution of the Will in question as there is no serious challenge. He further corroborates the fact that late Tika Ram used to sign in his presence in the progress report and he has seen him signing . He further explained that he did not go with late Tika Ram when the Will was executed and registered. He also explain the gaining of knowledge of the Will in the year 1982-83. The detailed cross-examination did not challenge the specific testification with regard to identification of the signatures on the Will Ex. PW-1/2 of late Sh. Tika Ram by PW-2 Sh. Sant Ram.
54 Ld. Counsel for respondent No. 4 to 10 relied on judgment of Kavita Kanwar vs State(N.C.T. Delhi) & Ors, reported as 2011 (2014) DLT 448.
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 27/30 55 I have gone through the entire objections and evidence of RW-1 Sh. Balraj and RW-2 Ms Leela Devi. Neither in the objections nor in the evidence respondent no. 4 to 10 raised any plea of suspicious circumstances. Therefore, this judgment is distinguishable in the present facts and circumstances of the case. However, in this judgment as per quoted para in the written arguments the conscience of the court has to be satisfied as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. The court consciencly applied this principle of law in the present facts and circumstances of the case.
56 Similarly Ld. Counsel for respondent no. 4 to 10 relied on judgment of Jaswant Kaur Vs Amrit Kaur and Others 9 1977) 1 SCC 369, Benga Behera and Anr. V. Braja Kishore Nanda and Ors. MAMU/SC/7673/2007 and B. Venkatamuni V. C.J. Ayodhya Ram Singh and Ors. AIR 2007 SC 311. All these judgments are also referred to raise suspicious circumstances, however, the respondent no. 4 to 10 never pleaded suspicious circumstances. Therefore, all the above judgments are not of such help.
57 Ld. Counsel for respondent no. 4 to 10 also relied upon the judgment of Ram Piari Vs Bhagwant & Ors ( AIR 1990 SC 1742). In this judgment also again emphasis made of suspicious circumstances. There is no plea of dis-inheritance in the written objections, no evidence led by respondents, therefore this judgment is also distinguishable.
PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 28/30 58 Ld. Counsel for respondent no. 4 to 10 further relied on the Division Bench Judgment of Madras High Court titled J. Mahew (died) and Others V. Leela Joseph; MANU/TN/1475/2007. In the present case both the attesting witnesses were died therefore as per Section 69 of Indian Evidence Act petitioners examined PW-1 Sh. Pirthi Singh, son of Sh. Ram Kala, the attesting witness, therefore, this judgment is also distinguishable in the present facts and circumstances.
59 On the basis of the above observation and discussion the petitioners have satisfied the ingredients of Section 63 of Indian Succession Act with Section 69 of Indian Evidence Act, therefore, the issues no. 1 & 4 are decided in favour of the petitioners and against the respondents.
Relief 60 In view of above observation and discussion, the petitioner 2 Sh. Sant Ram is entitled to letter of administration in respect of property bearing No. 489, measuring 150 Sq. Yards at Village Mundka, Delhi after obtaining requisite Court fee and administrative cum Surety Bond to the total tune of Rs. 1,21,64,520/- (Rupees One Crore Twenty One Lekh Sixty Four Thousand Five Hundred Twenty only) as agreed by petitioner no.
2. 61 Petitioners, namely, Shri Rajinder Kumar, Shri Sant Ram and Shri Devanand are entitled for letter of administration in respect of compensation Rs. 46,76,024.50 in equal share, falling to the share of late Shri Tika Ram which is lying deposited with the office of LAC in the Hon'ble High Court of Delhi in Civil Writ No. 6834/2007 on furnishing Administrative Cum Surety Bond to PC No. 118/10/09 Rajinder Kumar & Ors Vs State & Ors 29/30 the tune of Rs. 46,76,024.50 with one surety as agreed by petitioner, Shri Rajinder Kumar, Shri Sant Ram and Shri Devanand.
62 Further, the petitioners are directed to file the inventory of the immovable property within six months and final statement of account within one year from the date of receipt of formal letter of administration. The formalities of issuance of Letter of Administration shall completed by the petitioners within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
63 It further clarified that the question of title, share or ownership of movable property mentioned herein above is not decided by this Court. File be consigned to the Record Room.
(Announced in the open (SANJAY KUMAR)
court on 9th July, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
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