Delhi District Court
Rameshwar vs Vijay Kumar on 13 December, 2014
IN THE COURT OF SH. SANJEEV AGGARWALADJ03
(NORTHWEST) ROHINI COURTS: DELHI
RCA No.9/13
RAMESHWAR ...............APPELLANT
Vs.
VIJAY KUMAR ................RESPONDENT
ORDER
1 Vide this order, I shall disposeoff the present appeal filed by the appellant against the impugned judgment/decree dated 300113 passed by ld. Civil Judge in Suit no.802/11 titled as Rameshwar Vs. Vijay Kumar, whereby the suit of the appellant/plaintiff was dismissed (parties are hereinafter being referred to by their respective status before the ld. Trial Court).
2 Brief facts which can be culled out from the impugned judgment of the ld. Trial Court are as under: Rameshwar Vs. Vijay Kumar Page no.1/50 Vide this judgment, I shall dispose off the present suit filed by the plaintiff seeking declaration, cancellation of mutation with consequential relief of permanent injunction but during the pendency of the suit, the plaintiff had withdrawn the relief of cancellation of mutation and now the only reliefs that are pending adjudication are :
a) Decree of declaration in favour of plaintiff and against the defendant thereby declaring the will dated 2442003 as null and void.
b) Decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, servants etc from selling, transferring, alienating and not to act upon alleged will dated 2442003.
Rameshwar Vs. Vijay Kumar Page no.2/50 2 Briefly stated the facts as averred by the plaintiff in
the plaint which are necessary for the disposal of the present suit are that late Sh. Ishwar Dutt (herein after wards referred as executant) is the brother of the plaintiff and uncle of the defendant and he was the owner of the property bearing no: (i) Land area measuring 3 bigha 12 biswa out of Khasra No. 142/602(116), 142/601 (116) (06), 143/705 (06) & 79/22 min (14), situated in the area of village Kanjhawala, Delhi81, (ii) 1/6 share in the land measuring area 4 bigha 16 biswas out of khasra no.
70/25/1(18), 70/25/2(110) & 70/25/3(118), situated in the area, 4 bigha 12 biswas out of khasra no.45/19/1/1)10), 45/19/1/2 (016), 45/19/2(08) and 45/23/(28), situated in the Old Lal Dora of Village Kanjhawala, Delhi81.
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3 It is averred that the executant had died on 2742003
leaving behind plaintiff as his only legal heir and he had denied execution of will under challenge averring that the executant was suffering from Bronchitis Asthama since long and later on he became serious patient of said disease and he was admitted in Brahm Shakti Hospital and Research Centre (herein after wards referred as Brahm Shakti Hospital) situated in U1/78, Budh Vihar, Delhi110041 on 2242003 and he was in the ICU of the said hospital and was discharged from the hospital at the request of the defendant on 2542003 (LAMA). It is further stated that the said discharge from Brahm Shakti Hospital was at the behest of the defendant in order to solve his illegal motive, the plaintiff had averred that during Rameshwar Vs. Vijay Kumar Page no.4/50 his stay in the hospital from 2242003 to 2542003, the executant was in coma and in ICU, therefore he was not in a fit state to execute a will. It is further averred that the executant died on 2742003 at AIIMS Hospital. It is further averred that on 1942005, he came to know from reliable sources that defendant had prepared fake and fabricated will in his favour on 2432003 when the executant was in ICU in Brahm Shakti Hospital and the alleged will was prepared without consent of doctor so as to ascertain the condition of the executant and thus it is averred that the will is fake and fabricated document.
4 Further, it is stated that the alleged will is not valid u/S 60 and 63 of Indian Succession Act, therefore the plaintiff had sought declaration of Rameshwar Vs. Vijay Kumar Page no.5/50 alleged will as null and void and consequential relief of permanent injunction thereby restraining the defendant from selling, transferring, alienating or acting on the basis of alleged will. 5 The defendant had filed his written statement (herein after wards referred as W.S) wherein he took preliminary objections to the effect that :
a) Jurisdiction of civil court is barred u/S 83 of Delhi Land Revenue Act, 1954.
b) The plaintiff's suit is not maintainable as efficacious remedy is available u/S 64 of Delhi Land Revenue Act, 1954.
6 But both these objections were raised as the plaintiff
had sought cancellation of mutation, but these
objections also stands satisfied with the
withdrawal of relief of cancellation of mutation by
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the plaintiff.
7 Further, defendant had raised the objection that the
plaintiff had not valued the suit properly for the purposes of curt fee and jurisdiction stating that the value of the properties which are subject matter of will under challenge is more than Rs.30 lakhs, hence, the plaint is liable to be rejected and further the defendant had averred that the plaintiff had not come to the court with clean hands and he is guilty of suppressing the material facts. 8 On merits, the defendant had denied each and every averment of the plaint but he had admitted that the executant is brother of plaintiff and uncle of the defendant but defendant had denied that the plaintiff is the sole legal heir of the executant by virtue of registered will dated 2442003.
Rameshwar Vs. Vijay Kumar Page no.7/50 Defendant had denied that executant was suffering from any disease like Bronchitis Asthma averring that the executant was suffering from ailments like heart problem, blood pressure and acute liver disease with hepatitis. Further defendant had denied each and every averment of the plaintiff and he had denied that the will was forged and fabricated and he had denied that the executant was discharged from Brahm Shakti Hospital at the instance of defendant to solve his illegal motive and averred that the alleged will was duly executed by the executant out of love, affection, faith and trust, he had averred that the executant was discharged from Brahm Shakti Hospital at the instance of executant himself as he Rameshwar Vs. Vijay Kumar Page no.8/50 was feeling restless and he was worried about substantial expenditure incurred from his treatment in private hospital, and it is averred that the executant had reuested to take him back to his house stating that if need arise he should be taken in AIIMS. He had denied that the executant was in coma at the time of admitting in Brahm Shakti Hospital or at the time of his discharge. 9 Replication to the WS was filed by the plaintiff reaffirming the facts as averred in the plaint and denying the contents of the WS.
10 On completion of pleadings of the parties, following issues were framed on 15122005 :
1 Whether the jurisdiction of this court is barred by virtue of Section 83 of Delhi Land Reform Act, 1954?
OPP Rameshwar Vs. Vijay Kumar Page no.9/50 2 Whether the suit of the plaintiff is not maintainable in view of the fact that equally efficacious remedy was available to the plaintiff prior to filing of the suit as alleged in para 2 of preliminary objections in the WS? OPD 3 Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPP 4 Whether the plaintiff is entitled to have declaration in his favour to the effect that the will dated 2442003 is null and void in the manner alleged? OPP 5 Whether the plaintiff would be entitled to permanent injunction as claimed? OPP 6 Whether the plaintiff is would be entitled to decree of cancellation of mutation entries in the revenue Rameshwar Vs. Vijay Kumar Page no.10/50 records in the manner prayed as per prayed clause - C of the plaint? OPP 7 Relief.
11 In support of his case, plaintiff had examined himself as PW1, his examination in chief by way of affidavit is Ex.PW1/P and he relied on following documents:
Ex.PW1/1 : Death certificate of Late Sh. Ishwar Dutt Ex.PW1/2 : Copy of will dated 2442003 Ex.PW1/3 : Copy of summary sheet and discharge slip (objected to as to mode of proof)
12 Sh. Rajbir Singh, Record Clerk, AIIMS Hospital was examined as PW2 and he had brought record of deceased Ishwar Dutt when he as admitted in AIIMS and same is Ex.PW2/1, Sh. O.P. Rathi was Rameshwar Vs. Vijay Kumar Page no.11/50 examined as PW3 and he was summoned witness who brought record of Sh. Ishwar Dutt while he was admitted in Brahm Shakti Hospital and same is Ex.PW3/1.
13 Sh. Mahender Singh who is son of plaintiff was examined as PW4, his examination in chif by way of affidavit is Ex.PW4/P. 14 Defendant had examined 5 witnesses in support of his disease, Sh. S.C. Munjal was summoned witness who brought certified copies of application for mutation by defendant, mutation entries in name of defendant and summoned record is Ex.DW1/1 to Ex.PW1/3.
15 Defendant had examined himself as DW2, his examination in chief by way of affidavit is Ex.DW2/A, and he relied on Election ID card i.e Ex.DW2/1, Rameshwar Vs. Vijay Kumar Page no.12/50 certificate issued by Brahm Shakti Hospital is Ex.DW2/2 and receipt issued by subregistrar is Ex.DW2/3.
16 Sh. Virender Singh is examined as DW3 is attesting witness of will and his examination in chief by way of affidavit is Ex.DW3/A and he relied on Ex.PW1/2.
17 Sh. Naresh Kumar, UDC, Office of SDM, Pahar Ganj was examined as DW4, he had deposed that no permission from doctor is taken as medical certificate was already on record and same is Ex.DW4/IX, Sh. Om Prakash, LDC sub registrar office was examined as DW5 and he brought copy of will i.e Ex.PW1/2 and money receipt which is Ex.DW2/3.
18 After conclusion of evidence, the matter was fixed
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for final arguments but the plaintiff vide separate statement dated 31102012 had withdrawn the relief as to cancellation of mutation, therefore issue no. 1,2 and 6 are deleted vide order dated 31102012. 3 Vide detailed judgment dated 3012013 the suit of the appellant/plaintiff was dismissed. It is against the said judgment/decree, the appellant/plaintiff has approached this court on various grounds: That the impugned judgment/decree dated 3012013 passed by ld. Trial Court is not legally sustainable in law.
That the ld. Trial Court has failed to appreciate the medical records placed on the record and condition of the executor of the Will, Sh. Ishwar Dutt, who was admitted in the hospital on 22403 and was discharged on 25403 against medical advised i.e 'Lama' vide discharge summary Ex.PW1/3 and he ultimately was admitted into AIIMS where he died on 27403 after around four hours of his admission in the said hospital. It is also stated that the defendant has Rameshwar Vs. Vijay Kumar Page no.14/50 also relied upon one document Ex.DW2/2 dated 11082005 issued by Brahm Shakti Hospital and Research Centre, wherein it is clearly mentioned that executor of the Will was not fit for travel, but this document was not proved by the defendant by calling the concerned doctor and no reliance can be placed upon the same as per law. 4 It is also stated that the ld. Trial Court had grossly ignored the fact that DW4 Sh. Naresh Kumar, who allegedly registered the Will and visited the Brahm Shakti Hospital for the said purpose, has deposed that the Will was executed by late Sh. Ishwar Dutt and he put his thumb impression and two witnesses were present at the time of execution of the Will, who had also put their signatures on the Will. He has further deposed that the Will was read over by this witness, but in his crossexamination he has admitted that he cannot translate the Will which is in English which clearly shows that the Will was not read over and explained to the executant of the Will, but the same was procured.
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5 It is also stated that ld. Trial Court has not correctly
appreciated the evidence of DW3Sh. Virender Singh and DW4Sh. Naresh Kumar, with regard to the fact that DW3 has deposed in his crossexamination that he does not know English, the Will was not drafted and typed in his presence and that the condition of Sh. Ishwar Dutt was not good, whereas in his examinationinchief by way of affidavit, it was mentioned in para no.2 that Sh. Ishwar Dutt was of sound mental disposition and was fully fit to understand as to what he was doing as he was in full senses and he was able to talk consistently, coherently and rationally at the time of execution of the alleged Will dated 2442003, in any case DW3 Sh. Virender Singh is a driver in MCD, who had no connection or relation with the executant. 6 It is stated that the ld. Trial Court has grossly ignored that once there are suspicious circumstances surrounding the execution of alleged Will, then it is settled law that the propounder of the whole must offer reasonable explanation to remove such suspicions Rameshwar Vs. Vijay Kumar Page no.16/50 circumstances. It is stated that late Sh. Ishwar Dutt was literate, he used to sign, but there is no explanation as to why his thumb impression(s) were obtained on the alleged Will. Further, the alleged Will Ex.PW1/2 was registered under the signatures of SubRegistrar on 2442003, but the said SubRegistrar was not present in the hospital and it is also surprisingly to learn that Sh. S.S. Malik, Advocate, who had drafted the Will was present along with this witness, but he was not examined nor his name has been mentioned in the Will as a person, who had drafted the Will. It is stated that DW4 Sh. Naresh Kumar also did not take any permission from the doctor regarding the mental condition of the executor of Will whether late Sh. Ishwar Dutt was fit to make the said Will or not.
7 It is also stated that one application Ex.DW5/1X was moved before the SubRegistrar for registration of the Will in question, but surprisingly no order was passed on the said application by the Sub Registrar, therefore it is stated that the due execution of Will has not Rameshwar Vs. Vijay Kumar Page no.17/50 been proved and the ld. Trial Court had committed gross error in relying upon the oral testimony of the witnesses regarding the mental and physical stage of the testator instead of relying upon the medical records available on the record. It is also stated that the ld. Trial Court had ignored the settled principle of law in the impugned judgment/decree dated 3012003, therefore it is prayed that the impugned judgment/decree is not legally sustainable and is liable to be set aside. 8 Reply has been filed to the said grounds of the appeal on behalf of the respondent. It is stated that the impugned judgment/decree dated 3012013 has been rightly passed by ld. Trial Court, the suit of the appellant/plaintiff has been rightly dismissed and in the entire memorandum of appeal, the appellant has not mentioned or referred to the evidence adduced by him in support of his version. It is stated that the appellant could not refer to any such evidence even before the ld. Trial Court and the appeal has been filed in order to harass the defendant/respondent. It is stated that the appellant had never cared Rameshwar Vs. Vijay Kumar Page no.18/50 for the welfare and treatment of late Sh. Ishwar Dutt and he was not even aware of the ailments from which late Sh. Ishwar Dutt was suffering and has wrongly mentioned in the suit, the disease as Asthma Bronchitis Asthma whereas late Sh. Ishwar Dutt was suffering from blood pressure, heart problem and acute liver disease with hepatitis which is evident from the crossexamination of the defendant/respondent.
9 It is also stated that late Sh. Ishwar Dutt was unmarried and was residing with the respondent as his family member which is evident from the documents placed on record before ld. Trial Court including the Election Icard and there was a mutual relation of love, affection, faith and trust between late Sh. Ishwar Dutt, the respondent and his family members had been taking care of him and getting his medical treatment during his last days and the relationship between Sh. Ishwar Dutt and the appellant were very formal, the appellant even never came to see him in the hospital.
Rameshwar Vs. Vijay Kumar Page no.19/50 10 It is also stated that late Sh. Ishawar Dutt was got
discharged from Brahm Shakti Hospital & Research Centre on 2542003 as per his own demand and wish as he was worried about substantial expenditure that was being incurred for his treatment in the said hospital by the respondent, besides that he was feeling restless in the hospital and he had been repeatedly asking the respondent and his other relatives to take him back to his native village Kanjhawala and he further told him that if any need arises for his further treatment, he should be taken to AIIMS and the mere fact that endorsement of 'Lama' had been made on the discharge slip, does not make it a case that late Sh. Ishwar Dutt was illegally got discharged from the hospital. It is stated that from the entire evidence lead on the record, the impugned judgment/decree dated 3012013 has been rightly passed by the ld. Trial Court.
11 It is further stated that the allegations that the respondent had prepared a fake and fabricated Will of late Sh. Ishwar Rameshwar Vs. Vijay Kumar Page no.20/50 Dutt in his favour, while the deceased was admitted in the ICU ward of the hospital are totally false. It is stated that though late Sh. Ishwar Dutt was in the ICU on 2442003, he was of sound mental disposition and was fully fit to understand as to what he was doing. It is stated that at that time late Sh. Ishwar Dutt was in full senses and was able to talk consistently, coherently and rationally. It is stated that late Sh. Ishwar Dutt was however not fit to travel to the SubRegistrar office, hence the concerned official from the SubRegistrar Office was called to the hospital, as per rules and during the testimonies of the respondent's witnesses nothing has come on record that late Sh. Ishwar Dutt was not conscious and coherent at the time of execution of the Will. It is stated that the only problem was that late Sh. Ishwar Dutt was not fit to travel to the SubRegistrar Office, the original letter/certificate dated 1182005 in this regard issued on the request of the respondent by the Medical Superintendent of the Brahm Shakti Hospital and Research Centre had also been duly proved by the respondent as Ex.DW2/2, therefore, the Rameshwar Vs. Vijay Kumar Page no.21/50 present appeal has no merits and the same is liable to be dismissed with costs.
12 I have heard Sh. Virender Singh, ld. counsel for the appellant/plaintiff, Sh. Ravi Basi, ld. counsel for the respondent/defendant and perused the record. 13 From the ld. Trial Court Record, it is revealed that 06 issues were framed from the pleadings of the parties for determination, however when the matter was fixed for final arguments, the plaintiff vide separate statement dated 311012 had withdrawn the reliefs with regard to cancellation of mutation of the property, therefore, the issues no.1, 2 and 6 were deleted vide order dated 311012 as the same were not found necessary for the purpose of deciding the controversy between the parties and consequently only findings were given on issues no.3, 4 and 5.
14 With regard to issue no.3, no fault can be found in the order of ld. Trial Court with regard to the valuation of the suit for the Rameshwar Vs. Vijay Kumar Page no.22/50 purposes of court fees and jurisdiction, as it has been rightly observed by the ld. Trial Court that the subject matter of the suit was not for declaration of ownership in respect of the properties which were the subject matter of Will under challenge and the plaintiff was merely seeking declaration that the Will was forged document and by alleged forgery, the rights of the appellant/plaintiff were defeated, therefore the appellant/plaintiff had at liberty to value the suit as per his own discretion as per Section 7(iv) (c) of the Court Fees Act, 1870. 15 Now adverting to issue no.4, which is the main bone of contention between the parties i.e whether the Will dated 24403 is null and void or whether same was validly executed by late Sh. Ishwar Dutt or whether there were any suspicious circumstances regarding the executor of the said Will. The law in this regard has been settled by the Hon'ble Supreme Court of India is as under: 16 It has been held in judgment Smt. Jaswant Kaur Vs. Smt. Amrik Kaur and Others, AIR 1977 Supreme Court 74(1) that : Rameshwar Vs. Vijay Kumar Page no.23/50 In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by that testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
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 Rameshwar Vs. Vijay Kumar Page no.24/50 court in R. Venkatachala Lyengar V. B.N. Thimmajamma, (1959) Supp (1) SCR 426 = (AIR 1959 SC 443). The Court, speaking through Gajendragadkar J. laid down in that case the following propositions: 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 required 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 Rameshwar Vs. Vijay Kumar Page no.25/50 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 Rameshwar Vs. Vijay Kumar Page no.26/50 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 circumstances that the test of the satisfaction of the judicial conscience has been evolved. That test Rameshwar Vs. Vijay Kumar Page no.27/50 emphasizes 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.
17 Applying the ratio of law laid down in the judgment(s) AIR 1997 SC 74 (1) and AIR 1959 SC 443 (1) mentioned above, it is clear that as per Section 63 of the Indian Succession Act, Will is required to be attested, it cannot be used as an evidence until, as required by Rameshwar Vs. Vijay Kumar Page no.28/50 Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution. 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 to 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, however 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 can not be removed by the mere Rameshwar Vs. Vijay Kumar Page no.29/50 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. 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.
18 In this connection, with regard to Wills, the execution of which is surrounded by suspicious circumstances the test of satisfaction of the judicial conscience has been evolved, the court has to be satisfied fully that the Will had been validly executed by the testator, the very circumstances surrounding the execution of a Will may raise a doubt as to whether the testator was acting of his own free will then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
Rameshwar Vs. Vijay Kumar Page no.30/50 19 Let us see what kind of evidence has been lead by the
defendant, who is the propounder of the said Will dated 2442003 on this aspect.
20 In this regard, DW2 Sh. Vijay Kumar has stated in his cross examination that it is correct that at the time of execution of the Will, late Sh. Ishwar Dutt was in ICU and was admitted in Brahm Shakti Hospital & Research Centre from 2242003 to 2542003. He had stated in his crossexamination that it is correct that late Sh. Ishwar Dutt did not knew rd th English and he had studied upto 3 /4 standard. He had also stated that it is correct that Will dated 2442003 was prepared/executed when late Sh. Ishwar Dutt was hospitalized in ICU. He had further stated in his crossexamination that the doctor(s) had advised to take him to home as the condition of late Sh. Ishwar Dutt was critical at that time and according to them he will not survive. He had further stated that the Will dated 2442003 was roughly prepared and was got typed by them. He had again stated in his crossexamination that the Will was roughly Rameshwar Vs. Vijay Kumar Page no.31/50 prepared and was got typed by his relative Sh. Ishwar Singh and employees of SubRegistrar Office on 2442003. He had further stated that the receipt exhibited as Ex.DW2/3 was obtained by his relative Sh. Ishwar Singh, who is his brotherinlaw (jeeja). He had further stated that he had revealed the Khasra numbers and the contents of Will to Sh. Ishwar Singh on 2242003 and he had not stated what to type in the Will to Sh. Ishwar Singh.
21 He had further stated that late Sh. Ishwar Dutt was having his photograph in his pocket which was pasted on the Will. He had further stated that it is correct that he had paid all the costs incurred in the preparation and registration of the Will in question. He had further stated in his crossexamination that it is correct that the witnesses, namely, Sh. Virender Singh and Sh. Suresh Chand were called by his relative Sh. Ishwar Singh to put the signatures on the Will. He had further stated that the contents of the Will were stated to late Sh. Ishwar Dutt in Hindi first and he understood the same by the officer of the Sub Rameshwar Vs. Vijay Kumar Page no.32/50 Registrar, Sh. Naresh Kumar from the SubRegistrar Office. From the above testimony of the propounder Sh. Vijay Kumar (DW2), it is apparent that when the Will was executed on 24042003, the executor late Sh. Ishwar Dutt was in ICU, was admitted in Brahm Shakti Hospital & Research Centre, his condition was very bad/critical, the doctors had stated that he will not survive and the Will dated 2442003 was got typed by the propounder through his relative Sh. Ishwar Singh, who is his brotherinlaw (jeeja), who in turn called his two acquaintances, namely, Sh. Virender Singh and Sh. Suresh Chand, who are attesting witnesses of the Will. It was also stated that late Sh. Ishwar Dutt was not rd th conversant with the English language as he had only studied upto 3 /4 standard.
22 The medical documents/treatment papers of the deceased Sh. Ishwar Dutt prepared during his treatment at Brahm Shakti Hospital are not disputed, same are Ex.PW3/1 (collectively), relevant ones are reproduced as under: Rameshwar Vs. Vijay Kumar Page no.33/50 Rameshwar Vs. Vijay Kumar Page no.34/50 Rameshwar Vs. Vijay Kumar Page no.35/50 Rameshwar Vs. Vijay Kumar Page no.36/50 Rameshwar Vs. Vijay Kumar Page no.37/50 Rameshwar Vs. Vijay Kumar Page no.38/50 Rameshwar Vs. Vijay Kumar Page no.39/50 Rameshwar Vs. Vijay Kumar Page no.40/50 Rameshwar Vs. Vijay Kumar Page no.41/50 23 Coupled with the testimonies of the propounder, the medical Rameshwar Vs. Vijay Kumar Page no.42/50 documents Ex.PW3/1 (collectively) available on the record, it is revealed that the general condition of the patient late Sh. Ishwar Dutt at the time of his admission into the Brahm Shakti Hospital & Research Centre was very poor. It is mentioned in the medical history of late Sh. Ishwar Dutt dated 22413 that his general condition was poor, though conscious and oriented.
24 The same continued to be so till the end of 2242003 and the said poor condition was also explained to his relative(s), he was advised to be shifted to ICU, he was thereafter admitted into ICU on 2242003 and at about 11.30 pm, his general condition at that time was again same i.e poor and it continued to be so in the ICU on 2342003 at 8.00 am and on 2442003 at 9.30am his general condition was found to be poor, appetite also poor, though he was found conscious, but drowsy and arousable, his poor general condition was again explained to his relative(s), on 2442003 the same general condition continued, he also vomited once, it was also mentioned in the medical history of late Sh.
Rameshwar Vs. Vijay Kumar Page no.43/50 Ishwar Dutt that the said patient probably was going into hepatorenal syndrome and at about 10.00 PM on 2442003, his condition again continued to be same and he also vomited once and thereafter the same continued till 2542003.
25 From the medical documents Ex.PW3/1 (collectively), it is clear that the general condition of the patient at the time of his admission into the hospital was poor and same was explained to his relative(s) and on the day of execution of the Will i.e on 2442003, the executor/patient was conscious, but drowsy, arousable and he was not fully conscious at the time of alleged Will dated 2442003 and from the testimony of DW2 Sh. Vijay Kumar, it is clear that DW2Sh. Vijay Kumar had taken active/leading part in making of the Will in which he had received the entire benefits. The attesting witnesses were also not known to the executor of the Will and they were brought by the brotherinlaw (jeeja) of the propounder Sh. Ishwar Singh.
26 The Will was also not typed in the presence of the
Rameshwar Vs. Vijay Kumar Page no.44/50
deceased late Sh. Ishwar Dutt and the doctor(s) had stated that the condition of late Sh. Ishwar Dutt was very critical and he would not survive long. Though, the executor did not knew the English language, yet the Will was typed in English, when he was lying in the ICU. It is stated that the contents of the Will were explained to him in Hindi by Sh. Naresh Kumar, employee of the SubRegistrar office. The said Sh. Naresh Kumar had also appeared as a witness as DW4. 27 The said Sh. Naresh Kumar has stated in his cross examination that he cannot translate the Will which is in English to Hindi, however he can tell about the property concerned which are mentioned in the Will. It is not clear when the said witness was not conversant with the English language, if the said witness was not conversant with the English language then how he could translate the Will from English to Hindi and explained the contents of the same to the executor of the Will. He had further stated in his crossexamination that it is correct that the application Ex.DW5/1X was moved in their office Rameshwar Vs. Vijay Kumar Page no.45/50 without any signatures or thumb impressions. The said application is on the record, the same only bears the alleged thumb impressions of the executor late Sh. Ishwar Dutt, but the said application had nowhere allowed by the concerned Sub Registrar, authorizing DW4 to visit the hospital and to get the same executed in his presence and thereafter to get it registered with the concerned office of Sub Registrar, therefore, the chances of manipulation about the execution of Will and later on registration of Will cannot be ruled out, since it nowhere bears the endorsement of registration allowing or disallowing the said application even the Advocate, who had allegedly drafted the Will has not been examined during trial.
28 Further, none of the attesting witnesses were known to the executor of the Will, but were brought by the propounder i.e DW2. In fact, DW3Sh. Virender Singh, who is one of the attesting witness had stated that one of his friend Sh. Ishwar Singh had informed on his telephone that his relative was not well, he was called in the hospital for Rameshwar Vs. Vijay Kumar Page no.46/50 witnessing the Will and he further stated that the above said Will was not got typed in his presence as it had already been typed and deceased late Sh. Ishwar Dutt was admitted in ICU on 24403, the condition of late Sh. Ishwar Dutt was not good and he also stated that DW3 had read over the contents of the Will in Hindi in his presence, late Sh. Ishwar Dutt was not known to him and he had witnessed to the execution of the Will at the request of his friend.
29 It also appears that DW2 Sh. Vijay Kumar had been called by the brotherinlaw (jeeja) of the propounder to witness the Will which itself is a suspicious circumstance. Further, it has come in the evidence of DW2 that the propounder had not explained the contents of the alleged Will to late Sh. Ishwar Dutt. This circumstances has also not been explained as to why if late Sh. Ishwar Dutt was fully conscious, he could not put his signatures on the Will Ex.PW1/2 inspite of putting his thumb impression which also itself is a major suspicious circumstance.
30 As discussed above the medical condition of late Sh. Ishwar Rameshwar Vs. Vijay Kumar Page no.47/50
Dutt was very bad/critical on the day of the execution of the alleged Will Ex.PW1/2, he was conscious, but drowsy and arousable that shows that late Sh. Ishwar Dutt was not of sound mental disposition on the day of execution of the Will.
31 In view of the law laid down in the aforesaid judgment(s) (Supra) when there are suspicious circumstances, the question which arises for consideration is whether the evidence lead by the propounder of the Will is such so as to satisfy the conscious of the Court and it is impossible to reach the satisfaction unless the party which sets up the Will offers cogent and convincing explanation to the suspicious circumstances surrounding the making of the Will. 32 None of the suspicious circumstances had been taken into consideration by the ld. Trial Court while passing the impugned judgment/decree dated 3012013 nor the medical evidence depicting the condition of the executor of the Will late Sh. Ishwar Dutt at the time of the alleged execution of Will dated 24403 had been taken into Rameshwar Vs. Vijay Kumar Page no.48/50 consideration, while giving findings on issue no.4, it appears that the ld. Trial Court has glossed over these important aspects while delivering the impugned judgment/decree dated 30113, in these circumstances, the findings of ld. Trial Court with regard to this most important issue cannot be sustained. However, it would be expedient in the interest of justice and fair trial that both the parties be given opportunity to lead further evidence with regard to this issue i.e the propounder of Will should be given opportunity to lead evidence to remove suspicious circumstances and plaintiff an opportunity to rebut the same including the necessary medical evidence in support of their respective pleas with regard to issue no.4.
33 Finding on Issue no.5 is dependent upon issue no.4, in these circumstances, the present appeal is allowed and the impugned judgment/decree dated 3012013 passed by ld. Trial Court is hereby set aside.
34 The matter is remanded back to the ld. Trial Court to be
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decided afresh in light of the observations made in this order and after giving opportunity to both the parties to adduce further evidence in the matter including medical evidence, if any, with regard to issue No.4 thereafter ld. Trial Court to decide the matter afresh as per law.
Both the parties are directed to appear before the ld. Trial Court for further proceedings in the matter on 27012015. A copy of this order be sent to the ld. Trial Court along with Trial Court Record.
Appeal file be consigned to record room.
(Sanjeev Aggarwal)
ADJ (N/W) ROHINI COURTS
DELHI:13.12.2014*rk
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