Delhi District Court
Sh. Rajesh vs Sh. Mukhtiar Singh on 27 September, 2016
IN THE COURT OF MS. SAVITA RAO
ADJ (WEST)01, TIS HAZARI COURTS, DELHI
Suit No. 172/16
IN THE MATTER OF :
Sh. Rajesh
S/o Sh. Mukhtiar singh
R/o WZ72 & 72A, Nangli Jalib
Near B1 Block, Janakpuri
New Delhi110058 ........Plaintiff
versus
1.Sh. Mukhtiar Singh S/o Sh. Partap Singh
2. Sh. Sat Pal S/o Sh. Mukhtiar Singh
3. Sh. Sanjeev S/o Sh. Mukhtiar Singh All residents of : WZ72 & 72A, Nangli Jalib Near B1 Block, Janakpuri, New Delhi110058
4. Sh. Raj Pal S/o Sh. Mukhtiar Singh
5. Sh. Vinod Kumar S/o Sh. Mukhtiar Singh Both r/o L12, Shyam Park, Nawada, New Delhi
6. Smt. Angoori D/o Sh. Partap Singh R/o Village Kulasi Near bahadurgah Distt. Jhajjar Haryana .........Defendants Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 1 DATE OF INSTITUTION : 14.01.2009 DATE OF TRANSFER TO THIS COURT : 10.05.2016 DATE OF ARGUMENTS : 21.09.2016 DATE OF JUDGMENT : 27.09.2016 JUDGMENT
1. This is suit for partition filed by the plaintiff. Plaintiff is grand son of Late Sh. Pratap Singh, who died on 06.01.1993, leaving behind his son i.e. defendant No. 1 and one daughter i.e. defendant No. 6. Defendants No. 2 to 5 are sons of defendant No. 1 / grand sons of Late Sh. Pratap Singh. Late Sh. Pratap Singh, owned and possessed immovable properties as detailed in plaint.
2. Late Sh. Pratap Singh left behind registered Will dated 21.07.1986 whereby he bequeathed the properties in favour of plaintiff and defendants No. 3 to 6 in equal shares with exclusion of defendants No. 1 and 2.
3. The factum of execution of Will was not known to the plaintiff. Defendant No. 1 continued recovering rent from the tenants without any objection from others under misimpression of inheritance of the properties by defendant No. 1 i.e. the father of the plaintiff. Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 2
4. In written statement filed on behalf of defendant No. 1, it was submitted that plaintiff has impleaded defendant No. 4 despite being aware of the factum of defendant No. 4 having expired in 1993 itself. His legal heirs as stated were not impleaded in the matter. It was further submitted that the subject property was ancestral property, therefore, was not capable of being alienated by his father. The other lineal descendants of Late Sh. Pratap Singh i.e. other two sons and daughters of defendant No. 1 have also not been impleaded in the instant suit.
5. It was further submitted that family arrangement had already been arrived in the year 1984 which was modified in the year 198990. To the knowledge of plaintiff, one of the properties was alienated by Late Sh. Pratap Singh and defendant No. 1 and his children were allocated WZ72 where they continued to live as a joint family. The details of family settlement were given in para 1.8 of written statement. The Will as submitted by defendant No. 1 was false and concocted which had never been probated or even formally confronted to defendant No. 1.
6. Late Sh. Pratap Singh died on 06.01.1993 and continued with possession and enjoyment of the property rights as per the family Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 3 settlement which was never objected to by plaintiff.
7. Defendant No. 2 filed written statement while taking the similar stand as taken by defendant No. 1.
8. Defendants No. 4 and 5 were served. Defendant No. 3 stated to have expired. Defendant No. 6 was not served. Some time was requested on behalf of plaintiff to move appropriate application for substitution of LR(s) of deceased defendant No. 3 and for service of defendant No. 6, thereafter, matter was referred to mediation centre but parties failed to arrive at any settlement. Steps were not taken by plaintiff for service of defendant No. 6 and even for impleadment of legal heirs of defendant No. 3 and matter seems to have proceeded with framing of issues on 04.03.2010 with following issues :
1) Does the plaintiff prove that the Will dated 06.01.1993 by late Sh. Pratap Singh (his grandfather) was executed in accordance with law and is also the genuine and last Will of the said testator ? OPP
2) Is the plaintiff entitled to a share, as claimed in the suit properties mentioned in para A of the relief clause ? OPP
3) Is the plaintiff entitled to decree for partition and/or rendition Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 4 of accounts ? OPP
4) Relief.
9. After conclusion of PE, matter was fixed up for DE when it was transferred to this Court on the point of jurisdiction. No evidence was led on behalf of contesting defendants, accordingly, DE was closed and matter reached to the stage of final arguments. LR(s) of deceased defendant No. 3 were not brought on record. In these circumstances, suit stands abated against defendant No. 3. Service of defendant No. 6 was also not effected and plaintiff took no steps to ensure the service of defendant No. 6, however, this Court proceeds to decide the case in absence of service of summons of the suit upon defendant No. 6 for the reasons mentioned hereinafter.
10. ISSUES NUMBER 1 & 2 : The suit for the partition filed by plaintiff is based upon the execution of Will by Late grand father of plaintiff in his favour and in favour of defendants No. 3 to 6 with the exclusion of defendants No. 1 and 2. The subject properties as claimed by plaintiff belonged to his grand father and all the legal heirs of his grand father have not been impleaded in the matter by the plaintiff at the first Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 5 count. No steps were taken to ensure service upon defendant No. 6 leading to inference of defendant No. 6 not a party in the matter. The suit becomes bad for nonjoinder of necessary parties for want of service upon defendant No. 6, for want of impleadment of LR(s) of deceased defendant No. 3 and for non inclusion of other sons and daughters of defendant No. 1.
11. The factum of execution of alleged Will came to the knowledge of the plaintiff in the year 2008 upon which he sought partition of the properties which was not given due response by defendant No. 1 and plaintiff as stated was constrained to file the instant suit.
12. PW 1 stated about properties bearing No. WZ70, WZ72, WZ72A and one gher bearing No. WZ73 Nangli Jalib, Near B1 Block, Janakpuri, having bequeathed in his favour along with defendants No. 3 to 6 in equal shares by virtue of Will dated 21.07.1986. On behalf of defendants No. 1 and 2, there was claim of family settlement which was arrived at between the family members in the year 1984 during the lifetime of Late Sh. Pratap Singh. PW 1 feigned ignorance regarding the said family settlement with submission that he was quite young and was Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 6 aged about 1617 years in the year 1984.
13. PW 1 did not know regarding the possession of property bearing No. WZ3 which is forming part of the properties allegedly bequeathed by virtue of the said Will. He did not know if the said property had been sold by his grand father and also regarding the sale of property bearing No. WZ70 by defendants No. 4 and 5. PW 1 also did not know about family arrangement in the year 198990. He admitted that house bearing No. WZ72 was constructed in the year 198990 which had six flats but he denied that six flats were constructed in the same building in pursuance of the family settlement. He admitted that he came to know an year ago that defendants No. 4 and 5 had sold property bearing No. WZ72.
14. With the above crossexamination, authenticity / genuineness of the Will was challenged on behalf of defendants No. 1 and 2. It was submitted that plaintiff all along was aware of this alienation and had never objected to, as all the parties were aware of the family arrangement.
15. It was also submitted that alleged Will was executed in the year 1986 when Late Sh. Pratap Singh was 89 years of age and was not Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 7 in sound and disposing state of mind. It was also submitted in written statement that plaintiff till date has never got the Will probated and at the same time, the said Will was never formally confronted to defendant No.
1.
16. In 228 (2016) DLT 591 Om Prakash Yadav and Ors. vs. Kanta Yadav and Ors., in a suit for declaration and permanent injunction, dispute was raised inter parties in relation to the Will left by the ancestors. It was observed that plaintiff had equal and alternate efficacious remedy of preferring a testamentary case. As further noted, "the proceeding to obtain the probate or letter of administration in respect of Will are proceedings in rem. It is for this reason, Probate Court is obliged to cause publication of citation so as to invite objections in respect of Will propounded by executor/petitioner. However, in a civil suit between the parties, said procedure is not required to be adopted."
17. In the instant matter, plaintiff has not made all the persons concerned parties who could raise the objections nor has preferred to obtain probate prior to filing of the instant suit for partition. Will is now required to be proved in the instant civil proceedings in absence of not Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 8 seeking probate by the plaintiff. To adjudicate validity of the Will, plaintiff has to prove fulfillment of Section 63 of Indian Succession Act, which are as follows :
1) the testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
2) the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
3) the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person ; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
18. However, Section 68 of Indian Evidence Act, requires that if a document is required by law to be attested and attested witness is alive Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 9 then subject to process of the Court and capability of witness to give evidence, must be called to prove its execution. The execution consists of signing the document, reaching out, read over and understood and to go through the formal answer for validity of legal act. The non compliance of the requirements to prove a Will which is otherwise valid and perfectly enforceable documents, refers the testamentary document of 'no effect'.
19. The Will is a document required by law to be attested and if standard of proof as envisaged in Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act, falls short of legal requirement, Will cannot be taken into consideration for purpose of establishing the claim of the legatees.
20. In terms of Section 67 of Indian Evidence Act, if a document is alleged to be signed by any person, signature of said person must be proved to be in his handwriting.
21. The document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Unlike the other documents, Will speaks from the death of the testator, therefore, maker of the Will would never be available deposing regarding Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 10 the circumstances in which the Will came to be executed. Therefore, the onus which lies on the prepounder can be taken to be discharged on proof of essential facts which came into making of the Will.
22. In the instant matter, Will is MarkA, original Will was not filed on record which as stated was not available with the plaintiff. PW 2 was examined to prove the registration of the said Will which as deposed by him was registered on 21.07.1986. He also filed photocopy of the same Ex. PW 2/1. Obviously this witness had no personal knowledge about execution of the Will who was deposing from record brought by him.
23. This Will in terms of contents, had been witnessed by two witnesses i.e. one Sh. R.K. Gupta and another as pointed out by Counsel for plaintiff "Advocate B.N. Babbar". The aforesaid is being mentioned at the submission of Counsel for plaintiff since the body of MarkA reveals about name of attesting witnesses only as Sh. R.K. Gupta whereas Sh. B.N. Babbar, Advocate has signed the Will beneath the mention 'drafted by'. Signatures of another Advocate Sh. C.P. Wig are appended on MarkA with similar mention i.e. 'drafted by'. Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 11
24. The Will in these circumstances seems to have been attested only by one attesting witness which itself falls short of fulfillment of requirement of Section 63 of Indian Succession Act, that Will must be attested by two or more witnesses. Even if it is considered on record that other scribe Sh. B.N. Babbar was the other attesting witness to the Will, he has not been examined before this Court.
25. The only witness examined for the purpose of proving of execution of the Will is scribe Sh. C.P. Wig i.e. PW 3 who had drafted the will. According to him, Will was drafted by him on the instructions of Late Sh. Partap Singh but the Executant did not sign or apprehend his thumb impression in his presence nor attesting witnesses signed in his presence. He had no knowledge about the registration of the Will. As further deposed by him, he does not verify the correctness of identity of the person when he approaches him for drafting the documents for him, though he volunteered to state that Executant of this Will was known to him. He was not aware about issues of Executant. He did not know when Executant died. He had no knowledge about the properties of Late Sh. Partap Singh. The attestation and deposition of this witness being Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 12 scribe, therefore, is of no help to the case of plaintiff. Reference is made to Abinash Chandra Bidyanidhi Bhattacharaya vs. Dasarath Malo ILR 56, Cal. 598, wherein it was held that "attesting witness must subscribe with the intent that the subscription of signature stands by way of a complete attestation of the Will and the evidence is admissible to show whether such was the intention or not. A person who had put his name under the word 'scribe' was not an attesting witness as he had put the signatures only for the purpose of authenticating that he was a scribe.
26. Sh. B.N. Babbar, as already noted, as per the mention on the Will, had drafted the Will, though as submitted by Counsel for plaintiff was attesting witness to the Will, however, has not been examined in the matter. The other witness Sh. R.K. Gupta has also not been examined. Counsel for plaintiff submitted that both the witnesses to the Will were not alive, therefore, were not examined but after having gone through the records, Counsel for plaintiff also admitted that summons were sent to Sh. R.K. Gupta, who remained unserved as he was not available at the time of visit of the Process Server. No efforts were made subsequently in the matter to ensure the presence of Sh. R.K. Gupta. Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 13
27. Plaintiff was required to prove the Will as per Section 68 of Indian Evidence Act. None of the attesting witnesses to the Will have been examined in the matter. Regarding oral assertion of the witnesses being not alive which is though found contrary to the record, neither death certificates have been produced on record and even if, it is presumed that both the witnesses have died, plaintiff is required to prove the Will as per Section 69 of Indian Evidence Act. Signatures of the attesting witnesses have not been identified on record as well as signatures of the Executant of the Will himself. None of the plaintiff's witnesses examined in the matter deposed that testator had signed the Will in their presence. Execution of the Will, therefore, cannot be held to be proved in accordance with law.
28. Reference is made to Manmohan (deceased) Through LR(s) and Anr. vs. Baldev Raj and Ors. 2013 SCC 4568, wherein it is observed that "Will is required to be attested by two or more witnesses, each of whom have seen the testator sign and who have themselves signed in presence of and at the direction of testator.
29. As was noted in Gurdial Kaur vs. Kartar Kaur AIR 1998 Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 14 SC 2861 " even the Will which has been duly registered as is required to be proved as per Indian Evidence Act, where none of the witnesses to the Will depose regarding the Will having been signed in their presence and that they had attested it, execution of the Will cannot be said to be proved in accordance with law."
30. In these circumstances, plaintiff having failed to prove the execution of the Will besides the suit being bad for nonjoinder of necessary parties, issues No. 1 and 2 are decided against plaintiff.
31. ISSUE NUMBER 3 : Since plaintiff has claimed partition and rendition of accounts on the basis of Will which has not been proved by him, therefore, entitlement of the share of plaintiff on the basis of Will can also not be decided in this matter.
32. In view of above discussion, suit is dismissed with no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open Court on 27.09.2016 (SAVITA RAO) ADJ01/West/Delhi Suit No. 172/16 (Rajesh vs. Mukhtiar Singh and Ors.) Page No. 15