Delhi District Court
Smt. Bachna Devi vs (1) The State on 21 November, 2014
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
P. 02/14
Case I.D. Number : 02402C0240792013
IN THE MATTER OF :
Smt. Bachna Devi
W/o Sh. Rajinder Prasad,
D/o Late Sh. Ratipal,
R/o C131, Gali No. 7,
Ground Floor, Shastri Park,
Delhi53. ........ Petitioner
VERSUS
(1) The State
(2) Smt. Rannu Devi
W/o Sh. Sanjay Kumar
R/o C131, Gali No. 7,
Shastri Park, Delhi53.
Also At:
Smt. Rannu Devi
W/o Sh. Sanjay Kumar
A3/65, Brijpuri,
Karawal Nagar Road,
Delhi94. ......Respondents
P02/14 1 of 18
Bachna Devi Vs. State and Rannu Devi
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
Date of Institution of suit : 02.08.2013
Received in this Court : 03.03.2014
Date of Arguments : 21.11.2014
Date of Judgment/Order : 21.11.2014
Decision : Petition dismissed with cost.
J U D G M E N T
1. This petition has been filed U/S 276 of the Indian Succession Act, 1925 ( hereinafter referred to as the said act) for grant of letters of administration and probate of Will dated 01.01.2013 of deceased Late Smt. Kanku Devi W/o Late Sh. Rati Pal in respect of property measuring 37 sq. yards ( out of 75 sq. yards) out of Khasra No. 1ETC 94 bearing property No. C131 at Village Ghonda, Chauhan Khadar in the abadi of Gali No. 7, Shastri Park Illqua Shahadara, Delhi53 (hereinafter called the suit property).
2. It is stated in the petition that Smt. Kanku Devi W/o late Sh. Rati Pal executed Registered Will dated 01.01.2013 in the presence of attesting witnesses and by virtue of the same the suit property was bequeathed to the petitioner. The said Will was executed by her in sound and full disposing mind. She expired on 29th January, 2013. The petitioner being the only beneficiary of the said Will had filed this petition and prayed for P02/14 2 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi grant of probate of the Will dated 01.01.2013 and letters of administration in respect of the said property.
3. Directions have been issued for publication of the citation of the petition in Newspaper ' Statesman'. The publication was carried out and edition dated 17.09.13 of the Newspaper is on record. Notice of the petition had also been affixed in the court house. None appeared on behalf of any member of the public except the respondent No. 2 to approach the petition.
4. Smt. Rannu Devi i.e. sister of the petitioner was impleaded as respondent No. 2 who filed the objection/written statement and approached the prayer made in the petition. The respondent No. 2 contended that this court has no territorial jurisdiction to try and entertain this suit; Smt. Kanku Devi executed her last Will in the year, 2005 and this petition is false and frivolous. As contended, the Will in question is the fraud committed by the petitioner. As further contended, deceased Smt. Kanku Devi sold the suit property to the respondent No. 2 in 2006 vide registered documents. The respondent No. 2 further prayed to dismiss the petition with cost.
5. Replication/reply to the WS/Objection of respondent No. 2 was filed by petitioner wherein the allegation made in WS have been denied in toto and contentions made in the petition have been reiterated as correct.
P02/14 3 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
6. Vide order dated 30.10.2013, the following issues were framed in view of pleading of the parties.
(i). Whether the petitioner is entitled to the grant of probate in respect of the Will dated 01.01.2013 executed by Late Smt. Kanku Devi and Letters of Administration in respect of property which is the subject matter of the Will ?
( OPP).
(ii). Relief.
7. The petitioner examined herself as PW1 and deposed by way of affidavit Ex. PW1/A. She deposed as per the averments made in the petition. The witness has further deposed regarding the documents i.e Will dated 01.01.2013 Ex. PW1/1, Death Certificate of Smt. Kanku Devi Ex. PW1/2, Death Certificate of husband of Smt. Kanku Devi Ex. PW1/3, Family Register Ex. PW1/4, Photocopy of GPA dated 01.01.2013 Ex. PW1/5 and Dah Sanskar Certificate Ex. PW1/6.
The petitioner thereafter summoned and examined as PW2 from the office of SubRegistrarIV, Seelampur, Nand Nagri Delhi who appeared with the Will dated 01.01.2013 executed by Smt. Kanku Devi in favour of Smt. Bachna Devi registered with SubRegistrar on 02.01.2013 vide registration No. 1 in book No. 3, Volume No. 3500 on pages 4 to 6 which is already Ex. PW1/1. The GPA executed by the Kanku Devi in favour of the P02/14 4 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi petitioner registered on 03.01.2013 was deposed as Ex. PW1/5.
The petitioner further examined Sh. Tulsiram Jaisawal as PW3 who deposed by way of affidavit Ex. PW3/A. PW3 deposed that he is the attesting witness of the Will. As no other witness was examined/ remained to be examined by the petitioner, the PE was closed. The case was thereafter fixed for respondent's evidence.
8. The respondent No. 2 also filed an affidavit by way of evidence Ex. RW1/A and was examined as RW1. She deposed nothing but the averments as mentioned in the reply to the petition. Other witness Laxman Prasad was examined by the respondent No. 2 as RW2 vide his affidavit Ex. RW2/A . The respondent's evidence thereafter closed.
9. I have heard the Ld. Counsel for the parties and perused the relevant materials on record. I have also gone through the written submissions filed by the parties in support of their contentions. My finding on the abovesaid issues are as follow.
ISSUES No. I
(i). Whether the petitioner is entitled to the grant of probate in respect of the Will dated 01.01.2013 executed by Late Smt. Kanku Devi and Letters of Administration in respect of property which is the subject matter of the Will ?( OPP).
P02/14 5 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
10. The onus to prove this issue was upon the plaintiff. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe as under: "A civil case is decided on balance of probabilities. The balance of probabilities in the present case shows that the Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly executed by the deceased Sh. Sohan Singh. The Power of Attorney is after all a registered Power of Attorney, and more importantly, the original title documents of the subject property are in the possession of the respondent No. 1 and which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would P02/14 6 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the P02/14 7 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree". In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
11. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As mentioned, there is no admission in the written statement regarding the case of the petitioner and her claim is denied by respondent No. 2. In view of the legal P02/14 8 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi position of the Evidence Act mentioned above, it is for the petitioner to prove that Late Smt. Kanku Devi was the owner of the suit property and have right to bequeathed the same by way of Will. The petitioner has further to prove that Smt. Kanku Devi executed the Will dated 01.01.2013 in her favour and therefore she is entitled for the prayed as made in this petition.
12. Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of documents which is required by law to be attested. The relevant provisions are reproduced below for reference: Section 63 of Indian Succession Act1925 Execution of unprivileged wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner at sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark or the testator, or the signature of the person signing for him, shall be so placed that it P02/14 9 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi shall appear that it was intended thereby to give effect to the writing as a will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature or 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.
Section 68 of the Indian Evidence Act, 1872 Proof of execution of document required by law to be attested If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
( Provided that it shall not be necessary to call an P02/14 10 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.)
13. The aforesaid provisions in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
14. For proving the Will, the propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will P02/14 11 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there my be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator of the feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that 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. Reliance is placed on H. Venkatachala Lyengar V. B. N. Thimmajamma, (959) Supp. 1 SCR 246 and Rani Purnima Devi v.
P02/14 12 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi Kumar Khagendra Narayan Dev, (1962) 3 SCR 195.
15. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear, evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
16. It is well settled that when genuineness of the will in question, apart from execution and attestation, it is also the duty of the person seeking declaration of the validity of the will to dispel suspicious circumstances existing, if any. ( Babu Singh & Ors. V. Ram Sahai @ Ram Singh, AIR 2008 SC 2485). As held in IV (1998) SLT 263, the propounder of the Will has to show that the Will was the product of free volition of executant who had voluntarily executed the same after knowing and understanding the P02/14 13 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi contents of the Will.
17. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharge. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on caveator. Reference is made Benga Behera and Anr. V. Braja Kisore Nanda and Ors., VI ( 2007) SLT 252= III (2007) CLT 65 (SC)= MANU/SC/7673/2007, Madhukar D. Shende V. Tarabai Shedage, I (2002) SLT 137 = I (2002) CLT 81 (SC)= MANU /SC/0016/2002: and Sridevi and Ors. v. Jayaraja Shetty and Ors., II (2005) SLT 38 = I (2005) CLT 162 (SC) = (2005) 8 SCC 784.
18. The brief and relevant facts for filing of this petition and the defence of the respondent has been mentioned at the outset. Admittedly, the petitioner and respondent No. 2 are the only LRs of deceased Kanku Devi P02/14 14 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi who was residing at her native village. The title of Kanku Devi regarding the suit property is also admitted in one way or the other as respondent No. 2 is also claiming her right through her only in view of the documents. The Will in question dated 01.01.2013 is registered and the registration of the Will is proved by PW2. The only dispute remains to be examined is regarding authenticity of the Will. Smt. Kanku Devi was not residing at Delhi and this fact is proved in view of the testimony of PWs. She was illiterate and could not understand English or Hindi. Her health was also not perfect at the time when the Will in question was executed as observed from the testimony of the witnesses. The testimony of the PW1/petitioner was shattered during crossexamination and the petitioner failed to explain that when she was residing in the village, what was the occasion to her to visit Delhi only to execute the Will. The address mentioned in the Will is also of her native village. It is further observed that she had left other properties in the village which is used by the petitioner. PW2 deposed that the suit property was in the name of Rati Pal i.e. husband of the Kanku Devi and Ram Ashre who is also one of the witness of the Will but the said witness is not produced. The testimony of PW3 was also shattered as he failed to disclose the number of documents on which he signed in Registrar Office on 01.01.2013.
19. Indisputedly, a will is to be attested by two witnesses in terms P02/14 15 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi Section 68 of the Indian Evidence Act. Section 68 mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of the will must be proved but actual execution must be attested by at least two witnesses. It is noted that in this case the petitioner not merely failed in proving the execution of the Will, she also failed in proving the attestation of the same. Moreover, there is no evidence on record to explain the suspicious circumstances of excluding the respondent No. 2 from bequeathed of the suit properties. The suspicious circumstances as discussed above remained un explained. The Will accordingly relied by the petitioner cannot be held to be proved in view of Section 68 of the Indian Evidence Act. The ratio of the judgment reported as 211 (2014) DLT 448 is squarely applicable in the facts and circumstances of this case.
20. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence P02/14 16 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
P02/14 17 of 18 Bachna Devi Vs. State and Rannu Devi Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
21. In view of the aforesaid discussions and referred law, this Court is of the considered view that the petitioner failed to prove the execution of the Will in view of Section 68 of the Indian Evidence Act. The petitioner cannot be considered having right, title or interest in the suit property better than the respondent No. 2 and the Will relied by the petitioner is not helpful. There is no merit or substance in the petition filed by the petitioner. The petition of the petitioner is therefore liable to be dismissed. Issue No. i is decided against the petitioner.
RELIEF In view of the aforementioned discussions, the petitioner is not entitled for any relief. The petition is therefore dismissed with cost.
22. Decree sheet be drawn accordingly.
23. File be consigned to record room after necessary compliance. Announced in open Court on this 21th day of November, 2014 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
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