Delhi District Court
Sh. Vinay Sakhuja vs State on 4 March, 2017
IN THE COURT OF SH. SANJAY KUMAR : ADDL. DISTRICT JUDGE
(WEST)-02, TIS HAZARI COURTS:DELHI
Old P.C No. 95/10/05
New P.C. No. 15956/16
Sh. Vinay Sakhuja
S/o Shri Suraj Prakash Sakhuja
R/o B-2/52, Safdarjung Enclave,
New Delhi 110029
...... Petitioner
Versus
1. State
2 Shri Vijay Sakhuja
S/o Sh. Suraj Prakash Sakhuja
R/o B-2/52, Safdarjung Enclave,
New Delhi-110029
3 Smt. Usha Bajaj
W/o Sh. Gulshan Bajaj
R/o K-25/B, Kalkaji,
New Delhi
4 Sh. Ramesh Sakhuja
S/o Shri Gian Chand Sakhuja
R/o 77, Janta Colony,
Jaipur
5. Sh. Anil Sakhuja
S/o Shri Gian Chand Sakhuja
R/o 77, Janta Colony,
Jaipur
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 1/74
6. Smt. Swarn Sachdeva
W/o Sh. Khairati Lal Sachdeva
R/o C-4C, Pocket 8, Janakpuri,
New Delhi
7. Smt. Kamlesh Bhasin
W/o Sh. Gulshan Bhasin
R/o D-24, Kirti Nagar,
New Delhi
8. Smt. Guddi
W/o Sh. Deepak Malik,
R/o D-171, New Rajinder Nagar,
New Delhi
... Respondents
Date of original institution of the case : 17.11.2005
Date of reservation of order : 25.02.2017
Date of pronouncement of judgment : 04.03.2017
JUDGMENT:
1 A petition under Section 276 of Indian Succession Act, (XXXIV of 1925) for grant of Probate with the will annexed has been filed.
2 In brief the facts are that deceased Satyapal Sakhuja S/o late Sh. Lakshmi Chand ( hereinafter referred to as 'deceased') left for his heavenly abode on 14.05.1995. The deceased at the time of his death a fixed place of abode at B-2/52, Safdarjung Enclave, New Delhi.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 2/74 3 It is stated that the writing herewith annexed as Annexure "B" is the last Will and Testament of the deceased and was duly executed by him in the presence of witnesses named in the said will. The said Will dated 15.01.1989 was duly registered at the office of Sub-Registrar, Delhi bearing document No. 26223, Addl. Book No. III, Volume 2384, pages 67 to 68 on 08.06.1995. The said Will is the true last Will and Testament of the deceased.
4 It is stated that petitioner is the executor named in the said Will and is nephew of the deceased Shri Satyapal Sakhuja. The deceased did not marry during his life time and his parents had predeceased him. The deceased is survived by the legal representatives, the list whereof is annexed herewith as Annexure "B". There is no other legal heir and next of kin according to Hindu Law applicable to him, apart from those as mentioned in Annexure "B". The properties of the deceased have been truly set forth in the Schedule annexed to this petition and marked Annexure "C".
5 It is stated that petitioner alongwith his brother Shri Vijay Sakhuja had earlier filed a petition for grant of succession certificate in respect of the debts and securities of the deceased. In the said petition the copy of the Will was also annexed alongwith the list of documents. The other legal representatives of the deceased appeared and filed their written statement, however, the said petition was dismissed in default on 10.09.1996.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 3/74 6 It is stated that as per the Will the deceased had bequeathed the property No. B-2/52, Safdarjung Enclave, New Delhi to Smt. Sangeeta Sakhuja, wife of Shri Vijay Sakhuja and Smt. Meenu Sakhuja, wife of petitioner in equal share. Subsequently, Shri Ramesh Sakhuja, one of the legal representatives of the deceased filed a petition under Section 278 for Grant of Letters of Administration to the estate of the deceased. However, in the said petition Shri Ramesh Sakhuja made a false statement that the deceased had died intestate. The present petitioner had been made a respondent in the said petition and were proceeded ex- parte vide order dated 07.05.2001 by this court. Thereafter, the petitioner moved an application under order IX Rule 7 read with Section 151 CPC for setting aside the ex-parte proceedings, however the said application was dismissed vide order dated 19.07.2005. Against the said order, the petitioner filed a civil revision petition bearing No. 368-69 of 2005 before the Hon'ble High Court of Delhi, however, the said petition was dismissed vide order dated 21.09.2005.
7 It is stated that in the previously instituted petition filed by Shri Ramesh Sakhuja and others bearing P.C No. 98/1999, it has not been disclosed that the deceased Shri Satyapal Sakhuja had left behind a Will dated 15.01.1989. Petitioner seeks Probate to the annexed Will.
8 Upon filing the present petition, notice of the same was issued to all respondents/LRs of the deceased. And notice was also PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 4/74 served to the concerned Collector/SDM accordingly Tehsildar Vasant Vihar filed the valuation report of the property bearing No. B-2/52, Safdarjung Enclave and assessed the market value of the same as Rs. 45,39,620/-.
9 It is pertinent to mention here that In this petition respondent no. 2 Sh. Vijay Sakhuja and respondent no. 3 Smt. Usha Bajaj filed NOC in favour of the petitioner.
10 Respondent no. 4 to 8 filed reply/written statement/objections to the probate case and stated that present petition and case set up by the petitioner is absolutely false, frivolous, improbable and an apparent abuse of the process of court. The Will propounded by the petitioner as an Executor is sham and bogus not being genuine and a valid will of the deceased and taken preliminary objections.
11 It is stated that deceased was the uncle of petitioner and his brother Sh. Vijay Sakhuj, while Smt. Meenu Sakhuja and Smt. Sanjeeta Sakhuja, shown to have been beneficiaries Legatees in the said will are their respective wives. The respondent no. 4,5,6,7 & 8 are also the nephews and nieces of the deceased being children of his second brother late Sh. Gian Chand Sakhuja.
12 It is stated that deceased was the owner of property bearing No. B-2/52, Safdarjung Enclave, New Delhi and despite highly educated and retired Class I official in government service did PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 5/74 not get married through out his life. He was very found of jogging, writing, typing, going to temple and reading books and going to temples and religious places like Haridwar and Rishkesh etc. 13 It is stated that father of the petitioner and brother of the deceased Sh. Suraj Prakash Sakhuja was not having enough income to survive, nor had any house of his own. Since the deceased was living alone in the said house. Once Sh. Suraj Prakash Sakhuja and his wife (father & mother of the petitioner) requested the deceased for temporary accommodation till another accommodation is arranged. The deceased was very kind and generous person hence he permitted them to stay therein for a short period and that is how they encroached/entered into the said house of the deceased and never vacated the house, despite repeated requests and quarrels. Though parents of the petitioner ever cared or bothered much for the deceased and also stopped providing food and even glass of water to the deceased. The petitioner always treated the deceased hatedly and neglected. 14 It is stated that deceased was ill treated all along and was meted out maltreatment and misbehaviour and that too with occasional abusing persistently. It is stated that respondents were having very good relations with their deceased uncle and whenever they visited the deceased use to tell the tale of what had happened with him and about the treatment meted out to him. The respondents always requested the deceased to come and stay with them but the deceased never wanted to move because of his great affection with the house.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 6/74 15 It is stated that the deceased was very upset especially taking the house issue. He always used to tell that he does not want to give a single penny or even a small part of the said house to the petitioner and other members of their family. It is stated that deceased never told about any such Will either to any of the above respondents or to any other know person despite being specifically asked, while he himself disclosed the factum of previous will to the respondent immediately after its execution. It is stated that once when the deceased was in hospital, he complained to the respondent Ramesh Sakhuja about some fraud played on him. He was having doubt that the petitioner ( Mr. Vinay ) got some papers signed when he was under the influence of sleep/medicines in the Hospital in the garb of share forms and certificates.
16 It is stated that deceased had also made a declaration before the relatives that Vinay should not touch his body and lit pyre after his death. The deceased could not visit the relatives (respondents etc.) after 1993 because of major health problem, tension and agony. However, respondents kept on visiting the deceased occasionally even after 1993 despite objection by the petitioner. It is stated that deceased was a pensioner and because of the costly treatments and medicines as also hospitalization, the deceased took some money from the respondent Ramesh Sakhuja and his brother and because of the financial problems, the deceased had also rented out the entire ground floor of the said house, except a small portion.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 7/74 17 It is stated that about one and a half year of the deceased was like a hell but the above respondents were really helpless. The ailments, poor care and irregular and bad diet made the condition of the deceased worst in last few months. He became very weak in body and mind and was incapable to move and understand his affairs. It is stated that deceased died intestate on 14.05.1995 near Darya Ganj due to severe heart attack. The love, affection and care, the petitioner and so called legatees had for the deceased is self explanatory and evident from the fact that neither the petitioner nor Mr. Vijay, Smt. Sangeeta and Smt. Meenu had even tried to find out the where abouts of the deceased for two days and two nights when he did not turn up from the court.
18 It is stated that the petitioner even after having came to know about the death of the deceased, did not even inform other relatives and respondents. The petitioner neither informed any other relative nor performed the last rites of the deceased and the deceased had to be cremated at Electrical Crematorium and at the Chotha, no Pagri Rasem or any other ceremony was performed. Not only that, not even a single ceremony was performed by the petitioner and his family member at the house where deceased used to reside.
19 It is stated that really surprising and worth mentioning that on 31.05.1995, just after 16 days from the date of death of the deceased, petitioner was waiting for, filed a Succession Petition in the court of ACJ, Delhi, instead of filing a Probate of the alleged and PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 8/74 so called Will. In fact the petitioner played a fraud on the respondents and the court as he except some movable items, did not even make mention of the house and the will and claim for the immovable property. The petitioner tired to convince the above respondents that they did not pray for immovable property and the amount under the succession is also very less, therefore, they should file their NOC. But the above respondents when refused to give any such NOC, the petitioner instead of withdrawing the same, thought it expedient and considered it beneficial to let the petition be dismissed and intentionally got the said petition dismissed and never tried to get the same restored.
20 It is stated that if the petitioner had the so called Will of the deceased, then they did not seek any probate. It has also come to the knowledge that he had already got the property mutated/substituted in the names of Ms Sangeeta Sakhuja and Ms Meenu Sakhuja. It is worth mentioned that DDA does not grant mutated on the basis of Will unless probate has been obtained or all the legal heirs filed their no objection.
21 It is stated that when nothing could be settled, the respondents above named filed a Petition for grant of letter of administration in the court of District Judge bearing P.C No. 328/05 tilted Ramesh Chand Sakhuja & Others Vs State & others is still pending adjudication in this court. It is stated petitioner contended first time about Will in the Revision Petition filed by him in the High Court subsequently, which was also dismissed by the High Court.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 9/74 22 It is stated that Will propounded by the petitioner is a bogus and sham document and cannot be acted and relied upon because it's execution is also surrounded by many suspicious circumstances. Not only that, the will itself is containing unusual features. The registration of the so called Will was not being done for nine years despite the fact the deceased and petitioner were aware of its importance. The petitioner set up the will after the death of the deceased and got it registered after his death, which was got no meaning or value.
23 It is stated that deceased, the beneficiary Ms Sangeeta Sakhuja illegally and unauthorisedly joined the litigation of the tenant by representing herself to be the owner of the ground floor and illegally received rent from the tenant, sought eviction and also initiated contempt proceedings against the tenant. They misled the court by suppressing the real facts and abused the process of law by not disclosed the fact to the court that two cases ( probate) are pending adjudication before the Probate court, which resulted in miscarriage of justice.
24 It is stated that unexplained delay in filing the probate and bringing the so called Will on record, while there were many occasions, itself shows that the case of the petitioner and will set up by him in collusion with other interested persons is false and sham. The facts stated are absolutely different and a variance with the facts in real life. The deceased was so intelligent that he was aware of the importance of the registration and such other aspects. Not only that, there is no thumb impression of the deceased on the so called will.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 10/74 25 It is stated that the witnesses alleged and shown to have witnesses are being kept by the petitioner as per his own convenience and each one of them is required to be examined irrespective to excuse of their unavailability to ascertain the genuineness of the Will. It is also observed apparently and without any assistance and opinion of any hand writing expert that the signatures of one witness on the Will and on petition are absolutely different and does not match with each other.
26 On merit also all the contents of the petition are either stated to be matter of record or denied and genuineness of the Will is denied and it is stated that said Will registered after the death of the deceased. It is stated that petitioner is not entitled to any relief as claimed and the petition filed by the petitioner be dismissed with cost.
27 Petitioner filed rejoinder to the reply/written statement filed by respondents no. 4,5,6,7 and 8 and denied all the objections raised by the respondents and reiterated the facts mentioned in the petition.
28 On the pleadings of the parties, my ld. Predecessor framed the issues vide order dated 14.07.2008. Thereafter while deciding the application of respondent no. 4 to 8 the issues were amended vide order 21.11.2015. The amended issues are as follows:-
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 11/74
1. Whether the Will dated 15.01.89 executed by late Sh. Satyapal Sakuja was his last Will and testament and duly executed by the testator in sound disposing mind and is legal and valid? OPP
2. Whether the Will in question is forged and fabricated and is surrounded by various suspicious circumstances as mentioned in written statement of the respondents no. 4 to 8 and if so, its effect? OPR 4 TO 8
3. Whether petition is liable to be rejected on the ground of difference of signatures of the attesting witnesses appended on the petition in compliance of Section 281 of Indian Succession Act? OPR 4 to 8
4. Whether the petitioner concealed the material facts regarding the relations of the deceased and if so, its effect? OPR 4 TO 8
5. Whether the present petition is barred by limitation? OPR 4 TO 8
6. Whether the petitioner is entitled for grant of probate/letter of administration as prayed for? OPP
7. Relief
29 In order to prove his case petitioner examined Sh. Hemant Talwar as PW-1, Sh. Raj Kumar, Inspector Food and Civil PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 12/74 Supplies Department as PW-2, Sh. Jagdish Kumar, Record Clerk as PW-3, Sh. D.S. Rana, Chief Section Supervisor, MTNL as PW-4 and Sh. Laxmi Narain, Record keeper as PW-5, Sh. Ravi Shankar, LDC, Record Room ( Civil) as PW-6 and petitioner Vinay Sukhija appeared himself as PW-7. Vide separate statement of the petitioner on 02.05.2016, evidence on behalf of petitioner was closed.
30 Respondent no. 4 to 8 in order to prove their objections examined respondent no. 4 as RW-1, Sh. Sant Ram, Assistant from LAB Residential, DDA as RW-2, Sh. Manoj Kumar, LDC from Sub- Registrar as RW-3, Sh. M.N. Sharma as RW-4, Sh. Vinod Khanna as RW-5, Dr. V.C. Mishra, Handwriting Expert as RW-6 and Shri Ajay Anand from the office of Sub-Registrar as RW-7.
31 Before taking up the issues let us peruse the testimony of all the witnesses examined by petitioner and respondent no. 4 to
8. 32 In order to prove his case petitioner examined Sh. Hemant Talwar as PW-1 who tendered his evidence by way of affidavit Ex. PW-1/A. In his affidavit he deposed that he is Chartered Accountant by profession and doing his own practice. He deposed that his sister Smt. Sangeeta Sakhuja is married to Shri Vijay Sakhuja on 13.12.1982, who is brother of the petitioner and respondent no. 2. Late Shri Satyapal Sakhuja is the uncle of the petitioner as well as respondent no. 2. He deposed that since the marriage of her sister he has been a frequent visitor at the PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 13/74 residence of late Shri Satyapal Sakhuja, deceased I.e premises bearing No. B-2/52, Safdarjung Enclave, New Delhi. He had know the deceased much prior to the marriage of her sister as the deceased, testator as well as his father were colleagues in the same office and were having friendly relations.
33 He further deposed that deceased did not marry during his life time and was resided with Shri Vijay Sakhuja and Shri Vinay Sakhuja and their wives and children at B-2/52, Safdarjung Enclave, New Delhi. In the year 1989, a few days prior to execution of the Will, deceased called him at his residence expressing his intention to execute a Will. He asked his consent whether he would like to witness his will or not. He told him that he will definitely witness his said Will. Thereafter deceased told him that he would prepare the Will and requested him to come to his residence on 15.01.1989 for attesting the same.
34 He further deposed that on 15.01.1989 he reached the residence of deceased. On his reaching his brother in law, Shri Vijay Sakhuja, his sister, Smt. Sangeeta Sakhuja and Shri Sudhir Mehta were already present there. The deceased introduced him to Shri Sudhir Mehta as his acquaintance and intimate him that he would be the other attesting witness to his will.
35 He further deposed that deceased had already got prepared his will and executed the said Will in his presence and in the presence of other witness, namely, Shri Sudhir Mehta. The PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 14/74 deceased was in sound disposing mind at the time of execution of the Will. He deposed that he can identify the signatures of late Shri Satyapal Sakhuja on the Will dated 15.01.1989. He identify his signature at Point Mark A1 and A2 on the Will dated 15.01.1989. He also identify his signatures at Mark B1 and B2. Shri Sudhir Mehta's signatures appear at mark C1 and C2 . He deposed that he can also identify the signatures of Shri Sudhir Mehta on the verification of the petition under Section 276 which appears at Mark E. 36 In the cross-examination he deposed that the marriage of his sister Ms Sangeeta Sakhuja got married with Mr. Vijay Sakhuja on 13.12.1981. He is 51 years old and he was 18 years old at the time of marriage of his sister. He was at the age of 25 years at the time of signing the Will. He does not remember the exact date when his father retired from service and he has not filed any proof with regard to father of his service. The deceased used to work in the National Archives of India. He does not know whether the deceased was residing in Govt. accommodation or in private accommodation.
37 He denied the suggestion that he had known the deceased much prior to the marriage of his sister with Sh. Vijay Sakhuja, He does not know about the ailment of deceased. He also does not know about the hobbies of deceased. He admitted that Sh. Vinay Sakhuja and Vijay Sakhuja were the permissive users in the house of deceased. He denied the suggestion Sh. Vijay Sakhuja and Vinay Sakhuja and their family members ill treated deceased. He PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 15/74 deposed that he was called only to sign the already prepared Will as attesting witness. He has no idea whether deceased had 4/5 fast friends in the neighbourhood. He denied the suggestion that there was no occasion for calling him to witness the will. He deposed that at the time of signing of the Will by him, Mr. Vijay Sakhuja, Ms Sangeeta Sakhuja, Ms Meenu Sakhuja wife of Mr. Vinay Sakhuja, Mr. Satya Pal Sakhuja and second witness Mr. Sudhir Mehta were present. Mr. Vinay Sakhuja was not present at the time of execution of the Will.
38 In the further cross-examination he deposed that he does not know how deceased died. He had attended the cremation of the deceased at Nigam Bodh Ghat. He denied the suggestion that deceased died as unclaimed body and was cremated by Delhi Police at Electric Crematorium. He does not remember whether the body of deceased was remained in government hospital unclaimed for three-four days. He denied the suggestion that he is not a attesting witness to the Will. He denied the suggestion that Sudhir Mehta was never a witness to the Will. He denied the suggestion that on the alleged day of execution of Will, the signatures of testator was obtained by putting pressure, coercion and forcefully.
39 In the further cross-examination he deposed that Will Ex. P1 bears the signatures of witness Gulzar Singh at point Z who accompanied them for registration of the Will. He denied the suggestion that the signatures of Gulzar Singh were taken when the alleged forged Will was prepared. He admitted that he was present PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 16/74 at the time of registration of the Will Ex. P1 but Sh. Sudhir Mehta was not present.
40 In the further cross-examination he deposed that he does not know Mr. M.N. Sharma. He denied the suggestion that Mr. M.N. Sharma witnesses at Will at the time of registration. He admitted that his sister is the main beneficiary as per the Will Ex. P1. He further deposed that he does not know Mr. Dayanand and Mr. Sabharwal being the colleagues of the deceased. He denied the suggestion that at the time of making of Will, there were only two witnesses Sh. M.N. Sharma and Sh. Gulzar Singh. He does not know why he did not appear before Sub-Registrar at attesting witness at the time of registration. He denied the suggestion that signatures of Sh. Sudhir Mehta are different on the petition and on the Will Ex. P1 41 He further deposed that he does not know if the deceased was found of typing on portable typewriter. He does not know if the Will was prepared by deceased himself then the language of the Will would have been different and typed on portable typewriter. He denied the suggestion that deceased even did not want to see his and his relatives face, He denied the suggestion that signature of the deceased prior to typing on a blank paper were taken forcible. He denied the suggestion that he did not visit Sub-Registrar office and will in question is bogus.
42 Sh. Raj Kumar, Inspector Food and Civil Supplies Department as PW-2 and deposed that he has not brought the summoned record as it has already been weeded out.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 17/74 43 Sh. Jagdish Kumar, Record Clerk from Indian Overseas Bank, who proved the statement of account No. 4176 of deceased as Ex. PW-3/A and Ex. PW-3/B as PW-3. Sh. D.C. Rana, Chief Section Supervisor, MTNL who proved the application forms and order of release of telephone connection as Ex. PW-4/A and B. Sh. Laxmi Narain Recordkeeper, Chief electoral office as PW-5 and proved the Electoral list as Ex. PW-5/A. Sh. Ravi Shankar, LDC from Record Room ( Civil) as Ex. PW-6 and proved the record of case file of case bearing No. E-103/94 titled as " Sangeeta Sakhuja Vs Vinod Khanna"
Ex. PW-6/A ( Colly) which was decided on 17.04.1996.
44 Sh. Vinay Sakhuja, petitioner appeared as PW-7 who tendered his evidence by way of affidavit Ex. PW-7/A and his additional affidavit as Ex. PW-7/B and rely upon the death certificate as Ex. PW-7/1, certified copy of reply under order 22 rule 3 CPC as Ex. PW-7/2, certified copy of the order dated 17.11.1995 as Ex. PW- 7/3.
45 In his affidavit Ex. PW-7/A and B he deposed that Shri Satyapal Sakhuja, deceased testator was his paternal uncle who left for his heavenly abode on 14.05.1995. The deceased had affixed place of abode at B-2/52, Safdarjung Enclave, New Delhi. The deceased during his life executed a Will dated 05.01.1989, Ex. P1 which was duly registered before the office of concerned Sub Registrar, Delhi. He deposed that deceased did not marry during his life time and his parent had predeceased him and deceased is survived by the legal representatives, mentioned in Annexure B and PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 18/74 there is no other legal heir and the properties of the deceased set forth in the schedule Annexure C. 46 He deposed that as per the Will Ex. P1 the deceased had bequeathed the property bearing no. B-2/52, Safdarjung Enclave, New Delhi to Smt. Sangeeta Sakhuja, wife of Sh. Vijay Sakhuja and Smt. Meenu Sakhuja, his wife. He further deposed that petitioner alongwith his brother Vijay Sakhuja, respondent no. 2 had earlier filed a petition for grant of Succession Certificate in respect of the debts and securities of the deceased. In the said petition, the copy of the Will was also annexed. The legal representatives of the deceased appeared and filed their written statement, however, the said petition was dismissed in default in the year 1996.
47 He deposed that Shri Ramesh Sakhuja, one of the legal representatives of the deceased filed a petition under Section 278 of Indian Succession Act for grant of letter of administration in respect of the estate of the deceased, however, in the said petition, Shri Ramesh Sakhuja had falsely stated that deceased had died intestate. In that case petitioner had been made a respondent and he alongwith his brother were proceeded ex-parte by the Ld. Predecessor of this court. Thereafter, petitioner moved an application under order 9 Rule 7 read with Section 151 CPC which was dismissed vide orders dated 19th of July 2005. Against the said order, he filed a civil revision petition bearing No. 368-69 of 2005 before Hon'ble High Court of Delhi and said petition was also dismissed vide orders dated 21.09.2005.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 19/74 48 He deposed that deceased was permanently residing with him and had various official records in his name at the address where he alongwith deceased were living. He had opened his saving bank account with Indian Overseas Bank, Safdarjung Enclave, New Delhi in the joint name of the deceased with him and the account opening form and the statement of account have already been exhibited as Ex. PW-3/A & B. The deceased had also applied for telephone connection with MTNL and in which release order was passed which is Ex. PW-4/A and Ex. PW-4/B. The name of deceased also appeared in the list of Chief Electoral Office as Ex. PW-5/A, 49 He deposed that deceased had filed a petition for eviction against the respondents bearing no. E-103 of 1994 titled as Satyapal Sakhuja Versus Vinod Khanna decided on 17.04.1996 and certified copy of the same is Ex. PW-6/A Colly. He deposed that deceased earlier executed a Will dated 04.10.1969, duly registered before the office of concerned Sub Registrar, Delhi vide document No. 487 in Additional Book No. 3, Volume No. 22 on pages 166 dated 9.10.1969, in favour of Smt. Sumitra Sakhuja, wife of Shri Suraj Prakash Sakhuja, who was the elder brother of the deceased and father of petitioner, herein, but unfortunately, during the life time of Shri Satypal Sakhuja, the said Smt. Sumitra Sakhuja had unfortunately expired and accordingly, after the demise of said Smt. Sumitra Sakhuja, deceased had revoked the said earlier Will and executed the present Will.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 20/74 50 He deposed that deceased was being looked after by him and his family and the land underneath the said property was initially purchased by Shri Suraj Prakash Sakhuja, the elder brother of deceased and father of petitioner and it was explicit understanding that the premises in question will be used for the family of Shri Suraj Prakash Sakhuja and this fact has been so admitted by the deceased in the proceedings Ex. PW-6/A. 51 Petitioner further filed his additional affidavit Ex. PW- 7/B and deposed that deceased died on 14.05.1995 and after his death a case for succession certificate vide case No. 459 of 1995 was filed by the petitioner on the basis of the Will which was dismissed in default on 10.09.1996. Shri Satya Pal Sakhuja, had filed a petition under Section 14 (1) ( a) of the Delhi Rent Control Act, against one tenant Shri Vinod Khanna son of Shri H.L. Khanna, which petition was entrusted before the court of ld. ARC, Delhi and after the death of Shri Satypal Sakhuja, an application was moved on behalf of Smt. Sangeeta Sakhuja under order 22 Rule 3 CPC. The said application was contested by Shri Vinod Khanna and filed reply to the said application which is Ex. PW-7/X1 and the court declined the objection vide order Ex. PW-7/X2.
52 He deposed that objector Shri Ramesh Sakhuja, filed letter of administration bearing case No. 98 of 1999 without disclosing the Will but the petitioner were proceeded ex-parte vide orders dated 07.05.2001. The application for setting aside the exparte order was filed on 15.11.2002, which application was PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 21/74 dismissed on 19.07.2005. Civil revision was filed before Hon'ble Delhi High Court, bearing no. 368-69/2005 which was also dismissed on 21.09.2005. Since the Will in question had not been challenged in those proceedings by the objector herein and in the metropolitan city, the probate was not required, hence after the dismissal of the Civil Revision, the present petition for probate was filed.
53 He deposed that Smt. Sangeeta Sakhuja, had filed a Contempt Case (C) bearing No. 343 of 2005 but court declined the request in the contempt case. The certified copy of the said order is Ex. PW-7/X3.
54 In the cross-examination he deposed that originally his father had purchased the property from DDA. Subsequently, it was transferred in the name of late Sh. Satyapal Sakhuja. However, he does not remember the exact month and year. The property was simple transfer in the name of late Sh. Satyapal Sakhuja. No sale documents were executed between the two. He does not know as to who paid the installments. He voluntarily deposed that It was a clear purchase by his father. He denied the suggestion that his father sold this property to Sh.Satyapal Sakhuja. He denied the suggestion that all the installments were paid by late Sh. Satyapal Sakhuja after its transfer in his name. The loan was obtained in the name of Sh. Satyapal Sakhuja and thereafter, installments were paid in the name of Sh. Satyapal Sakhuja. The construction was completed somewhere in 1968. Sh. Satyapal Sakhuja retried after the completion of the property. He does not remember the date PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 22/74 and year when he retried. The ground floor portion was rented out to Sh. Vinod Khanna, might be somewhere in the year 1986-87. At the time of letting it was extra space so it was let out. He denied the suggest that Sh. Satyapal Sakhuja had no source of income and that is why it was let out. He voluntarily deposed that he was getting pension.
55 In further cross-examination he deposed that petition for grant of succession certificate was filed after the death of Sh. Satyapal Sakhuja in the year 1995. He does not remember orally, if factum of Will was mentioned in the petition for succession certificate. The legal heirs mentioned in the petition had filed the petition. The other legal heirs did not admit the contents of petition that is why the case proceeded. He denied the suggestion that the petition was intentionally got dismissed in default. The said succession petition was not got restored. He does not remember as to when the mutation was got effected by us in DDA. He does not remember if the mutation in DDA was effected on 05.05.1997 on the basis of Will in question. He did not take NOC as per procedure from other legal heirs for getting the mutation done in DDA. He denied the suggestion that he got the mutation done fraudulently despite the fact that the other legal heirs did not admit my claim. He did not file any probate case after dismissal of above said succession petition. He voluntarily deposed that Probate was not required.
56 In further cross-examination he deposed that he had filed the present petition because Ramesh Sakhuja had filed a PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 23/74 petition for letter of administration without a Will. He denied the suggestion that in the above said succession petition, he did not got served any legal heir. He denied the suggestion that the other legal heirs came to know from the Reader of the Court about the succession petition, who was relative of Objectors. He had been residing at B-2/52, Safdarjung Enclave, New Delhi from the year 1999 to 2002.
57 Witness had seen point C-2 in Will Ex. P1, which bears the signatures of Sh. Sudhir Mehta. He admitted that the signature on petition at Point E is also of Sh. Sudhir Mehta. Mr. Sudhir Mehta is his neighbour. He is not a childhood friend of him or his brother. Witness Mr. Hemant Talwar who signed at point B2 on the Will Ex. P1 is the brother-in-law of my brother. He denied the suggestion that he was present at the time of taking signatures of the deceased testator on the Will Ex. P1. He denied the suggestion that he along with Sh. Hemant Talwar, his wife, his sister-in-law were present and they got forcible signatures of deceased testator on the Will Ex. P1. He denied the suggestion that the Will has been subsequently typed on the singed papers. He thought it appropriate that is why he got registered the Will Ex. P1 registered after the death of deceased testator. At the time of registration, attesting witnesses namely, Hemant Talwar and Sudhir Mehta were present. He denied the suggestion that Hemant Talwar and Sudhir Mehta, who signed the Will Ex. P1 were neither present nor witnessed before the Sub Registrar Office. No notice issued to other LRs of deceased testator or the alleged witnesses at the time of registration.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 24/74 58 In further cross-examination he deposed that his father was local merchant and carrying on a small shop at Kotla Mubarakpur in a rented shop. He was not permitted to live in property in question by deceased testator being the family member. The deceased was younger brother of his father. There were two other brothers of deceased besides his father. He does not know whether Sh. Satyapal Sakhuja had any sister. He voluntarily deposed that Since he never met them. The names of the brothers are Amrit Lal Sakhuja and Gian Chand Sakhuja. He does not know how many children of Amrit Lal Sakhuja. He denied the suggestion that he intentionally did not make family members of Amrit Lal Sakhuja as party. He voluntarily deposed that never heard of family members of Amrit Lal Sakhuja. He did not try to inquire about Amrit Lal Sakhuja or any family.
59 He denied the suggestion that my father was financially weak or had no source of income. He denied the suggestion that my father was permitted to stay in the house due to this reason. He denied the suggestion that no care was taken of Sh. Satyapal Sakuja. He denied the suggestion that he was not given any food by us. He was informed by Sh. Satyapal Sakuja that he had executed a Will. Since Sh. Satyapal Sakuja himself informed him, the question of asking other persons about the Will did not arise. He denied the suggestion that deceased testator did not execute the Will Ex. P1 that is why it was not got registered. Deceased testator was suffering from heart ailment during his lifetime. There was no other ailment of which deceased was suffering. He died due to sudden cardiac arrest.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 25/74 60 In further cross-examination he deposed that after taking loan by the deceased, the installment might have been deducted from his salary. He does not remember date, month and year when deceased had disclosed him abut the Will Ex. P-1. He does not remember whether deceased was admitted in hospital from 09.03.1994 to 15.03.1994. He denied the suggestion that during his period of hospitalization, the signatures were taken on Ex. P-1 from deceased. He did not file any appeal when the petition for Succession before the Ld. ACJ was dismissed in the year 1992. He denied the suggestion that he intentionally avoiding the appearance in the letter of administration petition filed by respondent in the year 1999.
61 He further deposed that he was present at the time of registration of the Will. At that time attesting witness Sh. Hemant Talwar and Sh. Sudhir Mehta were present. At this stage the witness after seeing the Will deposed that he cannot tell the signatures of both the witnesses before the Registrar. He voluntarily deposed that however, he admits/identifies the signatures on Ex. P1 at point B2 and C2. He denied the suggestion that Sh. Hemant Talwar and Sh. Sudhir Mehta never appeared before Sub-Registrar. He does not identifies signatures shown to him in the Will at point Z-1 and Z-2. He voluntarily deposed that they are the persons who assisted them in registration process. He denied the suggestion that Will Ex. P1 only attested by Sh. M.N. Sharma and one Sh. Gulzar Singh whose signatures are at Z-1 and Z-2. He denied the suggestion that the will was witnesses by only M.N. Sharma and Gulzar have signed the PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 26/74 Will before the Sub-Registrar office or not witness of Sh. Hemant Talwar and Sh. Sudhir Mehta at that time. He denied the suggestion that both were created later on. He denied the suggestion that necessity for creating witnesses Sh. Hemant Talwar and Sh. Sudhir Mehta arose as the other two witnesses were not the reliable witnesses for the purpose of the court.
62 The space at point Z1 and Z-2 was blank at the time presentation of the Will before their signatures before Sub-registrar. He has no knowledge that apart from Sh. Hemant Talwar and Sh. Sudhir Mehta, if any body else knows about the Will. Sh. M.N. Sharma and Sh. Gultar Singh were met at Sub-registrar office. He asked the procedure for registration from them. The Will was typed by deceased himself. Again said he does not know how he got typed the Will. He does not rememebr whether deceased was having portable typewriter on which he used to type. He does not remember whether this typewriter is referred in FIR lodged by deceased against his tenant. He had knowledge of sub-registrar office at Kashmere gate that is why he went there for registration of Will. It is possible that at that moment he had no knowledge about Asfali Road office and INA office.
63 He further deposed that he has no knowledge whether Sh. M.N. Sharma, advocate in specialization in registration of Will after the death of deceased. He denied the suggestion that he had drafted the Will Ex. P-1 as per his convenience or also as per convenience of his brother's family. He denied the suggestion that PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 27/74 deceased lived life of under fear psychosis. He denied the suggestion that he was under so much of threat from his famuily that he used to bolt the door while sleeping from inside. He denied the suggestion that in the neighbourhood he used to tell everybody he convert the property in question into a dharamshala but not give to anybody. He denied the suggestion that present petition is barred by limitation. He came to know about the death of deceased on the next day of the death. In response to the question that why deceased was cremated at electric crematorium he deposed that the body of the deceased was searched at mortuary at Tis Hazari, Delhi and post mortum was conducted. Doctor also advised for cremation at electric crematorium immediately. He denied the suggestion that because of that with the deceased he was not cremated at fire ( traditionally).
64 Respondent examined Sh. Sant Ram, Assistant from the office of LAB Residential, DDA, Vikas Sadan who brouhgt the record of property bearing B-2/52, Safdarjung Enclave, New Delhi and proved the affidavit of Ms Sangeeta Sakhuja and Ms Meenu Sakhuja as Ex. RW-2/1 ( Colly). Respondent further examined RW-3 Sh. Manoj Kumar, LDC, Sub-Registrar-1, Kashmere Gate, Delhi and proved the letter from Registrar as Ex. RW-3/1.
65 Respondent further examined Sh. M.N. Sharma as RW- 4 and deposed that he know the procedure of registration of the Will and dealing registration of the documents for the last 40 years and deposed about the procedure of the registration before Sub-
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 28/74 Registrar. Thereafter witness identified his signatures and step at point X1 on Ex. P1. He deposed that the execution of the will not done his presence, therefore, it does not bear his signatures on second page. He was asked by Sub-Registrar and one broker Gulzar Singh to become a witness to the execution of the Will but he refused. He deposed that he had seen the will on the day of registration there were no signatures of any attesting witnesses at point B2 & C2. He deposed that at the time of registration the person who signed as a attesting witness at the time of execution is required to sign. He had presented the will for registration and also identified the parties and witness Gulzar Singh. Registrar maintain a proper file alognwith all documents submitted by the applicants during the process of registration.
66 In the cross-examination he deposed that the procedure explained by him is available in registration manual available with the Sub-Registrar. He deposed that he used to work only for those persons who were affiliated to him and some time he was also asked by the Sub-Registrar to sign as a witness. He further deposed that in the present case he was asked by the Sub-Registrar as well as one Sh. Gultar Singh to sign as a witness and identify. He denied the suggestion that when the will was unregistered and seen by him it bears the signatures at point B & C of both attesting witnesses Hemant Talwar and Sudhir Mehta. He deposed that record for registering the present will might be in the office of Sub- Registrar. He further deposed that generally sub-Registrar Kashmere Gate used to register the documents pertaining to specify PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 29/74 area but he can register any document of other area being a special case. The special case means where there is come recommendation to Sub-Registrar. In a month he used to sign one or two cases on the recommendation of Sub-Registrar. He denied the suggestion that Mr. Hemant Talwar and Sudhir Mehta both attesting witnesses were present when he had presented the will in question for registration. He admitted the suggestion that it is correct that no will can be presented for registration in the absence of both the attesting witnesses.
67 Respondent further examined RW-5 Sh. Vinod Khanna who deposed that he knew the petitioner Mr. Vinay Sakhuja through their uncle late Sh. Satya Pal Sakhuja. In the year 89-90 deceased Mr. Satya Pal Sakhuja told him that he has not executed any Will. He used to come to meet him at his shop Palika Bhawan till one year prior to his death. Some time he used to aske for breakfast and he used to his death. His servant used to take care of the deceased in his absence. He was tenant under deceased at premise no. B-2/52, Ground floor, Safdarjung Enclave, Delhi from 1987 to 2006. An eviction petition filed by deceased against him before the Rent Controller at the instance of petitioner in the year 1992-1993. In this petition, he had challenged the Will in question but his plea was dismissed by the court as he was not blood relation of the deceased. The eviction petition was compromised with petitioner. The deceased did in the year 1995. There was no relation of petitioner with the deceased. He did not get the respect from his relatives which is required for senior citizen and old man during his PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 30/74 old life. He knew Sudhir Mehta as he was his neighbour. Now he is settled in Canada for the last 15 years.
68 In the cross-examination he admitted a petition on the basis of bona fide requirement filed by deceased against me. Vol. It was filed at the instance of petitioner. The said petition U/s 14 (1)
(e) of the DRC Act was filed by late Mr. Satya Pal Sakhuja for the bona fide requirements of his Bhanja Vijay Kumar Sakhuja who was then working with Indian Nevy and was supposed to come back and reside with him. He had filed an affidavit along with application in the said petition for obtaining leave to defendant and contest the petition before Ld. ARC. The copy of the application is Ex. Y-1 in Ex. PW-6/A and copy of affidavit is Ex. Y-2 in Ex. PW-6A, the same bears my signatures at points Y-3, Y-4 and Y-5. He does not know anybody in the name of Suraj Prakash Sakhuja however, when he inducted as tenant he had heard the name but he was not there. According to him Mr. Satya Pal Sakhuja was the owner of the property. He admitted that during the pendancy of the said eviction petition Mr. Satya Pal Sakhuja was died. I does not remember if any application for bringing on record the legal heir was filed or not.
69 In further cross-examination he admitted that correct that Smt. Sangeeta Sakhuja was made the party in the said proceedings. He does not remember if any contempt case was filed against me before Hon'ble High Court vide contempt case (Civil) No. 343/2005. He admitted that he had given the undertaking to vacate the premises till 30.09.2005. He could not vacate the PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 31/74 premises due to education of my daughter and my house was under
construction. He has no knowledge whether Hon'ble High Court had sent notice in the contempt petition to Mr. Ramesh Sakhuja or any other relative. Vol. As far as I remember some body had filed an interim application in the contempt petition. Mr. Ramesh Sakhuja might have filed the interim application. He admitted that the court allowed the handing of the key of the premises to Sangeeta Sakhuja not to Ramesh Sakhuja. He does not remember whether he was ill or not on 09.02.2007. He is patient of asthma for the last more than 20 years. He does not remember whether he had tendered unconditional apology to the Hon'ble High Court and he was admonished on the ground of old age and ill health.
70 He does not know Mr. Ramesh Sakhuja. Deceased was suffering from heart disease but used to walk and travel. He has no knowledge whether deceased used to go to Sunday Book market at Daryagunj. He does not know the hobbies of deceased. He does not know when where and in what circumstances deceased had died. He did not attend the last rites of the deceased. Vol. I came to know after 4-5 days of the death of deceased. I do not remember the date of Uthala ceremony of the deceased. He denied that deceased was litigating with me in the court as such he never came to my shop or my residence or never take tea at my shop. He denied the suggest that deceased not having any talking terms with me. He does not know whether deceased knew typing. He does not know if he was having any portable typewriter with him. He had visited deceased at his residence only once or twice. He does not know as to who PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 32/74 were residing with the deceased. Deceased never filed any criminal case against anybody during his life time. He does not know as to who used to serve and looked after the deceased. He denied the suggest that deceased got respect from the petitioner and his family members. He denied the suggest that he is deposing at the behest of Ramesh Kumar Sakhuja.
71 Respondent further examined Dr. V.C. Mishra as RW-6 who deposed in his examination in chief that In this matter I have examined two disputed signatures marked as D1 and D2 written as Satyapal Sakhuja appearing on page 2 disputed Will dated 15.01.1989 and have compared the same with one admitted signature marked as A, written as Satyapal Sakhuja appearing on a Will dated 04.10.1969. After a scientific and detailed comparison of the above said disputed as well as admitted signatures, he reached to the conclusion that the two disputed signatures marked as D1 and D2 are companion tracings and these two signatures have not been written by the writer of admitted signature marked as A. He has further examined the originals of above said signatures and have taken photographs of said signatures with the permission of Hon'ble Court. The reason of his opinion are explained in the report dated 01.11.2016 Ex. RW-6/A bearing his signatures and rubber stamp on each page at point C & D. He has also attached the photographs Ex. RW-6/B1 to Ex. RW-6/B13 and photocopies of disputed Will Ex. P1 pages, which is Mark X & Y with the said report.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 33/74 72 He has further deposed that he is B.Sc. LLB, C.F.Sc (Certificate in Forensic Science from D.U), P.hd. in Forensic Science and is working as Assistant Professor, Forensic Science at AMITY University. He has also deposed that in the last 28 years, he has submitted opinions on disputed handwritings, signatures and thumb impressions in various Hon'ble courts of India and abroad and also submitted reports for Indian Army, Indian Air Force, Delhi Police, U.P. Police and various government Organizations.
73 In the cross-examination, he deposed that there are various methods of tracing such as Direct Tracing and Indirect Tracing. The Indirect tracing is divided into by using pencil, any sharp object or by carbon method mainly. In reply to specific question of ld. Counsel for petitioner, it is deposed by RW6 that methods of tracing are only a) light and b) carbon. In reply to further specific question, it is deposed by him that the method used as per report for tracing the signatures D1 and D2 is most probably by using light and glass under the head - Direct Tracing by single common model genuine signature.
74 In reply to further specific question, it is deposed by him that the ingredients of the method a)light - To see the shadow lines of model signature, transmitted light is used and the signature is traced on the paper on which signature is required by using a glass.
b) carbon - In this method, instead of glass a carbon paper is used. In reply to further specific question, it is deposed by him that in the present case ,as per my report only light and glass method has PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 34/74 been used for tracing the model signature to make D1 and D2 questioned signatures. In reply to further specific question, it is deposed by him that the measurement method by scale and by making composite photographs of D1 and D2 under transmitted light on the supplied photocopies of the Will.
75 In reply to further specific question, it is deposed by him that he has taken photograph of original Will Ex. P1 pertaining to year 1995 and also took photographs of Will of the deceased testator pertaining to year 1969. In reply to further specific question, it is deposed by him that in the Will dated 4.10.1969 now Exhibited Ex. P2 word "Sh." is not mentioned on the signature of the deceased at the place of testator. In reply to further specific question that in his report in para 1, he had mentioned that he has compared signatures Mark D1 and D2 on will dated 15.01.89 and had compared the same with one admitted signatures Mark A appearing on the will dated 4.10.69 as Sh. Satyapal Sakhuja and how he came to this conclusion for the word "Sh." when it is not appearing on the signature, he stated that the word 'Shri" is typed below the admitted signature and he has mentioned word "Sh." as he himself write word "Sh." while explaining the name of the signature.
76 He has admitted that in his report written as Shri Satypal Sakhuja has not been written in accordance with the signatures at point A in Ex. P2. In reply to further specific question, it is deposed by him that he calculate mathematical length in two PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 35/74 signatures by calculating the overall mathematical measurement and sometimes the parts of the signatures which are suspicious for being traced and to see the absence or presence of natural variations. He further deposed that he calculate the measurement by using simple scale. He admitted that scaling is only for determining the size of enlargement of signature but deposed further that it is also used to measure the lengths of two or three suspicious signatures, suspected for tracing as two genuine signatures cannot be found exactly similar in lengths unless it is traced. He denied to have ever tried any signatures by tracing for his report purposes. He admitted that tracing can only be done of a particular portion which is to be traced and the visible shadow lines can only be traced.
77 In reply to further specific question, it is deposed by him that slight length of signature which is traced, can be increased due to the accidental slip and sometimes also because the forger being aware of exact duplication can deliberate change the spacing pastern. In present case, he has clearly observed the exact whole length of signatures Marked D1 and D2 but the spacing between some alphabet is accidentally or deliberately changed. He further deposed that he cannot say whether it was accidental or deliberate change. He admitted that when they measure the signature with the scale, the scale should be at a particular point of signature and the measurement should also be mentioned. He admitted that the scale is shown on first page of Will dated 15.01.1999 X1, and photocopy of the photograph at page X2, Will dated 4.10.69 at page X3 and photograph of signature X4.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 36/74 78 He further admitted that the scales shown in these papers are either vertical and Diagonal or Vertical both. However he voluntarily deposed that on each photograph the positioning of the scale is bound to be different and sometime extra scale is used to press the document in the same level and in X4, he took photographs of D1 and D2 with scale with single short of camera so that the enlargement of D1 and D2 can be maintained at the same level by which exact length could be shown by him. He admitted that in no other document the scale has been shown. In reply to further specific question, it is deposed by him that in all these four papers X1 to X4 the scale shown by him does not show the measuring the enlargement of the signatures. In this inquiry, the exactly equal enlargement was required for D1 and D2 to examine the evidence of tracing so he has taken photograph mark X4 on the same enlargement. He further deposed that it is not essential to put the scale of measurement just below the signatures.
79 He further deposed that he has mentioned the measurement only on page X4 and voluntarily deposed that on the remaining pages measurement was not mentioned because there was no doubt of tracing. He admitted that on page X4 at both signatures the measurement was found to be 10.2 c.m in whole length. He denied that he has deliberately and intentionally given measurement on X1 to X3 because his report is wrong to this effect. He further deposed that in forgeries like tracing, the line quality found defective. Line quality means quality of the stokes whether it is fluently written or slowly written while copying. The tremors, PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 37/74 hesitations and concealed joinings are the defects of line quality. He has mentioned in his report about line quality which he has referred above. In para 1 of page 3 where line quality is shown in his report. He denied that no such defects are seen in the signatures of late Sh. Satyapal Sakhuja.
80 He further deposed that his son Sh. Manas Mishra who is also handwriting expert had assisted him only in taking transmitted light photographs. He admitted that he has not mentioned this fact in his report. He deposed that he used Sony Digital Camera for taking the photographs of disputed and admitted signatures. He denied the suggestion that line quality can be defective when person is old or sick or in a state of intoxication. Further the line quality can also change depending on the surface of which is written because there are clear evidence of tracings and there are un-natural pen poses and concealed joinings as mentioned in para 1 of his report. He deposed that he has not detailed the points in his report showing the calculation made by him in para 1 of page 3 of his report because the best way to show these line quality defects to demonstrate the points on the photographs with arrow marking. He further stated that his son only assisted him in taking the photographs. He further deposed that since he has used digital camera for taking the photographs, there is every possibility of photo shop while taking the photographs but any manipulation can be confirmed again and again with comparison of the original. He has not done any trick photography. He deposed that he has not filed affidavit of Section 65-B of Indian Evidence Act in the present case but if required he can file the same.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 38/74 81 In reply to further specific question, it is deposed by him that the characteristic of nos. 1, 2, 3 & 4 are qualitative in nature and cannot be shown on the photographs as quantitative observation but characteristic no. 5,6, 7 & 8 are shown in photographs at Page X4. He cannot show the numbers 5,6,7 & 8 on page X4. He denied the suggestion that whatever he had stated in para 4 and 8 of his report is not shown in the photographs taken by him. He further deposed that Mr. R. K. Sachdeva, Advocate present in the court identified the original and disputed signatures to him. He again said that the said Advocate told him about the admitted and disputed signatures to him. He deposed that he had taken the photographs from the Court itself. He had asked for extra photocopies of disputed Will Ex. P1 other than document from Mr. R.K. Sachdeva besides the above said two documents showing the signatures of deceased Satyapal Sukhuja.
82 In further cross-examination he admitted that one document was of 1969 and other document was of 1989 having 20 years gap? He admitted that when a person signed after a gap of 20 years there are little bit variations in the signatures. He further admitted that the fundamental general character of a signatures remains the same but voluntarily stated that of genuine signatures. He further deposed that every genuine signatures/writings of the same person always show natural variations in curves, loops and angles as hand is not a rubber stamp. He further deposed that by word International Standards, he understand that the scientific community of questioned and document examination must be PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 39/74 satisfied by the method of identification of writings and method must be universally accepted. He deposed that he has applied International standard in the present case but specifically not mentioned in his report but the method adopted by him is based on International Standards. He has deposed that he has not specifically mentioned about international standard method in the present case.
83 He further deposed that since he has based his opinion on the basis of exact superimpositions in letters "s", "at", "al", "Sak" and "Ja" of "Satyapal Sakhuja" of D1 & D2 and these letters are the part of individual characteristic without natural variation of D1 and D2. He admitted that individual character and general character constitute a signature. He denied the suggestion that he has not elaborated the general character and individual character in his report. He further deposed that in his report Para No. 1 to 9 are about general or Class characteristic and the last para is about individual characteristic. He further deposed that it is not fully true that these two factors are very important factors in any examination of handwriting as in case of traced forgeries since letters are bound to look similar so comparison of individual characteristic have no much significance as superimpositions is proof of tracing. He deposed that in almost every authoritative book of India and abroad and there are court judgments also as in which provisions of Forensic science, it is mentioned that these comparison of individual characteristic have no much significance as superimpositions is proof of tracing.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 40/74 84 He denied the suggestion that his report Ex. RW-6/A is silent on these two aspects and therefore cannot be relied upon. The encircled red on the photographs are already on the originals documents. He further deposed that he has not given any report on the age and typing on the paper. In reply to further specific question, he deposed by him that contemporary must be preferred but if they are not found then older signatures can also be considered. However, he voluntarily deposed that in this matter since D1 and D2 in themselves are sufficient to prove tracing there is no need of requiring any comparative signatures. He further deposed that he had asked Mr. R. K. Sachdeva, Advocate to provide Contemporary signatures of deceased signatures. He further deposed that there was no interaction between him and the client, the respondent for whom he is appearing regarding the signatures and documents.
85 He deposed that Mr. R.K. Sachdeva, Advocate engaged him on behalf of his client and he has not shown any authority whether he has authorities to engage him or not. The respondent's client paid him professional charges through Mr. R.K. Sachdeva, Advocate. He further stated that he cannot count but has submitted around 700 to 800 opinion. He does not remember as to how many these have been decided in favour of his client. He denied that his report Ex. RW-6/A is wrong and false and that the signatures D1 and D2 are not forged traced signatures of the deceased testator. He further denied that signatures on Will Ex. P1 of the deceased testator is genuine.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 41/74 86 Respondent further examined Shri Ajay Anand, Sub- Registrar, Kashmere Gate, Delhi as RW-7 who deposed that he was posted as Sub-Registrar Kashmere Gate since May 2016. He had brought the volume register of the Will in question Ex. P1. However the original file pertaining to registration proceedings of the will in question is not traceable.
87 He further deposed that in the case where deceased testator died after the execution of the Will the beneficiary or executor named in the will may apply for registration as per Section 40 of Indian Registration Act. The executor/beneficiary may apply to the Sub-Registrar office for registration of Will after death. The Registrar concerned thereafter after going through the application satisfy himself as per Section 41 of the Indian Registration Act. If he is satisfied then will may be registered. There is requirement of two witnesses and beneficiary/executor. The witnesses shall be the same who were attesting witness at the time of attestation of the Will in question which was executed by the deceased testator during his life time. The Sub-Registrar in order to satisfy may examine the attesting witness and beneficiary appears before him for registration.
88 He deposed that since record is not available therefore he cannot tell whether the attesting witnesses to the Will summoned by the then Sub-Registrar. He further deposed that it is not mandatory as per law to summon the attesting witnesses by the Sub-Registrar for registration of the will and it is also not mandatory PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 42/74 to record the proceedings for registration of the Will and to arrive at satisfaction of the Sub- Registrar.
89 During the examination of this witness ld. Counsel for respondent no. R2 to 4 Sh. R.K. Sachdeva submitted that on the point of summoning of witnesses and recording of proceedings, witness may be declared hostile, Request was allowed and witness was declared hostile and permission granted for cross on the above said point only.
90 In the cross-examination RW-7 denied the suggestion that as per rules it is mandatory for the Sub-Registrar to summon the attesting witnesses and record the proceedings of the Will after the death of deceased testator. He admitted that it is mandatory to prepare a file of registration of the Will after the death of deceased/testator. There is no provision for limitation period for recording of proceedings for registration of the Will after the death of deceased testator as per Act. There is no prescribed period of conducting inquiry for satisfaction as per section 41 of Registration Act. He denied the suggestion that there is a prescribed limitation period in the rules for conducting the above said proceedings.
91 In the cross-examination by counsel for the petitioner RW-7 deposed that till today no report has been lodged regarding the untraceable file of Will in question. He denied the suggestion that Sub-Registrar as per his discretion can get identify the attesting witnesses as well as the beneficiary and executor from a PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 43/74 person who is regularly appearing before the Sub-Registrar. There is no provision for introducing new witnesses at the time of registration of the Will in case of death of deceased testator. He deposed that he cannot say whether the signatures on the Will Ex. P1 of Sh. Gulzar Singh are permissible as per rules. The Will Ex. P1 compared by witness, record brought by him. RW-7 voluntarily deposed that number and other particulars are found to be same. Record brought by RW-7 retained as copy and same was exhibited as Ex. X2.
MY FINDINGS ON ISSUES IS AS FOLLOWS:
Issue No. 192 Ld. Counsel for the petitioner Ms Jasmeet Kaur filed detailed written arguments alongwith judgments and Sh. R.K. Sachdeva, counsel for respondent no. 4 to 8 also filed written arguments alongwith judgments. I have considered and perused the same.
93 In the written arguments petitioner highlighted the background of the present factual matrix. Late Suraj Prakash Sakhuja, father of the petitioner had purchased a plot No. B-2/52, Safdarjung Enclave, New Delhi, the subject matter of the Will in question through auction from DDA on 05.09.1964. On 08.10.1964 a request letter was sent for transfer of the plot in the name of the late Sh. Satya Pal Sakhuja, deceased testator for securing loan for construction because deceased testator was a government servant PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 44/74 and could secure the loan. On 16.11.1964 DDA accepted request and transferred the property in the name of deceased testator but no sale transaction was between both the brothers. On 04.10.1969 deceased testator had executed a will in favour of the mother of the petitioner late Smt. Sumitra Sakhuja and same is also placed on record. On 02.01.1984, Shri Suraj Prakash Sakhuja, father of the petitioner expired and on 05.01.1984, Smt. Sumitra Sakhuja expired.
94 On 15.01.1989 deceased testator had executed the Will in favour of Smt. Sangeeta Sakhuja, wife of Shri Vijay Sakhuja and Smt. Meenu Sakhuja, wife of Shri Vinay Sakhuja, respondent no. 2, bequeathing the property portion wise. As the property at that time was constructed two and a half storey. The Will Ex. P1 was un- registered on 15.01.1989.
95 On 27.04.1994 deceased testator had filed an eviction petition against one tenant Vinod Khanna bearing petition No. E- 92/94 dated 02.05.1994 and 28.04.1994 on the ground of bonafide requirement. On 14.05.1995 deceased testator expired at Darya Ganj when he had gone for purchase of certain books from Darya Ganj on Sunday. The petitioner and other family searched in every hospital and police station but could not find him. The dead body of deceased testator was found at mortuary, Tis Hazari courts, and on 15.05.1995 after postmortem the dead body was delivered to petitioner and respondent no. 2. Doctor had advised because of condition of the body for immediate cremation, therefore cremation was conducted at Electric Crematorium at Rajghat.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 45/74 96 On 02.06.1995 petitioner filed a petition for grant of succession certificate for assets, liability and movables of the deceased testator on the basis of un-registered Will and notice were duly served upon objectors but the said petition was dismissed in default on account of non-appearance on 10.09.1996. On 18.6.1995 on legal advise the petitioner's family got registered the Will Ex. P1 which is disputed by the objectors.
97 Another facts stated that on 01.07.1995 an application under order 22 rule 3 (1) CPC was filed by Smt. Sangeeta Sakhuja in the eviction petition. The ld. Trial court vide order dated 17.11.1995 allowed the said application and observed that no Probate is required in Delhi. On 09.02.2007 a contempt case was also filed by Smt Sangeeta against the tenant Shri Vinod Khanna. The objector Ramesh Sakhuja appeared in the said contempt petition and objected for handing over the keys to Smt. Sangeeta Sakhuja but Hon'ble High Court refused and keys were handed over to Smt. Sangeeta Sakhuja.
98 On 09.04.1999 a petition for grant of letter of administration was filed by objector Ramesh Sakhuja against Shri Vijay Sakhuja and Shri Vinay Sakhuja and notice was issued for 21.05.1999 and details mentioned by the petitioner with regard to report of non-service and the publications of notice on 21.03.2001 and petitioner and respondent no. 2 in the said petition proceeded ex-parte. They moved applications for setting aside but the same were dismissed. Even they approached to the Hon'ble High Court PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 46/74 but High Court also dismissed their petition. In November 2005 present petition was filed by the petitioner for grant of Probate being the executor of the Will Ex. P1. The respondent no. 4 to 8 contested the petition.
99 The onus and burden of proving the issue no. 1 is on the petitioner, who examined the relevant witnesses whose testimony has been dismissed hereinabove in detail. The star witness to prove the Will is Ex. P1 dated 15.01.1989 as legal and valid and executed in sound disposing mind by the deceased testator is PW-1 Sh. Hemant Talwar, the attesting witness.
100 In the cross-examination it has been deposed by PW-1, Hemant Talwar that his sister Sangeeta is the wife of petitioner and married on 13.12.1982. His father was working as Deputy Director at National Archives of India. The deceased was also working with National Archives of India. The important date of execution of the will as deposed by him that deceased testator had called him through telephone and expressed the desire and at about 11 A.M before lunch 3-4 days prior to the execution. He admitted that at the time of execution, petitioner, respondent no. 2 Vijay Sakhuja, beneficiary his sister Ms Sangeeta Sakhuja and Ms Meenu Sakhuja wife of Mr. Vinay Sakhuja, Mr Satya Pal Sakhuja and other attesting witness Sudhir Mehta were present. However, it is strange that he does not know how deceased died. He had attended the cremation of the deceased at Nigam Bodh Ghat but denied the suggestion that it was taken place at Electric Crematorium. However, a per record, PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 47/74 it is proved and admitted by petitioner as PW-7 that cremation had taken place at electric crematorium, Rajghat.
101 He denied the knowledge about the fact that other attesting witness Sudhir Mehta is childhood friend. He specifically mentioned about the witness Gulzar Singh on the date of registration of the will after the death of the deceased testator. Gulzar Singh accompanied them from the house at Safdarjung Enclave. He admitted that he was present at the time of registration of the will but could not put up his thumb impression on Will Ex. P1. He admitted that his signatures were taken at the time of making of the will not at the time of registration at Sub-Registrar office and at the time of registration, petitioner, respondent no. 2 and beneficiaries and one Gulzar Singh were present. But he denied the presence of M.N. Sharma. He does not know whether deceased was fond of typing on portable typewriter. He does not know if the will was prepared by deceased himself or not. He knew only one brother of deceased who used to live with him. He denied the suggestion that the will was typed later on and deceased's signatures were taken on blank papers.
102 The analysis of testimony of PW-1 Hemant Talwar established that he is close relative of petitioner and his sister is beneficiary and all the family members of the petitioner and beneficiaries were present alongwith other attesting witness. The other attesting witness has not appeared in witness box. He accompanied to the Sub-Registrar office but did not appear before PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 48/74 Sub-Registrar during the whole process of registration. In my considered opinion the conduct of testimony of the attesting witness PW-1 Hemant Talwar is un-natural and improbable. In these circumstances, it is improbable & unnatural that deceased testator would call him as attesting witness.
103 Petitioner himself is another witness because according to testimony of PW-1 Sh. Talwant Singh he was also present at the time of execution of the will Ex. P1 by the deceased testator. He admitted that a succession petition was filed after the death of deceased testator in the year 1995. He denied the suggestion that it was intentionally got dismissed in default. He admitted that mutation was also effected by the DDA. He admitted that other attesting witness Sudhir Mehta is his neighbour but he denied the suggestion that he was not present at the time of signature by deceased testator on Ex. P1. This testimony is contrary to the testimony of PW-1 Sh. Hemant Talwar. He also denied that his wife, sister in law were also present at the time of execution of Will. However, he admitted that after the death of deceased testator the registration was done. His testimony is contrary to the testimony of PW-1 Sh. Hemant Talwar, in respect of the fact that at the time of registration Sudhir Mehtar was also present alongwith Hemant Talwar. He again reiterated the fact that Hemant Talwar and Sudhir Mehta were present at the time of registration of the Will. He denied the suggestion that Ex. P1 was attested by M.N. Sharma and one Gulzar Singh at the Sub-Registrar office. The testimony totally contradictory. He explained that M.N. Sharma and Gulzar Singh were met at the Sub-Registrar office.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 49/74 104 The respondent no. 4 to 8 examined Sh. M.N. Sharma as RW-4, whose testimony is discussed herein above in detail. He admitted that execution of the will was not done in his presence, therefore, his signatures are not on second page. He was asked by the Sub-Registrar and one broker Gulzar Singh to become a witness but he refused. He had presented the will before the Sub-Registrar and one Gulzar Singh whose signature appeared on Ex. P1 at Mark 'Z' as a witness. But petitioner has not produced Gulzar Singh as a witness. The testimony of Mr. M.N. Sharma also established that Sudhir Mehta was not present and even PW-1 Hemant Talwar did not sign the will at the time of registration. There is no doubt about his presence also. The back of the first page of the Will Ex. P1 bears the signatures of Vinay Sakhuja, Vijay Sakhuja, Sangeeta and Meena Sakhuja. It does not bears the signatures either of the attesting witness alongwith stamps. It established that neither of the attesting witness were present at the Sub-Registrar on the day of registration after the death of deceased testator.
105 In my considered opinion the petitioner has not successfully fulfill the ingredients of Section 63 (c) of Indian Succession Act. It is not proved that deceased testator had signed the will Ex. P1 in the presence of both the attesting witness and both the attesting witnesses signed the will in the presence of deceased testator. The testimony of PW-1 Hemant Talwar as per above discussion and observation miserably failed to established the essential ingredients. Further more, the registration process further creates anomaly and suspicious circumstances.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 50/74 106 The respondents examined RW-7 Sh. Ajay Anand, the present Sub-Registrar. He admitted on record that at the Sub- Registrar office Kashmere Gate the original record of proceedings of the Will in question Ex. P1 is not available. It is specifically submitted by PW-7 Sh. Ajay Anand on oath that for registration of the will after death beneficiary may apply for registration but it is essential that both the attesting witnesses shall be present who attested the will at the time of execution, during the life time. It is admitted on record that Sudhir Mehta, attesting witness was not present. The presence of PW-1 Hemant Talwar, attesting witness is doubtful, therefore, petitioner introduced two new witnesses Gulzar Singh whose signatures appears on Will at point 'Z' but another witness Sh. M.N. Sharma, refused to support the fact that he is one of the attesting witness.
107 In my considered opinion the process of registration in the present case is not as per Registration Act. It is further corroborated with the fact that the proceedings file is not available with the Registrar office and there is no explanation about the record which is not available and not produced. The Sub-Registrar at the relevant time had not followed the due process of law because none of the attesting witness were appeared before him and signed which is also proved as per the stamps on the first page of the Will at the back side. Therefore, the registration is also vitiated due to the non-compliance of due process of procedure and provisions of law. There is no explanation why two new witnesses to be introduced for registration which is not permissible as per law.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 51/74 108 On the basis of above observation and discussion, issue no. 1 is decided against the petitioner and in favour of respondent no. 4 to 8.
Issue No. 2109 The issue no. 2 has two limbs, the first is suspicious circumstances and second is forged and fabricated will in question as objected by respondent no. 4 to 8. In order to appreciate the written arguments on this issue respondent no. 4 to 8 cited several judgments which are mentioned as under:-
1. Pamela Manmoha Singh Vs State DRJ 418 2000 (1)
2. Krishna Kumar Sharma Vs Rajesh Kumar SharmaCDJ 2009 SC 617
3. Kunvarjeet Singh Khandpur Vs Kirandeep Kaur & Others CDJ 2008 SC 653
4. V.K. Nayar Vs Usha Puri & Others CDJ 2014 DHC 456
5. Pratap Singh Vs State CDJ 2010 DHC 2098
6. Smt. Veena Vs State and Ors.
2014 ( 207) DLT 673
7. The Delhi Registration Rules, 1976 ( Colly)
8. Moti Ram Vs Rittoo CDJ 1968 DHC 027
9. Zora Singh Vs Mango and Ors.
Manu/PH/1089/2015
10. Veena Suri Vs State of NCT of Delhi & Ors Manu/DE/3172/2013
11. Bharpur Singh & Ors Vs Shamsher Singh CDJ 2008 SC 2091 PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 52/74
12. H. Vankatachala Iyengar Vs B.N. Thimmajamma & Others CDJ 1958 SC 142
13. Ved Prakash Vs Om Prakash 2013 (9) AD (Delhi) 461
14. Vikram Chopra Vs State and Ors.
Manu/DE/4986/2009
15. Surinder Kumar Gorver Vs State and Ors Manu/DE/0165/2011
16. Kavita Kanwar Vs State ( N.C.T. Delhi ) Manu/DE/1453/2014
17. Kulwant Kaur Vs State 2014(2) RLR 90
110 I have gone through the written arguments and judgments cited above by respondent no. 4 to 8. I have also gone through the judgments cited with written arguments by petitioners and the same are as follows:-
1. Smt. Indu Bala Bose & Ors. Vs Manindra Chandra Bose & Anr U.J (SC) 1982
2. S.P.S. Rathore Vs C.B.I. & Anr. Crl. Appeal No. 2126 of 2010
3. Sanjeev Desai Vs State NCT of Delhi & Ors FAO 408/2015 decided on 8.09.2016
4. Kunvarjeet Singh Khandpur Vs Kirandeep Kaur & ors 2008 Legal Eagle ( SC) 523
5. Yumnam Ongbi Tampha Ibema Devi Vs Yumnam Joykumar Singh and Others (2009) 4 Supreme Court Cases 780
111 The fundamental principal laid down by the 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 PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 53/74 nature and standard of evidence required to prove a Will:-
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 PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 54/74 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 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. "
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 55/74 In most of the subsequent judgments they followed the principles and referred to this judgment only. Therefore, on the basis of principles laid down in the above said judgment H. Venkatachala Iyengar (Supra) let us examine the present facts and circumstances.
Suspicious Circumstances 112 Ld. Counsel Sh. R.K. Sachdeva on behalf of respondent no. 4 to 8 drawn the attention to the Will Ex. P1 recitals. I have gone through the recitals. Ld. Counsel for respondents further drawn to the attention on the recital of earlier will of deceased testator the original of the same filed on record and is Ex. P2. I have gone through the Will Ex. P2 dated 04.10.1969. The Will Ex. P1 recites that deceased in possession and owned a two and a half storey house bearing No. B.2/52, Safdarjung Enclave, New Delhi. It is self acquired property and constructed from own savings from salary, gratuity and pension funds. Whereas in the Will dated 04.10.1969 Ex. P2 it is stated that deceased testator possess a house BII/52, Safdar Jang Development Scheme, New Delhi and constructed mortgaged to the President of India against a advance of Rs. 19,000/- which were repaid in installments of Rs. 167/- per month since January. Both recital are contrary to each other. According to petitioner his father late Sh. Suraj Prakash Sakhuja was allotted the plot which was transferred to deceased testator on his request. In the will in question Ex. P1 the manner of construction is contrary to the manner of construction in the Will Ex. P2 dated PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 56/74 04.10.1969. The true facts are cited in Ex. P2. It established that deceased testator cannot recite above funds for construction that it was from his savings and salary when he had already acknowledged the taking of loan and repayment. It raises grave suspicious circumstances which are not dispell by the petitioner.
113 Another vital fact is that in Will Ex. P2 it was categorically written by deceased testator that will was drafted by him. It is established on record that he was found of typing and having portable typewriter then in natural course he must have written in Will Ex. P1 as well about drafting by him but it is missing.
114 Here very vital question again arise that who, how and when the will Ex. P1 was drafted and typed. The entire evidence led by petitioner is silent on important aspects. Although petitioner and respondent no. 2 both beneficiaries and both the attesting witness were present when deceased had executed the Will. But when, who and how typed the Will is missing. In the present circumstances of the case it is very important for the petitioner to highlight the drafting of the will by the deceased testator which is completely missing. It also further raises grave suspicion about the legal and genuineness of the Will Ex. P1.
115 Further more, I would like to highlight the process of registration adopted after the death of the deceased testator, of the will Ex. P1. PW-1, the attesting witness Sh. Hemant Talwar was present but he was not participated in the registration process. He PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 57/74 failed to appear before Sub-Registrar. He failed put his thumb impression and signatures before the Sub-Registrar. On the contrary two new persons were introduced i.e Sh. Gulzar Singh and Sh. M.N. Sharma. But Sh. M.N. Sharma did not corroborate the petitioner to this aspect as well. It also raises grave suspicious circumstance about the legal and genuineness of the Will Ex. P1. As already been observed that registration process suffers legal anomalies and contrary to the well settled procedure and provisions of law.
116 It is pertinent to mention here that another circumstance with regard to the Will Ex. P1 significant is that the witness Sh. Hemant Talwar has signed at point B2 on will Ex. P1 with blank Ink and his address has been mentioned with the blue ink. It is visible from the bare necked eye in a different handwriting. It may be the signature of PW-1 Sh. Hemant Talwar at point B2 by himself but his address has been written in Ex. P1 by some other person. The signatures of other attesting witness Sh. Sudhir Mehta is also in the blank ink. It raise doubt that who is the person who had written with the blue ink, address of Sh. Hemant Talwar. The Will Ex. P1 on all places having signatures of deceased testator and attesting witnesses in the blank ink. It also raises grave suspicious about the legal and genuineness of the Will Ex. P1. The petitioner and attesting witness failed to explain the use of blue ink & handwriting on Will Ex. P1.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 58/74 117 It is pertinent to mention here that as per evidence of petitioner's witnesses it is established on record that at the time of execution of the Will Ex. P1 by the deceased testator, petitioner and respondent no. 2, both beneficiaries Ms Sangeeta Sakhuja and Ms Meenu Sakhuja and two attesting witnesses were present. The deceased had bequeathed the Safdarjung house in favour of wives of both, the petitioner and respondent no. 2, therefore, it cannot be ruled out in natural circumstances that petitioner and respondent no. 2 used their influence while executing of the present will. In the circumstances, where it is not brought on record and established that who and when and in what circumstances the drafting took place, therefore, in natural circumstances it can be drawn that petitioner's family influenced the deceased testator for the execution of the will Ex. P1 in which the wives of petitioner and respondent no. 2 are the beneficiaries in such a manner that the property stand partitioned as well.
118 The other vital point is that petitioner is the executant in the Will Ex. P1. It is noteworthy that in Will Ex. P2 dated 04.10.1969 no executant was appointed by the deceased testator. Another vital point to be noted in the Will Ex. P2 natural attesting witnesses were made who were the colleagues of the deceased testator, therefore, it raises grave suspicious circumstances which are not dispell by the petitioner.
119 It is pertinent to mention here that at the fag end of the present case an important development took on 25.01.2017 when PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 59/74 case was listed for final arguments, respondent no. 2 Sh. Vijay Sakhuja engaged a counsel Ms Madhumita Kothari, who filed an application for referring the matter to Supreme Court Mediation Centre. It also raises grave suspicious about the conduct of the petitioner and respondent no. 2 because the contesting respondent are respondent no. 4 to 8 not respondent no. 2 because his wife Ms Meenu Sakhuja is one of the beneficiary in the Will Ex. P1. Therefore, an attempt was made to further prolong the proceedings of the present case and intentionally a new counsel has been engaged by respondent no. 2 in collusion with petitioner. It also raises grave suspicious circumstances which are against the petitioner.
120 Another important vital aspect which has brought on record about the mutation proceedings taken place before the DDA on the basis of Will Ex. P1. The record produced in the court established that No objection of all the legal heirs were not taken by the petitioner for getting mutation as per will Ex. P1. The concealment and suppression of the vital aspects of not disclosing all the legal heirs before DDA as well also raises grave suspicious circumstances thereby mutation was carried out by the DDA as per documents submitted by the petitioner. In my considered opinion the genuineness and legality of the will is surrounded by grave suspicious circumstances and petitioner failed to dispell them.
121 Now coming to the aspect of forged and fabrication of the Will. The respondents eventually relied on the testimony of RW-
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 60/74 6 Sh. V.C. Mishra, handwriting expert. I have gone through his report and also perused the testimony which is discussed in detail herein above. PW6 Dr. V.C. Mishra examined to disputed signatures D1 and D2 on will Ex. P1 appearing on page 2 of the Will and compared the same with one admitted signature Mark A which was on Will dated 4.10.1969. According to his opinion the disputed signatures are traced one and he have given the detailed reasons alongwith photographs which are exhibits alongwith report.
122 In the cross-examination his estimation that tracing was done by using light and glass by direct tracing. His report is based on signatures which were pertaining to the deceased testator in the year 1969 and he has compared with the signatures in the year 1989. However, he has missed the important aspect the tool of tracing of alleged signatures because the signatures are with the pen. I myself gone through the signature of deceased testator in the will Ex. P2 pertaining to 1969 and the Will in Ex. P1 at point A1 and A2. The word 'satyapal in both the will has significant feature that 'tya are linked and jointly written together and word 'pal' is having slight gap and after some distance Sakhuja is written in which last two words 'ja' are joined. I find same characteristic in the signature of deceased on disputed signature and in the admitted signatures.
123 In my considered opinion the opinion of handwriting expert, RW-6 Dr. V.C. Mishra is not establishing beyond reasonable doubt the method of tracing as a forgery of the signatures of the PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 61/74 deceased testator. On this aspect it is pertinent to mention here that the testimony of RW-1 Sh. Ramesh Sakhuja cannot be considered because a general allegations were made by him and also in witness box on the same line he deposed about the forgery and fabrication of the Will Ex. P1. His testimony also established that in the year 1992 after three years of execution of the Will during the ailment of the deceased he met ad his testimony speaks about most of the hearsay facts but one specific question he answered that the signatures of the deceased testator on the will Ex. P1 is correct but signed after death. He has been taking contrary stands during the cross-examination with regard to alleged forgery and fabrication of the signature of the deceased, therefore, his testimony cannot be believable on this aspect.
124 On the basis of above discussion and observation the respondent no. 4 to 8 established grave suspicious circumstances which are surrounded with legal and genuineness of the will of the deceased testator Ex. P1, however it is not established beyond reasonable doubt that Will Ex. P1 is having the forged and fabricated signatures of the deceased testator. Accordingly issue no. 2 is decided in favour of respondent no. 4 to 8 and against the petitioner.
Issue no. 3 125 The onus and burden of this issue is on the respondents. Ld. Counsel for respondent no. 4 to 8 submitted that from the bare eyes it can be established that the signatures of the attesting PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 62/74 witness Sudhir Mehta on petition at point 'E' is entirely different from the signatures appearing on the will Ex. P1 at point 'C2' and not belong to one person. On the other hand ld. Counsel for the petitioner submits that no document proved on record where admitted signatures of Sh. Sudhir Mehta produced and proved by the respondents. There is no oral evidence as well. Ld. Counsel for respondent no. 4 to 8 submits that the summons were sent at the available address of the Sudhir Mehta but as per report he has shifted to abroad, therefore, could not be produced.
126 I have considered respective submissions of both the counsels. The court has ample power to compare the signatures as per provisions Indian Evidence Act. The petition bears the signatures of Sudhir Mehta, attesting witness at point E and on Will Ex. P1 at point C2. The signature at point C2 apparently appears to be entirely different from the signatures at point E on the petition visible from bare eye. The first word 'S' does not have any round although at petition point E there is a big round while forming the 'S'. There is a proper distance between word 'dhir' whereas in the petition there is no distinction of 'dhir' words and all are jumbled. Similarly, the word, 'Mehta' the first word 'M' in the petition at point A is entirely different from the first word on the Will Ex. P1 at point C2. The word 'ehta' is clearly readable and written at a proper distance having proper link, however, in the petition one cannot read the word 'ehta' and all another significant after is that there is 'dash' under the last words in the petition whereas in the Will at point C2 no 'dash' put by the Sudhir Mehta while signing the Will.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 63/74 127 In my considered opinion after comparison both the signatures on Will Ex. P1 at C2 and at point E on petition both the signatures are of different person not of one person. Both signatures are not authored by same person. These facts raises grave suspicious about the signatures of the Sudhir Mehta on the petition at the verification para. The petitioner also not produced Sudhir Mehta and also the present address at any point of time during the entire trial of 15 years. It also raises great suspicious circumstances, therefore, in my considered opinion the issue no. 3 is decided against the petitioner and in favour of respondent no. 4 to 8.Issue No. 4
128 The onus to prove this issue is on respondent no. 4 to 8. Ld. Counsel for Sh. R.K. Sachdeva, submitted that petitioner has not impleaded all the L.Rs of the deceased testator Satya Pal Sakhuja in the present petition. Therefore, petition is liable to be dismissed for concealing the material facts regarding all relatives/L.Rs of deceased testator. He relied on judgment of Yuv Rajnarain Gorwaney Vs State 2005 (125) DLT 401 and emphasized para 4 of the judgment and the relevant portion of the same is reproduced herein under:
" However, considering all these aspects of the matter, I am of the view that when the Rules prescribe and the law down a particular procedure, the applicant ought to have been made a party in the present proceedings. Moreover, the non-citing of a necessary party can be a ground for revocation of a probate granted under Section 263 PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 64/74 of the Indian Succession Act, 1925. If such an eventuality exists, then delay in approaching the court ought not to come in the way of these probate proceedings because after all what the court to do is to determine as to whether the Will in question was, in fact, the Will left by Smt Avinash Pandit. In this view of the matter, the application deserves to be allowed. The said Shri Rajiv Sharma is impleaded as respondent/objector No. 4. The application stands allowed accordingly."
On the other hand ld. Counsel for the petitioner submitted that all the L.Rs of deceased Satya Pal Sakhuja impleaded by the petitioner. The L.Rs who are not in knowledge also not impleaded by respondent no. 4 to 8 in the other petition as well. So it means the L.Rs who are impleded by petitioner are the only one, therefore, there is no concealment on the part of petitioner for impleading the L.Rs.
129 I have considered the respective submissions of both the counsels and perused the judgments. I would like to refer to the cross-examination of PW-7 Sh. Vinay Sakhuj, the petitioner. The ld. Counsel had put specific question with regard to L.Rs/brothers of the deceased testator. PW-7 testified that the brother of deceased apart from his father are Sh. Amrit Lal Sakhuja and Sh. Gian Chand Sakhuja. The respondent no. 4 to 8 are the sons and daughters of Sh. Gian Chand Sakhuja. However, there is mention of Amrit Lal Sakhuja or his sons and daughters who are also on the same footing being the L.Rs of deceased testator. He also admitted that he did not try to inquire about the family members of Sh. Amrit Lal PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 65/74 Sakhuja. So it established that deceased testator Satyapal Sakhuja having another brother Sh. Amrit Lal Sakhuja but his L.Rs are not made party. It is in contrary to the well settled principle and procedure of law to include all the L.Rs of deceased because the Probate proceedings are in Ram. Applying the judgment of Yuv Rajnarain Gorwaney Vs State (Supra), the petitioner has concealed Sh. Amrit Lal Sakhuja and his L.Rs, therefore, there are deficiency in the petition which may dis-entitled the petitioner from Probate. Therefore, issue no. 4 is decided in favour of respondent no. 4 to 8 and against petitioner.
Issue no. 5 130 The burden to prove this issue is on respondent no. 4 to
8. It is mixed question of fact and law. During the course of final arguments photocopies of certified copy of succession petition dated 02.06.1995 and orders filed by petitioner filed on record. Both parties have no objection in considering the documents. Ld. Counsel Sh. R.K. Sachdeva, for respondent no. 4 to 8 in the written arguments submitted that petitioner Vinay Sakhuja in the year 1995 have filed one succession petition for movable assets and alleged that will was also mentioned in the petition. The respondents contested the petition and filed detailed written statement on 19.08.1995 and taken the objections with regard to concealing the facts regarding the shop in B-2, Market and house at Safdarjung Enclave immovable properties of the deceased. The replication was filed by petitioner but there was no assertion on these important facts.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 66/74 131 It is further submitted that although petitioner mentioned about the will but in the list of documents filed before the succession court it was not mentioned. Even the pagination of the file shows that "Will' must have been filed later on may be at record room. It is further submitted that Succession petition was dismissed in default. It was deliberate and intentional attempt on behalf of petitioner because of the objections by the respondent no. 4 to 8. It is submitted that cause of action arose on the day when respondents have disputed the succession petition, therefore, petition for probate must have been filed within three years as per article 137 of Limitation Act. The present petition filed in November 2005, therefore, hopelessly barred by limitation.
132 It is further submitted that in the year 1999 respondent no. 4 Ramesh Sakhuja had filed petition for issuance of letter of administration. In that petition the petitioner and his other brothers and sisters avoided the service and they were proceeded ex-parte. They moved an application for setting aside the ex-parte order in the year 2001 and same was dismissed by the then District Judge. Petitioner preferred appeal but same was also dismissed by the Hon'ble High Court on 21.09.2005.
133 It is submitted that in attentive the cause of action again arose in 1999 so petitioner was bound to file the present petition within three years but failed to file, therefore, present petition is beyond the limitation period and liable to be dismissed.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 67/74 134 Ld. Counsel for respondent no. 4 to 8 relied on the judgment of Krishna Kumar Sharma Vs Rajesh Kumar Sharma CDJ 2009 SC 617 ( Supreme Court judgment), Kunvarjeet Singh Khandpur Vs Kirandeep Kaur & Ors CDJ 2008 SC 653 ( Supreme Court), C.V.K. Nayar Versus Usha Puri & Ors, CDJ 2014 DHC 456 ( Delhi High Court Judgment), D Pratap Singh Vs State ( DB) CDJ 2010 DHC 2098-2010 ( 173) 132 DLT ( Delhi High Court), E. Smt. Veena Vs State and Ors. 2014 ( 207) DLT 673 ( Delhi High Court Judgment).
On the other hand ld. Counsel for the petitioner submitted that the succession petition was filed alongwith will but unfortunately, it was dismissed in default. On that day there was no cause of action for the petitioner to file the Probate petition with regard to the will in question Ex. P1. The petitioner and his brothers and sisters never served in the petition filed by respondent no. 4 Ramesh Sakhuja in the year 1999. The petitioner taken appropriate legal steps for setting aside the ex-parte order when they gained knowledge and lastly from the Hon'ble High Court their appeal was dismissed in January, 2004 and present petition filed in November, 2005. Ld. Counsel for the petition also drawn the attention to the documents of eviction petition filed on record which was filed by deceased testator during his life time against the tenant Vinod Khanna.
135 It is submitted that an application filed by wife of petitioner on 01.07.1995 for impleading as L.R in the eviction petition and same was allowed by the ld. Trial court vide order PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 68/74 dated 17.11.1995 Ex. PW-7/X2 and it is specifically observed that no Probate is required in Delhi. It is submitted that present Probate petition is within limitation and cause of action arose to the petitioner after the dismissal of appeal by the Hon'ble High Court and, therefore, within three years Probate petition has been filed.
136 I have considered the respective submissions of both the counsels and perused the judgments.
137 Before giving my findings on the above said issues, Let us peruse the law laid down by Appex Court. 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 clause 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 from the comparison of PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 69/74 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.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 70/74
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 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.
15 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 PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 71/74 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 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.
138 Now applying the above law in the present facts and circumstances of the case. It is admitted by the petitioner that deceased testator Satya Pal Sakhuja died on 14.05.1995 and just after two weeks a succession petition filed on 02.06.1995 for PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 72/74 movable properties. As per the photocopies of certified copies of the complete file available on record Sh. Ramesh Sakhuja who is the son of deceased testator brother Sh. Gian Sakhuja alongwith his other brothers and sisters are respondent no. 3 to 7. All respondent no. 3 to 7 filed detailed written statement and there is specific objections with regard to exclusion of B-2 market shop and Safdarjung Enclave property B-2/52. The written statement was filed on 19.08.1995. In the replication by the petitioner these objections were not answered and evasive reply were written and replication was filed on 06.09.1995. The succession petition is silent on the aspect of immovable properties. There is no averment in regard to Will Ex. P1. No annexure also attached to describe the Will. The respondent no. 4 to 8 at the very first opportunity objected to the inheritance by the petitioner or his family and others of the estate of the deceased testator in the year 1995.
139 In my considered opinion the dispute has arose in the year 1995 for the first time. However, for the argument sake let us presume that since the petition was dismissed in default, therefore, there may be no actual cause of action had arisen. 140 Now coming to the another important aspect, i.e in the year 1999 a separate petition for issuance of letter of administration filed by respondent no. 4 Sh. Ramesh Sakhuja. This fact is also admitted on record. The respondents as per the record served lastly in the year 2001 by way of publication. The record further established that they avoided the service for about two years. Their plea of setting aside the ex-parte culminated in the PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 73/74 High Court order and thereafter no further challenge by the petitioner. It also established that the second cause of action arose in the year 1999 and for the stretch of imagination lastly in 2001. Now applying the ratio of the Supreme Court of Supreme Court judgment of Krishan Kumar Sharma Vs Rajesh Kumar ( SUPRA) the limitation period start in the present facts and circumstance of the case firstly in the year 1995 if it was not matured then in the year 1999 and lastly on 2001 but the present petition filed in November 2005 which is beyond three years, therefore, barred by limitation.
On the basis of above discussion and observation, the issue no. 5 is decided in favour to respondent no. 4 to 8 and against the petitioner.
Issue No. 6141 In view of detailed findings on issue no. 1 and findings on issue no. 2 to 5 this issue is also decided against the petitioner and in favour of respondent no. 4 to 8.
Relief 142 In view of my finding on issue no. 1 to 6, petitioner failed to prove and establish that the Will Ex. P1 dated 15.01.1989 of deceased testator late Sh. Satyapal Sakhuja is legal and genuine Will. Hence, petitioner is not entitled to Probate, therefore, petition is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
Court on 4th March, 2017 ) ADJ-02 ( West)
Delhi
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 74/74