Delhi District Court
Addl. District Judge vs The State on 9 January, 2018
IN THE COURT OF SH. SANJAY KUMAR:
ADDL. DISTRICT JUDGE, (WEST)-02, TIS HAZARI
COURTS:DELHI.
Probate Case No.- 164/10/08
New P.C. No. 16021/16
1 Rajan Kumar @ Rajender Kumar Ahuja
Son of Sh. R.D. Ahuja
R/o 13/17, Second floor,
Old Rajinder Nagar, New Delhi
2 Sh. Kuljeet Singh Ahuja
S/o Sh. R.D. Ahuja
R/o 380/7, Urban Estate,
Gurgaon ( Haryana)
..........Petitioners
Vs.
1 The State
2 Bhagat Ram Ahuja
S/o late Sh. R.D. Ahuja
R/o 39/15, Old Rajinder Nagar,
Delhi
3 Smt. Surjeet Kaur Ahuja
Wife of late Sh. J.S. Ahuja
4 Sh. Kanwal Nain Ahuja
S/o Sh. R.D. Ahuja
5 Sh. Gulshan Kumar Ahuja
S/o Sh. R.D. Ahuja
All R/o 4-D/54, Old Rajinder Nagar,
New Delhi
......Respondents
Date of institution of the case : 24.10.2008
Date reserved for judgment on : 06.12.2017
Date of pronouncement of judgment: 09.01.2018
PC No. 164/10/08 Rajen Kumar Vs State & Ors 1/44
P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors
Probate Case No.- 53/15/10
New P.C. No. 16132/16
1 Sh. Kanwal Nain Ahuja,
S/o Late Sh. R.D. Ahuja,
2 Sh. Gulshan Kumar Ahuja,
S/o Late Sh. R.D. Ahuja
Both residents of 4D/54,
Old Rajinder Nagar,
New Delhi-60
..........Petitioners
Vs.
1 The State
2 Rajan Kumar @ Rajender Kumar Ahuja
Son of late Sh. R.D. Ahuja
R/o 31/17, Second floor,
Old Rajinder Nagar, New Delhi
3 Sh. Kuljeet Singh Ahuja
S/o Sh. R.D. Ahuja
R/o 380/7, Urban Estate,
Gurgaon ( Haryana)
4 Smt. Surjeet Kaur Ahuja
W/o late Sh. J.S. Ahuja,
R/o 4D/54, Old Rajinder Nagar,
New Delhi-60
......Respondents
Date of institution of the case : 12.05.2010
Date reserved for judgment on : 06.12.2017
Date of pronouncement of judgment: 09.01.2018
JUDGMENT:
1 This common judgment shall decide petition filed by Sh. Rajan Kumar bearing P.C No. 164/10/08 and petition filed by Sh. Kanwal Nain Ahuja bearing P.C. No. 53/15/10.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 2/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 2 The brief facts of petition bearing No. 164/10/08 are that a petition for grant of Letter of Administration under Section 278 of the Indian Succession Act that Sh. Ram Ahuja son of Sh. Gokal Das Ahuja (hereinafter referred to as "deceased") has been filed. The deceased was resident of House No. 4-D/54, Old Rajindr Nagar, Delhi and died on 15.02.1990. The deceased was Hindu, who upon his death left behind the following legal heirs:-
1. Rajan Kumar @ Rajender Kumar Ahuja
2. Sh. Kuljeet Singh Ahuja
3. Smt. Surjeet Kaur Ahuja
4. Sh. Kanwal Nain Ahuja
5. Sh. Gulshan Kumar Ahuja 3 It is stated that deceased owned and possessed the immovable property bearing No. 4-D/54, Old Rajinder Nagar, New Delhi. The deceased bequeathed his above said property in favour of both the petitioners and the respondent no. 3 to 5, vide his Will dated 12.11.1979 duly registered and attested by two witnesses. Sh. Daljeet Kumar Ahuja one of the legal heirs died during his life time of the deceased.
4 It is stated that on the death of deceased, the petitioners now approaches this court for the grant of letter of administration to administer their shares in the property. They seek letter of administration of the Will dated 12.11.1979, duly executed by late Sh. Ram Dass Ahuja in their favour.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 3/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 5 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Times of India " dated 13.01.2009 ".
6 The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar ( Karol Bagh) filed valuation report in respect of property bearing No. 4D/54, Old Rajinder Nagar, New Delhi and assessed the value of the same as Rs. 28,69,800/-. ( Rupees Twenty Eight Lakh Sixty Nine Thousand Eight Hundred Only).
7 Respondent no. 2 Sh. Bhagat Ram Ahuja filed his objections to the petition and taken preliminary objections that the alleged Will in question is not the genuine document. The same is forged and fabricated by the propounders. In any case, the alleged will is not the last will and testament of the deceased as the respondents No. 4 & 5 have already produced another alleged will dated 18.12.1988 also allegedly attested by one of the attesting witness of the alleged Will in question.
8 It is stated that petition for grant of letter of administration is time barred. Petitioner is not maintainable due to lack of verification by the petitioners. The verification made by the alleged attesting witnesses of the Will in question is vague and inconclusive, hence no verification in the eyes of law. On merit all the contents of the petition are denied and it is stated that late Ram Dass Ahuja had died PC No. 164/10/08 Rajen Kumar Vs State & Ors 4/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors intestate, which fact is further clarified by the petitioner no. 1 in the suit for Partition titled as " Sh. Rajen Kumar Vs Bhagat Ram Ahuja & Ors" bearing C.S. No. 51/2007, pending in the court of Sh. Chandra Bose, Ld. ADJ ( North).
9 It is stated that deceased married to Smt. Banaras Kaur, who died in the year 1935 and out of the said wedlock one son being the answering respondent was born. Deceased, subsequently, married to Smt. Ram Kaur, who died on 26.09.2004. From the said wedlock six sons were born, namely, Sh. Kuljit Singh Ahuja, Sh. Jagmohan Singh Ahuja, Sh. Daljit Singh Ahuja, Sh. Kewal Nain Ahuja, Sh. Rajen Kumar Ahuja and Sh. Gulshan Kumar Ahuja. Sh. Daljit Singh Ahuja had died issueless as he was bachelor. Sh. Jagmohan Singh Ahuja had died leaving behind his widow Smt. Surjeet Kaur Ahuja and two sons.
10 It is further stated that the property having been granted in lieu of ancestral properties left behind in Pakistan, accordingly the suit property cannot be treated as the self acquired property of the deceased. It is stated that The alleged will is forged and fabricated documents and same has been illegally registered by the propounders in connivance with the officials of the Sub-Registrar, with fraudulent intention to illegally deprive the answering respondent of his legitimate share in the legacy of the deceased.
11 It is stated that in fact the built up structure in the property was constructed by the exclusive contribution of PC No. 164/10/08 Rajen Kumar Vs State & Ors 5/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors the answering respondent as the deceased was never gainfully employed or engaged after return to India after partition in 1947. The said property was constructed in the year 1955. It is denied that the petitioners are entitled to letter of administration of any part of the property unless upon partition by metes and bounds amongst all the legal heirs of the deceased as per law. Respondent no. 2 seeks dismissal of the petition with cost.
12 Petitioner also filed replication to the objections filed by respondents no. 2 and denied all the objections and reiterated the averments mentioned in the petition. It is stated that at the time of filing the suit for partition, the will in question was not in the knowledge of the petitioners and on the disclosure by the defendants the factum of execution of will dated 12.11.1979 came to the knowledge of the petitioners. The will in question is still in the possession of respondent no 2 to 5.
13 Respondent no. 3 Smt. Surjeet Kaur Ahuja also filed her Reply/objections to the petition and taken preliminary objection that present case is neither maintainable nor sustainable in any view of matter and is liable to be dismissed. The petitioners have not approached this Hon'ble Court with clean hands and suppressed the material facts.
14 It is stated that petitioners have not stated that the respondent no. 3 had duly purchased the property bearing No. 4D/54, Ground floor, Old Rajinder Nagar, New PC No. 164/10/08 Rajen Kumar Vs State & Ors 6/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors Delhi-110060 by virtue of the Agreement Deed dated 15.02.1993, General Power of Attorney dated 15.02.1993 and Will registered dated 15.02.1993 however, the respondent no. 3 duly paid Rs. 40,000/- to Smt. Ram Kaur for the consideration amount of the property purchased by respondent no. 3 and a Receipt dated 15.02.1993 was also executed by Smt. Ram Kaur with respect to the property sold by her. Thereafter a Sale Deed was executed in favour of the respondent No. 3 on 03.08.2011 which was registered before the Sub-Registrar-III, Asaf Ali Road, New Delhi vide registration No. 3498, Book No. 1, Volume No. 10290 on pages 145 to 150 therefore the present petition is not maintainable.
15 It is stated that the ground floor of the property bearing No. 4D/54, Old Rajinder Nagar, New Delhi-110060 was sold to the respondent no. 3 after the mutation in the name of Smt. Ram Kaur dated 21.09.1991. The respondent no. 3 is the sole owner of the ground floor of the property in question by taking loan of Rs. 50,000/- from her brother Shri Paramjeet Singh Narula the the present petition deserves dismissal out rightly.
16 It is stated that petitioners have not affixed the proper requisite court fees as per the High Court rules and concealed the material facts that deceased bequeathed his property bearing No. 4D/54, Old Rajinder Nagar, Delhi- 110060 in favour of Smt. Ram Kaur and as per the Clause 3 of the Will dated 12.11.1979 Smt. Ram Kaur shall be the sole owner of the property and money. It is stated that after the PC No. 164/10/08 Rajen Kumar Vs State & Ors 7/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors death of Smt. Ram Kaur Ahuja by operation of law all the petitioners and respondents shall become the co-owner of the property bearing No. 4D/54, Old Rajinder Nagar, Delhi except the ground floor which was purchased by the respondent no. 3 from Smt. Ram Kaur. On merit all the contents of the petition are denied. Respondent no. 3 seeks dismissal of the petition with heavy compensatory cost.
17 Respondent no. 4 & 5 also filed objections against the petition and it is stated that petitioners have concealed and suppressed the material fact. It is stated that petitioner no. 1 has filed a suit for partition and injunction against all the respondents as well as the petitioner no. 2 which is pending in the court of Shri Chandra Bose, ld. ADJ, Delhi.
18 It is stated that petitioner no. 1 also concealed the fact that he has also filed another suit for declaration and injunction against the respondent no. 5 and his wife Smt. Ruma Ahuja, which is pending in the court of Sh. Vinay Singhal, Ld. Civil Judge, Delhi in order to mislead this court.
19 It is stated that present petition is not maintainable as deceased has left behind another Will dated 18.12.88 and by virtue of the said Will deceased has bequeathed the property in question to his three sons i.e. Shri Jagmohan Ahuja, Shri Kanwal Nain Ahuja and Shri Gulshan Kumar Ahuja. The ground floor which was in occupation of the respondent no. 4 Sh. Kanwal Nain Ahuja, at the time of execution of the Will dated 18.12.1988 has been PC No. 164/10/08 Rajen Kumar Vs State & Ors 8/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors bequeathed by deceased in favour of respondent no. 4. The first floor of the property in question was in occupation of Sh. Jagmohan Singh at that time and first floor has been bequeathed in favour of said Sh. Jagmohan Singh by deceased. The second floor and terrace was in occupation of Shri Gulshan Kumar Ahuja on 18.12.1988 and deceased bequeathed second floor and terrace in favour of respondent no. 5.
20 It is stated that Sh. Jagmohan Singh Ahuja has died living behind the respondent no. 3 as one of his legal heirs besides Shri Jagmohan Singh Ahuja also has a son who is necessary party in the present petition and without impleading the son of late Shri Jagmohan Singh the present petition is not maintainable and same is liable to be dismissed. During the life time of Smt. Ram Kaur, the respondent no. 4 and late Jagmohan Singh Ahuja mutually inter-changed their respective portions to each other on account of illness of Jagmohan Singh Ahuja.
21 It is stated that by virtue of Will dated 18.12.1988, deceased, specifically excluded his two sons that is petitioner no. 1 & 2 from claiming any share in the property of deceased. The deceased also excluded his other sons Shri Bhagat Ram who was the son from his first wife. It is stated that Sh. Jagmohan Singh Ahuja has died leaving behind respondent no. 3 as one of his legal heirs. He has also a son who is necessary party in the present petition and without impelading the son of late Sh. Jagmohan Singh the present petition is not maintainable.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 9/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 22 It is stated that property in question has come into the hands of petitioners by virtue of the said Will dated 18.12.1988. It is stated that Will dated 12.11.1979 is not the last will of deceased as by virtue of the subsequent will dated 18.12.1988. The previous will dated 12.11.1979 automatically stood revoked the said will is also attested by two witnesses namely Shri Hardamlal, who is also attesting witness to will dated 12.11.1979. It is stated that last will dated 18.12.1988 is a true and genuine will of the deceased.
23 It is stated that Will dated 12.11.1979 is very old will and the subsequent change in circumstances lead deceased to change his previous will and executed the subsequent will dated 18.12.1988. It is stated that up to the year 1988 both the petitioners had already acquired their separate houses and both the petitioners had been living separately besides petitioners never contributed towards the well being of either deceased or for Smt. Ram Kaur. Shri Bhagat Ram Ahuja also did not contribute towards the expenditure of either deceased or late Smt. Ram Kaur. 24 It is stated that petitioners have no right, title or interest in property No. 4D/54, Old Rajinder Nagar, New Delhi after the execution of will dated 18.12.1988 by the deceased and the will dated 12.11.1979 has no effect at all and the property in question has to go to respondent no. 3, 4 & 5. It is stated that respondent no. 4 & 5 being the beneficiary under the Will dated 18.12.1988 left by the deceased are entitled to the share in property of deceased as per Will dated 18.12.1988. Respondents seeks dismissal of the petition.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 10/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 25 Petitioner filed replication to the reply/objections filed on behalf of respondent no. 4 & 5 and denied all the objections and reiterated the averments mentioned in the petition. It is stated that alleged will dated 18.12.1988 has no value in the eyes of law because of the fact that the said will is snot registered one whereas the will dated 12.11.1979 is registered. Even otherwise the plaint reading of the Will dated 18.12.1988 clearly shows that the said will is false and fabricated and the same has been concocted by the respondents in order to deprive the petitioners from the respective legitimate shares.
26 It is stated that will dated 18.12.1988 is a false and fabricated documents and has no legal value in the eyes of law. The will dated 12.11.1979 executed by deceased was his last will and after that he never executed any will during his lifetime. It is stated that alleged will dated 18.12.1988 does not find mention with regard to the will dated 12.11.1979. Had deceased executed the alleged will dated 18.12.1988 he must have mentioned the will dated 12.11.1979. No change of circumstances have been mentioned in the Will dated 18.12.1988 which prompted deceased to execute the alleged will dated 18.12.1988.
27 It is specifically and vehemently denied that petitioners never contributed towards the well being of deceased and submitted that it is Sh. Bhagat Ram Ahuja who did not contribute towards the expenditure of either deceased or late Smt. Ram Kaur. All the remaining contents of objections of respondent no. 4 & 5 are also denied and PC No. 164/10/08 Rajen Kumar Vs State & Ors 11/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors petitioners seek letter of administration of the Will dated 12.11.1979 in their favour and the respondent no. 3, 4 & 5.
28 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 12.08.2009:-
1. Whether the Will dated 12.11.79 executed by Sh.
Ram Dass Ahujas is her last and genuine Will and duly executed in his sound disposing mind? OPP
2. Whether the Will dated 18.12.1988 is the last will of the deceased Sh. Ram Dass Ahuja ? OPR
3. Whether the petition filed is time-barred? OPR
4. Whether the petition is not maintainable due to absence of verification of petitioner as well as incomplete verification of witnesses as required under Section 281? OPR
5. Whether the petition is not maintainable due to concealment of material facts? OPR
6. Whether the petitioner is entitled for letter of administration as prayed for? OPP
7. Relief 29 Petitioner in order to prove his case examined himself as PW-1 and tendered his evidence by way of affidavit Ex. P-1 and rely upon the death certificate of late Sh. Ram Das Ahuja as Ex. PW-1/1 and certified copy of the Will dated 12.11.1979 as Ex. PW-1/2 in his affidavit.
30 In the cross-examination he admitted that in his affidavit Ex. P1 in Para 3 the name of L.RS of deceased Sh.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 12/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors Ram Dass Ahuja has been mentioned except Sh. Bhagat Ram Ahuja. He also admitted that prior to filing of present petition he has filed suit for partition in respect of the suit property. He further admitted that he has not mentioned the existence of the Will in the said partition suit. He has received the Will from L&DO office when he has filed RTI for the Will. He admitted that the suit property is joint family property. He has no knowledge regarding the existence of any other will if executed by their father. He voluntarily deposed that he came to know about the existence of other Will in court after filing the petition. He does not know who are the attesting witness to another Will. He met Mr. Hardam Lal who is one of the attesting witness to the will in question dated 12.11.79 about 5/6 months ago.
31 In further cross-examination he deposed that he met Sh. Hardam Lal in regard to the present petition around one year ago. He voluntarily deposed that Sh. Hardam Lal is his neighbour and he used to meet him. He has shown the will in question to Sh. Hardam Lal. He has inquired from Sh. Hardam Lal if his father had executed any other will apart from the will in question to which he replied that he stood attesting witness to the will of deceased Sh. Ram Dass Ahuja only once. He denied the suggestion that deceased had executed any will bequeathing his property in his favour or that the will in question is forged and fabricated document.
32 In further cross-examination he deposed that he came to know about the existence of the will in question around two and a half years ago from his brother Kanwal PC No. 164/10/08 Rajen Kumar Vs State & Ors 13/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors Nain. He admitted that will filed by him alongwith the petition is certified copy and not original will. He cannot say who has submitted the will with L & DO office but most probably his mother might have submitted the will with L & DO at the time for applying to get the property free hold.
33 He further deposed that his father was earlier in the police department in Pakistan but after partition when he migrated he was getting pension. His father was educated. His father resided at house No. 4D/54, Old Rajender Nagar till 1980. His deceased/father shifted from the said house in 1980 as he has taken another house on rent. In the year 1988-89 he has purchased the same house which he earlier taken on rent and he is still residing at the said house. He cannot say he has purchased the house in the year 1988. He denied the suggestion that his father has executed another will dated 18.12.1988 as he had already purchased another house. He denied the suggestion that Sh. Hardam Lal has also stood attesting witness to Will dated 18.12.88 executed by his father.
34 He deposed that when he met Hardam Lal around six months ago he had knowledge of will dated 18.12.88. He has not shown the copy of the said will to Sh. Hardam Lal. He inquired regarding the Will dated 18.12.88 from Sh. Hardam Lal around one year ago. He denied the suggestion that he has ever inquired from Sh. Hardam Lal regarding will dated 18.12.88. He further denied the suggestion that Hardam Lal has ever told him that he has signed only one will in question. He denied the suggestion PC No. 164/10/08 Rajen Kumar Vs State & Ors 14/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors that his father has told him that he has executed will dated 18.12.88 or that he has knowledge of existence of will dated 18.12.88. He denied the suggestion that previous will dated 12.11.1979 was cancelled by his father by virtue of will dated 18.12.88. He further denied the suggestion that by virtue of will dated 12.11.1979 property was bequeathed by his father in favour of his mother. He denied the suggestion that their mother Smt. Ram Kaur Ahuja has sold her share in the property to respondent no. 3.
35 Petitioner further examined Sh. Hardam Lal, the attesting witness to the Will as PW-2 who deposed that he is one of the attesting witness to the Will dated 12.11.1979 executed by Sh. Ram Dass Ahuja which was executed by the testator in his presence. The said Will is already Ex. PW-1/2 and it bears his signatures at point X. 36 He further deposed that as far as he can recollect, only the testator Sh. Ram Dass Ahuja was present when he signed the said Will and he does not remember now who else, apart from Sh. Ram Dass Ahuja was present at that time. The said Will Ex,. PW-1/2 was signed by the testator Sh. Ram Dass Ahuja in his presence.
37 In the cross-examination he deposed that he has seen the document i.e subsequent Will dated 18.12.1988 executed by Sh. Ram Dass Ahuja and it appears that the said Will also bears his signatures at point X. The copy of the aforesaid Will dated 18.12.1988 is Ex. PR-2/R-4 ( OSR). He admitted that the said will Ex. PW-2/R-4 also bears the signatures of Sh. Ram Dass Ahuja at point Y-1 to Y-3.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 15/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 38 In further cross-examination he deposed that he has seen the amended petition under Section 278 of Indian Succession Act filed on behalf of the petitioner Sh. Rajen Kumar & Anr. and verification thereof bears his signatures at point A. He has not read the said petition before signing the same. He cannot tell that at how many places, he has signed the Will Ex. PW-1/2. He deposed that it is an old matter and he is not able to recollect whether he signed the Will Ex. PW-1/2 at his residence or not. He voluntarily deposed that it bears his seal, probably the said Will might have been brought to his residence for the purpose of his signatures. He remember only about the Will Ex. PW-1/2 executed by late Sh. Ram Dass Ahuja.
39 Petitioner further examined Sh. Hira Lal, Reservation Assistant from Department of Delhi Archives as PW-3 who brought the summoned record i.e Will dated 12.11.1979 executed by late Sh. Ram Dass Ahuja and the certified copy of the same is Ex. PW-1/2.
40 Petitioner further examined Mohd. Anis Taj as PW- 4 who deposed that he attested the Hindi Translation of the Will dated 12.11.1979 of late Sh. Ram Dass Ahuja which is in Urdu language and same is Ex. PW-4/A. 41 In the cross-examination he deposed that he does not know who had translated the above said Will. He has been shown both the Wills i.e in Hindi language and Urdu language by the petitioners and their counsels.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 16/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 42 He further deposed that he is a Notary Public and he has the authority to attest the translation. He is post graduate in Urdu language and he has attested the above said Will after going through the contents of both Urdu and Hindi versions of the Will. He admitted that the person who has translated the Will has not signed on Ex. PW-4/A. He has not seen the original Will, however, certified copy of the Will was shown to him. He does not remember whether it was photocopy of the certified copy of the original certified copy. He admitted that he cannot attest any document particularly Ex. PW-4/A as a Translator. The meaning of word "Wahid" mentioned in para -6 of the Ex. PW-4/A means 'Only'. Vide separate statement of Ld. Counsel for the petitioners evidence on behalf of petitioners were closed on 22.12.2014.
43 Respondent no. 2 Sh. Bhagat Ram Ahuja appeared in the witness box as RW-2 and tendered his evidence by way of Affidavit Ex. RW-2/A. 44 In the cross-examination he deposed that he know Urdu language. He identified the signature of his father on the Will at point Y which is in Urdu language Ex. PW-1/2. He deposed that he is residing at the above given address for the year 45-46 years. He had helped his family and father after separation. He had given money at the time of construction of house no. 4D/54, Old Rajinder Nagar, Delhi. The house no. 4D/54, Old Rajinder Nagar, Delhi, was constructed in the year 1954-55. His father was owner of electrical shop at Lajpatrai Market Chandi chowk. He used to sit with his father at the said shop. He denied the suggestion PC No. 164/10/08 Rajen Kumar Vs State & Ors 17/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors that after some time his father discovered bungling of funds of the shop then he was immediately removed from the shop. He denied the suggestion that from the date of allotment till, 1979-80 the house no. 4D/54, Old Rajinder Nagar, Delhi remains in original condition. He denied the suggestion that the property was constructed by his father with the help of his other brothers. He denied the suggestion that he had not contributed towards constructions of 4D/54, Old Rajinder Nagar, Delhi. He denied the suggestion that Will Ex. PW-1/2 is legal, genuine and executed by his father. It is wrong to suggest that as per Will Ex. PW-1/2 he is not entitled to any share to his property.
45 In further cross-examination he deposed that he had given money in cash for construction of house no. 4D/54, Old Rajinder Nagar, Delhi to his father. He had contributed Rs.15000/- out of total expenditure of Rs. 45000/-. He was doing government service at that time. He used to sit on the shop at Lajpatrai market but due to intervention of his brothers and sisters he was thrown from the shop in the year 1957. He was helping hand at the shop till the year 1957. He denied the suggestion that he is not entitled to any share as per Will dated 18.12.1988 Ex. PW- 2/R4. He denied the suggestion that he had no means to contribute for construction of 4D/54, Old Rajinder Nagar, Delhi as he was not earning being helping hand at shop at Lajpatrai Market. Vide separate statement of respondent no. 2, evidence on behalf of respondent no. 2 was closed on 08.06.2016.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 18/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 46 Respondent no. 3 Shri Paramjit Singh Narula appeared in witness box as R3W1 and tendered his evidence by way of affidavit Ex. R3W1/A. He rely on documents, which are exhibited as RW3/1, which is Special Power of Attorney; Ex. RW3/2 is copy of Agreement Deed (OSR); Ex. RW3/3 is copy GPA dated 15.02.1993 (OSR); Ex. RW3/4 is copy of registered Will dated 15.02.1993 (OSR); Ex. RW3/5 is copy of Receipt dated 15.02.1993 (OSR); Ex. RW3/6 is certified copy of sale deed dated 03.08.2001 (Objected to the mode of proof); Ex. RW3/7 is copy of affidavit dated 15.02.1993 executed by Smt. Ram Kaur (OSR) and Mark - A, which is copy of mutation letter dated 21.09.2001.
47 In the cross-examination he deposed that the document Ex. RW3/1 was sent to him by his sister Smt. Surjit Kaur from USA and he has received the same through Internet. He admitted that at the time of execution of the said document, he was not in USA. The signature at point A on Ex. RW3/1 was appended by him on the said document at Delhi. He has not filed any Probate Case in any case on the basis of the Will Ex. RW3/4. He admitted that Ex. RW3/4 does not bear name and signature of second witness. He denied the suggestion that the documents Ex. RW3/2 to RW3/6 are forged and fabricated. He admitted that the property in question was transferred/mutated in the name of Smt. Ram Kaur after the death of her husband Sh. Ram Dass Ahuja. I have no knowledge about the substitution of the property in question in the name of Smt. Ram Kaur because at that time he was not with them, since her sister purchased the property in the year 1993. He admitted that his brother in PC No. 164/10/08 Rajen Kumar Vs State & Ors 19/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors law late Sh. Jagmohan Singh Ahuja consented for transfer of property in the name of late Smt. Ram kaur on the basis of Will dated 12.11.1979 of deceased Ram Dass Ahuja (Husband of Smt. Ram Kaur and father of late Sh. Jagmohan Singh Ahuja).
48 In further cross-examination he deposed that he has no knowledge about the fact which of the legal heirs of deceased Ram Dass Ahuja had executed documents for substitution of the property in question in the name of Smt. Ram Kaur. He is not sure whether Ex. RW3/1 received by him through Internet or through Post. He did not confirm from L & DO office whether respondent no.2 gave no objection at the time of process of substitution and freehold of the property in question. He voluntarily deposed that he got freehold papers checked from L & DO. The concerned official did not show him any paper. He denied the suggestion that the documents Ex. RW3/2 to RW3/6 are forged and fabricated. Vide separate statement of ld. Counsel for respondent no. 3, evidence on behalf of respondent no. 3 was closed on 27.04.2016.
49 Respondent no. 4 Shri Kanwal Nain Ahuja appeared in the witness box as RW-4/1 and tendered his evidence by way of affidavit Ex. RW-4/A and he rely upon the Will dated 18.12.1988 already exhibited as Ex. PW-2/R4. In the cross-examination he deposed that he know English language and have gone through affidavit Ex. RW-4/A the same was prepared yesterday. The affidavit has been prepared as per his directions. He has filed objections in this case.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 20/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 50 Respondent no. 5 Shri Gulshan Kumar also appeared in the witness box as RW-5/1 and tendered his evidence by way of affidavit Ex. RW-5/A. He rely upon the Will dated 18.12.1988 already exhibited as Ex. PW-2/R4. In the cross-examination he also deposed that he know English language and have gone through affidavit Ex. RW-5/A the same was prepared yesterday. The affidavit has been prepared as per his directions. He has filed objections in this case.
51 The brief facts in the connected case bearing P.C. No. 53/15/10 are that a petitioner under Section 278 of Indian Succession Act for grant of Letters of Administration of Will dated 18.12.88 left by deceased Sh. Ram Das Ahuja has been filed. It is stated that Sh. Ram Das Ahuja Son of Sh. Gokal Das Ahuja ( hereinafter referred to as 'deceased') R/o 4D/54, Old Rajinder Nagar, New Delhi-60, died on 15.02.1990. The deceased was Hindu, who upon his death left behind the following legal heirs:-
1. Rajan Kumar @ Rajender Kumar Ahuja 2.Sh. Kuljeet Singh Ahuja, 3.Smt. Surjeet Kaur Ahuja, 4. Sh. Kanwal Nain Ahuja and 5.Sh. Gulshan Kumar Ahuja 52 It is stated that deceased owned and possessed the immovable property bearing No. 4-D/54, Old Rajinder Nagar, New Delhi. The deceased bequeathed his above said property in favour of both the petitioners and husband of respondent no. 4 i.e late Shri Jagmohan Ahuja vide Will dated 18.12.88 which is attested by two witnesses, namely, Sh.
Hardan Lal and Sh. Krishan Gabrani.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 21/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 53 It is stated that respondent no. 4 is the wife of Late Sh. Jagmohan Ahuja who was the son of Late Sh. Ram Das Ahuja. Sh. Jagmohan Ahuja was one of the beneficiaries of the Will dated 18.12.88 left by Late Sh. R.D. Ahuja. The said Sh. Jagmohan Ahuja has already passed away. It is stated that Sh. Daljeet Ahuja one of the legal heirs died during the life time of deceased/executant.
54 It is stated that on the death of deceased, the petitioners now approaches this court for the grant of letter of administration to administer their shares in the property.
55 It is stated that respondent no. 2 & 3 have filed a petitioner under Section 278 of Indian Succession Act for grant of letters of the Administration of the Will dated 12.11.79 purported to have been left by Late Sh. Ram Das Ahuja and the said petition is pending in the court of A.K. Sarpal, ADJ, Delhi. They seek letter of administration of the Will dated 18.12.88, duly executed by late Sh. Ram Dass Ahuja in their favour.
56 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Statesman " dated 28.06.2010 ".
57 The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar ( Karol Bagh) filed valuation report in respect of property bearing No. 4D/54, Old Rajinder Nagar, PC No. 164/10/08 Rajen Kumar Vs State & Ors 22/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors New Delhi and assessed the value of the same as Rs. 26,92,200/-. ( Rupees Twenty Six Lakh Ninety Two Thousand Two Hundred Only).
58 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 30.05.2012:-
1. Whether the Will dated 18.12.1988 as executed by testator Sh. Ram Dass Ahujas was the last will of the testator? OPP
2. Whether the Will dated 18.12.1988 was executed by the testator in a sound and disposing mind and the same constituted the last intention of bequest of the testator ? OPP
3. Whether the petitioner is entitled to the grant of Probate as prayed ? OPP
4. Relief 59 Petitioners in order to prove their case examined petitioner No. 1 Sh. Kanwal Nain Ahuja as PW-1 who tendered his evidence by way of affidavit Ex. PW1/A. He rely on document marked as Mark A, which is Will dated 18.12.1988.
60 In the cross-examination he deposed that at the time of death of his father late Sh. Ram Dass Ahuja, he was residing with them i.e. himself, Sh. Jagmohan Singh Ahuja and Sh. Gulshan Kumar Ahuja. His father fall ill for about 6 months before his death. He voluntarily deposed that he was PC No. 164/10/08 Rajen Kumar Vs State & Ors 23/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors suffering from old age problems. The property in question was lease hold property in the name of his father and the same was automatically transferred in the name of his mother after the death of his father. After the death of his father they all the brothers applied to the L & DO, Ministry of Urban Development (Land & Building) for transfer/mutation of the property in question in the name of our mother.
61 He admitted that they had applied to the L & DO for transfer/mutation of the property in question in the name of their mother on the basis of the Will dated 15.11.1979. He again said it was on the basis of Will of year 1988. He admitted that he was in the knowledge that his father had executed another Will in the year 1979 when they applied for mutation before L & DO. He does not remember the day and month but it was in the year 2012 he had found the Will dated 18.12.1988. Mr. Gulshan Kumar found the said Will.
He has no knowledge that petitioner no.2 Sh. Gulshan Kumar had executed a sale deed in favour of his wife with respect to second floor of the property in question. He has no knowledge that a sale deed was also executed in favour of Surjit Kaur in respect of ground floor. He denied the suggestion that he along with petitioner no.2 and Sh. Jagmohan Singh Ahuja - husband of respondent no.4 after knowing that his father had already executed a registered will in the year 1979 colluded and prepared a forged and fabricated Will in question i.e. Will dated 18.12.1988.
62 He denied the suggestion that attesting witness Hardam Lal signed the said forged Will on his instructions. He PC No. 164/10/08 Rajen Kumar Vs State & Ors 24/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors denied the suggestion that he has filed baseless and false petition. He denied the suggestion that at the time of filing of present petition, he was not in possession of any Will. He has no knowledge that respondent no.2 and 3 both have filed another petition pending in the present court. He has filed affidavit in support of his evidence in the said petition.
63 In further cross-examination he admitted that he has wrongly stated the names of legal heirs of deceased in para no.2 of his affidavit Ex. PW1/A. He admitted that the respondent no.5 Sh. Bhagat Ram Ahuja is one of the legal heir of deceased Sh. Ram Dass Ahuja. Sh. Bhagat Ram Ahuja had also given his NOC before the office of L & DO at the time of transfer/mutation of the property in question in favour of his mother. The said NOC was executed by Sh. Bhagat Ram Ahuja in the year 2000. He does not remember the date and month. He also do not remember whether the said NOC was prepared on stamp paper or on the plain paper. Sh. Bhagat Ram Ahuja had complied with all the modalities required for the purpose of transfer/mutation of the property in question in favour of his mother. He personally did not visit the office of L & DO for the said purpose. The documents submitted with L & DO for transfer/mutation of the property in question in favour of his mother were got prepared by Sh. Gulshan Kumar Ahuja. He does not remember who had personally visited the office of L & DO for the aforesaid purpose.
64 He denied the suggestion that Sh.Bhagat Ram Ahuja was never approached by anyone for executing any PC No. 164/10/08 Rajen Kumar Vs State & Ors 25/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors document for the purpose of transfer/mutation of the property in question in favour of anyone. He denied the suggestion that Sh. Bhagat Ram Ahuja has never executed any NOC for transfer/mutation of the property in question in favour of Smt. Ram Kaur. He further denied the suggestion that attesting witness Hardam Lal signed the said forged Will on his and petitioner no. 2's instructions. He denied the suggestion that he has filed baseless and false petition.
65 It is pertinent to mention here that an application filed on behalf of petitioners for appointment of Local Commissioner for recording the evidence of attesting witness Sh. Kishan Gabrani, who is stated to be not well and unable to appear in the court due to illness. Same was allowed vide order dated 31.05.2016 and Sh. Manish Makhija, Advocate was appointed as Local Commissioner who visited the house of Sh. Kishan Gabrani on 23.07.2016 and recorded his statement as PW-2. Sh Kishan Gabrani shown the document already exhibited as Mark A and on seeing the same witness identifies & confirmed that his signatures appear at Point 'A' on this document. He deposed that the signatures at Point 'B' are of Sh. Ram Dass Ahuja, Testator. Sh. Ram Das Ahuja had also signed this document on the first & second page of this document. The signatures at the first & second page are encircled and marked B-1 & B-2 respectively. He further deposed that Sh. Ram Das Ahuja had signed this document in his presence. This document is now exhibited as Ex. PW- 2/1.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 26/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 66 In the cross-examination he deposed that he cannot say who had brought this Will to him for his signatures. He think Sh. Ram Dass Ahuja must have brought this same. He had come alone. Apart from him, no one else signed in his presence. He further deposed that in the past one month, the petitioners have never approached him to make any statement. He is almost sure that Sh. Ram Dass Ahuja signatures appear at point B. Vide separate statement of counsel for the petitioners, evidence on behalf of petitioners were closed on 30.08.2016.
67 Respondent no. 2 Sh. Rajen Kumar appeared in the witness box as RW-2 and tendered his evidence by way of affidavit Ex. RW2/A. 68 In the cross-examination he deposed that the basis of his allegation that Will dated 18.12.1988 Ex. PW2/1 is forged, false and fabricated is that the Will has suddenly appeared during pendency of case from nowhere and that the said Will has little mention of their mother who was alive at that time whereas in the original Will which was duly registered expressed deep concern about their mother repeatedly. He cannot say that there is no necessity to mention any fact regarding mother in the Will. He denied the suggestion that he is merely assuming that Will Ex. PW2/A is forged without any material and basis as deceased father did not mention it to him or any of their brothers. He denied the suggestion that as deceased was owner of his self acquired property therefore he was not bound to disclose to any person about his last wish and Will. He PC No. 164/10/08 Rajen Kumar Vs State & Ors 27/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors denied the suggestion that at the time when the petitioners applied for substitution of the property in the name of their mother in the year 1991, they did not have the knowledge of the said Will which is Ex. PW2/1 as they themselves got to know about the said Will in the year 2012. He admitted that the petitioners applied for the probate petition of the said Will dated 18.121988 Ex. PW2/1 as soon as they found the said Will in the year 2012.
69 In further cross-examination he deposed that he does not remember the date as to when the petitioner No.2 sold the property to his wife. He denied the suggestion that since all the transactions mentioned in para 7 and 8 took place prior to the year 2012 therefore there cannot be a question of any connivance between the parties as alleged by him. He denied the suggestion that the Will is genuine. He denied the suggestion that present petition is bonafide and filed as soon as the Will in question came in knowledge of petitioner.
70 He further deposed that he know Mr. Hardam Lal and Mr. Krishan Gabrani as they are their neighbours. He denied the suggestion that his affidavit is wrong and false. Vide separate statement of ld. Counsel for respondent no. 2 & 3, evidence on behalf of respondent no. 2 & 3 was closed on 28.11.2016.
71 Respondent No. 4 Sh. Paramjeet Singh Narulaappeared in the witness box as RW-4 and tendered his evidence by way of affidavit Ex. RW4/A. He rely upon PC No. 164/10/08 Rajen Kumar Vs State & Ors 28/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors documents Ex. RW4/1 (OSR) to RW4/7 (OSR) excluding Ex. RW4/2 as photocopy of the same is not on record.
72 In the cross-examination he denied the suggestion that all the documents relied upon by him in his affidavit become invalid now as there is a new/latest Will dated 18.12.1988 Ex. PW2/1 with respect to property No. 4D/54, Old Rajinder Nagar, New Delhi has been found which does not found mentioned of Smt. Ram Kaur. He voluntarily deposed that her sister had purchased the property the subject matter of Will in question after making due inquiry from L&DO in the year 1993. As per record of L&DO, Smt. Ram Kaur was the owner.
73 He further denied the suggestion that as soon as the petitioner No.1 and 2 came to know about the said document Ex. PW2/1 they filed the present petition. He denied the suggestion that neither Smt. Ram Kaur nor respondent No.4 has any legal right. Vide separate statement of counsel for respondent no. 4, evidence on behalf of respondent no. 4 was closed.
74 I have heard counsel for the petitioner Sh. M.D. Kamal and Sh. Sunil Lalwani and Sh. Rakesh Yadav, counsel for respondents and also gone through the written statement filed on behalf of respondents no. 4 & 5 and perused the record.
75 Finding on common issues on both the cases.
It is pertinent to mention here that the issue no. 1, 2 & 6 in petition No. 164/10/08 and issue no. 1, 2 & 3 are PC No. 164/10/08 Rajen Kumar Vs State & Ors 29/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors pertaining to Will in dispute of deceased Sh. Ram Dass Ahuja dated 12.11.1979 and dated 18.12.1988, therefore, all the issues are taken in common.
76 The petitioner Rajen Kumar @ Rajinder Kumar Ahuja in petition pertaining to year 2008 examined himself as PW-1 and PW-2 Sh. Hardam Lal, attesting witness, PW-3 Sh. Hira Lal, Assistant from department of Delhi Archieves and PW-4 Mohd. Anis Taj who attested the Hindi Translation of the Will Ex. PW-1/2 dated 12.11.1979. The testimony of these witnesses have already been discussed in detail hereinabove.
77 Similarly, in the petition bearing No. 53/15/10 filed by Kanwal Nain Ahuja & Another, the petitioner Kanwal Nain Ahuja appeared as PW-1 and attesting witness Sh. Kishan Gabrani of the Will dated 18.12.1988 Ex. PW-2/1. The testimony of both the witnesses has been discussed in detailed hereinabove.
78 Before examining and analyzing the testimony of witnesses let us peruse th law laid down by the Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13 th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
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 PC No. 164/10/08 Rajen Kumar Vs State & Ors 30/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested , it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a PC No. 164/10/08 Rajen Kumar Vs State & Ors 31/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 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. 164/10/08 Rajen Kumar Vs State & Ors 32/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 79 In order to appreciate the detailed discussed testimony of all the witnesses of both petitioner and respondents let us glance the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills -
Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a) The testatrix shall sign or shall
affix his mark to the will, or it shall be
PC No. 164/10/08 Rajen Kumar Vs State & Ors 33/44
P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors signed by some other person in his presence and by his direction.
(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 20.2 Section 68 & 71 of the 1872 Act:
68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
71. Proof when attesting witness denies PC No. 164/10/08 Rajen Kumar Vs State & Ors 34/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under PC No. 164/10/08 Rajen Kumar Vs State & Ors 35/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied. 22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In PC No. 164/10/08 Rajen Kumar Vs State & Ors 36/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.
22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence.
The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
80 The Will Ex. PW-1/2 dated 12.11.1979 relied by Rajan Kumar filed on record is the certified copy. There are two attesting witnesses to the Will, one is Hardam Lal and other is Sh. R.L. Chadha. PW-1 Sh. Rajan Kumar in the detailed cross-examination mentioned that he had received the Will from the L & DO office when he had filed the RTI. However, he had no knowledge about the Will prior to filing of the partition suit. He did not know the attesting witness to PC No. 164/10/08 Rajen Kumar Vs State & Ors 37/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors the Will but met Hardam Lal, attesting witness about 5-6 months ago from the filing of the present petition or one year who is his neighbour.
81 He further disclosed the fact that existence of the Will came to his knowledge about two and a half years ago from his brother Kanwal Nain Ahuja and he had obtained the original Will from the L & DO and not filed the original will. He explained that his mother must have filed the will with the L & DO for getting the property freehold. He specifically denied the factum of existence of the Will relied by Kanwal Nain Ahuja in other petition on the basis of will in dispute dated 18.12.1988. He denied the suggestion that the Will Ex. PW-1/2 dated 12.11.1979 was cancelled by his deceased father.
82 The vital witness of the petitioner PW-2 Sh. Hardam Lal deposed that he does not recollect whether testator Sh. Ram Dass Ahuja present when he had signed the Will Ex. PW-1/2. The testator Ram Dass Ahuja singed in his presence. In the cross-examination he admitted the Will dated 18.12.1988 of the deceased Sh. Ram Dass Ahuja Ex. PW-2/R4 and identified his signatures at point X and signatures of deceased testator Ram Dass Ahuja at point Y1 to Y3. He further admitted that in amended petition under Section 278 of Indian Succession Act he signed and verified the petition.
83 PW-3 Sh. Hira Lal proved the registration of the Will dated 12.11.1979 with the Sub-Registrar. The will Ex.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 38/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors PW-2/1 is in Urdu language and Hindi translation proved by PW-4 Mohd. Anis Taj as Ex. PW-4/A. However, in the cross- examination he stated that he does not know who has translated the Will but he attested as Notary.
84 The attesting witness Hardam Lal has to establish the ingredients of Section 63 of Indian Succession Act. At the outset it is pertinent to mention here that the petitioner Rajan Kumar has not produced the original will although available with him and objection taken to this regard by respondent no. 4 & 5, however, certified copy has been proved and PW-1 had explained the circumstances in which he has filed the certified copy of the Will. The factum of registration is proved by PW-3 Sh. Hira Lal, therefore, the certified copy in these peculiar circumstances is admissible as per Evidence Act.
85 The testimony of PW-2 Sh. Hardam Lal is available to establish the petition of the Rajan Kumar accordingly to Section 63 Indian Succession Act. PW-2 Sh. Hardam Lal has not specifically stated about the presence of deceased Ram Dass Ahuja. He is also silent on the presence and signing of other witness to the Will Sh. R.L. Chadha. He has also not proved the signatures of Sh. R.L. Chadha on the Will. Therefore, his testimony failed to establish that the deceased/testator and two attesting witnesses were present and they signed and attested the Will in the presence of each other. The testimony of PW-2 is also silent on the important aspect that firstly, the deceased/testator had signed the will, thereafter the attesting witnesses in a sequence or not.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 39/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 86 PW-2 Shri Hardam Lal is also silent to the important aspect that one Doctor also conducted health examination of deceased at the time of execution of the Will Ex. PW-1/2. The petitioner has not examined the other attesting witness Sh. R.L. Chadha.
87 On the basis of above observation and discussion, I am of the considered opinion that petitioners Rajan Kumar & Others in petition No. 164/10/08 on the testimony of PW-2 Sh. Hardam Lal, attesting failed to establish the essential ingredients of Section 63 of Indian Succession Act. Therefore, issue No. 1, 2 & 6 are decided against the petitioners and in favour of respondents.
88 Now coming to the petition filed by Kanwal Nain Ahuja in petition bearing No. 53/15/10. The testimony of PW- 1 Kanwal Nain Ahuja and PW-2 Sh. Kishan Gabrani, attesting witness discussed in detail.
89 PW-1 Kanwal Nain Ahuja in the cross-examination admitted that after the death of deceased/testator Ram Dass Ahuja all the brothers applied to L & D.O, Ministry of Urban and Development for transfer/mutation of the subject matter of the Will in question in the name of mother and the basis was the Will dated 15.11.1979 but again stated that on the basis of Will of year 1988. He admitted the knowledge of the Will pertaining to year 1979 when they applied for mutation. He explained that the Will Ex. PW-2/R4 ( Ex. PW-2/1) was found by Gulshan Kumar, petitioner No. 2. He admitted that Gulshan Kumar has executed Sale Deed in favour of his wife PC No. 164/10/08 Rajen Kumar Vs State & Ors 40/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors with respect to second floor. He denied the suggestion that Will dated 18.12.1989 Ex. PW-2/R4 is forged and fabricated.
90 The vital witness is Sh. Kishan Gabrani, the attesting witness who was examined by the Local Commissioner because of his state of health. PW-2 Sh. Kishan Gabrani, identified his signatures on the Will at point A and signatures of deceased at point B. In detailed cross- examination he deposed that deceased Ram Dass Ahuja has brought the Will alone and no one was present. He admitted that for the last one month petitioner Kanwal Nain Ahuja has been approaching for making the statement in the court.
91 It is pertinent to mention here that PW-2 Sh. Kishan Gabrani is silent on important aspect as per Section 63 of Indian Succession Act. He is silent about the presence of other witness Sh. Hardam Lal. On the contrary he admitted that deceased Sh. Ram Dass Ahuja came alone for putting the sign as attesting witness to him. It established that deceased/testator, Sh. Hardam Lal and PW- Kishan Gabrani were not present at the same time and signed the will at the same time in the presence of each other. PW-2 Sh. Kishan Gabrani also not identified the signatures of Sh. Hardam Lal, the other attesting witness. He only identified the signatures of deceased Sh. Ram Dass Ahuja and himself. It established that they did not sign in the presence of each other and also not present at the time when the Will Ex. PW- 2/1 was executed by the deceased/testator.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 41/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 92 The testimony of PW-2 Sh. Kishan Gabrani failed to established all the essential ingredients of Section 63 of Indian Succession Act. The Will Ex. PW-2/1 dated 18.12.1988 is un-registered Will. It is pertinent to mention here that it does not disclosed about the execution of the Will by the deceased/testator i.e earlier Will dated 12.11.1979 Ex. PW- 1/2. There is no specific mention of the earlier Will and revocation of the said Will. It raises suspicious circumstances which are not explained by the petitioner Sh. Kanwal Nain Ahuja. The first para of the Will has not mentioned the date, month and year of execution, however, it is written only in the last para with hand, the date is not typed in the Will dated 18.12.88.
93 The Will dated 18.12.88 is also silent on the mother's status during her life time and no cogent, justifiable reason has been assigned for exclusion of deceased wife, namely, Ram Kaur Ahuja. Deceased further excluded Sh. K.S. Ahuja and Rajan Kumar, however, petitioner Kanwal Nain Ahuja failed to explain and will is silent on the aspect of exclusion of Sh. K.S. Ahuja and Sh. Rajan Kumar Ahuja. The Will is further raises suspicious circumstances as it is in the shape of partition amongst three sons about the occupied portion of the property No. 4D/54, Old Rajender Nagar, New Delhi. In my considered opinion, the testimony of PW-2 Sh. Kishan Gabrani and non revocation of earlier will and highlighted hereinabove certain suspicious circumstances, issue no. 1, 2 & 3 in petition No. 53/15/10 are decided against the petitioners Sh. Kanwal Nain Ahuja and Sh. Gulshan Kumar Ahuja and in favour of respondents.
PC No. 164/10/08 Rajen Kumar Vs State & Ors 42/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 94 Now come on on the remaining issues of petition no. 164/10/08.
Issue No. 3Respondents have taken a plea that petition ( No. 164/10/08) is barred by limitation. The onus is on the respondents to prove this issue, however, they have not examined any witness to prove how the petition is time barred. On the other hand petitioner Sh. Rajan Kumar as PW-1 explained that he derived the knowledge of the Will from the office of L & DO when applied for mutation/transfer. He admitted that prior to the petition he had filed a partition suit but he has no knowledge of the Will at that time. He further explained that he met Sh. Hardam Lal about one year prior to filing of the petition. The facts as pleaded by parties established on record that at the time of partition suit thereafter dispute has been arisen, therefore, cause of action arose in favour of the petitioner, therefore petition filed in the year 2008. Applying the principle laid down by the Hon'ble Supreme Court in KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) 11 SCC 537 and in "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", (2008) 8 SCC, 463, the present petition is within limitation, therefore, issue No. 3 is decided against the respondents and in favour of the petitioners.
95 Issue No. 4The onus of this issue is on the respondents but no material witness examined by the respondents. The issue is based on legal plea about the verification of the petition, however, I have gone through the petition bearing No. PC No. 164/10/08 Rajen Kumar Vs State & Ors 43/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors 23/10/08 it is verified by Hardam Lal, the attesting witness, therefore, petition is duly verified as per Section 281 Indian Succession Act. Hence issue No. 4 is decided in favour of petitioners and against the respondents.
96 Issue No. 5The onus of this issue is on the respondents, however, no material evidence brought on record to specify the material which has been concealed by the petitioner. However, it is brought on record that one of the step son Bhagat Ram Ahuja was not impleaded as party. Apart from this there is nothing brought on record and established that petitioner has concealed the material facts from the court. Therefore, issue No. 5 is decided in favour of the petitioners and against the respondents.
97 Relief In view of finding on issue No. 1, 2 & 6 in petition No. 164/10/08, the petition filed by Rajan Kumar and Kuljeet Singh Ahuja stand dismissed. Similarly on the basis of finding on issue no. 1, 2 & 3 in petition No. 53/15/10, the petition filed by Kanwal Nain Ahuja and Gulshan Kumar Ahuja also stand dismissed. No order as to cost. A copy of this judgment shall also be kept in petition No. 53/15/10 and both filed shall be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 9th January, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 164/10/08 Rajen Kumar Vs State & Ors 44/44
P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors PC No. 164/10/08 Rajen Kumar Vs State & Ors 45/44 P.C No. 53/15/10 Kanwal Nain Ahuja Vs State & Ors