Delhi District Court
Baby Anjeleen Kaur ( Minor) vs The State on 21 July, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 6/14
New P.C. No. 15928/16
1. Baby Anjeleen Kaur ( Minor)
2. Master Ronnak Singh ( Minor)
Both children of Sh. Preet Inder Singh
through their mother/natural Guardian,
Smt. Parminder Kaur
W/o Sh. Preet Inder Singh,
R/o B-1/3A, Rajouri Garden,
New Delhi
..........Petitioner
Vs.
1 The State
Through Chief Secretary
Govt. of NCT of Delhi
5, Sham Nath Marg,
Delhi- 110054
2 Ms Gursharan Kaur
W/o Late Sant Singh
R/o B-1/3A, Rajouri Garden,
New Delhi
Also At:- B-25, Kirti Nagar,
New Delhi-110015
3 Sh. Preet Inder Singh
S/o Late Sant Singh
R/o B-1/3A, Rajouri Garden,
New Delhi
4 Ms Harpreet Kaur
W/o Sh. Harbhajan Singh
R/o B-25, Kirti Nagar,
New Delhi-110015
......Respondents
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 1/35
Date of institution of the case : 20.01.2014
Date reserved for judgment on : 05.07.2018
Date of pronouncement of judgment: 21.07.2018
JUDGMENT:
1 The factual matrix of the present petition is that Baby Anjeleen Kaur ( Minor) through her mother, natural guardian Smt. Parminder Kaur filed the present petition under Section 276/192 of Indian Succession Act for grant of Letter of Administration/Probate in respect of unregistered Will dated 21.12.1998 of deceased Sh. Sant Singh, particularly with regard to property No. B-1/3 A, Rajouri Garden, New Delhi.
2 It is stated that Sh. Sant Singh S/o late S. Amar Singh (hereinafter referred to as "deceased/testator") was the grand father of minor petitioner and husband of respondent no. 2 Ms Gursharan Kaur, father of respondent no. 3, Sh. Preet Inder Singh and respondent no. 4, Ms Harpreet Kaur, daughter. The deceased expired on 10.03.1999 at Delhi. The deceased had owned a number of assets including the property bearing No. B- 1/3-A, Rajouri Garden, New Delhi-110027 ( hereinafter referred to as " property in question"). It is stated that during his life time the deceased executed a Will dated 21.12.1998 in favour of the petitioners and respondent No. 2 to 3 and bequeathed his entire estates to the petitioners and respondent no. 2 to 4.
3 It is stated that, the mother of the minor petitioner, namely, Ms Parminder Kaur, came to know the knowledge on the date of receiving the certified copy of suit before 13.08.2013 when she came for inspection of court case file in room No. 143, PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 2/35 Tis Hazari Court, Delhi and she saw the respondent no. 3 standing in front of the court of Sh. Subhash Kumar Mishra, Ld. Civil Judge, Delhi. She also noted that one suit was pending against the respondent no. 2 and 3 on said date. Thereafter Smt. Parminder Kaur confront her husband, Sh. Prit Inder Singh but no satisfactory reply given.
4 It is further stated that the mother of the petitioner and respondent no. 2 to 4 are into the litigations since long in different courts of law. The mother of the petitioner when did not receive any responsible reply from the respondent no. 3, then she preferred to apply for the certified copy of the aforesaid entire suit filed by the respondent no. 3 against the respondent no. 2 before the Hon'ble Court of Sh. Subhash Kumar Mishra, Civil Judge, Delhi as suit No. 144/13, titled as " Sh. Preetinder Singh Vs Smt. Gursharan Kaur". After going through the certified copies no adverse material was found but on 19.10.2013, the mother of the petitioner heard a telephonic conversation of respondent no. 3, namely, Sh. Preet Inder Singh in respect of one Will, according to which minor petitioner had right and interest in the assets left by deceased, grand father.
5 It is stated that during the pendency of litigations with respondent no. 2 to 4, number of times, mother of the minor petitioner was threatened that assets of deceased would be sold out including the house at Rajouri Garden with the help of unsocial elements. The respondent no. 2 & 3 are in the possession of said will but could not supply the copy to Ms Parminder Kaur, mother of the minor petitioner. The mother of the petitioner was not even allowed by ld. Civil Judge to get the certify copy of the Will and inspection of the said civil suit file.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 3/35 6 It is stated that by virtue of above Will dated 21.12.1998, minor petitioner and respondent no. 2 to 4 may become owner of the respective assets left by deceased, therefore, minor petitioner is seeking letter of administration in respect of the last Will dated 21.12.1998. The petition is supported by affidavit of Ms Parminder Kaur, mother of the petitioner.
7 It is pertinent to mention here that Ms Parminder Kaur, mother of minor petitioner did not file any application as per order 33 for seeking the permission of the court to become guardian for the minor petitioner, Baby Anjleen Kaur. Further during the pendency of the petition, an application field for impleading minor son Master Ronnak Singh who born on 06.07.2015 S/o Ms Parminder Kaur and respondent no. 3 Sh. Preet Inder Singh. He was also impleaded as party vide order dated 02.03.2017. However, no application under Section 32 CPC has been filed for seeking permission for appointment of Ms Parminder Kaur, mother as guardian in the present petition.
8 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 "Veer Arjun" dated 25.04.2014 and Statesman dated 17.11.2014. Respondent no.3 Sh. Preet Inder Singh represented through Sh. Amit Sharma, Advocate, however, respondent no. 2 Ms Gursharan Kaur and respondent no. 4 Ms Harpreet Kaur were served vide publication in daily newspaper. Consequently, Sh. Parmod Gupta, represented respondent no. 2 & 4.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 4/35 9 The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar, Rajouri Garden filed valuation report in respect of property bearing No. B-1/3A, Rajouri Garden, New Delhi-27 and assessed the value of the same as Rs. 3,33,52,343/-/-( Rupees Three Crore thirty Three Lakh Fifty Two Thousand, Three Hundred Forty Three Only).
10 Respondent no. 2 & 4 filed joint written statement. In the written statement respondent no. 2 & 4 taken preliminary objections that present petition has been filed by petitioner with a malafide intentions to grab the property of respondent no. 2. The Will in question is false, forged and fabricated as deceased Sant Singh never executed any will at any stage of his life. It is stated that minor petitioner and her parents, Ms Parminder Kaur and respondent no. 3, Sh. Preet Inder Singh were disowned by respondent no. 2, Ms Gurushran Kaur in the year 2006 vide publication dated 22.12.2006 in the daily newspaper.
11 It is further stated that a decree of possession of the suit property already passed in favour of respondent no. 2 in the year 2007. The minor petitioner and her parents tress pass in the suit property and a FIR under section 420, 448, 307, 506, 511 IPC has been registered against them by the police.
12 On merit all the averments made in the petition are denied and reiterated the facts mentioned in the preliminary objection. It is stated that Ms Parminder Kaur and respondent no. 3 are illegally and unlawfully and unauthorizedly tress pass forcibly by breaking locks of the suit premises of respondent no.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 5/35 2 and removed all the articles/belongings/ wealth/jewellary etc and an FIR No. 198/2008 has been registered against them in Police Station, Kirti Nagar under Section 448, 420, 307, 511, 12- B/34 IPC and matter is subjudice before the court of Sh. S. Changotra, ld. M.M. It is stated that during the execution of decree of possession in suit No. 36/2007 against respondent no. 3 said FIR has been lodged.
13 It is stated that a suit No. 36/2007 filed by respondent no. 2, Ms Gursharan Kaur against respondent no. 3, Sh. Preet Inder Singh for possession of part of ground floor of the suit property. The respondent no. 3 had challenged the compromised decree before the Hon'ble High Court and the application was dismissed by Ld. ADJ, Sh. Vinod Kumar on 02.07.2009. The respondent no. 3 filed a revision petition before the Hon'ble High Court against the said order and the same was dismissed by Hon'ble Mr Justice Rajiv Endlaw vide order dated 15.01.2010. The respondent no. 3 thereafter preferred SLP before the Hon'ble Supreme Court, bearing no. 1725/2010 which was also dismissed against the respondent no. 3 vide dated 16.07.2010.
14 It is further stated that respondent no. 3 also filed another suit against respondent no. 2 for cancellation of Relinquishment Deed dated 17.01.2004 and for setting aside the decree of possession in suit no. 36/2007. The said suit was dismissed by the Hon'ble Court of Ms Himani Malhotra, ld. ADJ. The respondent no. 3 moved a Revision petition RFA No. 747/2010 which was also dismissed by the Hon'ble Mr. Justice Valmiki Mehta. Thereafter an application under order 1 rule 10 PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 6/35 CPC in execution of suit no. 36/2007 was filed by Ms Parminder Kaur but the same was also dismissed. Thereafter Ms Parminder Kaur preferred a petition before the Hon'ble High Court, which was dismissed as withdrawn.
15 It is stated that, mother of the petitioner, Ms Parminder Kaur and respondent no. 3 Sh. Preet Inder Singh in collusion with each other concocted a false story of knowledge of the will, on the basis of fake, false, forged and fabricated will. It is stated that no conversation on telephone took place between respondent no. 2, mother of respondent no. 3, son on 19.10.2013 as alleged in the petition. It is stated that deceased was not the sole owner of the property in question and petition is liable to be dismissed.
16 Minor petitioner through mother filed replication to the objections/written statement filed on behalf of respondent 2 & 4. It is stated that respondent no. 2 herself has concealed the present will with ulterior motive. It is stated that mother, Ms Parminder Kaur, of the minor petitioner, has all rights to file the present petition being natural guardian. It is further stated that a compromised decree dated 09.04.2007 was passed due to the collusion and connivance of respondent no. 2 & 3. However, it is admitted that an FIR has been registered against Ms Parminder Kaur and respondent no. 3 but only cognizance have taken only for the offence under Section 448 IPC by the Ld. M.M. 17 It is stated that respondent no. 2 & 3 in connivance with each other deprive the legitimate right of minor petitioner. Respondent no. 2 is playing fraud against her own grand PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 7/35 children. All the averments made in the written statement of respondent no. 2 & 3 are denied and contents of petition reiterated.
18 Thereafter mother of minor petitioner, Ms Parminder Kaur further stated in replication that in the year 2006 respondent no. 2 had approached the parents of the Parminder Kaur with a proposal for the marriage of her only son, respondent no. 3 Sh. Preet Inder Singh and represented that respondent no. 3 is the owner of built up property of more than 300 sq. yds i.e property in question. The respondent no. 3 was represented to be earning Rs. 10,000/- per month. Ms Parminder Kaur agreed to marry respondent no. 3. The marriage was solemnized on 07.05.2006 according to Sikh Marriage Ritual at Delhi. The respondent no. 2 was not happy with the marriage from the very first day and treated Parminder Kaur with cruelty for not bringing sufficient dowry.
19 It is stated that respondent no. 2 Ms Gursharan Kaur and respondent no. 4 Smt. Harpreet Kaur have already been charge sheeted for offences under Section 406/498A/34 IPC with Police Station, Kirti Nagar and case is pending in the court of Ms Jyoti Kler, Ld. M.M., Tis Hazari Court. It seems that the counsel has cut and paste the facts of some other litigations between the parties in the replication in respect of domestic violence and case under Section 406, 498A/34 IPC. It is further revealed that the objection of execution petition filed by Ms Parminder Kaur also cut and pasted with the replication.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 8/35 20 The respondent no. 3 also filed objection/reply to the present petition and taken preliminary objections that present suit has been filed by the petitioner with malafide intention to cause unnecessary harassment to respondent no. 3. The petitioner has filed the present suit just to extract undue and unwarranted money from the respondent no. 3. On merit it is stated that deceased Late Shri Sant Singh had executed a Will during his life time dated 21.12.1998. The deceased had bequeathed only life interest to respondent no. 2 and nothing had been bequeathed to respondent no. 4 in the property in question. However, all the other averments made in the petition are denied for want of knowledge. He denied the averments with regard go threats by his mother to minor petitioner and his mother, Ms Parminder Kaur.
21 It is stated that the answering respondent no. 3 was having original will and a petition for probate was filed in the court of ld. Civil Judge, Sh. Subhash Kumar Mishra as suit no. 144/13 titled as Preet Inder Singh Vs Gurshran Kaur but the same was returned due to lack of jurisdiction as one of the property is situated in Punjab. The original will was lost during transit and an FIR bearing no. 25/14 dated 03.01.2014 in P.S. Kashmere Gate was registered in this regard. It is stated that petition may be dismissed.
22 On the pleading of the parties following issues were framed vide order dated 09.12.2015:-
1. Whether late Sh. Sant Singh executed a valid and enforceable will dated 21.12.1998 as claimed by the petitioner? OPP PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 9/35
2. Whether the petitioners are entitled for probate/Letter of Administration on the basis of the aforesaid Will? OPP
3. Whether the petition is liable to be dismissed on the basis of objections raised by the respondent/objector no. 2, 4 & 3? OPR
4. Relief
23 Petitioner in order to prove her case examined her mother Mrs Parminder Kaur as PW-1 and PW-2 Sh. Harmohinder Singh, the attesting witness and evidence was closed on 05.09.2016.
24 Respondent no. 3 Sh. Preet Inder Singh never appeared after filing the written objections, nor filed any list of witnesses nor examined any witness (no closing order is mentioned in the order sheet.).
25 Respondent no. 2 & 4 examined Sh. Ram Pal Singh, authorised person of The Panchsheel Co-op. House Building Society Ltd. Zirakpur as R2W1, Smt. Gursharan, respondent no. 2 as R2W2, Shir Jagan Nath Sahu as R2W3, Ms. Harpreet Kaur, respondent no. 4 as R2W4. Vide separate statement of ld. Counsel for respondent no. 2 and 4, evidence on behalf of respondent no. 2 & 4 was closed on 12.04.2018.
26 I have heard ld. Counsel Sh. Gurmeet Singh Hans, for minor petitioner and Sh. Promod Guupta, counsel for respondent PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 10/35 no. 2 & 4, however, no written submissions filed by either of the parties.
27 In order to decide the present petition, let us peruse the provisions and principles of law laid down by the Apex Court.
The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 11/35 person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 12/35 time, and no particular form of attestation shall be necessary".
28 The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
29 The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
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:
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 13/35 Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
30 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 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 PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 14/35 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 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. "
31 In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 15/35 governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court.
The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 16/35 that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied) 32 In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar (supra), the Supreme Court culled out the following propositions:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act 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 PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 17/35 whether the document propounded is prsoved 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 susbtantial 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 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 circusmtances 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 ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is connection with wills, the execution
of which is surrounded by suspicious
circumstances that the test of satisfaction of the PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 18/35 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 surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied) 33 The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 19/35 property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied) PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 20/35 34 Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
35 In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 21/35 there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied) 36 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"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 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 PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 22/35 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 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 PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 23/35 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 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 PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 24/35 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 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."
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 25/35 37 Findings on issue No. 1, 2 & 3 The issue no. 1,2, & 3 are taken together being interconnected. My findings on issues are as under:
38 Knowledge and discovery of will of deceased late Shri Sant Singh dated 21.12.1998 The case of the minor petitioner through mother Ms Parminder Kaur is that respondent no. 3, father and husband of mother of minor petitioner on 13.08.2013 wanted to inspect the file in the court of ld. Civil Judge Sh. Subhash Kumar Mishra then noted that a suit is pending between respondent no. 2, mother, Ms Gursharan Kaur of respondent no. 3 Sh. Preet Inder Singh, son. On 19.10.2013, after two months, she heard a conversation between respondent no. 3 after getting the certified copies. In the replication to written statement of respondent no. 2 & 4, minor petitioner submitted that respondent no. 2 concealed the fact of present will and she had the knowledge from the date of its execution. The respondent no. 3 Sh. Preet Inder Singh, father of minor petitioner, taken the stand that late father Sh. Sant Singh and respondent no.2, mother were the joint owner of the property in question. Respondent no. 3 further admitted that he was having the original will of his father and filed a Probate petition bearing no. 144/13, titled as Preet Inder Singh Vs Gursharan Kaur in the court of Sh. Subhash Kumar Mishra, ld.
Civil Judge but the same was return because one of the property was pertaining to Punjab. Thereafter he lost the original will during the transit and FIR No. 25/2014 dated 03.01.2014 in P.S Kashmeri Gate was lodged in this regard. The original Will filed on record not by respondent No.3 but mother of minors. It is a mystery how and when original Will traced out by whom and filed in Court. It raises suspicious circumstances.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 26/35 39 It is pertinent to mention here that respondent no. 3 did not appear in witness box. He only filed his written statement supporting the case of minor petitioner. The respondent no. 3 established that since beginning the original will was with him means since December, 1998 and his father died on 10/3/1999 in an accident it is proved on record. He was unmarried on that day and he did not file any probate case since March, 1999 till he filed the suit bearing no. 144/13 on 13.08.2013.
40 I have gone through the certified copy of said suit Ex. PW-1/4. The said suit was filed for declaration in respect of property situated at Ajit Garh, Mohali, Punjab on 13.08.2013, this is the same date mentioned by mother of minor petitioner. It means the respondent no. 3 and mother of minor petitioner, both were present when the civil suit filed on the basis of will dated 21.12.1998 of late Sant Singh. In this case on 21.10.2013, Ms Parminder Kaur filed an applicaton for inspection of the file but same was dismissed vide order dated 02.01.2014.
41 It is pertinent to mention her that respondent no. 3 in this civil suit did not implead his sister Ms Harpreet Kaur, respondent no. 4. These circumstances established on record that mother of minor petitioner Ms Parminder Kaur and respondent no. 3 both were present in filing the above said civil suit which was decided on 13.08.2013.
42 The minor petitioner's mother taken a stand of hearing conversation on telephone on 19.10.2013, after two months of the filing of the above suit. However, respondent no.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 27/35 3 failed to appear in witness box either in his independent capacity or on behalf of minor petitioner, her daughter to corroborate this fact. Nothing has been proved on record with regard to conversation on 19.10.2013 by respondent no. 3 whereby the mother of minor petitioner got the knowledge of the will. The mother of petitioner stated bundle of lies before the court because she had already knowledge of the civil suit filed on the basis of will in question. She had tried to inspect the file when she was present on 13.08.2013 when the case was filed by her husband, respondent no. 3 which is highly unbelievable that she deprive the knowledge on 13.08.2013 and 19.10.2013 with regard to the will.
43 Nothing brought on record to prove that on the day of execution of the will respondent no. 2 was in the knowledge. There is no explanation on behalf of minor petitioner and his mother why respondent no. 3 did not approach the court when he was having the will throughout the years since 1999. Therefore, the fact and story put up by minor petitioner's mother is nothing but bundle of lies to mislead the court with regard to knowledge and discovery of the will.
44 It is pertinent to mention here that minor petitioner through her mother Ms Parminder Kaur concealed the important fact with regard to civil suit filed between, her father, respondent no. 3 Sh. Preet Inder Singh and grandmother, respondent no. 2 in the year 2007 as per record. It is pertinent to mention here that a suit bearing no. 36/2007 filed by respondent no. 2 against his son, respondent no. 3, Sh. Preet Inder Singh. It is brought on record that mother of the minor petitioner married to respondent PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 28/35 no. 3 on 07.05.2006 and less than one year litigations started between mother, respondent no. 2 and son, respondent no. 3.
45 It is admitted on record that the said suit was culminated into a compromised decree. The mother Parminder Kaur filed an application to become party but there is nothing on record that she became a party. It is already mentioned in the pleadings by respondent no. 2 and 4 that respondent no. 3 challenged the compromise decree on the basis of the Relinquishment Deed dated 17.01.2004 between respondent no. 2, 3 & 4. Respondent no. 3 thereafter taken on all legal course up to Supreme Court to challenge the Compromise decree on the basis of the Relinquishment Deed, however, could not succeeded, therefore it has attain finality.
46 As per record, thereafter execution was filed by respondent no. 2. The mother of minor petitioner, Ms Parminder Kaur filed an application under order 1 Rule 10 CPC to become a party to resist the execution. Another suit filed by respondent no. 3 for cancellation of Relinquishment Deed before the ld. ADJ, Ms Himani Malhotra and the said suit was also dismissed. The respondent no. 3 further challenged before the Hon'ble High Court but no relief granted. In my considered opinion, after loosing the legal battle, respondent no. 3 and his wife Parminder Kaur filed the present petition.
47 It is pertinent to mention here that, as per record, late Sant Singh died suddenly in an road accident vide document Mark D i.e receipt of receiving of dead body after post mortum in FIR No. 160/99 under section 279/304-A IPC. It is unbelievable PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 29/35 that if late Sant Singh had executed any will then respondent no. 2 was not in knowledge and there is no reason why she would concealed this fact, especially in the facts and circumstances where respondent no. 3, son admits that he was having the original will throughout.
48 Nothing brought on record by way of oral or documentary evidence with regard to lost and found story of the original will by mother of minor petitioner and respondent no. 3. it is surprising how and when the original will was lost and later on how it was found after lodging the FIR in Police Station Kashmere Gate. There is no oral and documentary evidence to prove it. In my considered opinion when parties were in litigation since 2007, in case respondent no. 3 was having the original will of late Sh. Sant Singh, his father, at the threshold he must have disclosed to the court but he remained silent about this fact. It further established that in the year 2007 there was no will in existence and raises grave suspicion. The suspicion further darken with the facts, when in August, 2013, respondent no. 3 chose to file instead of Probate case, a civil case on the basis of the will in question that too with respect to property of Punjab. There is no explanation why the proper legal forum was not chosen by the respondent no. 3.
49 Another important fact is that just after the marriage on 07.05.2006 the litigation started between respondent no. 2, mother and respondent no. 3, son. There is no reason mentioned why he remained silent when he was having the original will with him in the year 2007. It raises grave suspicion which is not explained and cleared by the mother of the minor petitioner.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 30/35 50 It is pertinent to mention there that after going through the will un-usual circumstances and facts mentioned with regard to bequeath of estate of late Sant Singh. In the circumstances, where the son is not married, how one can presume that he would be blessed with only two children after marriage. This fact corroborates the fact that will might have been not in existence and may came into existence after the death of late Sant Singh.
51 Another important vital fact proved on record by RW- 2 that nomination of the plot No. 45, Membership no. 1004, measuring 250 sq. yards in Ajit Garh, Zirakpur-Rajpura Road, District Mohali, Punjab, under Panchsheel Co-operative House Building Society Ltd. is in the name of respondent no. 2 Smt. Gursharan Kaur. It is un-believable and raises suspicion that husband has given nomination in favour of his wife on 22.01.1999 vide Ex. R2W1/4 then why he bequeath the property after some months in favour of his son who was unmarried on that day. It raises grave suspicion with regard to the existence of the will on 21.12.1998.
52 On the basis of above observation and discussion the minor petitioner, through her mother Parminder Kaur failed to establish that the Will Ex. PW-2/A dated 21.12.1998 was came to the knowledge on 13.08.2013 and she had heard the conversation on 19.10.2013. The facts and circumstances, clearly, established the collusion between mother of minor petitioner Parminder Kaur and respondent no. 3 when they lost all the battle in respect of the property in question they adopted this legal course on the basis of highly suspicious document i.e PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 31/35 Will Ex. PW-2/A. The discovery and the knowledge of the will is surrounded by suspicious circumstances which are not explained and cleared by the minor petitioner, through her mother.
53 The Legal Valid Execution of the Will It is pertinent to mention here in the back ground that the deceased Sant Singh died suddenly in an accident on 10.03.1999 and respondent no. 3 and mother of minor petitioner, Parminder Kaur married on 07.05.2006. Further the legal battle started in the year 2007 between respondent no. 2 and respondent no. 3, which was lost by respondent no. 3 up to Supreme Court. Thereafter, respondent no. 3 through his wife filed various civil cases and now both have approached through their minor children by filing probate petition. Initially petition was filed with the certified copy of the Will and during the proceedings the original will was filed on 10.06.2016.
54 As per admission of minor petitioner's mother, as per document Ex. PW-1/4, respondent no. 3 filed a suit No. 144/13 on 13.08.2013 on the basis of the Will Ex. PW-2/A confining only property at Ajit Garh, near Mohali, Punjab. However, on that day minor petitioner Baby Anjleen Kaur was about six years old as per her birth certificate Ex. PW-1/1 as she was born on 25.07.2007. There is no explanation why respondent no. 3 did not seek declaration for her daughter with respect to property in question.
55 It is pertinent to mention here that late Sant Singh in the said will specifically mention that the property is jointly purchased with his wife, respondent no. 2, Smt. Gursharan Kaur.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 32/35 The prudent man would not execute will whereby right of ownership of his wife would be diminished. The will is silent with respect to important legal ingredient with regard to rights of respondent no. 2, Smt. Gursharan Kaur being the joint owner.
56 The second surprising and unusual bequeath is much prior to the marriage of the son, to unborn children, especially in the circumstances that deceased, Sant Singh died suddenly in a road accident. Thereafter the will did not see a day light till August 2013 although remained in the possession of respondent no. 3 and put up a story of lost and found without any substance.
57 The attesting witness examined by minor petitioner is PW-2 Sh. Harmohinder Singh. In the detailed cross- examination he deposed that as per contents of the Will 50% estate bequeathed to his wife, respondent no. 2 and 50% to minor petitioner, grand children. He has no knowledge when two children were born to respondent no. 3. He is resident of Jalandhar, Punjab. He has not explained how the deceased Sant Singh called him to become a witness on 21.12.1998. He does not know the time of signing of the Will. He never attended any ceremonies of the deceased family.
58 Another vital fact brought to the notice towards the second witness Sh. Taran Singh is that he put his signatures on the alleged will and mentioned his address as J-3/190 A, Rajouri Garden, New Delhi and on the receipt of dead body Mark D he has mentioned his address as J-3/76A, Rajouri Garden, Delhi. It is not explained why there are two address of Sh. Taran Singh.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 33/35 59 It is pertinent to mention here that will Ex. PW-2/A contains the last sentence, " If anyone raises objection, it will be null and void." For the argument sake although the will is surrounded by grave suspicious circumstances, it automatically become null and void because respondent no. 2 & 4 raises objections as per alleged last wish to late Sant Singh. In my considered opinion, the attesting witness failed to establish is presence at the time of alleged execution of will on 21.12.1998. It is not explained when and how this witness was called from Jalandhar, especially, when deceased Sant Singh and respondent no. 2 have cordial relation because nothing come on record contrary to it. In my considered opinion, the execution of the Will in the presence of PW-2 Sh. Harmohinder Singh also surrounded with suspicious circumstances.
60 Lastly, it is pertinent to mention here that there is inherent legal defect in the present petition that mother of the petitioner filed the petition without seeking permission and appointment of guardian of Ms Baby Anjleen Kaur and during the whole proceedings for four years and no legal steps taken, therefore, there is legal inherent defect which if fatal for minor petitioner to institute the present petition.
61 On the basis of the above observation and discussion and apply the principle laid down in H. Venkatachala Iyengar case (Supra) the Will Ex. PW-2/1 of late Sant Singh is surrounded with grave suspicious circumstances and not satisfied the judicial conscience of the court, therefore, issue no. 1, 2 & 3 are decided against minor petitioner and in favour of the respondent no. 2 & 4.
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 34/35 62 In view of the finding on issue no. 1 to 3, the petition filed by the petitioner is dismissed. Before parting the present petition in the peculiar facts and circumstances of the present case I imposed cost of Rs. 25,000/- on minor petitioner to be paid through mother Ms Parminder Kaur and Rs. 25,000/- on respondent no. 3, Sh. Preet Inder Singh to be paid to respondents No. 2 and 4. Further Rs.10,000/- shall be deposited with the website www.bharatkeveer.gov.in. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 21st July, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 6/14 Baby Anjeleen Kaur Vs State & Ors 35/35