Delhi District Court
Sh. Gulbagh Chaddha vs Sh. Dil Bag Chaddha(Deceased) on 24 October, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-105/11/01
In the Matter of:
Sh. Gulbagh Chaddha
s/o late Shanti Sagar Chaddha,
r/o 103, Sarojini Nagar Market,
New Delhi-110023
.................. Petitioner
VERSUS
1. Sh. Dil Bag Chaddha(deceased)
through Legal Representatives:
(i) Smt. Kiran Chaddha
wife of late Sh. Dil Bagh Chaddha,
r/o 293/27, Opposite Sharma Furniture House,
Gali No. 7, Jyoti Park, Gurgaon, Haryana.
(ii) Chaya Chaddha
d/o late Sh. Dil Bag Chaddha,
r/o 293/27, Opposite Sharma Furniture House,
Gali no. 7, Jyoti Park, Gurgaon, Haryana.
2. Sh. Manoj Chaddha
S/o late Sh. Shanti Sagar Chaddha,
R/o 1323, Laxmi Bai Nagar,
New Delhi-110023.
3. Smt. Neeraj Chaddha,
s/o late Sh. Shanti Sagar Chaddha,
r/o 41, Ratan Deep Society,
Sector-IX, Rohini, Delhi.
4. Smt. Madhu Malti,
w/o Sh. Subhash Chand Madhok
c/o Vasant H. Lakakwak,
Viveka Nand Nagar, Hamal Pura,
PC-105/11/01 Page No. 1/28
Main Road, Kamtee,
Nagpur-441002
5. Smt. Neel Kamal
w/o Sh. Anil Sehgal,
r/o 466, Sector-VIII, R.K. Puram,
New Delhi.
6. Smt. Alka,
w/o Sh. Mahender Kumar,
1752, Gali no. 6, Govind Puri Ext.
New Delhi.
7. Smt. Meena Kumar @ Swaran Lata,
w/o late Sh. Shanti Sagar Chaddha,
r/o Flat no. 103, Sarojni Nagar Market,
New Delhi-110023.
8. State of Delhi,
Through Collector, Delhi.
......Respondents.
Date of Institution: 14.1.01
Date of Assignment to this court: 10.9.12
Date of Arguments: 17.10.13
Date of Decision: 24.10.13
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition under section 278 of the Indian Succession Act, 1925 for grant of probate/letter of administration in respect of the properties of Late Sh. Shanti Sagar Chadha s/o late Sh. Jyoti Ram by petitioner against the respondents. The brief facts of the case as narrated in the petition are that petitioner is the real son of the deceased late Sh. Shanti Sagar Chadha and PC-105/11/01 Page No. 2/28 is residing at his parental flat at Sarojini Nagar, New Delhi. It was stated that late Sh. Shanti Sagar Chadha had bequeathed all his properties movable and immovable with deposits in bank and post office as per details mentioned in Annexure-II in favour of of the petitioner vide his Will dated 11.2.97 which was final registered on 6.10.97 with the Sub Registrar, New Delhi. As stated the said Will was executed after revocation of a registered Will dated 20.8.92 which was also registered with Sub Registrar, Delhi. As stated the Will dated 11.2.97 was the last Will in favour of the petitioner and the same was executed in presence of witnesses. It was stated that respondent no. 1 to 3 are the brothers of petitioners and respondents no. 4 to 6 are his sisters. It was stated that the petitioner is the sole legatee, executor named in the Will dated 11.2.97 and accordingly claims right on the properties i.e. the shop no. 103, Sarojini Nagar Market and flat no. 103 with deposited saving bank amount of Rs. 68,975.56/- lying in Punjab National Bank, Sarojini Nagar. As stated petitioner is in possession of the said shop and flat and is paying the lease rent of Rs.623/- and Rs.107/-. Hence, it was prayed that probate/ letter of administration be granted to the petitioner under Will dated 11.2.97 with respect to immovable properties/shares in immovable properties left by the PC-105/11/01 Page No. 3/28 deceased in Annexure-II.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed despite service. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " Veer Arjun" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper " Veer Arjun" on 10.3.03.
4. Respondents no. 2,3,5 and 7 had filed their no objection to the present petition on 9.8.01, however later on an application u/s 151 CPC was moved on behalf of the respondent no. 5 Smt. Neel Kamal that no objection filed on behalf be taken off the record since she did not sign any such no objection. The said application was allowed vide order dated 21.11.11 and she was allowed to file objections. Though later on respondents no. 2,3, 5 and 7 also moved similar application for considering their no objections of the record but the said application was dismissed by my Ld. Predecessor vide order dated 2.8.07.
5. Objections were filed on behalf of respondent no. 1,6, and 4 besides PC-105/11/01 Page No. 4/28 respondent no. 5.
6. In the objections filed on behalf of respondent no. 1 it was denied that Will dated 11.2.97 was the last and free Will of the deceased Sh. Shanti Sagar Chadha. It was submitted that the alleged revocation of the Will dated 20.8.92 and the ground for revocation as stated in the Will in question clearly shows that the same is not in accordance with the normal human acts. It was also denied that the petitioner is the sole legatee and executor of the Will. It was submitted that the respondent no. 1 has been employed in Life Insurance Corporation of India ever since 1979 was posted in Punjab at Ambala. It was stated that from 1976 to 1978 the objector stayed at Jalandar, in January, 1979 the objector joined the office at Batala, Punjab and remain there upto March, 1984 and from March 1984 to March 1987 the objector was posted at Srinanar. As stated for the period 1987 to 1988 only the respondent no. 1 stayed in Sarojini Nagar whereafter till date he is residing at Gurgaon. It was submitted that the three brothers of respondent no. 1 were disowned by the deceased and Will in question itself is contradictory in nature and apparently shows the coercion and undue influence of the petitioner on the deceased. It was denied that the petitioner is in exclusive possession of the premises and shop in question and it was PC-105/11/01 Page No. 5/28 submitted that petitioner is only in part possession of the same and respondents no. 2 and 3 are also in possession. It was stated that petitioner has failed to disclose the complete assets and omitted to mention regarding the locker and details of account no. 23573 with Punjab National Bank, Sarojini Nagar Market and saving bank account bearing no. 5162548 in Sarojini Nagar Post Office . It was also stated that petitioner has also not disclosed the fact that there were fixed deposits in the name of the respondents no. 4 and 6 and had the statement contained in the Will in question been correct, the said fixed deposit also would have been cancelled by the testator. As stated the fixed deposit after maturity have been withdrawn by respondents no. 3 and 6 from the bank. It was stated that further the fact with respect to the exclusion of the respondent no. 7 from the Will and inheritance of the properties in question also shows that the Will has not been signed with free and sound disposing mind. It was stated that though at present respondent no. 7 is not residing with the petitioner but still is under undue threat of the petitioner. It was also stated that the verification of Sh. Jai Dev and Sh. Raj Bhardwaj, advocates is invalid and they have no seen the execution of the Will. Rest of the contents of the petition were also denied and it was prayed that the instant PC-105/11/01 Page No. 6/28 petition be dismissed.
7. In the objection filed by the respondent no. 5 it was stated that the Will dated 11.2.97 is forged and fabricated and is not the last free Will of the testator. It was stated that petitioner has no right, title or interest to seek the probate of the properties owned by late Sh. Shanti Sagar Chadha who had already bequeathed the properties in favour of Sh. Dilbagh, Madhu Malti, Alka and respondent no. 5 late Sh. Shanti Sagar Chadha vide Will dated 20.8.92 which is the only executed and registered Will of the deceased. It was stated that the perusal of the alleged Will reveals that the Will in question has not been signed by the attesting witnesses a the time of alleged execution of the Will by the executant. It was stated that the property in question was not the absolute property of late Sh. Shanti Sagar Chadha which was allotted to him in claim in lieu of ancestral properties left behind in Pakistan by his forefathers and accordingly petitioner cannot succeed solely the property in question on the basis of forged and fabricated Will. It was also stated that the record of NDMC reveal that late Sh. Shanti Sagar Chadha always used to sign the important documents relating to the property in English and never put his signatures in Urdu. It was also stated that Sh. Shanti Sagar Chadha was suffering from Arthritis PC-105/11/01 Page No. 7/28 and acute backache, knee problems and was not in a position to move on his own legs since 1996 onwards and besides he was suffering from diabetes and since 1996 had very poor vision and was in a position to read or write any documents. As stated late Shanti Sagar Chadha was totally bedridden from 1996 onwards and it was impossible for him to move for alleged execution of the alleged Will dated 11.2.97. It was stated that Sh. Gulbagh Chadha was so enemical to late Sh. Shanti Sagar Chadha that number of times he tried to win over the brothers and sisters used to ask them to get declared Sh. Shanti Sagar Chadha as mental even during his lifetime since he had evil eyes on the properties and was always making the plans to grab the property in question. Further similar contentions as were contended in the objections of respondent no. 1 were raised and rest of the contents of the petition were denied and it was prayed that the instant petition be dismissed.
8. Similar objections were raised by the objector no. 4 with respect to execution of alleged Will and non disclosure of complete assets. It was stated by objector no. 4 that she never filed no objection to the present petition and that the Will in question is forged and fabricated. She stated that she was having much affection with her father and used to visit him PC-105/11/01 Page No. 8/28 during his ailments and used to provide him fund as the petitioner and other objectors were completely neglecting the deceased. It was stated that during his lifetime since after execution of Will dated 20.8.92 the deceased had never disclosed to the respondent no. 4, regarding execution of Will dated 11.2.97 till his death.
9. Similar objections were raised by the objectors no. 6 separately with respect to execution of alleged Will and non disclosure of complete assets. Contents of the petition were denied and it was prayed that the petition of the petitioner be dismissed.
10.Separate rejoinders were filed by the petitioner to the respective objections of the objectors in which case as set out in the petition is reiterated and that of the objectors was denied.
11.Vide order dated 2.7.03, from the pleadings of parties, the following issues were framed:-
1. Whether Will dated 11.2.97 was executed by late Sh. Shanti Sagar Chadha, if so, whether the said Will was last Will and testament of the deceased and was validly executed in state of sound disposing mind?
2. Relief.
12. In evidence, petitioner has produced five witnesses in support of his case including himself i.e. PW-1 Sh. Gulbagh Chadha, PW-2 Sh. B.S. PC-105/11/01 Page No. 9/28 Sehrawat, PW-3 Mr. Jaidev, PW-4 Raj Bhardwaj and PW-5 Sh. R.S. Sehrawat. PW-1 was the petitioner himself who relied upon death certificate of deceased Sh. Shanti Sagar Chadha Ex. PW-1/1 and Will dated 11.2.97 Ex. PW-1/2 and reiterated his case as set out in the petition. PW-2 Sh. B.S. Sehrawat and PW-3 Sh. Jai Dev both were attesting witness to the alleged Will dated 11.2.97 and both of them identified their signatures on Will Ex. PW-1/2 at point X and A,B, C respectively. PW-4 Mrs. Raj Bhardwaj, Advocate also deposed that the Will Ex. PW-1/2 was executed in his presence in the office of Sub Registrar III and the executant and witnesses also signed in his presence. PW-5 was official from Sub Registrar office who brought the original of Will Ex. PW-1/5.
13.In defence, objectors produced eight witnesses in support of their claim i.e. RW-1 Madhu Mati, RW-2 Dilbagh Chadha, RW-3 Ms. Alka, RW-4 G.S. Rathi, RW-5 Smt. Meena Chadha, RW-6 Sh. Babu Lal, UDC from office of Sub Registrar, RW-7 Sh. Deepak Jain, handwriting expert and RW-8 Smt. Neel Kamal. RW-1, RW-2, RW-3 and RW-8 were objectors in the present matter and they reiterated their case as set out in their objections. RW-4 Sh. G.S. Rathi was witness from NDMC office who stated that the shop and flat at Sarojini Nagar stands in the name of Sh. Shanti Sagar vide PC-105/11/01 Page No. 10/28 lease deed dated 28.9.1984. RW-5 Meena Chadha was wife of the deceased testator and though her application for considering her no objection of the record was dismissed but she appeared as respondents' witness and supported their case. She objected to the Will in question and stated that her husband never disclosed her about the execution of the same as well as the Will Ex. PW-1/2 does not bear signatures of her husband. RW-6 Sh. Babu Lal was witness from the office of Sub Registrar-III who brought the Will dated 20.8.1992 of deceased Shanti Sagar Chadha and its copy was marked RX. RW-7 Sh. Deepak Jain was handwriting expert who placed reliance upon his report Ex. RW-7/1 and photographs Ex. RW-7/2 to 14.
14.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
15. Issue no. 1 :- Before proceeding to decide these issue I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the PC-105/11/01 Page No. 11/28 administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
16. Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
PC-105/11/01 Page No. 12/28
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
17.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
18. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign 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 testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended PC-105/11/01 Page No. 13/28 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 signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders PC-105/11/01 Page No. 14/28 the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
19. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with PC-105/11/01 Page No. 15/28 the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect PC-105/11/01 Page No. 16/28 of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
20. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
21. The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, PC-105/11/01 Page No. 17/28 customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
22. The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 PC-105/11/01 Page No. 18/28 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
PC-105/11/01 Page No. 19/28
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's PC-105/11/01 Page No. 20/28 declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
23. Now I have to see whether in the present case the above principles have been duly made out or not.
24. The first ingredient which is to be considered is that whether testator was of sound mind and has executed the Will out of free will, without force or coercion. Though the objectors have contended that the deceased testor was suffering from ailments like diabetes, poor sight problem, arthritis and was bed riddent since the year 1996 till his death but no medical document in support of said contention has been brought on record by the objectors. Even PW-1 petitioner also during his cross examination admitted that his PC-105/11/01 Page No. 21/28 father was a old dibetic but again in absence of any medical documents only the said admission of petitioner would be not sufficient. Hence it cannot be commented upon as to whether testator was not in sound disposing mind at the time of execution of the Will. However the said point is not the only decisive criteria while granting probate/letter of administation and the other main ingredient/point which is to be considered is whether the Will in question as well as its nature and execution is genuine or not. As per the case of the petitioner the Will in question Ex. PW-1/2 was executed on 11.2.97 and was registered on 6.10.97 i.e. approximately after 7 months of its execution, however no concrete justification has been put forward by the petitioner for the delay in registeration of the Will Ex. PW-1/2 and certainly the gap between the execution of the Will can certainly cost to the case of the petitioner. PW-1 in his cross examination had deposed that the Will dated 11.2.97 was signed by his father on 6.10.97 and his father had not put his signatures before 6.10.97. PW-1 also deposed that Mr. Jai Dev and Mr. Raj Bhadwaj had put their signatures in his presence after his father had put his signatures. It was also stated by PW-1 during cross examination that when his father and the witnesses had put their signatures on the Will Ex. PC-105/11/01 Page No. 22/28 PW-1/2 it was only containing the signatures of Sh. B.S. Sehrawat at point X. However, the said statements were contradicted by PW-1 himself during cross examination when he stated that his statement in the affidavit that Sh. B.S. Sehrawat, Advocate and Smt. Raj Bhardwaj, Advocate had signed the Will on 11.2.97 was false. He further admitted that he falsely stated in his affidavit that Sh. B.S. Sehrawat, Advocate and Smt. Raj Bhardwaj, Advocate had put their signatures on the Will in his presence on 11.2.97. On being confronted with his affidavit in evidence Ex. PA where said deposition find mention PW-1 stated that he does not know anything about 11.2.97. In these circumstances the statement of PW-1 suffer from contradictions with respect to the execution and registeration of the Will. Further nail in the coffin was put by PW-2 Sh. B.S. Sehrawat, Advocate who though stated that the Will Ex. PW-1/2 was drafted by him on instructions of Shanti Sagar Chadha but he did not explain the contents of the Will after it was drafted as Sh. Shanti Sagar Chandha did not ask him to explain the contents. He further deposed that Will Ex. PW-1/2 was not signed by any person including the testator in his presence. He even did not know any person with the name Mr. Jai Dev or Raj Bhardwaj. Not only this the said statement was contradicted by PW-3 Jai Dev who during PC-105/11/01 Page No. 23/28 cross examination deposed that Mr. Sehrawat read over the Will to the testator in his presence on 6.10.97. PW-2 B.S. Sehrawat on the one hand stated that he signed the Will Ex. PW-1/2 on 11.2.97 whereas attesting witnesses PW-3 Sh. Jai Dev and PW-4 Smt. Raj Bhardwaj deposed that first of all Sh. B.S. Sehrawat, Advocate put his signatures on the Will then the testator Sh. Shanti Sagar Chadha put his signatures on all pages of the Will and thereafter he had put his signatures on the Will and after him the second attesting witness signed the Will on 6.10.97. PW-3 even stated that as per him the Will was executed and registered on 6.10.97. He was even not aware of the contents of the affiadavit Ex. PB which affidavit was tendered by him in his chief examination. PW-3 stated that he did not sign any paper concerning this case except his affidavit Ex. PB, his statement dated 2.6.06 and the Will Ex. PW-1/2 and denied having signed the petition but when he was confronted with the petition he admitted that the same bears his signatures in verification para. He also stated that the testator did not tell him about the contents of the Will. The deposition PW-3 does not inspire confidence and remained contradictory in itself. Even statement of PW-4 Raj Bhardwaj remained contradictory as abovementioned with the statement of PW-2 who went to the extent of deposing that Will was not PC-105/11/01 Page No. 24/28 read over to her and she did not reember who contacted her for witnessing the Will but she was called to sign the Will before the Sub Registrar as an incomplete document without signature of second attesting witness was presented by the party. Though on the one hand she deposed that first of all Sh. Sehrawat signed the Will then it was signed by Shanti Sagar Chadha, then by Jai Dev and then by her but at a later stage of cross examination she stated that she did not remember whether Shanti Sagar Chadha and Jai Dev had signed the Will in her presence and could say that Shanti Sagar Chandha was present as the Will was bearing his signatures. Hence deposition of PW-3 also do not inspire any confidence and remained contradictory. Rather as observed above statements of PW-1,PW-2,PW-3 and PW-4 remained shaky and contradicted each other and hence cannot be relied upon . However, even if the oral deposition is not taken into account and I go by the the written document available on record i.e. the Will Ex. PW-1/2 the same should fulfill the criteria as laid down in Section 92 of Indian Evidence Act, if some oral explanation are to be accepted. So the Will Ex. PW-1/2 is taken as such shows that this document was registered on 6.10.97 and was executed on 11.2.97 duly signed by the executant on 11.2.97 but the same was witnessed by one of the witness on PC-105/11/01 Page No. 25/28 6.10.97 and it is clear that signatures of Jai Dev was obtained later on, hence mandatory requirement of attestation by two witnesses on the date of execution, signed by the witnesses in each others' presence, reading over and explanation of the same to the testator and his signatures before the signing of the witnesses is not at all made out. Further, though in the Will Ex. PW-1/2 it is mentioned that the testator had deposited the Will with Sh. B.S. Sehrawat but PW-2 Sh. B.S. Sehrawat has not deposed to the same effect rather he deposed that the testator had come to him all alone for the purpose of getting the Will drafted and nowhere uttered regarding the deposition of the Will with him. Even other PWs have also not stated so that the Will in question remained deposited with Sh. B.S. Sehrawat. Hence said material contradictions cannot be ignored and it is clear that Will Ex. PW-1/2 itself cannot be called as a complete document. Another material question which comes to the mind is exclusion of wife of testaor in the Will Ex. PW-1/2. Though in the Will itself it is mentioned that wife of testor was enemical to him and used to beat him and therefore his excluded in the Will Ex. Pw-1/2 but it will not appeal to any person that a sane husband who had spent long wedded period with his wife and had seven children out of their wedlock could exclude his wife while PC-105/11/01 Page No. 26/28 distributing his assets and could leave her to the mercy of children without providing her with any financial assitance after his death during her lifetime. Even if it is considered that he had strained relations with his wife and she used to beat him, then the question which comes to the mind is that why he did not made any complaint with respect to the same with the police and else he could take divorce from her but that is also not the case here. It is also worth mentioning that in the Will Ex. PW-1/2 it is mentioned that earlier even Gulbagh Chaddha was also enemical to him and used to beat him but it is not explained as to what happened suddenly that Gulbagh Chaddha stopped beating him and just because he stopped beating him, made him entitled for all properties of testator does not make sense to any human mind and further when no allegations of beating were levelled in the Will against the daughters then why the daughters were debarred. There is no whisper of any word in will qua their exclusion. It has also come on record that wife of testator and mother of petitioner Smt. Meena Kumar @ Swaran Lata had earlier given no objection to the petition but later on moved application for withdrawing the same which prayer was declined by the court and she appeared as RW-5 but still the point of consideration is that when PW-1, petitioner himself deposed during his PC-105/11/01 Page No. 27/28 cross examination that he had no talking terms with his mother and even did not know the reasons for the differences between him and his mother, then it is not explained as to why earlier she gave no objection in favour of the petitioner. Even PW-5 also gave no objection earlier but she was allowed to withdraw the same as she stated that she did not sign any such no objection. Similar request was also made by respondents no. 2,3 and 5 which was turned down by the court. However, filing of objections by the objectors and later on making of request for withdrawal of the same denying their signatures definately casts doubt on the whole scenario of obtaining the probate by the petitioner vide this petition. Hence the above observations are sufficient to hold that the Will in question Ex. PW-1/2 cannot be given a clean chit and its execution and registeration remained under heavy cloud of doubt. Accordingly, this issue is decided against the petitioner and in favour of the respondents.
25. Relief :- In view of the findings recorded qua the issues hereinabove, the Will dated 11.02.1997 is ignored with costs. The instant petition is hereby dismissed. File be consigned to record room.
Announced in the open court on (AJAY GOEL)
24.10.13 ADJ-II(North)Delhi.
PC-105/11/01 Page No. 28/28