Delhi District Court
Om Prakash Kashyap vs State on 7 June, 2024
DLWT010006662013
IN THE COURT OF SH. SHIV KUMAR,
DISTRICT JUDGE-02 (WEST DISTRICT),
TIS HAZARI COURTS: DELHI
Old PC No. 58/2013
New PC No. 15971/2016
CNR No. DLWT01-000666-2013
Om Prakash Kashyap
S/o Sh. Ram Das Kashyap
R/o C-4F/162, Janakpuri,
New Delhi-110058.
.......Petitioner
Versus
1. State (Govt of N.C.T. of Delhi)
2. Sh. Anil Kumar Saxena,
S/o Late Sh. Kishore Saxena,
R/o C-10/23, Yamuna Vihar Delhi-53.
3. Sh. Arun Kumar Sexena,
S/o Late Sh. Raj Kishore Saxena,
R/o AG-16C Vikaspuri New Delhi-18.
4. Sh. Sudhir Kumar Saxena,
S/o Late Sh. Raj Kishore Saxena,
R/o B-5/105, Yamuna Vihar Delhi-53.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 1 of 85
5. Sh. Pradeep Kumar Sexena,
S/o Sh. Raj Kishore Saxena,
R/o C-23, Brij Vihar Ghaziabad, U.P..
......... Respondents
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, 1925 FOR SEEKING PROBATE AND
LETTERS OF ADMINISTRATION IN RESPECT OF WiLL
DATED 18.03.2013, EXECUTED BY LATE SH. VIRENDER
KUMAR SAXENA.
Date of institution of the case : 12.08.2013
Date of for judgment reserved : 28.05.2024
Date of pronouncement of judgment : 07.06.2024
JUDGMENT
1) Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 of the Indian Succession Act whereby which the petitioner has sought grant of Probate and letters of administration in respect of will dated 18.03.2013, executed by Late Sh, Virender Kumar Saxena.
CASE OF THE PETITIONER, AS PER HIS PETITION
2) According to the petition, the case of the petitioner in nutshell is that Late Sh, Virender Kumar Saxena (hereinafter referred to as ' the deceased'), was residing at C-4F/162, Janakpuri, New Delhi and the said property PC No. 15971/2016 Om Prakash Kashyap Vs State Page 2 of 85 was allotted to the deceased through his father Sh. Raghuvansh Kishore Saxsena (hereinafter referred to as 'the property in question'). It is further averred that at the time of death of the deceased, deceased was not survived by any legal heirs under class-I of the schedule under Section 8 of the Hindu Succession Act, 1956.
3) It is further averred that the father of the deceased, who was retired from the office of Registrar General-cum- Census Commission of India, New Delhi, died on 22.12.1997 and left behind Smt Bimla (wife), Ms Sushma (daughter) and Sh. Virender Kumar Saxena (son).
4) It is further averred that the mother of the deceased late Smt. Bimla expired on 14.02.2006 and after some time, deceased's sister Ms Sushma also expired on 25.01.2009, being ill for long time. It is further averred that the deceased died on 13.05.2013 at the age of 58 years at C- 4F/162, Janakpuri, New Delhi-110058. It is further averred that the deceased had no successor at the time of his death.
5) It is further averred that during hard time of deceased, only petitioner helped him and it was only the petitioner, who maintained the love and affection and had given all love and assistance to deceased Sh.Virender Kumar Saxena.
6) It is further averred that after the demise of both the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 3 of 85 parents and the younger sister of the deceased, Sh. Virender Kumar Saxena remained the only surviving legal heir of the family and thus had exclusively inherited the residential house bearing no. C-4F/162, Janakpuri, New Delhi-110058.
7) It is further averred in the petition that the deceased had executed a Will dated 18.03.2013, during his life-time and in the said Will, the deceased appointed the petitioner as an executor in the Will and also bequeathed her moveable and immoveable property to the petitioner.
8) It is further averred that the Will of the deceased has been duly attested by the two attesting witnesses, namely, Sh. Pritam Singh and Sh. Jatinder Singh. It is further averred that the petitioner is the sole executor of the Will dated 18.03.2013, left by the deceased.
9) It is further averred that being sole beneficiary under the Will, the petitioner is thus, competent to file the present probate petition and is entitled to seek Probate and Letters of administration in respect of Will dated 18.03.2013 executed by the deceased.
10) It is further averred that the deceased had certain amounts in his two saving bank accounts in Axis Bank and Oriental Bank of Commerce.
11) It is further averred that the petitioner presently PC No. 15971/2016 Om Prakash Kashyap Vs State Page 4 of 85 does not have the saving bank account number of the deceased, but crave liberty to file and provide the said account numbers as soon as the petitioner is able to ascertain the same.
12) It is further averred that there is no impediment to grant of Probate & Letters of Administration in respect of the Will dated 18.03.2013, left behind by the deceased.
13) The petitioner has prayed for issuance of probate & Letters of administration in respect of Will dated 18.03.2013, executed by the deceased.
14) Upon filing the present petition, notice of the petition was issued to the State. Citation for general public was published in the daily newspaper " The Statesman"
dated 17.10.2013.
15) Notice was served to the State through Chief Secretary and to the Collector/SDM. No objections were received to the petition, from any person of general public despite publication of the citation in newspaper.
16) Valuation report dated 26.11.2013 pertaining to suit property was filed by Sh. C.L. Meena, Tehsildar, Patel Nagar. As per report of the Tehsildar, the value of the suit property is Rs. 4140000/-.
17) On 11.03.2014, the respondent no. 2 to 5 had filed PC No. 15971/2016 Om Prakash Kashyap Vs State Page 5 of 85 application under order 1 rule 10 CPC for impleading them as party in the present probate petition. Vide order dated 16.11.2015, the application of the respondents was allowed and the respondent no. 2 to 5 became party in the present probate petition and thereafter, they filed their reply/objections to the present probate petition.
CASE OF RESPONDENT NO.2 to 5 AS PER THEIR REPLY/OBJECTIONS.
18) Respondent no. 2 to 5 have filed reply/objections to the present petition by taking preliminary objections that Respondent no 2 to 5 are the sons of the Late Sh. Raj Kishore (Sh. Raj Kishore Saxena). It is further contended that Sh. Raj Kishore (Sh. Raj Kishore Saxena) was real brother of Late Sh. Raghuvansh Kishore (Sh. Raghuvansh Kishore Saxena), who was father of late Sh. Virender Kumar (the deceased).
19) It is further contended that Late Sh. Chander Kishore (Sh. Chander Kishore Saxena), late grandfather of the objectors had two sons, namely, Sh. Raj Kishore (Sh. Raj Kishore Saxena), father of the objectors, and Sh. Raghuvansh Kishore (Sh. Raghuvansh Kishore Saxena), father of late Sh. Virender Kumar. It is furthe contended that Sh. Raghuvansh Kishore (Sh. Raghuvansh Kishore Saxena) expired on 22-12-1997, leaving behind his wife, namely, Smt. Vimla who died on 14.02.2006, one daughter namely Miss Sushma, who died unmarried on PC No. 15971/2016 Om Prakash Kashyap Vs State Page 6 of 85 25.01.2009 and son namely Sh. Virender Kumar who also died unmarried on 13.05.2013.
20) It is further contended that Sh. Virender Kumar, the last member of family of Late Sh. Raghuvansh Kishore (Sh. Raghuvansh Kishore Saxena), uncle of the objectors/respondents no.2 to 5, also expired leaving behind no issue, therefore, present objectors are successors-in-interest of the estate of late Sh. Raghuvansh Kishore (Sh. Raghuvansh Kishore Saxena) and of late Sh. Virender Kumar as per Hindu Succession Act.
21) It is further contended that a family tree of the family of Late Sh. Chander Kishore (Sh. Chander Kishore Saxena) has been placed on record.
22) It is further contended that Late Sh. Raghuvansh Kishore (Sh. Raghuvansh Kishore Saxena) was allotted a property/flat bearing No.C-4-F/162, ad-measuring 80 sq. yds., Janakpuri, New Delhi-110058 by Delhi Development Authority in the year 1971. It is further contended that at the time of death of Sh. Virender Kumar on 13.05.2013, the deceased was in exclusive possession of the abovesaid property/flat. It is further contended that after his death, the objectors inherited the said property being legal heirs of Late Sh. Raghuvansh Kishore (Sh. Raghuvansh Kishore Saxena) and of Sh. Virender Kumar.
23) It is further contended that the respondents have PC No. 15971/2016 Om Prakash Kashyap Vs State Page 7 of 85 filed a civil suit for mandatory and permanent injunction against the petitioner seeking eviction of the petitioner from the suit property and the said suit is pending in the Court of Sh. Sanatan Prasad, Ld. Civil Judge, Tis Hazari Courts, Delhi.
24) It is further contended that the objectors are second class legal heirs of the deceased, as per Hindu Succession Act, 1956.
25) It is further contended by the respondents no. 2 to 5 that the alleged Will is a forged and fabricated document and there are following suspicious circumstances which shows that the Will in question is forged and fabricated:-
(a) It is contended by the respondents that the deceased used to right his name as Sh. Virender Kumar where as in the alleged Will, the name of the deceased is mentioned as Sh. Virender Kumar Saxena. The respondents have filed following documents to support their abovesaid contentions:
(i) Death Certificate issued by the Sub-Registrar of Birth & Death, South Delhi Municipal Corporation, West Zone is showing his name as Virender Kumar (copy of the death certificate is already on record.
(ii) Election Commission Of India Identity Card bearing no.Dl/02/012/144289 is showing his name as Virender PC No. 15971/2016 Om Prakash Kashyap Vs State Page 8 of 85 Kumar. This Identity Card was issued on 23/11/2012 i.e. just within 4 months before fabrication of the Will (copy enclosed herewith).
(iii) Government of India, Adhaar Card bearing no. 9486 2856 5939 is showing his name as virender kumar (copy enclosed herewith).
(iv) Surviving Member Certificate bearing S.no.Surviving-Member/3/32/1370/3/10/2012/891112018 1 dated 17-11-2012 issued by the Executive Magistrate, Patel Nagar, Office of the Deputy Commissioner (WEST DISTT.), DELHI, Old Middle School Complex, Ram Pura Delhi, in the name of Sh. Virender Kumar. This certificate was also issued within 4 months of fabrication of the WILL (copy enclosed herewith).
(v) income tax department, government of india, permanent account number, (Pancard) bearing no. Bvxps5121d is in the name of Virender Kumar (copy enclosed herewith).
(vi) acknowledgment no. 017040300000603 dated 12 jan 2011 for changes or correction in pan data is showing the name as Vireder Kumar (copy enclosed herewith).
(vii) request for new pan card or changes or correction in pan data for permanent account number (pan) bvxps5121d is showing his name as Virender Kumar. It is important to PC No. 15971/2016 Om Prakash Kashyap Vs State Page 9 of 85 mention that this request has been signed by Sh. Virender Kumar himself on 05.01.2011 (copy enclosed herewith).
(viii) Cert./04/No.000090 for Roll No. 137 Enrollment No. J- 8508 for high school examination 1970 is showing his name as Virender Kumar (copy enclosed herewith).
(ix) Ration Card No. APL 12281265 is showing his name as Virender Kumar (copy enclosed herewith).
(x) return slip for acknowledgment no 01704300000603 for pan is showing his name as Virender Kumar (copy enclosed herewith).
(xi) LPG Gas Connection Document No 507826164 issued on behalf of the Bharat Petroleum Corporation Limited by the Chanakya and Sidhartha Gas, A3/24 DDA Market, Janak Puri, New Delhi Dist. Delhi, is showing his name as Virender Kumar (copy enclosed herewith).
(xii) The Certificate dated 02 Feb 11, issued by his Employer i.e. Sqn Ldr, Officer Incharge AF Canteen, Palam. Air force canteen palam delhi cantt-10 is showing his name as Virender Kumar. This indicates that his official name was Virender Kumar (copy enclosed herewith).
(xiii) his appointment letter no. 3w/1956/1/p5/canteen dated 01 apr 03 for his appointment as udc, csd canteen af PC No. 15971/2016 Om Prakash Kashyap Vs State Page 10 of 85 station palam issued by GP Capt C Adm O Air Force Canteen Palam, Air force station Palam Delhi Cantt- 110010 is showing his name as Virender Kumar. This again shows that his official name is Virender Kumar (copy enclosed herewith).
(xiv) The Employees Provident statement for 2002-2003 for his Account No. Dl/14710/7 is showing his name as Virender Kumar (copy enclosed herewith).
(xv) Death Certificate of his father Sh. RK Saxena was issued by the mcd on his intimation to the mcd, the record of the mcd is showing the name of the informer as Virender Kumar, as son (copy enclosed herewith).
26) It is further contended by the respondents that in the alleged Will, the name of mother of Sh. Virender Kumar has been shown as "Bimla" whereas the name of his mother is as "Vimla" and have filed following documents to support their contentions:
(i) Certificate dated 02 Feb 11 issued by his Employer i. e.
Sqn Ldr, Officer Incharge AF Canteen, Palam. Air Force Canteen Palam Delhi Cantt-10 is showing the name of his mother as "Vimla" not as "Bimla" (copy enclosed herewith).
(ii) Death Certificate issued by the Sub-Registrar of Birth & Death South Delhi Municipal Corporation is showing PC No. 15971/2016 Om Prakash Kashyap Vs State Page 11 of 85 the name of his mother as "Vimla" not as "Bimla" (Document is already on record).
27) It is further contended by the respondents that in the alleged Will, the name of the Office of Late Sh. Raghuvansh Kishore Saxena, father of Sh. Virender kumar has been shown as registrar general-cum-census commissioner, india, new delhi, whereas, the actual name of his father's office is Office of The Registrar Genenal, India (Government of India, Ministry of Home Affairs) (document is already on record).
28) It is further contended by the respondents that the deceased was working as UDC in the Air Force Canteen, CSD Canteen and he was aware of the importance of writing and signing of important documents like Will. It is further contended that the deceased, Sh. Virender Kumar was post graduate in Economics and the important names, surnames, name of Office as written in the alleged Will shows that the Will has not been drafted and signed by Sh. Virender Kumar.
29) It is further contended by the respondents that the attesting witness Sh. Pritam Singh has given his Identity Card Number (EPIC) as DL/02/014/198518 on the alleged Will. It is further contended that the Notary Public has taken this Election Photo Identity Card as proof of the identity of the abovesaid witness while attesting the alleged Will, because the Notary Public attested the Will PC No. 15971/2016 Om Prakash Kashyap Vs State Page 12 of 85 only on the attestation of alleged signature of Sh. Virender Kumar, on the said alleged Will. It is further contended that it shows that Sh. Virender Kumar never appeared before Notary Public for confirmation of the execution of the Will and no reason has been assigned in the petition as to why Sh. Virender Kumar did not appear before the Notary Public. It is further contended that if Will can be got notarized, the same could have been got registered also, had it been executed by late Sh. Virender Kumar.
30) It is further contended that the respondents had sent SMS by mentioning the EPIC No. i.e.DL/02/014/198518 of Sh. Pritam Singh to the SMS number of the Office of the Chief Electoral Officer which has been provided to the general public to obtain details regarding address polling station, etc of an electoral but no result was displayed i.e. no such Elector is on the Roll in the name of Sh. Pritam Singh. It is further contended that the abovesaid facts, suspect the Identity of the attesting witnesses, Sh. Pritam Singh.
31) It is further contended that the names of both the alleged attesting witnesses have not been found on the Electoral Roll of the areas concerned and this fact has been further confirmed by the information furnished to one of the objector through RTI reply.
32) It is further contended that the reply furnished to one of the objector through RTI shows that identity proof PC No. 15971/2016 Om Prakash Kashyap Vs State Page 13 of 85 shown by Sh. Pritam Singh, one of the alleged witness to the notary public, which is election photo identity card, is fake. It is further contended that In the reply dated 08.07.15 received from the AERO AC-27, Rajouri Garden, as per ERMS record of AC-27 ( Rajouri Garden) no such person by the name of Pritam Singh S/o Sh. Bhagwan Singh is an elector on the address E-2, Mukhram Garden which is given on the alleged Will. It was also replied that name of Pritam Singh is not registered as an Elector in AC-27, Rajouri Garden, New Delhi from 2008 within which the address given on the Will falls. It was further replied that Sh. Pritam Singh is not voter in the voter list of AC-27 and further that no Elector is registered against EPIC no. DL/02/014/198518 at AC-27, Rajouri Garden, as on date.
33) It is further contended that another alleged witness namely Jatinder Singh S/o Sh.Prem Singh, the information in respect of address written on the alleged Will was sought from the office of Area Election Office, AC-29 and in the reply dated 08.07.2015 from AERO, AC-29, Tilak Nagar, it was replied that Sh. Jatinder Singh, resident of WZ-B-53, Gali No.-11 Krishna Park Extension, Tilak Nagar, is not enrolled at the above address and no such Gali no.11 exist in Krishna Park Extension, Tilak Nagar, New Delhi. It was further contended that the address of witness Sh. Jitender Singh is not correct, therefore, his name in relation to the address cannot be traced in the electoral roll. It is further contended that Sh. Jatinder PC No. 15971/2016 Om Prakash Kashyap Vs State Page 14 of 85 Singh is not enrolled in the electoral roll even on any other address.
34) It is further contended that the objectors verified the given address of both the alleged attesting witnesses to the alleged Will and found that none of the witness resided on the given address at the relevant time. It is further contended that in order to confirm the suspicion regarding address of the alleged attesting witnesses, two letters were sent at the address of Sh. Pritam Singh through speed post, however, both the letters returned back to the respondents with the remarks "delivery attempted unclaimed".
35) It is further contended by respondent no. 2 & 5 that signature of late Sh. Virender Kumar on the alleged Will has been forged. It is further contended that objectors got the alleged signatures compared with the admitted signatures from the Handwriting and Fingerprints Expert namely Sh. B.N. Srivastava and the said Handwriting & Fingerprints expert has opined that the alleged signatures do not tally with the admitted signatures of Late Sh. Virender Kumar, on the PAN Card and on the application dated 28.08.2006, filed with the MCD for obtaining death certificate of his father.
36) It is further contended that this alleged Will has been laminated deliberately by the petitioner in order to conceal its originality.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 15 of 8537) On merit all the contents of the petition except abovesaid admitted facts has been denied by the respondents and they prayed that petition filed by the petitioner may be dismissed with exemplary costs.
38) On the basis of the pleadings, the following issues have been framed vide order dated 15.03.2016.
1. Whether the Will dated 18.03.2013 executed by Late Sh. Virender Kumar Saxena S/o Late Sh. Raghuvasnsh Kishore Saxena is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP.
2. Whether the petitioner is entitled for probate/Letter of administration on the basis of the aforesaid Will, as claimed? OPP.
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 to 5 in the written statement/objections. OPD.
4. Relief.
39) Parties were directed to adduce evidence.
EVIDENCE ON BEHALF OF PETITIONER
40) The Petitioner in support of his case has examined four witnesses. i.e.
1) PW-1: Sh. Om Prakash Kashyap (Plaintiff).
2) PW-2: Sh. Jatinder Singh (one of the attesting witness of the Will).
3) PW-3: Sh. Ombir Singh (Summoned witness).
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 16 of 854) PW-4: Sh. Rohit Kumar Dubey (summoned witness).
41) Sh. Om Prakash Kashyap/Petitioner appeared in the witness box as PW-1 and tendered his affidavit in evidence as Ex PW-1/A. In his affidavit, PW-1 reiterated and reaffirmed the averments made by him in his petition and relied upon the documents, which are as follows:
(i) Death certificate of deceased, Sh. Virender Kumar Saxena as Ex PW-1/1,
(ii) Will dated 18.03.2013 as Mark A,
(iii) Schedule of properties as Mark B.
42) In his cross examination, PW-1 deposed that in April, 2013, when he came back to Delhi from his native place in U.P, he was informed by deceased Sh. Virender Kumar Saxena about the Will Ex PW-1/1. PW-1 further deposed that he was handed over original copy of the said Will by Sh. Virender Kumar Saxena in April, 2013.
43) In his cross examination, PW-1 further deposed that he does not remember the date, when he was informed about the Will and when he was handed over the original copy of Will. PW-1 further deposed that original copy of Will remained in his custody till the death of deceased Sh.
Virender Kumar Saxena. He further deposed that he did not inform any person about the said Will till the death of Sh. Virender Kumar Saxena.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 17 of 8544) In his cross examination, PW-1 further deposed that he has met Sh. Pritam Singh, one of the attesting witnesses, at the time, when he had filed affidavit in the court. PW-1 further deposed that he has not met second attesting witness to the said Will.
45) In his cross examination, PW-1 further deposed that he has been residing in Delhi since 2007 and he was residing alone in 2007 at Air Force Station, Palam, Delhi. PW-1 further deposed that it was a Government accommodation and he resided at this address till 2009. He further deposed that after 2009, he resided on rent for sometime.
46) In his cross examination, PW-1 further deposed that in February 2012, he shifted to C-4F/162, Janakpuri, Delhi and he shifted to Janakpuri in the house of Sh. Virender Kumar Saxsena as he used to remain unwell.
47) PW-1 further deposed that he resided in Palam Colony for a short duration though he did not remember the complete address and he has not placed on record any document regarding his stay with the deceased testator since February 2012. PW-1 further deposed that the premises of deceased testator is consist of three rooms and barandah/opening land in the backside as well as front side of the house. PW-1 further deposed that he cannot say whether the total area is 80 sq. yards and he did not PC No. 15971/2016 Om Prakash Kashyap Vs State Page 18 of 85 know objectors Sh. Anil Kumar Saxena, Sh. Arun Kumar Saxena, Sh. Sudhir Kumar Saxena and Sh. Pradeep Kumar Saxena. PW-1, voluntarily, deposed that he had telephoned to several persons, at the time of death of deceased testator, as per the telephone numbers available with the deceased.
48) PW-1 further deposed that he conducted last rites of deceased testator and he does not place on record any documentary proof that he was along with the deceased testator dead body. He further deposed that the cremation was conducted with the help of staff members and other persons. He further deposed that at the cremation ground, he had handed over the money to one of the objectors, who is present in the court and he does not know his name.
49) PW-1 further deposed that he does not have any receipts of last rites of deceased testator. He further deposed that on inquiry from the objectors, they disclosed that they are relatives of deceased testator and came to attend the last rites of the deceased.
50) In his cross examination, PW-1 further deposed that he did not disclose about the Will in question after the death of deceased testator for 3-4 days when relatives and other persons remained at the house or when Thervi ceremony conducted. PW-1 further deposed that after the death of deceased testator, none of the objectors asked PC No. 15971/2016 Om Prakash Kashyap Vs State Page 19 of 85 him to vacate the residence of deceased testator.
51) PW-1 admitted that a police complaint was lodged against him and inquiry was made at police station. PW-1 further deposed that he had disclosed to the police officials with regard to Will in question.
52) In his cross examination, PW-1 further deposed that he further deposed that during his stay with the deceased testator, nobody used to visit him and deceased testator never disclosed to him that the sons of his cousin brother i.e. objectors are residing at Delhi. PW-1 further deposed that he does not make any inquiry regarding other movable or immovable property of the deceased testator.
53) In his cross examination, PW-1 further deposed that he did not remember the date but he had visited office of deceased testator along with objector in the year, 2013. PW-1 further deposed that he had received the copy of death certificate of deceased testator from the MCD concerned office. PW-1 further deposed that he had himself given the information of the death of deceased testator at his office on telephone. He further deposed that he had joined service in July, 2017 at Air Force Station Palam. PW-1 further deposed that his actual date of birth is 05.08.1991 and he had intimated to his office his date of birth. PW-1 further deposed that his wife delivered a daughter on 20.05.2013.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 20 of 8554) Sh. Jatinder Singh, one of the attesting witnesses appeared in the witness box as PW-2 and tendered his evidence by way of affidavit Ex. PW-2/A. He relied upon the Will Ex PW-2/1.
55) In his examination-in-chief, PW-1deposed that he is one of the attesting witness to the said Will, which bears his signatures at point A and he also identified the signatures of the another witness at Point B as well as the signature of deceased at Point C on Will Ex PW-2/1.
56) In his cross examination, PW-2 deposed that he resides at O-7, Gali no. 20, Ground Floor, New Krishna Nagar, Tilak Nagar, New Delhi. He further deposed that in the month of March, 2013, he did not receive any summons/notice from this court in respect of this case. He, voluntarily, deposed that notice has gone to his old address which he could not received. PW-1 further deposed that he has proof of his residential address in the month of March, 2013 i.e. rent agreement and name of his landlord was Sh. Kamaldeep singh and He has been residing on abovesaid address for the last 33 months.
57) PW-2 further deposed that he had met deceased Sh. Virender Kumar Saxena first time at a Gurudwara Chhote Sahibzade, Fathe Nagar, Jail Road, in the year, 2007-08 and he had friendly relations with the deceased testator. PW-2 further deposed that he had met lastly to the deceased testator in April, 2013.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 21 of 8558) In his cross examination, PW-1 further deposed that he does not have Aadhar Card or Voter card or any other identity proof of abovesaid address except the rent agreement. He further deposed that lastly, he met with deceased at Gurudwara. He further deposed that deceased Virender Kumar died on 13.05.2013 and he was unmarried. PW-2 further deposed that the deceased had in his family only his younger sister and he does not know her name. PW-2 further deposed that he did not attend the last rites of the deceased because he was on tour at that time and he had visited the house of deceased prior to March, 2013 when his younger sister died. He further deposed that the house of the deceased was situated at ground floor.
59) PW-2 further deposed that he does not know where the Will Ex PW-2/1 was typed. He further deposed that he had signed the Will Ex PW-2/1 in the house of the deceased. Apart from him, one sardarji Sh. Pritam Singh and one office friend Vijay Kumar and deceased were present at that time. Sh. Vijay Kumar did not sign the Will. He further deposed that Sh. Pritam also signed the Will in his presence. He further deposed that all the work was done at the house of deceased for execution of the Will.
60) In his cross examination, PW-2 further deposed that the deceased used to write Sh. Virender Kumar as well as PC No. 15971/2016 Om Prakash Kashyap Vs State Page 22 of 85 Sh. Virender Kumar Saxena. He further deposed that the deceased was working in CSD canteen, Air force. He further deposed that deceased was having very light health problem like joint pain.
61) On 12.05.2017, ld counsel for the plaintiff close the evidence of the plaintiff in affirmative. After closing the evidence of the respondents, the petitioner examined two witnesses in rebuttal evidence i.e. PW-3, Sh Ombir Singh and PW-4, Sh. Rohit Kumar Dubey.
62) PW-3 Sh. Ombir Singh, ASO from the office of District Magistrate, West, appeared in the witness box and deposed that he was served with a copy of Family Will bearing registration no. 1144 in Book no. 3, Vol 416 on page 78 to 79 dated 18.11.2014 and deposed that he had brought above-said original register and photocopy of the said Will already placed on record is already Ex. PW-1/5.
63) PW-4: Sh. Rohit Kumar Dubey, Executive appeared in the witness box and deposed that he has not brought the original record pertaining to PAN number BVXPS512D as to whom it was original allotted and when it was allotted since the record is the property of income tax department and the application of the same was never processed by NSDL for obtaining new PAN Card.
64) PW-4 further deposed NSDL has dealt with the change and correction of the said PAN card and the copy PC No. 15971/2016 Om Prakash Kashyap Vs State Page 23 of 85 of the relevant record of the said PAN card is Ex PW-4/B. He further deposed that the abovesaid PAN card was issued to Mr. Virender Kumar Saxena. He further deposed that the correction in the name & date of birth, in the abovesaid PAN card was sought and the name in the PAN card was changed from Mr. Virender Kumar Saxena to Mr. Virender Kumar.
65) In his cross examination, PW-4 deposed that his company received the confirmation from the Income Tax Department for the correction in the name & date of birth of Mr. Virender Kumar Saxena on 21.02.2011 and the correction was done on the same date i.e. 21.02.2011. He further deposed that on 22.02.2011, new corrected printed PAN Card was dispatched to the applicant.
EVIDENCE ON BEHALF OF THE RESPODNENTS
66) Respondents have examined total 7 witnesses in the present petition.
67) RW1: Sh. Arun Kumar Saxena has appeared in the witness box and he tendered his evidence by way of an affidavit Ex. RW1/X and he relied upon following documents:
1. Copy of receipt of purchase of wood dated 13.05.2013:
Mark RW1/A;
2. Original receipt of Van charges dated 13.05.2013 Ex.PC No. 15971/2016 Om Prakash Kashyap Vs State Page 24 of 85
RW1/16 (OSR);
3. Original receipt of donation dated 13.05.2013 Ex. RW1/17 (OSR);
4. Copy of death certificate of Sh. Raghuvansh Kishore Saxena Ex. RW-1/1 (OSR);
5. Copy of death certificate of Smt. Vimla, w/o. Sh. Raghuvansh Kishore Saxena is Ex. RW- 1/2 (OSR);
6. Copy of death certificate of MS. Sushma Ex.RW- 1/3 (OSR); 7. Copy of death certificate of Sh. Virender Kumar Ex. RW-1/4 (OSR);
8. Copy of complaint dated 21.08.2013 Ex. RW1/5;
9. Copy of death certificate of Sh. R.K. Saxena mentioning date of death as 29.12.1991 Ex. RW-1/6 (OSR);
10. Copy of death certificate of Smt. Chandrawati Saxena ExRW-1/7 (OSR);
11. Copy of ration card of Sh. Anil Kumar Saxena Ex. RW1/8 (OSR);
12. Copy of Aadhar Card of Sh. Arun Kumar Saxena Ex. RW1/9 (OSR);
13. Copy of Aadhar Card of Sh. Sudhir Kumar Saxena Ex. RW1/10 (OSR);
14. Copy of Passport of Sh. Pradeep Kumar Saxena Ex. RW1/11(OSR);
15. Certified copy of allotment of C-4F/162, Janakpuri, New Delhi Ex. RW1/12 (20 pages) (Colly);
16. Copy of High School Certificate of Sh. Raj Kishore Ex. RW1/13 (OSR);
17. Copies of letters dated 21.07.1984, 27.06.1989, PC No. 15971/2016 Om Prakash Kashyap Vs State Page 25 of 85 23.08.1989 and receipt 11.08.1989 in favour of Sh. Raj Kishore Saxena Ex.RW1/14 (Colly) (OSR);
18.Copy of marriage anniversary card of Sh. Anil Kumar Saxena Ex. RW1/15;
19. Photographs regarding different functions Ex. RW1/15A (colly) (14 photographs);
20. photographs of cremation and last rites of Sh. Virender Kumar Ex. RW1/18 (colly) (17 photographs);
21. Copy of the RTI reply dated 03.11.2014 from the Deputy Health Officer Ex. RW1/19 (OSR);
22. Copy of Election Commission of India Identity Card of Sh. Virender Kumar Ex.RW1/20 (OSR);
23. Copy of Aadhar Card of Sh. Virender Kumar Ex. RW1/21 (OSR);
24. Copy of Surviving Member Certificate dated 17.11.2012 is marked as Mark RW1/B;
25. Copy of acknowledgment dated 12.01.2011 of changes or correction in PAC data of Sh. Virender Kumar Ex. RW1/22;
26. Copy of request for new PAN Card of Sh. Virender Kumar Ex.RW1/23;
27. Copy of certificate of High School Examination of Sh.Virender Kumar Mark 'RW1/C';
28. Copy of ration card of Sh.Virender Kumar Mark 'RW1/D';
29. Copy of return slip for acknowledgment for PAN Card in the name of Sh. Virender Kumar Mark 'RW1/E'
30. Copy of LPG connection document Mark 'RW1/F';
31. Copy of certificate dated 02.02.2011 issued by Air PC No. 15971/2016 Om Prakash Kashyap Vs State Page 26 of 85 Force Canteen, Palam, Mark 'RW1/G';
32. Copy of appointment letter dated 01.04.2003 in the name of Sh. Virender Kumar Ex. RW1/27 (OSR);
33. Copy of statement of Employees Provident in the name of Sh. Virender Kumar Ex. RW1/28(OSR);
34.Certified copy of extract of record register showing death of Sh. Virender Kumar Ex. RW1/29.
35 Copy of RTI application dated 04.12.2014, copy of first appeal dated 17.03.2015, copy of second appeal dated 11.05.2015, copy of RTI reply dated 08.07.2015 and copy of order in second appeal dated 19.05.2015 Ex. RW1/30 (colly)(pages 1 to 7).
36 Copy of Article Tracking report of Indian Post receipt dated 20.03.2014, copy of an envelope, copy of Article Tracking report of Indian Post receipt with receipt dated 01.08.2014 and an envelope Ex. RW1/31 (colly). There is no mention of document Ex. RW1/32 in the affidavit.
37. Copy of attested true copy of report of Handwriting and Fingerprint Experts Ex. RW1/33 (objected to mode of proof);
38. Copy of documents handover over to the Handwriting Expert which are copy of application dated 28.08.2006 for issue of death certificate and copy of PAN Card of Sh. Virender Kumar Ex. RW1/34 (colly) (3 pages) (OSR).
68) Ld. Counsel for petitioner objected para 8 of the affidavit of the witness and the court sustained the objection of the petitioner and deleted para 8 of the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 27 of 85 affidavit of the witness, during the recording of examination in chief of RW-1.
69) In his cross examination, RW-1 has deposed that his father's name is Sh. Raj Kishore Saxena and the name of his grandfather is Sh. Chander Kishore Saxena. RW-1 further deposed that he has also filed the Matriculation Certificate of his father. RW-1 further deposed that the full form of B. Chander Kishor is Babu Chander Kishore and RW-1, voluntarily, deposed that he has no other document where the name of his grandfather has been shown as B. Chander Kishore Saxena or Babu Chander Kishore.
70) In his cross examination, RW-1 further deposed that his father expired on 29.12.1991. He does not remember the date of death of his grandfather. RW-1 further deposed that the deceased Sh. Virender Kumar was his cousin brother and father of Late Sh. Virender Kumar died on 22.12.1997.
71) In his cross examination, RW-1 further deposed that RW-1 did not visit frequently the house of late Sh. Virender Kumar as he had been residing alone but they were regularly in touch over telephone. RW-1 further deposed that he had lastly visited Sh. Virender Kumar at his residence about 4-5 months prior to his death. RW-1, voluntarily, deposed that deceased Sh. Virender Kumar sent a SMS message to RW-1 that he was unwell, so, RW-
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 28 of 851 went there immediately along with his sons.
72) In his cross examination, RW-1 further deposed that the deceased Sh. Virender Kumar had already got himself examined from a Doctor and he had shown him, a prescription and he does not know, who was the regular Physician of late Sh. Virender Kumar from where he was getting his medical treatment. RW-1 further deposed that he does not remember when did he visit, prior to the aforesaid visit, at the house of late Sh. Virender Kumar. He, voluntarily, deposed that they have performed last rites of the sister of late Sh. Virender Kumar.
73) RW-1 further deposed that he has no document to show that they had performed last rites of sister of late Sh. Virender Kumar. RW-1 further deposed that he came to know about the death of late Sh. Virender Kumar, on telephone at 10.30 a.m. on 13.05.2013 and the said telephone call was made to him by one Sh. Subodh Verma, one of his relatives. He further deposed that after receiving the said information, he along with his wife and one of his neighbour- cum-friend Sh. Virender Kumar Arya went to the house of late Sh. Virender Kumar.
74) RW-1 further deposed that there were several persons present at the house of the deceased, to whom, he did not know and one of them was Sh. Om Prakash Kashyap as disclosed by him. The staff members from the office of late Sh. Virender Kumar were also present there.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 29 of 8575) RW-1 further deposed that Late Sh. Virender Kumar was suffering from knee problem as stated by him. He has filed last rites photographs of late Sh. Virender Kumar on Court record. He did not remember whether they had taken photographs of last rites of the sister of late Sh. Virender Kumar. He further deposed that he did not take the photographs of last rites of his father and never took the photographs of last rites of his relative, whose last rites, he had performed.
76) RW-1 admitted that he has taken the bag containing some documents from the house of Sh. Virender Kumar after performing his last rites, which were handed over to him by the petitioner himself. RW-1, voluntarily, deposed that the same was given to him before performing the last rites of late Sh. Virender Kumar. The said bag contained Election Card, PAN Card, Aadhar Card, office Security Card, Identity Card and different other documents. RW-1 was never called by the officials of PS Janakpuri with regard to any complaint lodged by petitioner Sh. Om Prakash Kashyap regarding the above said bag articles.
77) RW-1 further deposed that Ex.RW-1/29 pertains to the death information of Sh. R.K. Saxena, father of late Sh. Virender Kumar. The said information is mentioned at Sr. No. 129 of the chart / register. The said record bears signatures of late Sh.Virender Kumar at point A as per the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 30 of 85 said record.
78) RW-1 further deposed that he had also filed the document marked RW-1/F, regarding the gas connection of deceased Sh. Virender Kumar. RW-1 further deposed that he has also filed a Civil Suit against petitioner Sh. Om Prakash Kashyap and the same is pending in the Court of Sh. Rakesh Kumar-IV, Id. ADJ (West) Tis Hazari Courts, Delhi.
79) RW-2: Sh. Ved Prakash has appeared in the witness box and tendered his evidence by way of affidavit Ex PW- 2/1. RW-2 has deposed that he brought the summoned record i.e. reply of RTI bearing No. AERO/AC- 27/2015/440 dated 08.07.2015 of Arun Kumar Saxena Ex.RW-2/1.
80) In his cross examination, RW-2 deposed that the record is being maintained as per the Voter List and the record is maintained as per the respective Polling Station in which there are seriatom voters as per the respective houses. RW-2 further deposed that he does not have personal or official knowledge regarding the contents of the reply letter dated 08.07.2015. The letter dated 08.07.2015 has been attested by the present AERO Sh. Tej Ram. RW-1 deposed that they maintained the record as per the voter list and not as per the house addresses.
81) RW-3 Sh. Pawan Kumar, Patwari has appeared in PC No. 15971/2016 Om Prakash Kashyap Vs State Page 31 of 85 the witness box and tendered his evidence by way of affidavit Ex PW-3/1. RW-3 deposed that he has brought the summoned record i.e. surviving member certificate dated 17.11.2012,Ex RW-3/1.
82) During cross examination, RW-3 deposed that he has no knowledge when the application was filed and when the certificate was issued.
83) RW-4 Sh. Pradeep Kumar has appeared in the witness box and tendered his evidence by way of affidavit Ex PW-4/1. RW-4 deposed that he has brought the summoned record i.e record related to registers regarding birth and death.
84) RW-4 further deposed that as per his record, Sh. R.K. Saxena had expired on 22.12.1997 and the death certificate was issued on 26.12.1997 and such entry is mentioned as Sl. No. 129. RW-4 further deposed that he has brought the original register copy of relevant page is Ex. RW-4/A (OSR). RW-1 further deposed that the death certificate had been applied by Sh. Virender Kumar. RW- 1 further deposed that he received the same as per his signatures appearing at portion A (now encircled in Red) of page 2 to Ex. RW-4/A. RW-1 further deposed that their department had also given the requisite information under RTI. RW-1 further deposed that he has brought the spare copy of the same (such information is already on record and exhibited as RW - 1/19 ). RW-1 further deposed that PC No. 15971/2016 Om Prakash Kashyap Vs State Page 32 of 85 the application moved for applying of death certificate is no longer with them and the same has been weeded out as per the policy of the department.
85) In his cross examination, RW-4 further deposed that he did not know as to for how long the old record was to be preserved and after what period of time the same is to be destroyed. RW-4 further deposed that he has not brought the policy of weeding out. He further deposed that signatures of Sh. Virender Kumar are also at Column no. 24 and the said portion is not encircled as B (the word not in the last line is corrected vide order 16.10.2023 and the line shall be read as "said portion is now encircled as B".
86) RW-4 admitted that the applicant Sh. Virender Kumar has signed at both the places i.e A & B. He further deposed that he does not know the name and designation of the person who has signed at point C (Marked now).
87) RW-5, Sh. Durgesh Kumar has appeared in the witness box and tendered his evidence by way of affidavit Ex PW-5/1. RW-5 deposed that he has brought the summoned record pertaining to PAN No. BVXPS5121D. He further deposed that application for allotment of PAN BVXPS5121D was not processed through NDSL- egovernance Infrastructure Ltd, however, they had received an application requested for new PAN Card / changes or correction in PAN data for PAN No. BVXPS5121D in the name of Sh. Virender Kumar son of PC No. 15971/2016 Om Prakash Kashyap Vs State Page 33 of 85 Sh.Raghuvansh Kishore Saxena date of birth 31.12.1954 submitted at Tax Information Network- Facilitation Centre, TINFC Alankit Assignments Limited, Sangam Complex, Subroto Park, Opposite Golden Jublee School, Delhi- 110010 vide acknowledgment receipt no. 01704030000603 dated 12.01.2011. RW-5 further deposed that as per the prescribed procedure, the core details as mentioned in the application form were verified in ITD Data Base and some discrepancy was observed.
88) RW-5 further deposed that as per application, name was Sh. Virender Kumar and date of birth was 31.12.1954 and as per ITD Data Base, name was Sh. Virender Kumar Saxena and date of birth was 31.12.1960.
89) RW-5 further deposed that the above mentioned discrepancy was communicated to applicant vide letter dated 18.01.2011 with a request to provide proof for changes request. He further deposed that on the receipt of gazetted certificate from the applicant on 17.02.2011, the application was further processed and forwarded to Income Tax Department, Delhi for confirmation of changes on 18.02.2011. He further deposed that confirmation was received from ITD Delhi on 21.02.2011 against above said application.
90) RW-5 further deposed that PAN card was printed by them and dispatched to applicant at the communication address as mentioned in the application PC No. 15971/2016 Om Prakash Kashyap Vs State Page 34 of 85 form i.e. C-4F-162, Janak Puri, New Delhi, Delhi-110058 on 22.02.2011 through Blue Dart Expres Ltd. vide Airway Bill No. 44240263826, however, it was returned and undelivered, due to consignee shifted on 08.03.2011. RW- 5 further deposed that the same was re-dispatched through speed post vide AWB NO. EM743705752IN on 12.03.2011. He further deposed that application form for correction/changes in PAN data along with supporting documents are collectively exhibited as Ex. RW5/A. Processing details of PAN Data is exhibited as Ex. RW5/B. RW-5 further deposed that the signatures appearing at Point A on Ex PW-5/A at page no. 2 is to be of applicant but he cannot verify the signatures.
91) In his cross examination, RW-5 deposed that our office had received the application regarding correction/changes, however, original PAN card was not processed through our office, he cannot tell about the details appearing in the original PAN Card. RW-5 further deposed that he cannot bring the details regarding the processing of the original PAN Card since it was not processed by their office. RW-5 further deposed that he has brought the entire document with respect to correction application. RW-5 further deposed that he has only brought the record and he has not the one who had processed the correction application. He further deposed that he does not have any personal knowledge nor he can verify that the signature at point A are that of the actual applicant or not.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 35 of 8592) RW-6: Sh. Surinder Singh, Ahlmad has appeared in the witness box and tendered his evidence by way of affidavit Ex PW-6/1. RW-6 deposed that he has brought the original file of case bearing No. CT No. 6532/2019 titled Anil Kumar Sexena Vs Om Prakash Kashyap, U/s 200 Cr.P.C. RW-6 further deposed that he had seen the copy of certified copy of handwriting expert report dated 19.04.2014 and copy of certified copy of comparative signatures of Sh. Virender Kumar Ex. RW - 6/1 & Ex. RW-6/2 respectively.
93) In his cross examination, RW-6 admitted the documents Ex. RW - 6/1 & 2 are the photocopies of certified copies. RW-6 further deposed that he has read & compared the document Ex. RW-6/1 & 2 by giving a glance at it and have not read the complete document.
94) RW-6 was re-examined on the same day and in his reexamination, RW-6 deposed that he has compared the documents Ex RW-6/1 with the original brought by him and found it correct in its entirety. RW-6 further deposed that he also compared document Ex. RW - 6/2 with the original but Ex. RW - 6/2 is somewhat blurt. RW-6 further deposed that the certified copy is not the blurt copy and the same is correct copy of original and the same is Ex RW-6/3.
95) RW-7: Sh. B.N. Srivastava has appeared in the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 36 of 85 witness box and has tendered his evidence by way of affidavit Ex PW-7/A. RW-7 deposed that he is working as Handwriting expert for over 45 years and have received the training in the Science from an expert Mr. M.K. Mehta. RW-7 further deposed that he has done one year certificate course in forensic science from University of Delhi in year 1970.
96) RW-7 further deposed that he has given opinion/evidence in over 4000 cases and he has examined the disputed signatures of Sh. Virender Kumar on unregistered Will dated 18.03.2013 and compared the same with the signatures on the PAN Card and application for issue of death certificate.
97) RW-7 further deposed that the disputed signatures have been marked as Mark Q1 and comparative signatures on the photographs have been marked as A1 to A3. RW-7 further deposed that in his opinion, the disputed signatures has not been written by the writer of comparative signatures.
98) RW-7 further deposed that he has given the the reason for his opinion in his report dated 19.04.2014 Ex RW - 6/1 and the photographs are Ex. RW - 6/2 & 3. RW- 7 further deposed that his report bears his seal & signatures at points "A" on all pages. RW-7 further deposed that the marking done on the photographs are in his handwriting and he has seen original report and PC No. 15971/2016 Om Prakash Kashyap Vs State Page 37 of 85 photographs from the record of the original file bearing No. CT No. 6532/2019 titled Ani Kumar Sexena Vs Om Prakash Kashyap, U/s 200 Cr.P.C, brought by RW-6 and compared the same with the Ex. RW - 6/1 to Ex. RW - 6/3 and found to be correct.
99) In his cross examination, RW-7 further deposed that he has done graduation in Science and have B.Sc. from Lucknow University. He has done B.Sc. with physics, chemistry and Maths. There was no such subject relating to handwriting or documentation expertises. RW-7 further deposed that he was with Mr. M.K. Mehta for two years 1967-68. RW-7 further deposed that he does not know qualification of Mr. M.K. Mehta. RW-7, voluntarily, deposed that he was a author and a known expert. RW-7 further deposed that he has done certificate course in forensic science from University of Delhi.
100) RW-7 further deposed that there was number of subjects in the certificate course, like (1) Handwriting (2) Identification of finger prints (3) Fire Arms, (4) Blood Examination (5) Examination of Inks etc and there were other subjects also which he does not remember then. RW-7 further deposed that the certificate course included other subjects like anthropology, serology, Ballistics (already mentioned as subject no. 3), Examination of Viscera, Physical clues and criminology. RW-7 admitted that Handwriting and Identification of finger prints was one of the subject of his certificate course.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 38 of 85101) In his cross examination, RW-7 deposed that in document examination, he has expertise in comparison of handwriting and finger prints. RW-7 further deposed that the principles of examination in the field of handwriting comparison is the study of writing charactertics and formation of individual letters. RW-7 admitted that handwritting is not one's own handwriting but it is our brain writing or neuromuscular co-ordination.
102) RW-7 further deposed that minimum two signatures are required to study natural variations for comparison. He further deposed that Mr. M.K. Mehta's book and "Albert Osborn" books are authority on this subject, it is correct that a book named Questioned documents authored by Albert Osborn is an authority on this subject. RW-7 did not remember whether in the said book, five standards of signatures are prescribed to study natural variations.
103) RW-7 further deposed that Ex. RW6/1 is the photocopy of his report for comparison of signature, is a photocopy. RW-7 further deposed that in para 1 of his report, it has been mentioned that disputed signatures has been taken from the photocopy of the will dated 18.03.2013.
104) RW-7 admitted that the comparative signatures marked as A2 & A3 in his report are the same signatures from the single document. RW-7 further deposed that he PC No. 15971/2016 Om Prakash Kashyap Vs State Page 39 of 85 has used mini microscope, magnifying lenses and geometrical devises for the examination of disputed and comparative signatures. RW-7 further deposed that he has used scale and Das geometrical devises.
105) RW-7 admitted that Albert S. Osborn is one of the renowned author on the subject of handwriting science and book written by him as questioned documents. He further admitted that minor changes takes place with the passage of time in the handwriting of every person.
106) RW-7 further deposed that the comparative signatures should be closed to the contemporary period. RW-7 admitted that comparative signature A2 and A3 has been taken from the photocopy of the concerned document of the year 2001. RW-7 admitted that A2 & A3 are not of contemporary period. RW-7 further admitted that it is better to examine signatures from original document as compare to photocopy.
107) RW-7 further admitted that the comparative signatures Al has been taken from original Pan Card of Sh. Virender Kumar. He further deposed that Proper examination of line quality cannot be done from a scanned copy of Pan Card. RW-7 does not agree the line quality is the heart of the handwriting examination and further deposed that it is one of the writing characteristics, which is examine for comparison. He further deposed that proper examination of line quality cannot be done in photocopy.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 40 of 85108) RW-7 denied that the arrangement of letters and pen scope is different in A2 & A3. He further deposed that Pen hold and shading are also one of the characteristics and the same cannot be examined in photocopy and this fact has been stated in his report.
109) RW-7 further deposed that few writing characteristics cannot be examine in photocopies. However, proper examination can be made from photocopy.
110) RW-7 admitted that proper examination of physical and chemical eraser cannot be done in a photocopy document. He further deposed that the addition, alteration, obliteration (re-writing) cannot be done in a photocopy. RW-7 further deposed that the study in examine pen life, pen stop is depend upon the quality of the photocopy.
111) RW-7 admitted that retouching and patching of stocks of a letter cannot be examined in a photocopy document it can be examined if photocopy is very clear. He further admitted that Pen pressure and differentiation of ink cannot be examine in photocopy document. He further admitted that in photocopy one can examine two dimensions and three dimensions in original documents. He further deposed that execution of letters can be studied in a photocopy with the help of magnifying lenses PC No. 15971/2016 Om Prakash Kashyap Vs State Page 41 of 85 and enlarge photographs. He further deposed that the comparative signature A2 and A3 do not super impose each other. RW-7 admitted that natural variations are observed in the writing of every individual whether written at the same time or at different times since hand is not a machine and cannot produce two signatures exactly of the same size.
112) RW-7 further deposed that he has examined three comparative signatures, however, in comparative signatures marked A3 word 'Kumar' is not written. RW-7 admitted that as per the book titled 'Questioned Document" written by renowned author Albert S Osborn in chapter IV of the book titled "Standards of comparison"
and it is always better to have number of signatures but when limited signatures are available comparison is carried out with limited signatures.
113) RW-7 further deposed that he has given an another opinion of signatures of Sh. Jitender Singh as private inquiry Ex. RW- 7/P1. RW-7 admitted that he has gone through the books by Mr. Wilson R. Harron, 'Suspect Document, 1958' and Mr. Ordway Holton 'Scientic Examination of questioned documents" and these books are one of the important books in the field of handwriting expert.
114) On 29.03.2022, as per statement of the respondent no. 2, RE was closed.PC No. 15971/2016 Om Prakash Kashyap Vs State Page 42 of 85
FINAL ARGUMENTS
115) I have heard the final arguments from both sides and have gone through the entire case file and the written submissions filed on behalf of respondent no. 2 to 5. The judgments filed by ld counsel for petitioner have been duly considered while passing judgment in the present case.
116) CONTENTIONS OF THE PETITIONER.
(I) Ld counsel for the petitioner has argued that
the petitioner has duly proved the Will in question by examining one of the attesting witness of the Will in question i.e. Sh. Jitender Singh/PW-2. He further argued that PW-2 has identified his signatures as well as signatures of deceased and of other attesting witness Sh. Pritam Singh on the Will. He further deposed that PW-2 has proved that the deceased has signed the Will voluntarily after fully understanding the contents of the Will and the deceased was in sound disposing mind at the time of execution of the Will.
(II) Ld counsel for the petitioner further argued that respondent no. 2 to 5 have no concern with the deceased. He further argued that respondent no. 2 to 5 are not relatives of the deceased and has no locus to challenge the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 43 of 85 Will in question.
(III) Ld counsel for the petitioner further argued that the probate petition is duly verified by second attesting witness, Sh. Pritam Singh. He further argued that he made efforts to be examined second attesting witness, Sh. Pritam Singh in the present case but the said witness could not examine in the court as he had left the given address and publication was also made regarding appearance of Sh. Pritam Singh as witness in the court but despite that he did not appear in the court and there is no lapse on the part of petitioner for not examine the second attesting witness.
(IV) Ld counsel for the petitioner further argued that it is proved on record that both attesting witness were earlier residing on the addresses which are mentioned in the Will and there is no reason to doubt the identity of abovesaid attesting witnesses.
(V) Ld counsel for the petitioner further argued that he has proved that the Will has been executed by complying the requirements mentioned in section 63 Indian Succession Act and has proved the Will as per section 68 of Indian Evidence Act.
(VI) Ld counsel for the petitioner further argued that there is no suspicious circumstances surrounding the execution of the Will and the Will in question is legal, valid and genuine Will of the deceased.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 44 of 85(VII) Ld counsel for the petitioner further argued that the respondents have failed to prove that the Will in question is a forged Will. He further argued that the handwriting expert/RW-7 examined by the respondents is not a reliable witness and there are major defects in the report of the handwriting expert and the report of handwriting expert has no evidentiary value. He further argued that the handwriting expert has lifted the signatures of the deceased from the photocopy of documents and due to said fact, the report is not authentic.
117). CONTENTIONS OF THE RESPONDENTS
(I) Ld counsel for the respondents has argued that there
are several suspicious circumstances surrounding the execution of the Will and the said suspicions have not been removed by the petitioner. As per respondents, the Will in question is surrounded by followings suspicious circumstances:
(a) In the Will in question, the father's name of both attesting witnesses have not been mentioned and no explanation has been given by the petitioner, as to why, their father's names have not been mentioned in the Will.
(b) The attesting witnesses shown in the Will are fake, their addresses are fake and they do not exist.
(c) Will is alleged to be attested by Notary Public, Sh.PC No. 15971/2016 Om Prakash Kashyap Vs State Page 45 of 85
N.K. Aggarwal and as per stamp affixed on the left hand margin of the Will, it is Sh. Pritam Singh, who has identified the deceased. Ld counsel for the respondents has argued that the Will reveals that the deceased never appeared before the Notary Public despite the fact that the Will was got attested on the same day, on which, Will was executed. He further argued that there is no explanation, as to why, Late Sh. Virender Kumar Saxena did not appear before Notary Public.
(d) In the Will, it is written that the petitioner had joined Sh. Virender Kumar at the age of 22 years since 2007 and even helped Sh. Virender Kumar taking care of his mother and sister but during cross examination petitioner stated that he shifted to Delhi 2007 and was residing alone at AIR Force Station till 2009 and thereafter, he resided on rent for some time and in February, 2012 ,he shifted to residence of Sh. Virender Kumar after marriage. He further argued that there is abovesaid contradiction in the testimony of petitioner and in the Will and the testator will not write incorrect fact in the Will regarding beneficiary.
(e) In the Will, it is written that the petitioner joined the testator in 2007, when the testator was struggling to take care of his mother and sister. Ld counsel for the respondents further argued that the mother of the testator died on 14.02.2006, so, it is not possible for the testator to take care of his mother in 2007. He further argued that there is clear contradiction in the Will, which made the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 46 of 85 Will suspicious.
(f) In the Will, the name of the mother of the deceased is mentioned as "Bimla" whereas the real name of the mother of deceased is "Vimla".
(f) In the Will, the name of the deceased is mentioned as "Virender Kumar Saxena" whereas the real name of deceased is "Virender Kumar". Ld counsel for the respondents further argued that the deceased used to write his name as "Virender Kumar" and not as "Virender Kumar Saxena" and he also filed documents to prove the above-said facts.
(g) In the Will, the name of office of father of deceased is mentioned as "Registrar General-cum-census Commissioner, India, New Delhi" whereas the actual name of the office is " office of the Registrar General, India (Government of India, Ministry of Home Affairs)".
(h) The election photo ID card number of Sh. Pritam Singh given on the Will is fake.
(II) Ld counsel for the respondents further argued that the abovesaid contradiction in the Will are material. He further argued that the deceased was post-graduate in economics and he was aware of the importance of writing and signing of important documents like Will.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 47 of 85(III) Ld counsel for the respondents further argued that the petitioner has not examined Sh. Pritam Singh, who is more important witness as the petition has been verified by him and he is the person, who identified the deceased before Notary Public. As petitioner has not examined Sh. Pritam Singh, the petitioner cannot be considered properly verified.
(IV) Ld counsel for the respondents further argued that it is not proved by the petitioner as to who has typed the Will, who dictated the Will and where, it is was typed (V) Ld counsel for the respondents further argued that the Will was got laminated by the petitioner without any just reason and only to screen/cover the forged signature so as to save the same from detection.
STATUTORY PROVISIONS AS WELL AS CASE LAW RELEVANT IN THE PRESENT CASE.
118) Before adjudicating the issues, I would like to discuss various statutory provisions as well as case laws relevant for deciding the present case.
119). 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".
120). Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.
121) 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:-
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 48 of 85"63 Execution of unprivileged Wills --- Every testator, not being a s oldier 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 time, and no particular form of attestation shall be necessary".
122). The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
"Section 68 of Indian Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied.
123) In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down 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.PC No. 15971/2016 Om Prakash Kashyap Vs State Page 49 of 85
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will.
That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a 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 PC No. 15971/2016 Om Prakash Kashyap Vs State Page 50 of 85 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 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."
124) In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles to prove the Will and the same are as under; -
i This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind PC No. 15971/2016 Om Prakash Kashyap Vs State Page 51 of 85 has to be applied.
iii A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a)The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b)It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c)Each of the attesting witnesses must have 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 such signatures:
(d)Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 52 of 85viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, 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, etc.
125). In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Hon'ble Supreme Court of India had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter PC No. 15971/2016 Om Prakash Kashyap Vs State Page 53 of 85 alia, to its earlier decision of case titled H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors (Supra) the Hon'ble Supreme court has held as follows:-
"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, 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) PC No. 15971/2016 Om Prakash Kashyap Vs State Page 54 of 85
126) In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court of Delhi made reference to FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid testament of the testator. These are as under:
I. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be vigilant and PC No. 15971/2016 Om Prakash Kashyap Vs State Page 55 of 85 zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.
IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw& Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged PC No. 15971/2016 Om Prakash Kashyap Vs State Page 56 of 85 by he who propounds the will.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
127) In a case titled Inder Bala Bose vs Maninder Chandra Bose AIR 1982 SC 133, the Hon'ble Supreme Court of India has held that "any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normal in a normal situation or is not expected from a normal person."
128) In a case titled Kavita Kanwar Vs Mrs Pamela Mehta decided on 19.05.2020 passed by Hon'ble Supreme Court of India has held as follows:
16. A Will is executed to alter the ordinary mode of succession and by bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his the very nature of things it is 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 circumstance specially in a case where the bequest has been made in favour of an offspring. As held in P.P.Κ. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2 SCR 585, it is the duty of the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 57 of 85 propunder 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.
129) In a case title Narender Kumar Vs the Mgmt. Of M/S Maman Chand R decided on 31 January, 2023 passed by Hon'ble High court of Delhi has discussed the law regarding evidentiary value of the handwriting expert and has held as follows:
"28. Firstly, as far as the expert opinion is concerned, it is prudent to examine the provision under Section 45 of the Indian Evidence Act, 1872 for better grasping of the issue:
"Section 45. Opinions of experts.
When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting, [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions are relevant facts. Such persons are called experts.
"29 Section 45 of the Indian Evidence Act provides relevancy and weightage to the expert opinion with regards to the disputes relating to handwritten documents. It is no more res integra that courts should exercise great caution while determining the disputed handwriting. It is alleged by the Petitioner that the handwriting expert only examined the Xerox copies and not even analyzing/requesting for the original copy of the settlement slip, amounts to unprofessional practice and hence report submitted by the expert is completely unreliable".
"30 In the present case, the Respondent took professional assistance of the handwriting expert to put a quietus to the dispute regarding the signature. The expert tendered his expert opinion vide the report dated 11.09.2003 (Exhibit MW2/1) after examining the disputed document (receipt) and admitted document (Exhibit WW1/3). It is an admitted fact that the handwriting expert PC No. 15971/2016 Om Prakash Kashyap Vs State Page 58 of 85 examined the disputed signature from a document which was a xerox of the original document. It is admitted by the expert himself as given in the report dated 11.09.2003"
"This is to certify that I have very carefully examined and compared with the aid of lenses, magnifiers and such geometrical appliances, which are needed for the purpose of comparison, the following signatures after the examination of their zerox copies and preparation of enlargements in my laboratory and detailed as under."
31.It is pertinent to refer the judgment delivered by the Hon'ble High Court of Madhya Pradesh in Abhay Jain v. State of M.P. reported as 2018 SCC OnLine MP 1839 wherein it was observed that examination carried out by an expert must be based upon the original document, rather than examining the xerox copy of the same.
"29. The expert should form opinion on the basis of study of original document. The reason being that the pressure points are analyzed by the hand writing expert for which original are required. In the absence of original documents, the analysis of a questioned document is limited to the features that survive the copying process. This is like to identify a person behind a cloudy window; the basics are there, but details are missing. What we call the "three-dimensionality" of the original document is lost. Not to mention that if the copy is a copy of a copy, the details become increasingly difficult to verify".
"44. Originals are always the best evidence. For a more productive result, both questioned and admitted documents should be in original".
"45. While considering the question as to whether hand writing expert can give opinion on the basis of photocopy, the Hon'ble High Court of Andhra Pradesh replied in Bheri Nageswara Rao v. Mavuri Veerabhadra Rao, AIR 2006 AP 314 that:
"5. The opinion of a hand writing expert involves the analysis of the slant, which a person uses in the matter of putting his signature, and in some cases, the point of time, at which it may have been subscribed. These analyses would become possible only vis-a-vis an original signature; and the signature mark on a xerox copy of a document can never constitute the basis."
"32. Similarly, the Hon'ble Apex Court in S.P.S. PC No. 15971/2016 Om Prakash Kashyap Vs State Page 59 of 85 Rathore v. CBI reported as (2017) 5 SCC 817 touched upon the issue of reliability of the expert opinion in handwriting dispute matters. Relevant extract c the judgement is reproduced as below:
"47. With regard to the contention of the learned Senior Counsel for the appellant-accused that the signatures of Ms. Ruchika on the memorandum were forged though she signed the same in front of Shri Anand Prakash, Shri S.C. Girhotra, Ms Aradhana and Mrs Madhu Prakash and they have admitted the same, we are of the opinion that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. Acting on the evidence of any expert, it is usually to see if that evidence is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not"."The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. It has also been held by this Court in a catena of cases that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence."
"33. In view of the aforementioned judgments, it can be deduced that the report of the handwriting expert remains questionable and unreliable since the same is based on the examination carried upon xerox documents. Ergo, this court is hesitant to accept the expert opinion and to form an opinion solely and primarily on basis of the report. As discussed in detail in Abhay Jain (supra), that level of certainty of an expert opinion is adversely affected when the examination is done on copies of the original. Reasons and factors like loss of detailing, patching, fraudulent manipulation, paper etc. cannot be properly assessed and examined by the expert when only xerox copy is available PC No. 15971/2016 Om Prakash Kashyap Vs State Page 60 of 85 to him/her. This Court holds the expert opinion/report as an unreliable source of comparison and hereby attaches no evidentiary value to the same in the present dispute.
130). In a case titled Bhagwan Kaur Vs Maharaj Krishan Sharma & Ors on 25 October, 1972 decided on 25 october, 1972 passed by Hon'ble Supreme Court of India has held as follows:
"The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to give too much weight to the evidence of handwriting expert."
131). The Hon'ble Apex Court in a case titled Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 has observed as follows:
" 16. Moreover, there was no effective cross-ex- amination made on the plaintiff's witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one's own ver- sion in cross-examination of op ponent. The effect of non cross-examination is that the state- ment of witness has not been disputed".
132). The Hon'ble Apex Court in a case titled as Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451, 2021- 11 SCC, has relied upon its earlier judgement given in a case titled as State Uttar Pradesh vs Nahar Singh (Dead) & Ors on 18 February, 1998 in which it is held that " in PC No. 15971/2016 Om Prakash Kashyap Vs State Page 61 of 85 the absence of cross-examination on the explanation of de lay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 146 of the Evidence Act confers a valuable right of cross- examining the witness tendered in evidence by the oppo- site party. This Court held as under: -
"13. It may be noted here that that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-
examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
133). ISSUE-WISE FINDINGS
Findings on issue no. 1 & 3
Issue no 1. Whether the Will dated 18.03.2013 executed by Late Sh. Virender Kumar Saxena S/o Late Sh.PC No. 15971/2016 Om Prakash Kashyap Vs State Page 62 of 85
Raghuvasnsh Kishore Saxena is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP.
& Issue no 3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 to 5 in the written statement/objections. OPD.
134) Both abovesaid issues are interconnected and having mutual bearing, therefore, both these issues are taken together. Onus to prove issue no. 1 is upon the petitioner and onus to prove issue no. 3 is upon the respondents.
135) In order to prove issue no. 1, petitioner has examined four witnesses : PW-1: Sh. Om Prakash Kashyap (Plaintiff), PW-2: Sh. Jatinder Singh (one of the attesting witness of the Will), PW-3: Sh. Ombir Singh (Summoned witness) and PW-4: Sh. Rohit Kumar Dubey (summoned witness).
136). In order to prove issue no. 3, the respondents have examined seven witnesses i.e. RW-1: Sh. Arun Kumar Saxena (one of the respondents), RW-2: Sh. Ved Prakash (Summoned witness), RW-3: Sh Pawan Kumar (Patwari), RW-4: Sh. Pradeep Kumar (summoned witness), RW-5; Sh. Durgesh Kumar (Summoned witness), RW-6: Sh. Surender Singh (Ahlmad of the court), RW-7: Sh. B.N. Shrivastava (handwriting expert).
138) In the light of Legal principles as carved out in PC No. 15971/2016 Om Prakash Kashyap Vs State Page 63 of 85 catena of Judgments by the superior courts and some relevant of them as discussed above, it is obligatory for propounder of the Will to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the deceased:
(ii) That the testator while executing the Will was in the sound and disposing state of mind:
(iii) That the testator has executed the Will of his own free will meaning thereby that he was a free agent when he executed the Will:
(iv) That the propounder has also to remove all the suspicious circumstances, if any surrounding the Will to the satisfaction of the conscious of the Court:
(v) For proving the Will, one attesting witness of the Will must be examined in the Court.
138) PW-1/petitioner has deposed that he and deceased were working together for many years at Air Force Canteen Palam, New Delhi. The working of deceased at the abovesaid canteen is not disputed by the respondents. It is also not disputed that the petitioner was colleague of the deceased.
139) PW-1/petitioner has further deposed in his evidence affidavit that in the Will, it is mentioned that after the demise of father of Sh. Virender Kumar Saxena (testator), no relative or distant relatives had ever bothered to take care of the family of the testator, nor they ever visited or extended any help during the hour of crisis and need. The PC No. 15971/2016 Om Prakash Kashyap Vs State Page 64 of 85 testator during his life time, was alone taking care of his mother and the sister.
140). PW-1 deposed in his evidence affidavit that it was only the petitioner, who was completely taking care of the testator and thus out of love and affection as well as duly satisfied by the dedication and service rendered by the petitioner, the testator Late Sh. Virender Kumar Saxena had bequeathed the said residential house bearing no. C-
4F/162, Janakpuri, New Delhi in favour of the petitioner, Sh. Om Prakash Kashyap.
141). During cross examination, PW-1 deposed that he was informed by the deceased about the Will Ex PW-2/1 and the original Will was handed over to him by the deceased in April, 2013. PW-1 further deposed during cross examination that in February,2012, he shifted to C-4F/162, Janakpuri Delhi. He further deposed that he shifted to Janakpuri in the house of the deceased as the deceased remained unwell.
142) The respondents have not challenged the testimony of PW-1 regarding handing over the original Will to the petitioner by the deceased. No cross examination, on this point, has been done by the respondents and no suggestion has been given to PW-1 that the deceased had not handed over the original Will to the petitioner.
143) During cross examination of PW-1, Ld counsel for PC No. 15971/2016 Om Prakash Kashyap Vs State Page 65 of 85 defendant has given suggestion to PW-1 that he along with his wife resided in the house of the deceased for a period of 3 months only before the death of the deceased. By way of above-said suggestion, the respondents have admitted regarding residing of petitioner with his wife in the house of deceased before the death of deceased. The above-said testimonies of PW-1 also proves that there was good relations of the petitioner with the deceased. If there were no good relations between the petitioner and the deceased, the deceased would not have allowed the petitioner to reside in his house. Reliance is placed upon the judgments of Hon'ble Supreme Court of India given in cases titled Muddasani Venkata Narsaiah v. Muddasani Sarojana and case titled as Arvind Singh v. State of Maharashtra.
144) PW1 has deposed that he conducted last rites of the deceased and the cremation was conducted with the help of staff members and other persons. He further deposed that he made inquires from the objectors at the time of death of deceased testator, they disclosed that they are relatives of the deceased testator and came to attend last rites of the deceased testator. The abovesaid testimonies of PW-1 is not disputed by respondents. So, it is proved that the petitioner was present at the cremation of the deceased.
145). During cross examination, PW-1 deposed that during his stay with the deceased testator, nobody used to visit the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 66 of 85 deceased. During cross examination RW-1, who is one of the respondents, deposed that he does not visit frequently to the house of the deceased as he has been residing alone. He further deposed that they were regularly in touch over telephone. RW-1 further deposed that he has lastly visited the deceased at his residence about 4-5 months prior to his death. He, voluntarily, deposed the deceased sent a SMS to him that he is unwell, so, he went there immediately along with his sons. RW-1 further deposed that after coming to know about the death of the deceased, he along with his wife went to the house of deceased and there several persons, including petitioner/Om Prakash Kashyap met him.
146). The testimony of PW-1 about the abovesaid facts has remained unrebutted and unchallenged as PW-1 has not been cross examined on behalf of the respondents on the above-said facts and no suggestion has been put to PW-1 regarding the above-said facts. It is not denied by the respondents that during the stay of the petitioner with deceased, no body used to visit him. Rather, RW-1 has deposed that he did not frequently visit the house of deceased and he, lastly, visited the house of the deceased about 4-5 months prior to his death. The above-said testimony shows that it was petitioner and his wife, who were taking care of the deceased before his death. It is quite natural for a person to bequeath property to a person, who took care of him, during his ill health and more specifically when that person has no near relatives and the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 67 of 85 distant relatives are not taking care of him.
147) It is admitted case of the respondents that the deceased did not have Class-I legal heir at the time of his death. As per case of respondents, the respondents are Class-II legal heirs of the deceased.
148) PW-2/Sh. Jitender Singh, who is one of the attesting witness of the Will in question has been examined in court and he deposed in his evidence affidavit that the will was executed and signed by Late Sh. Virender Kumar Saxena ( the deceased) in his presence and in the presence of another witness, namely, Sh. Pritam Singh. He further deposed that at that time, the deceased Late Sh. Virender Kumar Saxena was having full knowledge and understanding of the contents of the said Will.
149) PW-2 further deposed that Late Sh. Virender Kumar Saxena had read and understood the contents of his said Will dated 18.03.2013 and admitted before him and others, the correctness of the contents of the said Will before putting his signature.
150) PW-2 further deposed that he knew Late Sh. Virender Kumar Saxena, for the past several years. He further deposed that the deceased had signed the Will dated 18.03.2013, in the presence of both the witnesses and thereafter, he and other witness, Sh. Pritam Singh had also signed the said Will, in the presence of Late Sh. Virender PC No. 15971/2016 Om Prakash Kashyap Vs State Page 68 of 85 Kumar Saxena ( the deceased).
151) Duirng cross examination PW-2 deposed that he had met the deceased first time at Gurudwara Chotte Sahibzade, Fathe Nagar, Jail Road in the year, 2007-08 and he had friendly relations with the deceased. He further deposed that he had, lastly, met the deceased in April, 2013 at Gurudwara and the deceased died on 13.05.2013. He further deposed that the deceased was unmarried and had one younger sister, whose name, he does not know. He further deposed that he had visited the house of the deceased prior to March, 2013, when his younger sister died.
152) The above-said testimony of PW-2 has remained unrebutted and unchallenged as no cross examination has been done on behalf of the respondents on the above-said facts deposed by PW-2. No suggestion has been given to PW-2 regarding the above-said facts. The respondents have not denied the facts that PW-2 knew the deceased since 2007-08 and had friendly relations with the deceased. The above-said testimony of PW-2 has proved that PW-2 knew the deceased and was having friendly relations with the deceased. Reliance is placed upon the judgments of Hon'ble Supreme Court of India given in cases titled Muddasani Venkata Narsaiah v. Muddasani Sarojana and case titled as Arvind Singh v. State of Maharashtra.
PC No. 15971/2016 Om Prakash Kashyap Vs State Page 69 of 85153) PW-2 has identified his signatures at Point A, signatures of deceased at Point C and signatures of another attesting witness, Sh. Pritam Singh at Point B on the Will Ex PW- 2/1.
154) PW-2 has deposed during cross examination that the deceased used to write as Virender Kumar as well as Virender Kumar Saxena. The said fact has not been disputed by the respondents during the cross examination of PW-2. No suggestion has been given that the deceased did not use to write his name as Virender Kumar Saxena.
155) Ld counsel for the respondents has argued that there are several suspicious circumstances surrounding the execution of the Will and the said suspicions have not been removed by the petitioner. The suspicious circumstances alleged by the respondents have been considered as follows:
(i) It is contended by the respondents that the Will is shown to be attested by Notary Public, Sh. N.K. Aggarwal and as per stamp affixed on the left hand margin of the Will, it is Sh. Pritam Singh, who has identified the Will. It is further contended by the respondents that the deceased never appeared before the Notary Public despite the fact that the Will was got attested on the same day, on which, Will was executed. It is further contended that there is no explanation, as to why, Late Sh. Virender Kumar Saxena did not appear before Notary Public. As per Section 63 Indian Succession Act, it is not mandatory to get the Will PC No. 15971/2016 Om Prakash Kashyap Vs State Page 70 of 85 attested from the Notary Public. Even presuming that the deceased did not appear before the Noarty Public, it does not affect the validity of the Will. The abovesaid contentions of the respondents is not valid and does not create any doubt upon the execution of the Will.
(ii) The second contention of the respondent is that in the Will in question, the father's name of both attesting witnesses have not been mentioned and no explanation has been given by the petitioner, as to why, their father's names have not been mentioned in the Will. During cross examination of PW-2, no question has been asked to PW2 regarding the abovesaid facts on behalf of the respondents. If question regarding not mentioning the father's name of the witnesses on the Will, was put to the attesting witness then he would get the opportunity to explain the abovesaid fact. Moreover, as per Section 63 Indian Succession Act, it is not mandatory to mention father's name of the witnesses in the Will. Non-
mentioning of father's name of witnesses in the Will does not affect the validity of the Will. The abovesaid contentions of the respondents is not valid and does not create any doubt upon the execution of the Will.
(iii) The third contention of the respondent is that in the Will, it is written that the petitioner had joined Sh. Virender Kumar at the age of 22 years since 2007 and even helped Sh. Virender Kumar taking care of his mother and sister but during cross examination, petitioner stated PC No. 15971/2016 Om Prakash Kashyap Vs State Page 71 of 85 that he shifted to Delhi 2007 and was residing alone at Air Force Station till 2009 and thereafter, he resided on rent for some time and in February, 2012, he shifted to residence of Sh. Virender Kumar after marriage. He further contended that there is abovesaid contradiction in the testimony of petitioner and in the Will and the testator will not write incorrect fact in the Will regarding beneficiary.
(iv) The fourth contention of the respondents is that in the Will, it is written that the petitioner joined the testator in 2007, when the testator was struggling to take care of his mother and sister. Ld counsel for the respondents has argued that the mother of the testator died on 14.02.2006, so, it is not possible for the testator to take care of his mother in 2007. The above-said third and fourth contentions are not valid as the above-said facts have been mentioned in the Will in general and it is not specifically mentioned that the petitioner helped the deceased in taking care of mother of deceased. In the Will, the deceased has mentioned about his pain & sufferings, while lonely taking care of his mother & sister. There appears no contradiction in the testimony of PW-1 and contents of the Will.
(v) The fifth contention of the respondents is that in the Will, the name of the mother of the deceased is mentioned "Bimla" whereas the real name of the mother of deceased "Vimla". The Will in question is a typed Will. It is matter PC No. 15971/2016 Om Prakash Kashyap Vs State Page 72 of 85 of common knowledge that sometimes while giving dictation the word "V" is understood as word "B". So, writing of name of mother of deceased as "Bimla" instead of "Vimla" does not create suspicion upon execution of the Will.
(vi) The sixth contention of the respondent is that in the Will, the name of the deceased is mentioned "Virender Kumar Saxena" whereas the real name of deceased is "Virender Kumar". Ld counsel for the respondents further argued that the deceased used to write his name as "Virender Kumar" and not "Virender Kumar Saxena" and he also exhibited documents to prove the above-said contention.
(i) Documents RW-1/20 to RW-1/29 have been exhibited during testimony by the respondents to prove that in all the documents, the name of deceased is mentioned as "Virender Kumar" and in none of the documents the name of the deceased is mentioned as "Virender Kumar Saxena".
(ii) PW-3 has brought the record pertaining to Pan card issued to the deceased and he deposed in court that the PAN was issued to Virender Kumar Saxena and thereafter, correction in name and date of birth, in the Pan of deceased was made and the name in Pan card was changed from Virender Kumar Saxena to Virender Kumar. Moreover, in document RW-1/F filed by the respondents, it appears that the deceased used his surname PC No. 15971/2016 Om Prakash Kashyap Vs State Page 73 of 85 Saxena while putting signatures on the said document. Moreover, it is not disputed by the respondents that the surname of deceased was Saxena. It is also matter of common knowledge that sometimes, the surname of person is not mentioned in the documents but in his real life, the person sometimes use his surname with his name. The respondents in their objections also used two names of their father i.e. Raj Kishore and Raj Kishore Saxena and of their uncle Sh. Raghuvansh Kishor and Raghuvansh Kishore Saxena, who is father of the deceased.
(iii) The respondents have not led any evidence to prove that the deceased did not use to mention his name as Virender Kumar Saxena.
(iv) In cross examination, PW-2 deposed that the deceased used to write as Virender Kumar as well as Virender Kumar Saxena. The said testimony of PW-2 is unrebutted and unchallenged as no suggestion has been given to PW-2 that Sh. Virender Kumar did not use to write his name as Virender Kumar Saxena. In view of abovesaid testimony and observations, it is held that the abovesaid objection of the respondents is not tenable.
(vii) The seventh contention of the respondents is that in the Will, the name of office of father of deceased is mentioned as "Registrar General-cum-census Commissioner, India, New Delhi" whereas the actual PC No. 15971/2016 Om Prakash Kashyap Vs State Page 74 of 85 name of the office is " office of the Registrar General, India (Government of India, Ministry of Home Affairs). Ld counsel for the petitioner has argued that the respondents have not asked any question, during cross examination of petitioner/PW-1 as well as PW-2, about the abovesaid contention. He further argued that during final arguments, this issue cannot be raised by respondents. He further argued that the registrar general India and census commissioner India both come under the name of office of the Registrar General and Census Comissioner, India. He further argued that the official website of said office clearly shows complete name i.e. Office of The Registrar and Census Commissioner of India and he filed a printout of the homepage of the website of the said office with his written submissions. He further argued that the petitioner has physically visited the said office recently and taken the photographs of the main entrance of the building of the reception office where the name of the office is written over as Office of the Registrar General and Census Commissioner, India and the petitioner has also taken the photograph of the reception office where the name is engraved on the steel plate clearly written as office of the Registrar is engraved on the steel plate clearly written as office of the Registrar and Census Commissioner, India. I have perused the testimony of witnesses examined on behalf of the petitioner. No question has been put to the witnesses on behalf of the respondents that wrong name of the office of father of deceased has been mentioned in the Will. The PC No. 15971/2016 Om Prakash Kashyap Vs State Page 75 of 85 respondents have not summoned any witness to prove that the office of Census Commissioner does not come under office of Registrar of India. In view of the abovesaid discussion, it is held that the abovesaid contention of the respondents is not valid.
(viii) The next contention of the respondents is that the attesting witnesses of the Will are fake persons and their residential addresses are also fake. It is also contended that the election photo ID card number of Sh. Pritam Singh given on the Will is fake. During trial, summons were issued to attesting witness, Sh. Jitender Singh on the address mentioned on the Will but the said summons returned unserved with the report of process server dated 24.11.2016 that Sh. Jitender Singh earlier was residing at the given address and his new address is not known. During cross examination, PW-2, Sh. Jitender Singh has deposed that notice had gone to his old address, which he could not receive. No suggestion has been given to PW-2 that he never resided at the address mentioned in the Will. During trial, affidavit of PW-2 regarding correction of address along with copy of his aadhar was filed. As per aadhar card, the current address of the PW-2 is WZ-B-53, Ground Floor, Gali no. 11, Krishan Park Ext. Tilak Nagar, West Delhi, Delhi-110018. The report on the summons sent to second attesting witness, Sh. Pritam Singh had come during trial in which it is mentioned that earlier, Sh. Pritam Singh was residing at the given address, which is mentioned on the Will. During cross examination, no PC No. 15971/2016 Om Prakash Kashyap Vs State Page 76 of 85 suggestion has been given to PW-2 that their addresses mentioned on the Will are fake. In view of the abovesaid facts, the abovesaid contention of the respondents is not valid and not tenable.
ix) The ninth contention of the respondents is that it is not proved by the petitioner as to who has typed the Will, who dictated the Will and where, it is was typed. It does not make any difference as to who drafted the Will and where it was drafted. PW-2 has deposed during cross examination that he does not know where the Will was typed. No question has been asked to PW-2 regarding who drafted the Will. PW-2 has deposed that he, the second attesting witness and deceased signed the Will at the house of the deceased.
(a) In probate case, the petitioner has to prove the due execution of the Will as per section 63 of Indian Succession Act. The petitioner is not required in a probate case to lead evidence as regard preparation of Will. Reliance is placed on the judgment titled as Hari Singh & Anr. Vs the State & Ors. decided on 3.10.2010, the Hon'ble High Court of Delhi. In para no. 62 of the above said judgment, has observed as follows:
"We have already held that the Petitioner is not required in a probate case to lead evidence as regards preparation of Will. The factum of valid attestation is alone to be proved. The fact that Shri Dajit Singh was not consulted for preparation of the Will cannot be a ground for suspicion."PC No. 15971/2016 Om Prakash Kashyap Vs State Page 77 of 85
x) The next contention of the respondents is that the Will was got laminated by the petitioner without any just reason and only to screen/cover the forged signature so as to save the same from detection. No question has been asked to petitioner, during his cross examination, regarding the abovesaid contention. The respondents have not led any evidence to prove abovesaid contention. Therefore, it is held that the abovesaid contention is not valid.
xi) The next contention of the respondents is that the Will in question is a forged and does not bears the signatures of deceased. To prove their contentions, the petitioner has examined RW-7/Sh. B.N. Shrivastva, handwriting expert who gave his report that the disputed signatures has not been written by the writer of comparative signatures. As per his report, the Will does not bear the signatures of deceased. For appreciating the abovesaid contention of respondents, I have gone through the testimony of RW-7.
156) During cross examination, RW-7 deposed that the comparative signatures should be closed to the contemporary period. RW-7 admitted that comparative signature A2 and A3 has been taken from the photocopy of the concerned document of the year 2001. RW-7 admitted that A2 & A3 are not of contemporary period.
157) RW-7 admitted that it is better to examine signatures PC No. 15971/2016 Om Prakash Kashyap Vs State Page 78 of 85 from original document as compare to photocopy. He further admitted that the comparative signatures Al has been taken from original Pan Card of Sh. Virender Kumar. He further deposed that Proper examination of line quality cannot be done from a scanned copy of Pan Card.
158) RW-7 further deposed that Pen hold and shading are also one of the characteristics and the same cannot be examined in photocopy and this fact has been stated in his report.
159) RW-7 further deposed that a few writing characteristic cannot be examine in photocopies. However, proper examination can be made from photocopy. RW-7 admitted that proper examination of physical and chemical eraser cannot be done in a photocopy document. He further deposed that the addition, alteration, obliteration (re- writing) cannot be done in a photocopy.
160) RW-7 admitted that retouching and patching of stocks of a letter cannot be examined in a photocopy document, it can be examined, if photocopy is very clear. He further admitted that Pen pressure and differentiation of ink cannot be examine in photocopy document. He further admitted that in photocopy one can examine two dimensions and three dimensions can be examined in original documents. RW-7 further deposed that he has examined three comparative signatures, however, in PC No. 15971/2016 Om Prakash Kashyap Vs State Page 79 of 85 comparative signatures marked A3 word 'Kumar' is not written. RW-7 admitted that as per the book titled 'Questioned Document" written by renowned author Albert S Osborn in chapter IV of the book titled "Standards of comparison" it is mentioned that minimum five standard signatures are required for satisfactory opinion or comparison.
161) The abovesaid testimony of the RW-7 proves that there are many deficiencies in the report of the handwriting expert for comparing the signatures of the deceased from the photocopy of Will with comparative signatures A1 to A3. Admittedly, the hand writting expert has taken signatures from the photocopy of documents and from PAN card upon which the signature of deceased are scanned. It is also admitted by handwriting expert that the comparative signatures should be closed to the contemporary period whereas the comparative signatures A2 & A3 were taken from photocopy of document of year, 2001 and are not of contemporary period. It is also admitted by RW-7 that proper examination of line quality cannot be done in photocopy. It is further admitted by him that he has examined three comparative signatures whereas as per the book titled 'Questioned Document"
written by renowned author Albert S Osborn in chapter IV of the book titled "Standards of comparison" it is mentioned that minimum five standard signatures are required for satisfactory opinion or comparison. It is also settled law that evidence of handwriting expert is PC No. 15971/2016 Om Prakash Kashyap Vs State Page 80 of 85 generally of a frail character and its fallibilities have been quite noticed by the Hon'ble Higher Courts in various judgments. In view of the above-said facts, it is held that the report of handwriting expert is unreliable due to above-said deficiencies and also due to examination carried on upon photocopies of documents. Reliance is placed upon judgment of Hon'ble High court of Delhi passed in a case titled Narender Kumar Vs the Mgmt. Of M/S Maman Chand R decided on 31 January, 2023 (Supra) and judgment of Hon'ble Supreme Court of India given in a case " Bhagwan Kaur Vs Maharaj Krishan Sharma & Ors" (Supra). Moreover, there is direct evidence of PW-2 that the signatures on the Will at Point C are of the deceased and PW-2 further deposed that the deceased put his signatures on the Will in his presence. He identified the signatures of the deceased on the Will.
During cross examination of PW-2, respondents have not given any suggestion to PW-2/Sh. Jitender Singh that signatures at Point A, B and C on Will Ex PW-2/1 are not of PW-2, the deceased and of Sh. Pritam Singh.
162) Ld counsel for the respondents has argued that the petitioner has not examined Sh. Pritam Singh, who is more important witness as the petition has been verified by him and he is the person, who identified the deceased before Notary Public. I have perused the report dated 24.11.2016 given on the summons of witness, Sh. Pritam Singh and as per report on the summons, Sh. Pritam Singh earlier resided at the given address and thereafter, he left PC No. 15971/2016 Om Prakash Kashyap Vs State Page 81 of 85 the given address and his current address is not known. Thereafter, summons to the witness were issued by way of publication in Newspaper but despite publication Sh. Pritam Singh did not appear in the court. The abovesaid facts prove that there is no lapse on the part of the petitioner for non-examine Sh. Pritam Singh as witness in court.
163). The contentions of respondents that the petitioner has failed to prove the due execution of the Will as the petitioner has not examined both the attesting witnesses of the Will does not hold any force. As per section 68 of Indian Evidence Act, one attesting witness is required to be examined for proving the Will. PW2/ Sh. Jitender Singh has proved that the deceased had voluntarily executed the said Will, in his sound disposing mind after fully understanding the contents of the Will. He also proved that he, the deceased and second attesting witness, Sh. Pritam Singh signed the Will in one another's presence and he also identified his signatures as well as signatures of deceased and Sh. Pritam Singh. It is not the case of the respondents that the deceased was not having sound disposing mind the time of execution of the Will. Hence in the light of testimony of Sh. Jitender Singh/PW2, there is no requirement for the petitioner to examine second attesting witness of the Will.
164) The petitioner has discharged the initial burden of proving the Will by examining himself and one of the PC No. 15971/2016 Om Prakash Kashyap Vs State Page 82 of 85 attesting witnesses of the Will in question and also dispel all thesuspicious circumstances raised by the respondents. From the testimonies of PW-1 & PW-2, it is proved that the Will in question has been executed by the deceased, voluntarily and the deceased had put his signatures on the Will after reading and understanding the contents of the Will. It is also proved that the Will Ex PW-2/1 bears the signatures of deceased at Point C and the signatures of PW-2 at Point A and signatures of Sh. Pritam Singh at Point B. It is also proved that the deceased has signed the Will in the presence of both attesting witnesses and both attesting witnesses have also sent the Will in the presence of the deceased.
165) The respondents have failed to prove that the Will in question is a forged Will and does not bear the signatures of the deceased. The respondents have also failed to prove any suspicious circumstances surrounding the execution of Will Ex PW-2/1.
166) Therefore, in view of my foregoing discussion, I hold that Will ExPW2/1 is valid, legal, genuine and last Will of the deceased and has been duly executed by the eceased in sound disposing mind after understanding the contents of the Will. Hence issue no.1 & 3 are decided in favour of petitioner and against respondent no. 2 to 5.
Findings on issue no. 2 PC No. 15971/2016 Om Prakash Kashyap Vs State Page 83 of 85 Issue no 2. Whether the petitioner is entitled for probate/Letter of administration on the basis of the aforesaid Will, as claimed? OPP.
167) Issue no. 1 & 3 have already been decided in favour of the petitioner and against the respondent no 2 to 5. It has already held above that the Will Ex PW-2/1 is a valid, legal, genuine and last Will of the deceased. Since the petitioner has not been appointed as executor in the said Will, he is not entitled for Probate of the Will, as per Section 222 of Indian Succession Act. However, the petitioner is the sole legality in the Will in question, therefore, he is entitled for issuance of letters of administration in respect of the Will in question. Hence, issue no.2 is decided in favour of petitioner and against the respondent no. 2 to 5.
RELIEF
168). In view of above discussion and findings, the present petition is allowed and it is ordered that Letters of administration in respect of Will dated 18.03.2013, Ex PW-2/1 be issued to the petitioner under the seal of this court in the form set forth in Schedule VII of The Indian Succession Act 1925, subject to completion of requisite formalities such as:
(i) furnishing of requisite court fees on the value of the movable and immovable properties of the testator, coming into the hands of petitioner as per Will dated 18.03.2013.PC No. 15971/2016 Om Prakash Kashyap Vs State Page 84 of 85
(ii) and further subject to furnishing of the valuation of the movable properties of the deceased, coming into the hands of petitioner as per Will dated 18.03.2013.The valuation in respect of immovable property has already been filed.
(iii) and further subject to furnishing of administration-
cum-surety bond to the amount of the value of movable and immovable properties of the deceased, coming into the hands of the petitioner.
(iv) Further, the petitioner is directed to file the inventory of movable and immovable property within six months and final statement of account within one year from the date of receipt of letters of administration . The formalities of issuance of letters of administration, be completed within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
File be consigned to the Record Room after making all the necessary compliance and due formalities.
Digitally signedSHIV by SHIV KUMAR Date:
KUMAR 2024.06.07 16:32:55 +0530 Announced in the open court (Shiv Kumar ) on 07.06.2024 District Judge-02 (West) Tis Hazari Courts, Delhi PC No. 15971/2016 Om Prakash Kashyap Vs State Page 85 of 85