Delhi District Court
Presently Residing At vs The State Of Nct Of Delhi on 4 June, 2022
IN THE COURT OF MS. MONA TARDI KERKETTA,
ADDITIONAL DISTRICT JUDGE-1,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
PC No.47607/15
Case CRN No.DLNE01-000238-2015
Smt. Veena Devi
W/o Sh. Dhirender Kumar,
R/o S-60-179, Kilkori Pumping Station
Jal Vihar, New Delhi.
Presently residing at :
Servant Quarters
99, Lodhi Estate,
New Delhi-110003. .....Petitioner
Versus
1. The State of NCT of Delhi
2. Sh. Amrit Lal (Deceased)
S/o Late Phalsa Lal
2(a) Smt. Ram Pati (wife)
2(b) Sh. Rajesh (son)
2(c) Sh. Mukesh (son-deceased)
2(c)(i) Smt. Gita (wife)
2(c)(ii) Sahil (minor son)
2(c)(iii) Nanu (minor son)
2(c)(iv) Ms. Doli (minor daughter)
Through : Natural Guardian
2(d) Sh. Dinesh (son)
2(e) Sh. Hira Lal (son)
2(f) Ms. Gudia (daughter)
2(g) Ms. Savita (daughter)
2(h) Ms. Mamta (daughter)
All R/o H.No.27, A-Block, Gali No.10,
Bees Feeta Road, Sangam Vihar,
Distt. Loni, Ghaziabad (U.P.)
3. Sh. Ashok Kumar
S/o Late Phalsa Lal
R/o S-57, Welcome, Seelam Pur-III
Delhi-110053.
PC No.47607/15 Page 1 of 13 ADJ-01/NE/KKD/Delhi
4. Sh. Vinod Kumar (deceased),
S/o Late Phalsa Lal, Thr : L.Rs
4(a) Sh. Panna Lal (son)
4(b) Sh. Sushil Kumar (son)
4(c) Sh. Anil Kumar (son)
4(d) Ms. Rekha (daughter)
4(e) Ms. Sarita (daughter)
4(f) Ms. Rina (daughter)
All R/o S-56, Welcome, Seelam Pur-III
Delhi-110053.
5. Sh. Makhan Lal
S/o Late Phalsa Lal
R/o S-56, Welcome, Seelampur-III
Delhi-110053.
6. Sh. Vijay Kumar
S/o Late Phalsa Lal
R/o H.No.613, Nala Road,
Opp. Cremation Centre,
Vijay Cycle Waley, Sangam Vihar,
Distt. Loni, Ghaziabad, (U.P.)
7. Smt. Vijay Laxmi (deceased)
D/o Late Phalsa Lal, Thr : L.Rs
7(a) Smt. Lata (daughter)
C/o Smt. Veena Devi
R/o Servants Qtr. Of Kothi No.32,
Lodhi Estate, New Delhi-110003.
8. Smt. Sona
D/o Late Phalsa Lal
W/o Sh. Moti Lal
R/o P-1/554, Sultan Puri,
Delhi-110041.
9. Smt. Meena (deceased)
D/o Late Phalsa Lal
9(a) Mr. Rahul (son)
9(b) Mr. Rohit (son)
All R/o 15-A, Fourth Floor,
Jangpura Lane, New Delhi-14 ..... Respondents
PC No.47607/15 Page 2 of 13 ADJ-01/NE/KKD/Delhi
Date of Institution : 02.05.2015
Date of Final Arguments & Clarifications : 14.03.2022
Date of Decision : 04.06.2022
Petition under Section 276 of the Indian Succession Act, 1925
seeking probate of last WILL dated 15.12.2012
JUDGMENT
1. The present petition has been filed by petitioner under Section 276 of the Indian Succession Act, 1925 for probate of WILL dated 15.12.2012 in respect of asset of Late Raj Kumari W/o Late Sh. Phalsa Lal, R/o House No. S-57, Welcome, Seelampur III, Delhi-110053. It is stated in the petition that petitioner is one of the legal heirs of deceased Raj Kumari who resided permanently at S-57, Welcome, Seelampur III, Delhi-110053. Late Raj Kumari died on 19.02.2014 leaving behind the aforesaid property and before her death, she executed the WILL dated 15.12.2012 in favour of petitioner, out of love and affection as petitioner had taken good care of her. The WILL dated 15.12.2012 was duly witnessed by Sh. Alimuddin, S/o Sh. Rab Dayal, R/o S-23, Welcome, Seelampur III, Delhi and Sh. Dinesh Kumar, S/o Sh. Chhotan, R/o S-28, Welcome, Seelampur III, Delhi. The present petition has been preferred by petitioner being one of the LRs and beneficiary of the estate of Late Raj Kumari.
2. It is further stated that Late Raj Kumari had filed a civil suit for permanent injunction, possession and declaration against respondent no.3 and his wife Smt. Maya Devi. It is further stated that no other petition has been filed in any court of law for grant of probate regarding the WILL dated 15.12.2012 or Letter of Administration of the property left by Late Raj Kumari. It is further stated that petitioner is the executor PC No.47607/15 Page 3 of 13 ADJ-01/NE/KKD/Delhi named in the WILL dated 15.12.2012 and hence the present petition.
3. The notice of the petition was issued to all respondents. The citation of the petition was also published in the English newspaper "The Statesman".
4. Respondent No.1 is a proforma party. Respondent no.7 & 7
(a) were proceeded ex-parte vide order dated 25.05.2016. LRs of respondent no.9 i.e. respondent no.9(a) & (b) submitted their no objection to the petition by way of an affidavit. Rest of the respondents did not contested the present petition.
5. Respondent No. 3 filed the written statement-cum-objection to the present petition and contested the petition on the following grounds: -
(i) Petitioner has not come with clean hand and concealed material facts from this Court.
(ii) The petition is not maintainable being based on false and frivolous facts.
(iii) This court has no jurisdiction to try and entertain the present petition as the suit property falls within the limits of Shahdara Distt. and the WILL dated 15.12.2021 was also not executed within the jurisdiction of this court.
(iv) The WILL dated 15.12.2012 is false, forged and fabricated and the same was not executed in favour of petitioner by Late Raj Kumari, during her life time.
(v) Late Raj Kumari had no right, title or interest over the suit property at any point of time. Therefore, she could not have executed any WILL in respect of the same.
(vii) Respondent no.3 is owner of the suit property for having purchased the same in 1978 from erstwhile owner Late Briju PC No.47607/15 Page 4 of 13 ADJ-01/NE/KKD/Delhi S/o Sh. Kashi Ram on execution of all necessary sale documents. However, the same were misplaced in 2010 and defendant got registered a Lost complaint vide NCR No. 111/2010 at PS Usman Pur and now the said documents in respect of the suit property executed in favour of defendant have been found. Since purchase of the suit property, respondent and his family members are in possession of the same.
viii) On coming to know of misplacing of title documents, petitioner filed a civil suit against respondent and his wife prior to filing of the present petition with malafide intentions.
(ix) The site plan of the suit property has not been filed.
(x) The suit of plaintiff is without cause of action.
(xi) The petition of petitioner has not been verified as per law and High Court rules.
6. Petitioner filed the replication to the written statement of respondent no.3 wherein she denied the contents of written statement and reiterated the contents of her petition.
7. Vide order dated 22.08.201 the following issues were framed, by the Ld. Predecessor of this court :
Issue no.1 : Whether Late Raj Kumari executed any legally valid WILL dated 15.12.2012 in favour of the petitioner? OPP Relief.
8. In order to prove the case, petitioner examined herself as PW-1 and tendered her evidence by way of affidavit Ex.PW-1/1 and relied upon the following documents: -
i) Ex.PW-1/A : Death Certificate of Late Raj Kumari.
PC No.47607/15 Page 5 of 13 ADJ-01/NE/KKD/Delhi
ii) Ex.PW-1/B : Original WILL dated 15.12.2012
iii) Ex.PW-1/C : Certificate issued by Sh. Dinesh Kumar
iv) Ex.PW-1/D : Detail of Asset as specified in Schedule A
v) Ex.PW-1/E : Certified Copy of the plaint of Civil Suit No.
218/2012
v) Ex.PW-1/F : Certified copy of written statement filed by
respondent no.3 in Civil Suit no.218/2012
vi) Ex.PW-1/G : Certified Copy of the statement of Testator
9. Petitioner further examined Sh. Dinesh Kumar as PW-2 and Sh. Raj Kumar as PW-3. Ld counsel for respondent no.3 duly cross-
examined PW-1 &2. PW-3 after tendering his affidavit in evidence did not appear in the witness box for cross-examination and petitioner's evidence was closed on 09.04.2019.
10. Subsequent thereto, the matter was fixed for respondent's evidence. Respondent no.3 examined himself as D3W-1 and tendered his evidence by way of affidavit Ex.D3W-1/A and relied upon the following documents:-
a) Ex.D3W-1/1 : Allotment Slip dated 20.03.1964 issued by the MCD under JJN Yojna
b) Ex.D3W-1/2 : NCR dated 20.01.2010
c) Ex.D3W-1/3(colly): GPA dated 15.11.1978of the suit property
d) Ex.D3W-1/4(colly): Agreement dated 15.11.1978 of the suit property
e) Ex.D3W-1/5 : Receipt dated 15.11.1978 of Rs.300/-
f) Ex.D3W-1/6 : Receipt bearing no.70207 dated 03.10.1981 g) Ex.D3W-1/7 : Receipt bearing no.130311 dated 26.10.1981 h) Ex.D3W-1/8 : Receipt bearing no.622072 i) Ex.D3W-1/9 : Copy of EPIC PC No.47607/15 Page 6 of 13 ADJ-01/NE/KKD/Delhi
11. Ld. Counsel for plaintiff duly cross-examined defendant.
Defendant's evidence was closed on 24.02.2020.
12. Subsequent thereto, the matter was fixed for final arguments which were addressed on behalf of plaintiff and respondent no.3.
13. The court perused the suit file with the assistance of Ld. Counsels for petitioner and respondent no.3 and gave its considered thoughts to the submissions made by Ld. counsel for petitioner and respondent no.3 and also went through the written arguments filed on their behalf. Petitioner placed reliance upon the following judgments :-
a) Janki Narayan Bhoir vs. Narayan Namdeo Kadam (2002) 12 SC CK 0087.
b) Chiranjilal Shrilal Goenka (deceased) Thr: LRs vs. Jasjit Singh & Ors. (1993) 03 SC CK 0052.
c) Ishwardeo Narain Singh vs. Smt. Kamta Devi & Ors. (1953) 02 SC CK 0007.
14. The Issue-wise findings of the court on the issue framed are as under :
Issue no.1 : Whether Late Raj Kumari executed any legally valid WILL dated 15.12.2012 in favour of the petitioner? OPP
a) The onus of proof of both this issue was fixed on petitioner.
Respondent no.3 argued that petitioner failed to produce any title documents executed in favour of Late Raj Kumari with regard to the suit property. On the other hand, he proved his ownership and possession of the suit property by leading evidence. On this aspect, the court finds specific assertion of Late Raj Kumari in the suit filed against respondent no.3 being CS No. 756/2016 as disclosed in the plaint Ex.PW-1/E that PC No.47607/15 Page 7 of 13 ADJ-01/NE/KKD/Delhi she had purchased the suit property in the year 1969 from her own funds and savings from erstwhile owner Sh. Birju for a sale consideration of Rs.500/- and thereafter the property was developed and built till 1 st Floor. Respondent no.3 in the written statement stated that he bought the property in 1980 against the sale consideration of Rs. 700/- but in the present petition he stated that he bought the same in 1978 for Rs.300/-. Also, respondent no.3 did not file any title document in the said suit claiming that the documents were misplaced and a report vide NCR No.111/2010 Ex. D3W-1/2 was lodged. However, on perusal of the NCR Ex D3W-1/2, it is revealed that the nature of misplaced documents is not mentioned. It is further on record that respondent no.3 in cross examination did not mention the details of documents lost by him in 2010. Respondent no.3 failed to explain in what manner he retrieved the said documents and who was in possession of the same. further, respondent no.3 failed to prove the said title documents in accordance with law. Ld. Counsel for plaintiff took valid objection as to the mode of proof of all exhibited documents by defendant in his evidence.
Be that as it may. It is well settled legal proposition that in the probate petition the title of the property is not required to be proved or is adjudicated and the court is required to adjudicate only on the genuineness and validity of the WILL. (Ref: Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. ; Ishwardeo Narain Singh Vs. Kamta Devi & Ors. ; Sheoparsan Singh Vs. Ramnandan Prasad Singh (supra).
15. Let us first discuss the relevant legal position regarding proof of WILL. WILL as defined under section 2(h) of the Indian Succession Act means "the legal declaration of the testator with respect to his property which he desires to be carried into effect after his death".
16. Now dealing with the core issue i.e., whether or not the WILL PC No.47607/15 Page 8 of 13 ADJ-01/NE/KKD/Delhi Ex. PW-1/B was executed by Late Raj Kumari legally and validly in a sound disposing state of mind in the presence of two attesting witnesses. It is well settled legal proposition of law that mode of proving the WILL does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a WILL by section 63 of the Indian Succession Act,1925. The onus to prove the WILL is on the propounder and in the absence of suspicious circumstances surrounding the execution of the WILL, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would be again on the propounder to explain them to the satisfaction of the court before the WILL can be accepted as genuine. In case the person contesting the WILL alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. (Ref:
Surender Pal & Ors. Vs. Dr. Saraswati Arora & Anr. ; Smt. Jaswant Kaur Vs. Smt. Amrit Kaur & Ors. ; Sridevi Vs. Jayaraja Shethy & Ors. (supra).
17. Let us now examine whether or not the WILL Ex. PW-1/B was executed by Late Raj Kumari legally and validly in a sound disposing state of mind in the presence of two attesting witnesses. Petitioner examined Sh. Dinesh Kumar, one of the attesting witnesses to the WILL, as PW-2. He deposed that Late Raj Kumari and her family were well known to him. He identified the name and thumb impression of Late Raj Kumari; his signatures and signatures of second attesting witness Sh. Alimuddin on the WILL Ex.PW-1/B. It was argued by respondent no.3 that petitioner in cross examination stated that Late Raj Kumari was illiterate and was unable to sign but at the same petitioner also stated that PC No.47607/15 Page 9 of 13 ADJ-01/NE/KKD/Delhi Late Raj Kumari had signed 3-4 papers in her presence so also PW-2 stated in cross-examination. In the opinion of the court, this discrepancy alone is not sufficient to discard the entire petition of the petitioner more particularly when petitioner and attesting witness have otherwise identified the thumb impression of Late Raj Kumari on the WILL Ex.PW- 1/B. There was no need to examine the Notary Public and scientific examination of thumb impression of Late Raj Kumari to prove the genuineness of the WILL Ex.PW-1/B as argued by respondent no.3 because PW-2 already identified thumb impression of Late Raj Kumari and of other attesting witness Sh. Alimuddin. Respondent no.3 could not highlight any other contradiction in the testimony of PWs. Accordingly, it is held that petitioner has been able to prove the WILL Ex.PW-1/B and the same was not forged or fabricated document as claimed by respondent no.3 in the absence of any corroborative evidence. No pecuniary benefit under the WILL Ex.PW-1/B has been conferred upon PW-2, thus, there is no motive for PW-2 to make a false statement in favour of petitioner. As per settled legal proposition, the examination-in- chief of PW-3 shall not be read in evidence. Even otherwise, he not being an attesting witness or his presence otherwise not being proved on record at the time of execution of the WILL Ex.PW-1/B, his testimony would not have been of any relevance.
18. The admission of presence of petitioner when the WILL Ex.PW-1/B was executed, does not vitiate the WILL. Respondent no.3 has not led any evidence to show as to how the presence of petitioner at the time of execution of the WILL was an attempt to influence or coerce Late Raj Kumari. The mere presence of a beneficiary at the time of execution of the WILL is not sufficient to create a doubt about the testamentary capacity or genuineness of the WILL (Ref: Smt. Malkhani Vs. Jamadar & Ors. AIR 1987 SC 767).
PC No.47607/15 Page 10 of 13 ADJ-01/NE/KKD/Delhi
a) Respondent no.3 in the written statement raised an objection that the WILL Ex.PW-1/B was not made in good health and sound disposition of mind. He argued that in cross examination, petitioner admitted that Late Raj Kumari was aged about 102 years at the time of her death and due to her advanced age, she was not in good health and sound mind. On this aspect, it is observed that in cross examination petitioner was suggested that Late Raj Kumari was seriously ill during the last 05 years of her life; she was not able to move or to think right or wrong for having no stable mental condition. However, no suggestions have been put to PW-2. Respondent no.3 has not filed any medical record showing unsoundness of Late Raj Kumari due to her advanced age, at the time of the execution of the subject WILL Ex.PW-1/B. There is nothing on record to suggest that Late Raj Kumari was suffering from any illness at the time of execution of the WILL Ex.PW-1/B and could not have executed the same. In the absence of any evidence to the contrary, it can be safely held that Late Raj Kumari was of sound and disposing mind, mentally alert and physically fit at the time of execution of the impugned WILL. As per own arguments of respondent no.3 regarding deposition of petitioner about Late Raj Kumari having died of her natural death without there being any illness or taking any medical treatment at the time of her death also indicate good physical and mental condition of Late Raj Kumari even at an advanced age. Further, in cross examination respondent no.3 admitted that Late Raj Kumari was never admitted in any hospital and when she used to visit Khan Market for taking medicine during the period for about one year prior to her death, she was mentally alert and sound and was capable of speaking properly and identifying the locations and all the family members and relatives. Hence, it is held that Late Raj Kumari was not suffering from any ailment or disease of such an extent so as to render her incapable to understand the nature of her property, her relations and a judgment of her own in making the PC No.47607/15 Page 11 of 13 ADJ-01/NE/KKD/Delhi disposition and she was competent to execute the WILL Ex.PW-1/B.
b) Now dealing with other arguments of respondent no.3. He argued that the WILL Ex.PW-1/B is unregistered document. Though registration of the WILL dispel the doubt as to its genuineness to the great extent . However, at the same time, registration of the WILL is not a conclusive proof. In fact, under section 17 of Indian Registration Act, it is not necessary to register a WILL for it to be valid. No evidence has been produced by respondent no.3 that this court has no territorial jurisdiction to entertain and try the present petition. Non-filing of the site plan is inconsequential in the probate petition. The objection of respondent no.3 regarding verification of plaint factually incorrect. Even otherwise failure to verify the plaint by plaintiff is merely an irregularity and it does not affect the merits of the case in any manner.
19. In view of the above, this court is of the opinion that WILL Ex.PW-1/B has been legally and validly executed by Late Raj Kumari. The surrounding circumstances do not throw any suspicion on the execution of the WILL Ex.PW-1/B. The WILL Ex.PW-1/B was made by Late Raj Kumari in sound disposing mind and the same was the last WILL of Late Raj Kumari and as such petitioner is entitled to be granted probate of the WILL Ex.PW-1/B. Issue in hand is accordingly answered in favour of petitioner.
Relief :
20. In view of the findings returned on the issue framed, as discussed above, the present probate petition, filed by petitioner, under Section 276 of the Indian Succession Act, 1925, for grant of probate of the WILL dated 15.12.2012, Ex.PW1/A, is hereby allowed. A probate certificate be accordingly issued in favour of petitioner Smt. Veena Devi, PC No.47607/15 Page 12 of 13 ADJ-01/NE/KKD/Delhi in respect of the WILL Ex.PW-1/B, executed by Late Raj Kumari, of the built-up property bearing H.No.S-57, Welcome, Seelampur-III, Delhi-53 measuring 221/2 Sq.Yds,. on her furnishing the requisite court fees and an indemnity-cum-surety bond, as per rules and as per the valuation of the aforesaid property, to be received from the concerned revenue authorities. It is hereby clarified that the right, title or interest in respect of the above mentioned immovable property bearing H.No. S-57, Welcome, Seelampur-III, Delhi-53 measuring 221/2 Sq.Yds. in favour of any of the parties has not been decided by this court, while granting the probate of the WILL dated 15.12. 2012 , Ex.PW1/B It is ordered accordingly.
File be consigned to record room, after due compliance.
Announced in the open court MONA TARDI KERKETTA
on this 4th Day of June, 2022 Addl. District Judge(NE)-01
Karkardooma Courts, Delhi.
PC No.47607/15 Page 13 of 13 ADJ-01/NE/KKD/Delhi
PC No.47607/15
Veena Devi vs. State & Ors.
04.06.2022
Present : None for the parties.
Vide separate judgment of even date, the present petition is allowed for the grant of probate of Will dated 15.12.2012 in favour of petitioner accordingly on completion of necessary formalities.
File be consigned to record room after due compliance.
MONA TARDI KERKETTA ADJ01/NE/KKD/DELHI 04.06.2022 PC No.47607/15 Page 14 of 13 ADJ-01/NE/KKD/Delhi