Delhi District Court
) Sh. Ajnesh Kumar vs ) The State (Govt. Of Nct Of Delhi) on 22 November, 2018
IN THE COURT OF SH. HARGURVARINDER SINGH
JAGGI, ADDL. DISTRICT JUDGE02: SOUTHWEST
DISTRICT: DWARKA COURTS:NEW DELHI
P.C No. 68/2016
1) Sh. Ajnesh Kumar
S/o. Late Sh. Samey Singh Ahlawat
R/o. H.No. 100A
Village Bindapur, New Delhi
2) Manoj Kumar
S/o. Late Sh. Samey Singh Ahlawat
R/o. H.No. 100A
Village Bindapur, New Delhi ... Petitioners
VERSUS
1) The State (Govt. of NCT of Delhi)
2) Smt. Nirmala Devi
W/o Sh. Virender Singh
D/o Late Sh. Samey Singh Ahlawat
R/o WZ65/2, Sadh Nagar
PartII, Gali No. 1
Palam Colony, New Delhi
P.C. No. 68/2016
Ajnesh Kumar & Anr. v.State & Ors. Page No. 1/82
3) Smt. Munish
W/o Desh Pal
D/o Late Sh. Samey Singh Ahlawat
R/o H.No. 458, Village Loyan
Tehsil Baraut, District Meerut, U.P.
4) Smt. Prem Wati
W/o Late Sh. Samey Singh Ahlawat
R/o H.No. 100A
Village Bindapur
New Delhi ... Respondents
Date of institution of the petition : 17.01.2013 Date of arguments : 30.10.2018 Date of pronouncement : 22.11.2018 JUDGMENT
1. The petitioners namely, namely, Ajnesh Kumar and Manoj Kumar are the propounders of the will dated 05.08.2008 (hereinafter "the will") of their deceased father namely, Samay Singh and have preferred a petition under Section 276 of the Indian Succession Act, 1925 (hereinafter "the Act") for grant of probate with regard to the will as per which the petitioners are entitled to the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 2/82 estate of their deceased father.
2. At the outset, this court observes that in the will under question no executor has been appointed. Section 222 of the Act provides that probate can only be granted to an executor appointed by the will. During the course of arguments on 30.10.2018 it has been admitted by the counsel for the petitioners that no executor has been appointed in the will by the testator (father of the petitioners herein). Accordingly, probate cannot be granted.
3. However, Section 232 of the Act provides that when deceased has made a will, but has not appointed an executor, or deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee can be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate. It is Section 278 of the Act which deals with the applications for Letters of Administration. The petitioners before this court are the beneficiary under the will dated 05.08.2008. Accordingly, P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 3/82 by virtue of Section 232 read with Section 278 of the Act, the present petition is treated under Section 278 of the Act - See Sanjay Suri v. State & Ors.1
4. The factual matrix leading to the filing of the present petition are that Late Samay Singh died testamentary on 31.03.2009 at House No. 100A, Bindapur, Uttam Nagar, New Delhi110059 leaving behind the closed relatives, as per Annexure 'B' to the petition, a widow, Prem Wati; two sons namely, Ajnesh Kumar, Manoj Kumar and two daughters namely, Munish and Nirmala Devi. The schedule of properties have been detailed in Annexure 'C' of the petition as following:
S.No. Particulars Market value
1. Plot of land admeasuring As per government 210 sq.yds. situated at circle rate.
village Bindapur, New Delhi.
2. Plot of land admeasuring As per government 400 sq.yds. DBlock, Pratap circle rate. Garden, village Bindapur, New Delhi.
The petitioners have averred in their petition that their deceased father during his lifetime acquired the above 1 2003 (71) DRJ 446 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 4/82 mentioned properties from his own income sources. Further, their father on 05.08.2008 in perfect state of physical and mental health, without any pressure, influence bequeathed the above properties in favour of the petitioners by way of will.
5. The present petition has been filed by the sons seeking probate of will dated 05.08.2008. Objections to the probate petition have been filed on behalf of the daughters of Late Samay Singh, sisters of the petitioners herein, who have been impleaded as respondent Nos. 2 and 3.
6. The sisters contend that their father during his lifetime acquired the above mentioned properties. It is an admitted case of the respondent Nos. 2 and 3 sisters that the petitioners are residing at one of the properties i.e. House No. 100A, village Bindapur, Delhi. The respondent Nos. 2 and 3 have also averred in their objections by way of reply that certain part of the said property has also been given on rent by the petitioners and the monthly rent is being collected by the petitioners from the tenant.
7. In paragraph 'B' under the heading brief facts, the respondent Nos. 2 and 3 have averred that the House No. 100A, village Bindapur, Delhi is an ancestral property P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 5/82 and the respondents have an equal share in the property being legal heirs of their deceased property.
8. The respondent Nos. 2 and 3 have also stated in their objections in paragraph 'D' under the heading brief facts that their father also owned an agricultural land admeasuring 2Kila situated at village Galampur, New Delhi and the same is under cultivation on contract / lease basis for a sum of ₹80,000/ (Rupees Eighty thousand only), which was duly collected by the petitioners and sometime in the year 2010, the petitioners gave ₹88,000/ (Rupees Eighty eight thousand only) to the respondents.
9. The respondents have averred in their objections / reply that subsequent to the death of their father, the agricultural land situated at village Galampur, New Delhi is an ancestral property and the same has been mutated in the revenue records in the names of the petitioners and the respondents.
10. The respondent Nos. 2 and 3 also averred in their objections / reply that the petitioners were not attached with their father and the petitioners were residing separately from their father in the same premises. The petitioners were hated by their father (deceased testator).
11. Further, the respondent sisters in their response had also P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 6/82 averred that in the year 2012, a suit for permanent and mandatory injunction titled as, Smt. Nirmala Devi v. Smt. Premwati & Ors. - C.S. No. 130/2012 was preferred by the respondent No. 2 sister against the mother (respondent No. 4 herein) and brothers (petitioners herein)2. It is observed that the petitioners in their written statement took up the defence that the will in question i.e. will dated 05.08.2008 had been bequeathed in their favour. It is further observed that the petitioners herein in their petitition have urged that the aforesaid suit was disposed of by order dated 21.08.2012 in view of the statement given by the petitioner that the petitioner would not created any third party interest until the probate has not bee granted by the competent court of law3.
12. The respondent Nos. 2 and 3 averred that the petitioners being the propounder of the will have preferred the probate petition only after the above said suit was filed by the respondent sisters against the mother and the petitioners. The respondent Nos. 2 and 3 also contended that the will is a forged will merely for the reason that if their father had to give the properties to the petitioners, as per the will, their father could have mentioned all the 2 (Written Statement / Reply by Respondent No. 2 and 3 para 1. J) 3 (Petition para 7) P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 7/82 properties, there was no need and occasion to exclude the agricultural land situated at village Galampur. The very fact that the purported will is forged and fabricated, as the same is made only after the mutation of agricultural land in village Galampur in favour of the petitioners and the respondent Nos. 2 and 3 and thus the said agricultural land at village Galampur had been knowingly excluded by the petitioners during the time of forging and fabricating the will.
13. The respondent sisters have averred in their reply / objections to the petition that the impugned will is a forged and fabricated will and their father died intestate. Further, the signatures on the will in question are not of their father as the same are different from his original signatures.
14. The respondent sisters have also averred in their objections that their father was suffering from various diseases and was not only weak to take decisions but also not of sound mind to understand the conversations and in a position to read and write.
15. In short, the respondent Nos. 2 and 3 have objected to the grant of probate / letters of administration by the petitioners on the basis that one out of the two properties P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 8/82 is an ancestral property and the second property being selfacquired property of Samay Singh (deceased), no partition has been effected amongst the petitioners, respondent Nos. 2, 3 and 4. Their father died intestate and the will set up by the petitioners is forged and fabricated.
16. Pursuant to the filing of rejoinder by the petitioner to the objections filed by the respondent Nos.2 and 3, the following issues were framed on 04.01.2014:
"1. Whether the will dated 05.08.2008 was legally and validly executed by deceased Samay Singh in sound state of health and mind?
2. Relief."
17. The parties to the proceedings adduced their evidence in light of the above framed issue.
18. The petitioners in order to discharge the onus of issue No.1, examined themselves as PW1, PW2 and the attesting witnesses to the will dated 05.08.2018 namely, Jasram PW3 and Mir Singh PW4.
19. Apart from filing of their evidence by way of affidavit Ex.PW1/1 and Ex.PW2/1 towards their evidence, the petitioners relied upon the following documents:
(i) death certificate of deceased testator Samay Singh P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 9/82 (Ex.PW1/A), and
(ii) original will dated 05.08.2008 (Ex.PW1/B).
20. The petitioners have deposed in their affidavits Ex.PW1/1 and Ex.PW2/1 that their testator father was in a sound disposing mind at the time of signing the will in question and who without any pressure, influence signed the will and the same is the last will and had not been revoked during his lifetime. PW1 and PW2 deposed that the will was signed by the testator in the presence of the attesting witnesses.
21. Ajnesh Kumar (PW1) stepped into the witness box and tendered his examinationinchief by way of affidavit - Ex.PW1/1 and relied upon the two documents - death certificate of Samay Singh Ex.PW1/A and the will of Samay Singh dated 05.08.2008 Ex.PW1/B stated to be duly executed and attested by two witnesses Jas Ram and Mir Singh.
22. On being crossexamined by Ld. counsel for respondent Nos. 2 and 3, PW1 stated that his father was an Army person and after retirement he joined DTC as a driver. PW1 stated he did not remember when his father left the job of DTC.
23. PW1 stated that the will Ex.PW1/B was prepared by his P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 10/82 father in his presence and the was reduced into writing by his uncle namely, Jasram Singh. PW1 further stated that he was not doing any work at the time of execution of the will. PW1 further stated that the will was prepared by his father in presence of his uncle namely, Mir Singh, Jasram, his mother, brother Manoj Ahlawat and himself in the morning but he cannot exactly state the time.
24. PW1 stated that his uncle Mir Singh came to their house in the morning and thereafter another uncle Jasram Singh also came, thereafter his father also called him and his brother.
25. PW1 during his crossexamination stated that his father did not disclose the reason for executing the will. PW1 stated that earlier the will was in possession of the his father and thereafter it came in possession of his mother. PW1 further stated that he was not aware till what time the aforesaid will Ex.PW1/B remained in possession of his mother. PW1 stated that when his sister filed cases against him, his brother and mother then his mother handed over the will to me. PW1 stated that he did not disclose about the execution of the will to any other relative.
26. PW1 stated that the agricultural land was not partitioned P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 11/82 till the lifetime of his father and the same was mutated after the death of his father in the revenue records in favor of all the LRs of his father. PW1 admitted that he did not go to the office of Tehsildar for mutation purpose. PW1 denied the suggestion that his brotherinlaw namely, Virender, brother and mother went at the office of Tehsildar for mutation purpose.
27. PW1 stated that his mother is receiving the earning of agriculture land but he is not aware about the amount of earnings pertaining to the agricultural land. PW1 stated that we have two tenants at their residential accommodation but he does not know the names of the tenants. PW1 admitted that he does not know the amount of rent being received by the mother from tenants. PW1 stated that his mother resides with his younger brother and both the brothers reside separately.
28. PW1 stated that no tenant with the name Sadabrij is residing at our residential accommodation. PW1 furtehr stated that Sadabrij resides in front of his house.
29. PW1 admitted that his father was a pensioner and now his mother is getting his pension. PW1 stated he does not know who is in the possession of the pension book (PPO) of his father. PW1 admitted that there is no mention of P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 12/82 the agriculture land in the will Ex.PW1/B. PW1 also admitted that the father's name of the attesting witnesses namely, Mir Singh and Jasram is not mentioned in the said will.
30. As on 11.08.2015 i.e. date of further crossexamination of PW1, PW1 stated that the respondents have not filed any case against him. PW1 further stated that he is not aware whether respondent Nirmala had filed a suit for permanent injunction against him, mother and brother.
31. PW1 stated that his mother handed over the will to him after the death of his father, approximately fifteen days after the death of his father. PW1 further stated that since the will was prepared in the presence of his mother, uncles and his brother namely, Manoj, the relatives were known about the execution of the said will. PW1 further stated that he did not tell about the will to his sisters and brotherinlaw, however the said fact was disclosed by his mother to the aforesaid person. PW1 further stated that the said fact was disclosed by his mother to the aforesaid person when the will was handed over to PW1 by his mother.
32. With regard to the letting out of rooms to the tenant, the PW1 in his crossexamination stated that his father had P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 13/82 let out three, four room. PW1 further stated that after the death of his father, PW1 and his brother used to collect the rent of the subject property. Since property was partitioned, therefore, his brother and himself i.e. PW1 were collecting the rent as per their share. PW1 stated that now days, there is no tenant residing in the subject property. PW1 stated that one Sachin and Santosh were residing in his share of the subject property. PW1 admitted that he does not know the names of the tenant who were residing in the share of his brother's portion.
33. PW1 stated that no person with the name Sada Brij resided in his portion of the subject property. PW1 further stated that since Sada Brij was never a tenant of his, therefore no quarrel took place, however, there was a quarrel which took place with his brother.
34. PW1 denied the suggestion that Sada Brij was a tenant of his sister, Nirmala Devi. PW1 stated he does not know, if there was any dispute regarding tenancy between Sada Brij and Nirmala Devi. PW1 further stated that he is not aware about Nirmala Devi having filed a civil suit against Sada Brij.
35. PW1 denied the suggestion that he along with his brother went to the police station for compromise with P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 14/82 Sada Brij and promised that we will not evict or disturb the possession of Sada Brij, who was tenant of Nirmal Devi.
36. On a specific question being put to PW1 with regard to the compromise/settlement between the families on 14.08.2011. PW1 answered that there was a settlement between him and his brother but he was not confirm about the date. PW1 stated that the said compromise took place in the presence of his brotherinlaw namely, Virender and Sada Brij (neighbour). PW1 admitted that his brotherinlaw used to visit the subject property. PW 1 denied that his father used to hate PW1 and his brother and all the important decisions were taken by the father in the presence of the brotherinlaw.
37. PW1 denied the suggestion that he was abroad when his father fell ill. PW1 further denied the suggestion his father used to remain sick and also denied the suggestion that his father was admitted in the hospital for several time. PW1 denied the suggestion that his brother and himself had stolen father's money and father did not accompanied them while taking pension from department. PW1 admitted that his mother was a party in the present suit.
P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 15/8238. PW1 stated that the compromise dated 14.08.2011 between PW1 and his brother may have been filed on record by his counsel. The court observed during the crossexamination of PW1 that the compromise dated 14.08.2011 not on record. PW1 stated that when the compromise dated 14.08.2011 was executed between the parties then copy of the same was given to both of them and original was taken by PW1's mother in her presence.
39. PW1 stated that there was no reason for not filing the probate petition after the five years of death of the father. PW1 admitted that after filing of a suit for permanent injunction by his sister against him and his family members, the present suit (sic) was filed.
40. PW1 denied the suggestion that the will not being registered is a forged will. PW1 denied the suggestion that his father was not in conscious while executing the will and was not in condition to write his name or his signatures. PW1 denied the suggestion that PW1's father debarred him from his properties.
41. PW1 denied the suggestion that PW1 and his brother had forged the present will for grabbing the share of their sisters in the subject property.
P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 16/8242. Manoj Kumar (PW2) stepped into the witness box and tendered his examinationinchief by way of affidavit - Ex.PW2/1 and relied upon the two documents - death certificate of Samay Singh Ex.PW1/A and the will of Samay Singh dated 05.08.2008 Ex.PW1/B stated to be duly executed and attested by two witnesses Jas Ram and Mir Singh.
43. On being crossexamined, PW2 stated that he was at home when the will Ex.PW1/B was prepared at about 7:008:00a.m. PW2 further stated that his uncles - Jasram and Mir Singh, brother - Ajnesh Singh and mother were present when the will was prepared. PW2 stated that his father was an employee of DTC and he was well versed with reading and writing.
44. PW2 admitted that his sister Nirmala had filed a suit for permanent injunction against his family members before filing of the present probate petition. PW2 denied the suggestion that since his sister had filed the case against the family members, we have filed the present probate petition on the basis of false and fabricated will.
45. PW2 admitted that in the will there is mention of two properties measuring 400 sq.yds. and 210 sq.yds. PW2 also admitted that an old house was constructed on the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 17/82 land measuring 400 sq.yds. and some fresh construction was carried out by his father. PW2 denied the suggestion that the husband of his sister Nirmala participated in the construction work. PW2 denied the suggestion that her sister Nirmala's husband has constructed upon the said land at the instance of PW2's father.
46. PW2 stated that both the properties have 810 rooms.
PW2 denied the suggestion that 8 rooms were let out to the tenants at the time of execution of will.
47. PW2 denied the suggestion that Sadavariksh (sic) has tenanted portion approximately measuring 110 sq.yds. PW2 admitted that Sadavariksh(sic) was tenant in the subject property. PW2 denied the suggestion that his sister Nirmala had taken her share in the subject property and Nirmala had let out her portion to Sadavariksh (sic).
48. PW2 denied the suggestion that his father Samay Singh had fallen from the staircase and as a result of which were admitted to hospital at Vikas Puri. PW2 admitted that his father was admitted in Kalra Hospital but denied the suggestion that he was in Singapore at the time of his father hospitalization at Kalra Hospital. PW2 further denied the suggestion that he did not go to see his father in the hospital as he had gone to Singapore and Bangkok P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 18/82 for holiday purpose. PW2 voluntarily stated that he had gone to Bangkok for official purpose.
49. PW2 further stated that all the medical bills with regard to treatment of his father were borne by his brother and PW2 himself. PW2 denied the suggestion that the husband of her sister Nirmala had paid the medical bills of his father. PW2 further denied the suggestion that his other sister namely, Munish had paid a sum of ₹50,000/ to Nirmala's husband and thereafter Nirmala's husband paid the said amount for their father's medical bills.
50. PW2 during his cross examination stated that he was not aware about the particular date i.e. 14.08.2011 when the settlement was arrived. However, PW2 admitted that there was a settlement arrived between his brother and himself with regard to two properties measuring 400 sq.yds and 200 sq.yds(sic). PW2 further admitted that his brotherinlaw Virender Singh and Sadabrij, neighbour, were also present when the said settlement was arrived between his brother and PW2 himself. PW2 stated that the said settlement is in possession of his mother and the same can be produced before this court. PW2 admitted that his mother is living with him.
51. PW2 under cross examination stated that the ancestral P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 19/82 agricultural land is also situated at Village Galibpur(sic), Delhi. PW2 further stated that the said land has also been partitioned amongst all the family members i.e. his mother, brothers and sisters after the death of his father. PW2 stated that he is not aware about the exact date, month and year when the said agricultural land was partitioned.
52. PW2 stated that the agricultural land was partitioned in the presence of his brother, sisters and also in the presence of his brotherinlaw namely, Virender. PW2 further stated that the said agricultural land has been leased out to a person who is also resident of same village and the income from the said agricultural land is about ₹40005000/ per year.
53. PW2 stated that he has one fourth share in the said agricultural land and the said agricultural land is about measuring around two killa(sic). All the share holders(family members) took their share from the total earning of ₹40005000/ per year.
54. PW2 admitted that the petitioners have filed a rejoinder to the objections filed by the respondents and in the said rejoinder, in para No.G, the petitioners have mentioned that their father had partitioned the agricultural land in his P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 20/82 life time. PW2 denied the suggestion that his father had also partitioned the properties measuring 400 sq.yds and 210 sq.yds. in favour of all family members i.e. brothers and sisters during his life time. PW2 further denied the suggestion that he had mentioned in his evidence that his brotherinlaw namely, Virender was present at the time of mutation as well as partition of properties and therefore, no question arises that his father would have illwill towards Virender Singh.
55. PW2 denied the suggestion that his brother during the lifetime of his father Samay Singh was living separately. PW2 under cross examination stated that his father used to go to his office for collecting his pension and PW2 used to occasionally go with his father for receiving the said pension.
56. PW2 denied the suggestion that his father was so weak that he was unable to walk alone and therefore, PW2 used to accompany his father for receiving the pension.
57. PW2 also denied the suggestion that his father was not in good sound disposing mind at the time of execution of the will. PW2 further denied the suggestion that the signature of his father on the will and the signature of his father on the pension documents are not similar.
P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 21/8258. The petitioners also got examined PW3 Jas Ram and PW4 Mir Singh, who deposed that they are the attesting witnesses of the execution of will and in their presence, the will Ex.PW1/B was executed by Late Samay Singh. They further deposed that deceased testator Samay Singh was having sound disposing mind at the time of execution of the will.
59. Jas Ram PW3 tendered his examinationinchief by way of affidavit Ex.PW3/A and deposed that he is the real elder brother of Samay Singh (deceased) and the will dated 05.08.2008 Ex.PW1B bears his thumb impression.
60. On crossexamination, PW3 stated that his brother Samay Singh post his retirement from Army was employed with DTC. PW3 further stated that the deceased testator had given the share of his property to the petitioners during his lifetime. PW3 denied the suggestion made by Ld. counsel for respondent Nos. 2 and 3 that the respondent Nos. 2 and 3 were taking care of Samay Singh. PW3 further stated that though he does not remember the exact date when the will in question was executed by Samay Singh but it was prepared in the year 2008.
61. Further, PW3 on being crossexamined stated that the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 22/82 will was prepared in the morning as per his approximation between 7:00 am and 8:00 am. PW3 stated that he lives at distance of around 1Km away from the house of his brother - Samay Singh and Manoj came to his house to call him for the preparation of some documents. PW3 denied the suggestion that since partition of property took place there was no need of execution of will. PW3 voluntarily stated that the partition of the property took place between the brothers of Late Sh Samay Singh and not amongst his sons. PW3 further stated that he had never heard or had any information that his elder brother Samay Singh had ever been admitted in hospital except prior to his death i.e. approximately 7 days before his death. PW3 denied the suggestion that the will in question is a forged document and the same was prepared to avoid giving the share to the daughters of Samay Singh. PW3 further denied the suggestion that his elder brother Samay Singh had already given the share to her daughter Nirmala (sic) and Nirmala kept the tenant in the property.
62. Mir Singh PW4 tendered his examinationinchief by way of affidavit Ex.PW4/A and deposed that he is the real elder brother of Samay Singh (deceased) and the will P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 23/82 dated 05.08.2008 Ex.PW1B bears his thumb impression at point 'B' on the said will.
63. On being crossexamined by Ld. counsel for respondent Nos. 2 and 3, PW4 stated that he lives in the adjoining house of the petitioner No.1. Samay Singh had joined the Army and post his retirement from the Army worked with DTC. PW4 further stated that the will was prepared in the morning at about 8 to 9 a.m. and at the time of execution of the will he was present at the house of Samay Singh. PW4 stated that at that time Samay Singh alongwith his wife and two sons and brother namely Jas Ram were present. PW4 further stated that the contents of the will were read over by Jas Ram(PW3) to him. PW4 further deposed that PW3 reached the residence of deceased testator - Samay Singh after his arrival and it took 1520 minutes to write and read the said will.
64. PW4 denied the suggestion that one Sada Briksh was residing as tenant in the property of Samay Singh for a period of 15 years. PW4 further denied that Sada Briksh was tenant of Nirmala (respondent No.2).
65. PW4 stated that on the date of cross examination i.e. 09.08.2016 he was not aware about the contents of the will. PW4 answered in affirmative that he suffers from P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 24/82 hearing impairment. PW4 clarified that he has hearing problem for the last 23 years. PW4 deposed that his brother Samay Singh did not have ill will towards his wife. PW4 further deposed that his brother Samay Singh did not mention to him that he was not going to give any property to his wife. PW4 deposed that he is not aware whether partition of agricultural land situated at Galampur between Samay Singh, his sons and daughters or not. PW4 denied the suggestion that Samay Singh did not consult him in respect of family affair. PW4 further denied the suggestion that the Bindapur house was partition between the sons and daughters of Samay Singh equally. PW4 denied being aware about the tenants of property of Samay Singh. Lastly, PW4 deposed that he does not remember since when his brother Samay Singh was not well.
66. The respondent Nos. 3 and 2 in order to contest the grant of letters of administration and prove their defence, examined themselves as RW1 and RW2, who tendered their affidavits as Ex.RW1/A and Ex.RW2/A respectively. The respondent Nos. 2 and 3 also examined one Sadabriksh @ Birju as RW3. The respondent Nos. 2 and 3 did not file any document in support of their P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 25/82 objections.
67. The respondent No. 3 namely, Smt. Munesh deposed as RW1 and tendered her examinationinchief by way of affidavit. RW1in her chiefexamination deposed that she got married on 10.04.1987 about 30 years ago and her deceased father used to love her and often visit her house
- matrimonial house and even the petitioners used to visit her at her residence.
68. RW1 deposed that her deceased father initially worked with Indian Army and thereafter as a driver with DTC. RW1 further deposed that the signatures on the will are forged and fabricated, as she had seen the signature of her father on the letters when he used to send from his service of army.
69. RW1 further deposed that in the year 2007, her father was suffering from illness and was not able to do anything. RW1 on being informed about the illness of her father, visited her parental home and found that the voice of her father was slow and he looked like, he had lost his sense.
70. RW1 further deposed that on one of the visit to her matrimonial home, her father Samay Singh told her that his sons (petitioners) were not under his control and they P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 26/82 quarrel with him and even beat and abuse him without any cause and reason and his life is hell due to the behavior of the petitioners.
71. RW1 further deposed that her father told her about his decision to partition the lands i.e. agricultural land, as well as dwelling property amongst all his legal heirs - daughters, brother and mother.
72. RW1 further deposed that her father told her that he had partitioned the property amongst his legal heirs and had give share to Nirmala Devi from the dwelling house as per his wish and even RW1 can take her share from dwelling house and the said decision was taken by the consent of the petitioners.
73. RW1 further deposed that after the demise of her father Samay Singh, the petitioners have turned away from the decision of her father and in order to deprive the RW1 from her legal right and decision of her deceased father, the petitioners have forged and fabricated the will in question.
74. RW1 deposed that after the demise of her father Samay Singh, the petitioner had come to her residence but the petitioner did not whisper about the alleged will. RW1 was informed about her father being admitted to the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 27/82 hospital and RW1 participated in the last rites of her father but no one told her about the alleged will and the alleged will is prepared by the petitioners after demise of her father Samay Singh and his signatures have been forged upon the will.
75. During crossexamination RW1 stated that she is 5th class pass and knows slightly to read English. The contents of her affidavit Ex.RW1/1 were over to her in vernacular language by her counsel. RW1 admitted that her affidavit - Ex.RW1/1 was not attested by her in the court complex or out of the court. RW1 further admitted that she did not sign the register of the oath commissioner in the court complex, though the affidavit was prepared in the court complex but RW1 does not remember when it was prepared by her counsel.
76. RW1 in her crossexamination stated that she has good family relations with her sister (respondent No. 2 herein). RW1 admitted that she has not filed any document alongwith her reply/written statement,
77. RW1 in her crossexamination further stated that she does not remember when her father - Samay Singh retired from the Army but it was prior to her marriage. RW1 in crossexamination stated that she does not P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 28/82 remember when her father resigned from his job with DTC. RW1 stated that she does not know in which month of the year 2007, her father suffered from illness. RW1 also stated that she do not know the name of the hospital where her father was admitted in the year 2007.
78. During the crossexamination, RW1 admitted that she has not filed any document with regard to the medical treatment of her father and at which hospital her father was hospitalized in the year 2007. RW1 stated that her father was hospitalized around 510 days in the year 2007 on account of fracture in the hips. RW1 further stated that she does not remember when she got to know for the first time about the will dated 05.08.2008 Ex.PW1/B but the will was not executed by her father.
79. RW1 in crossexamination admitted that on 05.08.2008 her father was keeping sound physical and mental health. RW1 also admitted that her share in the agricultural land belonging to her father has already been mutated in her name. The mutation was done after the demise of her father. RW1 in crossexamination denied receiving the rent from the tenants of agricultural land. RW1 admitted that she is in possession of the agricultural land.
80. RW1 admitted that she has not filed any case before P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 29/82 police or court against the will dated 05.08.2008 (Ex.PW1/B). RW1 stated that the signatures on Ex.PW1/B are not of her father. RW1 denied that her father Samay Singh executed the will Ex.PW1/B in presence of witnesses, Jasram and Mir Singh.
81. RW1 denied for want of knowledge whether her brother inlaw namely, Virender Kumar (husband of Nirmala Devi - respondent No. 2 herein) was present when the plot admeasuring 400 sq.yds. and 210 sq.yds. was partitioned between Ajnesh and Manoj on 14.08.2011 after executed (sic) the present will. RW1 denied the suggestion that her mother is residing with the petitioner. RW1 voluntarily stated that her mother is residing separately. RW1 also denied the suggestion that the petitioner are maintaining to my mother (sic). RW1 denied the suggestion that the signatures on the will Ex.PW1/B are of her father and that she is deposing falsely.
82. The examinationinchief of Smt. Nirmala Devi (RW2) by way of affidavit is more or less verbatim the same to that of RW1. However, RW2 did depose that in the year 2007, her father was suffering from illness and as per his decision, the four rooms were given to her and since then P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 30/82 RW2 has let out the four rooms on rent for a monthly rent of ₹10,000/ (Rupees Ten thousand only) to one Sada Brikhsa.
83. RW2 deposed that her father died on 31.03.2009 and suffered from various ailments and had lost sense much prior to his death. RW2's father was admitted in the hospital and all the expenses were borne by the husband of the RW2.
84. RW2 deposed that the petitioners being her brother used to collect the rent of her four rooms and used to give her, as per their convenience. RW2 further deposed that an amount of ₹88,000/ (Rupees Eighty eight thousand only) was paid to her from income of agricultural land in the year 2010. RW2 further deposed that the agricultural land admeasuring 2Kila situated at villahe Galampur, Delhi also has been partitioned and her name along with her sister's name - Munesh is mentioned in the khatoni of the said land.
85. RW2 deposed that the dwelling properties -
admeasuring 210 sq.yds. and 400 sq.yds. situated at Bindapur were the selfacquired properties of her father. The petitioners wanted to sell the said properties and RW2 filed a suit for permanent and mandatory P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 31/82 injunction - Suit No. 130/12 against the petitioners and during the proceedings, the petitioners herein made their statement that they would not create third part interest into said property.
86. RW2 deposed that when her tenant stopped paying rent to her due to the petitioners, RW2 had to file a suit No. 35/15 for eviction and it was then that the said tenant made his statement before the concerned court that he will pay the rent to RW2.
87. This court observes that neither RW2 nor the tenant, who stepped in the witness box as RW3 did place on record any document with regard to the legal proceedings in Suit No. 35/15.
88. RW2 deposed that the will in question is forged and fabricated, as per the forged will the dwelling property was bequeathed by her father only to the petitioners, whereas her father was always worried about RW2's mother. RW2's mother is in the clutches of petitioners and she has to do what the petitioners say otherwise the petitioners beat her.
89. During the crossexamination, RW2 stated that she 7th class pass and she do not know how to read and write English. The contents of her affidavit Ex.RW2/A were P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 32/82 read over to her by her counsel.
90. RW2 in crossexamination stated that the petitioners in the year 2007 used to quarrel with her father. RW2 admitted that it was not mentioned in her affidavit Ex.RW2/A that the petitioners used to fight and quarrel with her father. RW2 also admitted that she had not given any complaint before any authority regarding the fights, as well as beating given to her father by the petitioners. RW2 further admitted that her father had also not given any complaint against the petitioners regarding the fights and beatings given to him by the petitioners.
91. RW2 admitted that she has not filed any document alongwith her WS. RW2 also admitted that she has not filed any documents with regard to the illness of her father in the year 2007. However, RW2 in cross examination stated that her father was taking treatment from Kalra hospital but he was admitted there for 1520 days.
92. RW2 admitted that her father Samay Singh was of sound mind in August 2008. RW2 in her crossexamination also admitted that in the year 2009 her father was got treated by her husband but RW2 had not filed any P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 33/82 treatment record, as well as expenses of her bother borne by her husband.
93. RW2 stated it to be correct that 2 acre agriculture land was in her share and same is in her name. RW2 stated that she does not know by whom the agriculture land is cultivated.
94. RW2 stated that she is aware about the signatures of her husband. During the crossexamination, RW2 was put across one document dated 14.08.2011 with the heading 'batwara' - Ex.RW2/DA. RW2 admitted that Ex.RW2/DA bears the signature of her husband at point 'A'. RW2 further admitted that one family settlement was arrived between the petitioners on 14.08.2011, regarding the plot 210 sq.yds. and 400sq.yds. and the same were partitioned between the petitioners and at the time of settlement RW2's husband was present and signed on the settlement Ex.RW2/DA as a witness.
95. RW2 admitted that her father did not execute any documents in favour of her regearding the four rooms. RW2 also admitted that she had not filed any document pertaining to the tenancy of Sada Brij (sic) alongwith her WS.
96. RW2 denied the suggestion that Sada Ram (sic) was P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 34/82 tenant of Manoj. RW2 denied the knowledge that on 05.08.2008 her father executed any will in favour of the petitioners. RW2 denied whether Jas Ram and Mir Singh put their signatures on the will as a witness.
97. RW2 denied the suggestion that the petitioners did not harass her father. However, RW2 admitted that her mother is residing with the petitioners. RW2 admitted that there is no cordial relations with the petitioners and her mother. RW2 further admitted that in the suit property (sic) her mother and the petitioners are residing.
98. RW2 denied the suggestion that all the expenses of her mother were borne by the petitioners. RW2 voluntarily stated that her mother is getting pension. RW2 denied the suggestion that she is deposing falsely.
99. Sadabrikash @Birju (RW3) stepped in the witness box to support the objections of the respondent Nos. 2 and 3. RW3 deposed that Samay Singh was the landlord of his factory at village Bindapur and RW3's house is opposite to Samay Singh's house in the village. RW3 further deposed that he used to pay rent to Samay Singh until 2007 and thereafter Samay Singh asked him to pay the rent to Nirmala Devi (RW2) and thereafter RW3 paid rent @ ₹10,000/ from 2007 till 2015. RW3 further P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 35/82 deposed that he vacated the factory in 2015. RW3 further deposed that in the year 2008 there was a family settlement between petitioner and Nirmala Devi regarding the division of the properties of Samay Singh and RW3 was present at the house of Samay Singh. RW 3 further deposed that certain documents were prepared on that day and he signed the same. RW3 also signed certain documents executed between the family members of Samay Singh at the office of Sub Registrar in the capacity of witness. RW3 further deposed that in 2007, Samay Singh had told him that he was assigning the rent of the four rooms in RW3's possession as tenant to his daughter - Nirmala Devi on account of dispute between him and his sons.
100. On crossexamination RW3 admitted that there was no written rent agreement between Samay Singh and RW3 or between Nirmala Devi and me. RW3 denied the suggestion that he was never the tenant of Samay Singh or Nirmala Devi and it for that reason there was no rent agreement. RW3 could not recall the nature of the documents prepared at the office of the SubRegistrar, Najafgarh but stated them to be in relation to land/property.
P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 36/82101. During crossexamination, RW3 denied the suggestion that he was a tenant under petitioner - Manoj. RW3 denied the suggestion that there was a complaint at PS Bindapur regarding attempt by petitioner - Manoj to evict RW3 from the four rooms. RW3 was confronted with photocopy of undertakings dated 11.03.2015 (Ex. RW3/PX1) and 21.03.2015 Ex.RW3/PX2) and admitted his signatures at point X. RW3 stated that Ex.RW3/PX1 and Ex.RW3/PX2 were not written by him. RW3 denied that he was deposing falsely at the behest of the respondent, Nirmala Devi.
102. Since, during his crossexamination RW3 admitted his signature on two documents Ex.RW3/PX1 and Ex.RW3/PX2, Ld. counsel for the respondents was permitted to reexamine RW3. On his crossexamination by respondent, RW3 admitted that he had not read the documents Ex.RW3/PX1 and Ex.RW3/PX2 before signing the same. RW3 stated that the said documents wrongly record that Manoj was the owner/landlord of the property in question.
103. The parties filed their written submissions / arguments on 05.06.2018 and thereafter the case was listed for arguments on 24.07.2018, 23.08.2018 and 13.09.2018.
P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 37/82Ultimately, the final arguments were advanced on 30.10.2018.
104. Sh. Vikram Pawar, Ld. counsel for the petitioners advanced the case of the petitioners on the same lines of the petition that the will dated 05.08.2008 in question is a genuine will and the same has been executed and attested by the deceased testator in sound state of mind and without any pressure, duress, threat.
105. Sh. Panwar strenuously submitted that the attesting witnesses to the will in question are the real brothers of the deceased testator. Jas Ram (PW3) is the draftsman of the will, who not only wrote the vasiyat in Hindi in his own hand but also witnessed the same as an attesting witness to the will. The petitioners along with the two attesting witnesses have deposed that the deceased testator was of sound mind in August 2008. Ld. counsel further submitted that the deceased testator died natural death.
106. Sh. Prarmod Srivastav, Ld. counsel for the respondent Nos. 2 and 3 rebutted the arguments advanced by the Ld. counsel for the petitioners by launching multi prong attack on the petition and laid great emphasis that the will in question is not a genuine will and the same is a forged P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 38/82 and fabricated will. Ld. counsel stressed that the deceased testator was a government employee and further it is the duty of the propounder to dispel the doubt on genuineness of will. The very existence of the will in question, which is dated 05.08.2008 was kept under wraps by the petitioner and the respondent Nos. 2 and 3 only gained knowledge about the existence of any will by their deceased father in the year 2013 when the petitioners herein filed their written statement in the suit for permanent and mandatory injunction titled as, Smt. Nirmala Devi v. Smt. Premwati & Ors. - C.S. No. 130/2012 which was preferred by the respondent No. 2 herein against the respondent No. 4 herein (mother of the petitioners and respondent Nos. 2 and 3 herein).
107. Sh. Srivastav asserted that neither the will in question nor the petition speaks about the state of the mind of the deceased testator. Ld. counsel for the respondent further argued that no man would deprive his wife of his properties and one who does deprive would not be of sound mind.
108. Sh. Srivastav also argued that as per law a will is to be witnessed by two witnesses but a writer to the will cannot be a witness to the same will. Ld. counsel for the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 39/82 respondent Nos. 2 and 3 submitted that one of the witnesses Mir Singh (PW4) is an illiterate person, who cannot hear and read and the same has come out during the crossexamination of PW4 - Mir Singh.
109. Lastly, Sh. Srivastav Ld. counsel for the respondent Nos.
2 and 3 attacked the maintainability of the petition on the ground of limitation, as the same being time barred. Ld. Counsel submitted that the purported will in question is dated 05.08.2008 and the father of the petitioners and respondent Nos. 2 and 3 died on 31.03.2009 and the present probate proceedings were instituted by the petitioners on 17.01.2013. Thus, the probate proceedings are time barred and hit by Article 137 of the Limitation Act, 1963, as per which the period of limitation is 3(three) years when the right to apply accrues.
110. Sh. Panwar rejoined his arguments and submitted that the mother of the petitioners and respondent Nos. 2 and 3 who is impleaded as respondent No. 4, has filed her written statement / reply and has through and through supported the version of the petitioners. Their mother has neither refuted the will in question nor the devolution of properties to her sons, as per the last testament of her deceased husband. The respondent Nos. 2 and 3 failed to P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 40/82 examine the respondent No. 4 and her written statement / reply remains uncontroverted.
111. Further, the allegations leveled by the respondent Nos. 2 and 3 that their mother (respondent No. 4 herein) is under constant threat and subjected to torture by the petitioners is nothing but false. As a matter of fact, no single complaint has been lodged either by the mother - respondent No. 4 or even the respondent Nos. 2 and 3 with regard to the same allegations.
112. Sh. Panwar reiterated that both the attesting witnesses have deposed in the favor of the petitioners and against the respondents and the will in question has been duly proved by the petitioners. Mir Singh PW4, deposed that the will was written by Jas Ram PW3 and was also read over the same to him.
113. On the challenge flanked by the Ld. counsel for the respondent Nos. 2 and 3 with regard to the maintainability of the petition being time barred and hit by Article 137 of the Limitation Act, 1963, Ld. counsel for petitioners submitted that there is no single averment in the written statement / reply filed by the respondent Nos. 2 and 3 that the petition is time barred and further no shred of evidence is lead by the respondent Nos. 2 and 3 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 41/82 to the same regard. Such challenge via written arguments / submissions and oral arguments is impermissible.
114. However, Ld. counsel for the petitioners clarified that the petition preferred by the petitioners is well within the time, as the right accrued in the favour of the petitioners from the date when the suit for permanent and mandatory injunction a suit for permanent and mandatory injunction titled as, Smt. Nirmala Devi v. Smt. Premwati & Ors. - C.S. No. 130/2012 was instituted by the respondent Nos. 2 and 3 against the petitioners in the year 2012.
115. I have heard both the parties and perused the record carefully.
116. The jurisdiction of this court has been invoked by the petitioners, as the deceased at the time of his death not only resided but also had a fixed place of abode within the jurisdiction of this court. The subject properties are also situated within the territorial jurisdiction of this court.
117. The citations in terms of Section 283(1)(c) of the Act, 1925 were published in newspapers "The Statesman" on 07.02.2013 and in "Veer Arjun" on 06.02.2013. The abovesaid newspapers are on record. The notice was also P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 42/82 displayed at the notice board of the court.
118. The notice was also issued to the concerned Collector to file valuation report in response to which Asstt. Collector2nd /Tehsildar (Dwarka) has filed his report stating the value of subject properties viz., Plot of land admeasuring 210 sq.yds. situated at village Bindapur, New Delhi as ₹77,78,637/ (Rupees seventy seven lakhs seventy eight thousand six hundred thirty seven only) - whose market value is Rs.1,05,00,000/(Rupess one crore and five lakhs only) and Plot of land admeasuring 400 sq.yds. DBlock, Pratap Garden, village Bindapur, New Delhi as ₹1,48,16,135/ (Rupees one crore forty eight lakhs sixteen thousand one hundred and thirty five only)
- whose market value is ₹2,80,00,000/ (Rupees two crores eighty lakhs only).
119. The proposition of law is well settled that while deciding a petition under Section 278 or 276 of the Act, this court is acting as a probate court. The jurisdiction of the probate court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the proceedings and construction of a will relating to the right, title and interest of any other person is beyond the domain of the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 43/82 probate court - See Krishna Kumar Birla v. Rajendra Singh Lodha.4
120. What is germane for this court to decide is whether the will in question is a genuine will and whether deceased Samay Singh was of sound mind at the time of signing and attestation of the will. It is the duty of the propounder of the will to prove the will in question in accordance with law. Before this court proceeds further holding whether the will is a genuine or false, forged and fabricated will, an extremely important aspect cannot be lost sight is that the mother of the petitioners and the respondent Nos. 2 and 3 i.e. widow of Samay Singh namely, Prem Wati resides with the petitioners at House No. 100A, village Bindapur, Delhi.
121. A Constitution Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee 5 indicated the focal position in law as follows:
"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 Section 63 of 4 (2008) 4 SCC 300 5 AIR 1964 SC 529 - p.531, para 4 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 44/82 the 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 signature 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 the 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 was not free. In such a case the court would P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 45/82 naturally expect that all legitimate suspicion 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 substantial 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 of wholly or in a part near relations."
122. A will is executed to alter the ordinary mode of succession and by the nature of things the will is bound to result in either reducing or depriving the share of natural heirs. If a person intends his 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 the natural heirs P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 46/82 have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring.
123. The Apex Court in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar6 held that it is the duty of the propounder of the will to remove all the suspected features, but there must be real and valid suspicious features and not fantasy of the doubting mind.
124. In Pushpavathi v. Chandraraja Kadamba7 the Hon'ble Supreme Court held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations.
125. In Rabindra Nath Mukherjee v. Panchanan Banerjee8 the Hon'ble Supreme Court observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in 6 1995 Supp (2) SCC 664 7 (1973) 3 SCC 291 8 (1995) 4 SCC 459 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 47/82 every case of will.
126. The petitioners' witnesses have deposed in concurrence about the signing and execution of the will in the morning. The attesting witnesses to the will Ex.PW1/B are not strangers, they are the elder brothers of the deceased testator. The respondent failed to lead any evidence to discredit petitioners' witnesses.
127. On examining the deposition of Jas Ram PW3, which reads as under:
"I tender my evidence by way of affidavit which is Ex.PW3/A bears my signature at point A and B. I further rely on the document i.e. will dated 05.08.2008 already Ex.PW1/B"
128. The paragraph No. 5 of the EX.PW3/A reads as under:
"5. I say that my brother Shri Mir Singh was also signed the said WILL as an attesting witness in my presence." (sic)
129. On reading the crossexamination of PW3 by the Ld. counsel for the respondent Nos. 2 and 3 it is observed that neither the PW3 was cross examined with regard to his deposition in view of paragraph No. 5 of Ex.PW3/A nor any suggestion was put by Ld. counsel for the respondent P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 48/82 Nos. 2 and 3 with regard to the presence of the second attesting witness, as to whether the second attesting witness signed as an attesting witness in the presence of the testator.
130. This court places reliance upon the judgment passed by our Hon'ble High Court of Delhi in Ajay Kumar v. The State & Ors. - FAO No. 39/2017 dated 05.07.20189 wherein His Lordship, Valmiki J.Mehta, J., allowed the appeal under Section 299 of the Act, which challenged the impugned judgment dated 28.10.2006 dismissing the probate petition. Hon'ble High Court allowed the appeal and set aside the impugned judgment and held that the appellant had been successful in proving due execution and attestation of the will dated 17.08.1999 of late Sh. Amar Singh.
131. In Ajay Kumar's case10 though the contesting respondents did not lead any evidence whatsoever but His Lordship' delineated the provisions with regard to requirement of a valid and enforceable will under Section 63(c) of the Act and procedure how the execution of the will is proved under the provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872. 9 2014 SCC OnLine Del 2521 10 ibid.
P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 49/82132. Hon'ble High Court relied upon the ratio of the Hon'ble Supreme Court's judgment in M.B. Ramesh (Dead) by LRs v.K.M. Veeraje Urs (Dead) by LRs and Ors.11 with respect to the validity and proving of will. A will has to be executed in the manner required by Section 63 of the Act. Section 68 of the Indian Evidence Act, 1872 requires that the will is to be proved by examining at least one attesting witness. Section 71 of the Indian Evidence Act, 1872 comes to the rescue of a party who had done his best but would otherwise be let down if other means of proving due execution by other evidence are not permitted.
133. The relevant provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872 read as follows:
Section 63 of the Succession Act "63. Execution of unprivileged wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:
(a)(b) *****
(c) The will shall be attested by two 11 (2013) 7 SCC 490 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 50/82 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 acknowledgement of his signature or mark, or of 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."
Section 68 of the Evidence Act:
"68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
Section 71 of the Evidence Act:
"71. Proof when attesting witness P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 51/82 denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
134. I deem it appropriate to reiterate the relevant text of the judgment passed by Hon'ble High Court of Delhi in Ajay Kumar v. The State & Ors. - FAO No. 39/2017 dated 05.07.201812 which is as under:
"7. Before I examine the deposition of PW2 as to whether it amounts to proving of the subject Will, let me at this stage reproduce the ratio of a recent judgment of the Supreme Court in the case of M.B. Ramesh (Dead) By LRs. Vs. K.M. Veeraje Urs (Dead) by LRs and Others (2013) 7 SCC
490. In this judgment facts were more or less similar to the facts of the present case inasmuch as it was found in the case before the Supreme Court that the evidence of the attesting witness who deposed was silent as regards the issue of execution of the Will by the testator in the presence of the second attesting witness and as to whether the second attesting witness signed as an attesting witness in the 12 2014 SCC OnLine Del 2521 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 52/82 presence of the testator. The Supreme Court in the case of M.B. Ramesh (supra) however by reference to the provision of Section 68 of the Indian Evidence Act, 1872 and more particularly Section 71 of the Indian Evidence Act thereof held that the evidence must be liberally read and any shortcoming in the deposition should be cured in terms of Section 71 of the Indian Evidence Act and it should be held that the Will stands proved. Accordingly it was held in M.B.Ramesh's case (supra) that in spite of there not existing a specific deposition of the attesting witness having signed in the presence of the testator, the same can be inferred from the other evidence which is led in the case. The relevant paras of the judgment in M.B.Ramesh's case (supra) are paras 18, 19, 20, 24, 25, 26, 27, 28, 29 and 30 and which paras read as under:
18. That takes us to the crucial issue involved in the present case viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by Section 63 of the Succession Act.
Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 53/82 witness. Section 71 of the Evidence Act is another connected section "which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances", as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo Kadam and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available.
19. The relevant provisions of these three sections read as follows:
Section 63 of the Succession Act ... ... ...
Section 68 of the Evidence Act:
... ... ...P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 54/82
Section 71 of the Evidence Act: ... ... ...
20. In the present matter, there is no dispute that the requirement of Section 68 of the Evidence Act is satisfied, since one attesting witness i.e. PW2 was called for the purpose of proving the execution of the will, and he has deposed to that effect. The question, however, arises as to whether the will itself could be said to have been executed in the manner required by law, namely, as per Section 63(c) of the Succession Act.
PW2 has stated that he has signed the will in the presence of Smt. Nagammanni, and she has also signed the will in his presence. It is however contended that his evidence is silent on the issue as to whether Smt. Nagammanni executed the will in the presence of M. Mallaraje Urs, and whether M. Mallaraje Urs also signed as attesting witness in the presence of Smt. Nagammanni.
Section 63(c) of the Succession Act very much lays down the requirement of a valid and enforceable will that it shall be attested by two or more witnesses, each of whom has seen the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 55/82 testator sign or affix his mark to the will, and each of the witnesses has signed the will in the presence of the testator. As held by a bench of three judges of this Court (per Gajendragadkar J, as he then was) way back in H. Venkatachala Iyengar v. B.N. Thimmajamma, that a will has to be proved like any other document except that evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Succession Act, apart from the one under Section 68 of the Evidence Act.
xxxx xxxxx xxxxx
24. In the present case, we may note that in para 21 of his cross examination, P. Basavaraje Urs has in terms stated, "Mr. Mallaraje Urs and Smt. Nagammanni, myself and one Sampat Iyanger were present while writing the will." One Mr. Narayanmurti was also present. In para 22 he has stated that Narayanmurti had written Ext. 3 (will) in his own handwriting continuously. The fact that M. Mallaraje Urs was present at the time of execution of the will is not contested by the Defendants by putting it to PW2 that M. Mallaraje Urs was not present when the will was executed. As held by a Division Bench P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 56/82 of the Calcutta High Court in a matter concerning a will, in para 10 of A.E.G. Carapiet v. A.Y. Derderian:
(AIR p.362) " 10. .....Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all... It is a rule of essential justice".
As noted earlier the will was executed on 24.10.1943 in the office of the advocate Shri Subha Rao situated at Mysore, and was registered on the very next day at Mysore. The fact that the will is signed by Smt. Nagammanni in the presence of PW2 on 24.10.1943 has been proved, that PW2 signed in her presence has also been proved. Can the signing of the will by Smt. Nagammanni in the presence of M. Mallaraje Urs and his signing in her presence as well not be inferred from the above facts on record? In our view, in the facts of the present case, the omission on the part of PW2 to specifically state that the signature of M. Mallaraje Urs on the will (which he identified) was placed in the presence of Smt. Nagammani, and that her signature (which he identified) was also placed in the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 57/82 presence of M. Mallaraje Urs, can be said to be a facet of not recollecting about the same. This deficiency can be taken care of by looking to the other evidence of attendant circumstances placed on record, which is permissible under Section 71 of the Evidence Act.
25. The issue of validity of the will in the present case will have to be considered in the context of these facts. It is true that in the case at hand, there is no specific statement by PW2 that he had seen the other attesting witness sign the will in the presence of the testator, but he has stated that the other witness had also signed the document. He has proved his signature, and on the top of it he has also stated in the Cross examination that the other witness (Mr. Mallaraje Urs), Smt. Nagammani, himself and one Sampat Iyanger and the writer of the will were all present while writing the will on 24.10.1943 which was registered on the very next day. This statement by implication and inference will have to be held as proving the required attestation by the other witness. This statement alongwith the attendant circumstances placed on P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 58/82 record would certainly constitute proving of the will by other evidence as permitted by Section 71 of the Evidence Act.
26. While drawing the appropriate inference in a matter like this, a Court cannot disregard the evidence on the attendant circumstances brought on record. In this context, we may profitably refer to the observations of a Division Bench of the Assam High Court in Mahalaxmi Bank Limited v.
Kamkhyalal Goenka, which was a case concerning the claim of the Appellant bank for certain amounts based on the execution of a mortgage deed. The execution thereof was being disputed by the Respondents, amongst other pleas, by contending that the same was by a purdahnashin lady, and the same was not done in the presence of witnesses. Though the evidence of the Plaintiff was not so categorical, looking to the totality of the evidence on record, the Court held that the execution of the mortgage had been duly proved. While arriving at that inference, the Division Bench observed: (AIR p.62, para 11) "11. ...It was, therefore, incumbent on the Plaintiff to prove its execution and attestation according to law. It must be conceded that the P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 59/82 witnesses required to prove attestation has (sic) not categorically stated that he and the other attesting witnesses put their signatures (after having seen the execution of the document) in the presence of the executants. Nevertheless, the fact that they actually did so can be easily gathered from the circumstances disclosed in the evidence. It appears that the execution and registration of the document all took place at about the same time in the house of the Defendants. The witnesses not only saw the executants put their signatures on the document, but that they also saw the document being explained to the lady by the husband as also by the registering officer.
They also saw the executants admit receipt of the consideration, which was paid in their presence. As all this happened at the same time, it can be legitimately inferred that the witnesses also put their signatures in the presence of the executants after having seen them signing the instrument...
... There is no suggestion here that the execution and attestation was not done at the same sitting. In fact, the definite evidence here is that the execution and registration took place P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 60/82 at the same time. It is, therefore, almost certain that the witnesses must have signed the document in the presence of the executants..."
27. The approach to be adopted in matters concerning wills has been elucidated in a decision on a first appeal by a Division Bench of Bombay High Court in Vishnu Ramkrishana v. Nathu Vithal. In that matter, the Respondent Nathu was the beneficiary of the will. The Appellant filed a suit claiming possession of the property which was bequeathed in favour of Nathu, by the testatrix Gangabai. The suit was defended on the basis of the will, and it came to be dismissed, as the will was held to be duly proved. In appeal it was submitted that the dismissal of the suit was erroneous, because the will was not proved to have been executed in the manner in which it is required to be, under Section 63 of Indian Succession Act. The High Court was of the view that if at all there was any deficiency, it was because of not examining more than one witness, though it was not convinced that the testatrix Gangabai had not executed the will. The Court remanded the matter for additional evidence under its powers under Order 41 Rule 27 Code of Civil Procedure. The P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 61/82 observations of Chagla C.J., sitting in the Division Bench with Gajendragadkar J. (as he then was in Bombay High Court) in paragraph 15 of the judgment are relevant for our purpose: (AIR pp. 27071) "15 ...We are dealing with the case of a will and we must approach the problem as a Court of Conscience.
It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason o f want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr. Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent and grossly negligent in not complying with the requirements of Section 63 and proving the will as they ought to have should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not."
(Emphasis supplied) P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 62/82
28. As stated by this Court also in H. Venkatachala Iyengar and Jaswant Kaur, while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court's role in matters concerning the wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind [as observed by this Court in para77 of Gurdev Kaur v. Kaki. In the present matter, there is no dispute about these factors.
29. The issue raised in the present matter was with respect to the due execution of the will, and what we find is that the same was decided by the trial Court, as well as by the first appellate Court on the basis of an erroneous interpretation of the evidence on record regarding the circumstances attendant to the execution of the will. The property mentioned in the will is admittedly ancestral property of Smt. Nagammanni. She had to face a litigation, initiated by her husband, to retain her title and possession over this property. Besides, she could get P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 63/82 the amounts for her maintenance from her husband only after a Court battle, and thereafter also she had to enter into a correspondence with the Appellant to get those amounts from time to time. The Appellant is her stepson whereas the Respondents are sons of her cousin. She would definitely desire that her ancestral property protected by her in a litigation with her husband does not go to a stepson, but would rather go to the relatives on her side. We cannot ignore this context while examining the validity of the will.
30. In view of the above factual and legal position, we do hold that the Plaintiffs/Respondents had proved that Smt. Nagammanni had duly executed a will on 24.10.1943 in favour of the Plaintiffs, and bequeathed the suit properties to them. She got the will registered on the very next day. The finding of the Trial Court as well as the First Appellate Court on issue No. 2 was clearly erroneous. The learned Judge of the High Court was right in holding that the findings of the Trial and Appellate Court, though concurrent, were bad in law and perverse and contrary to the evidence on record.
The second appeal was, therefore, rightly allowed by him. Accordingly, P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 64/82 we dismiss the present civil appeal.
The Suit No. 32 of 1975 filed by the Respondents in the Court of Principal Civil Judge at Mandya in Karnataka will stand decreed. They are hereby granted a declaration of their title to the suit property, and for a permanent injunction restraining the Defendants from interfering with their possession thereof. In case their possession has been in any way disturbed, they will be entitled to recover the possession of the concerned property, with future mesne profits. In the facts of the present case, however, we do not order any costs."
(emphasis added)"
135. Hon'ble High Court in Ajay Kumar v. The State & Ors.
- FAO No. 39/2017 dated 05.07.201813 observed that technicalities must not come as an insurmountable obstruction to defeat a litigant and once an attesting witness is examined, and his statement if read holistically shows proof of the execution and attestation of the will then the will should be held to be proved.
136. Lastly, the challenge by the respondent Nos. 2 and 3 with regard to the petition being time barred and hit by Article 137 of the Limitation Act, 1963 (hereinafter "Limitation 13 2014 SCC OnLine Del 2521 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 65/82 Act"), even though I am in consonance with the submission made by the Ld. counsel for petitioner that neither the respondent Nos. 2 and 3 have raised the maintainability issue of the petition qua limitation in their preliminary objections to the objections / reply nor any evidence is lead with regard to the same and such practice of advancing submissions on the point of limitation at the time of final arguments is to be deprecated.
137. However, the objections being mere on the law point, I place reliance upon the judgment passed by the Apex Court in the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur,14 which addressed two questions, firstly, about the applicability of Article 137 of the Limitation Act to probate proceedings and secondly, if the same is applicable whether the petition was within time.
138. The facts before the Apex Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur,15 were that the testator Mohinder Singh Khandpur expired on 05.10.1995 and the petition under Section 278 of the Act for grant of letters of administration was filed on 07.08.2002 and therefore the same was barred by limitation. Ld. Additional District 14 (2008) 8 SCC 463 15 ibid.P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 66/82
Judge after referring to Section232 of the Act held that the cause of action in favour of Respondents 1 to 3 had already arise only when Probate Petition No. 22/1996 filed by Ms. Nirmal Jeet Kaur, Respondent No. 5 was withdrawn on 09.08.1999 and therefore the petition for grant of letters of administration filed on 07.08.2002 was filed within three years and therefore was within time.
139. The order passed by the Ld. Additional District Judge was challenged before the Hon'ble High Court of Delhi on the ground that the petition under Section 278 of the Act was hit by Article 137 of the Limitation Act as the petition was filed beyond the stipulated time.
140. The Hon'ble High Court observed that Article 137 of the Limitation Act does not apply to proceedings or grant of probate/letters of administration and the view of the Ld. Additional District Judge was correct. Kunvarjeet Singh Khandpur assailed the order of the Hon'ble High Court before the Apex Court on the premise that right to apply in terms of the Article 137 of the Limitation Act accrued when there was a dispute about genuineness of the will.
141. In paragraph No. 13 of Kunvarjeet Singh Khandpur v.
Kirandeep Kaur,16 the Apex Court observed that the 16 ibid.P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 67/82
crucial expression in Article 137 of the Limitation Act is "right to apply". Article 137 of the Limitation is clearly applicable to the petition for grant of letters of administration. The Apex Court upheld the observation of the Division Bench of the Hon'ble High Court of Delhi that in such proceedings (probate proceedings) the application merely seeks recognition from the court to perform a duty and because of the nature of the proceedings it is a continuing right.
142. The Apex Court observed that the Hon'ble High Court of Delhi referred to S.Krishnaswami v. E.Ramiah,17 and in paragraph No. 17 of the said judgment it was noted as follows:
"17. In a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. Probate or letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant 17 AIR 1 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 68/82 provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 69/82 administration as applications coming within the meaning of an 'application' under Art. 137 of the Limitation Act, 1963."
[Emphasis laid]
143. The Apex Court held that though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate of letters of administration is not covered by Article 137 of the Limitation Act. The Apex Court also observed that the same view stated in Kerala SEB v. T.P. Kunhaliumma18 is not correct.
144. The Apex Court further observed in paragraph, as under:
"15. similarly reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani.19 Para 16 reads as follows:(AIR p.270) "16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus:
(a) under the Limitation 18 (1976) 4 SCC 634 19 AIR 1983 Bom 268 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 70/82 Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 71/82 becomes necessary to apply which may not necessarily be within 3 years form the date of he deceased's death;
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation, and
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position in law."
145. The Apex Court concluded that such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised anytime after the death of the deceased, as long as the right to do so P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 72/82 survives and the object of the trust exists or any part of the trust, if created remains to be executed.
146. The paragraph No. 16 of Kunvarjeet Singh Khandpur v.
Kirandeep Kaur,20 that "In view of the factual scenario, the right to apply actually arose on 9.8.1999 when the proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed within three years, the same was within time and therefore the appeal is without merit, deserves dismissal, which we direct but in the circumstances without any order as to costs."
147. The relevant facts of the case at hand to decide whether the petition filed by the petitioners is time barred under Article 137 of the Limitation Act are that Samay Singh died on 31.03.2009 and in the year 2012, a suit for permanent and mandatory injunction titled as, Smt. Nirmala Devi v. Smt. Premwati & Ors. - C.S. No. 130/2012 was preferred by the daughter of Samay Singh i.e. respondent No. 2 herein against the mother (respondent No. 4 herein) and brothers (petitioners 20 supra P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 73/82 herein)21. It is observed that the petitioners in their written statement took up the defence that the will in question i.e. will dated 05.08.2008 had been bequeathed in their favour. It is further observed that the petitioners herein in their petition have urged that the aforesaid suit was disposed of by order dated 21.08.2012 in view of the statement given by the petitioner that the petitioner would not create any third party interest until the probate has not been granted by the competent court of law.22 The petitioners filed the present petition on 17.01.2013 i.e. within 149 days from 21.08.2012.
148. On applying the ratio of Kunvarjeet Singh Khandpur v.
Kirandeep Kaur,23 to the facts of the case at hand, the petition filed by the petitioners was filed within the limitation period of three years and is thus, not hit by Article 137 of the Limitation Act. The right to apply arose in 2012 when the respondent Nos. 2 and 3 instituted a suit for permanent and mandatory injunction against the petitioners and their mother, the right to apply further arose when the petitioners in their defence in the written statement, propounded the will dated 05.08.2008 left 21 (Written Statement / Reply by Respondent No. 2 and 3 para 1. J) 22 (Petition para 7) 23 supra P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 74/82 behind by their father bequeathing the two properties in question in favor of the petitioners. The respondent Nos. 2 and 3 in para No. 7 of the parawise reply of their written statement / reply have admitted that the suit was filed by the respondent No. 2. The right to apply further arose on 21.08.2012 when the petitioners recorded their statement that they would not create any third party interest until the grant of probate by a competent court.
149. The issue with the regard to the petition being barred by the law of limitation is decided in favor of the petitioners and against the respondent Nos. 2 and 3.
150. That said, the respondent Nos. 2 and 3 have urged in their objections that their father was suffering from various diseases and was therefore weak to take decisions. In this regard, in the present case, when the issue is of soundness of mind, it was necessary that the same must be proved by such medical record by the objectors with respect to alleged lack of mental capacity for making of the will at the time when the will Ex.PW1/B was made. The respondent Nos. 2 and 3 did not adduce any evidence with regard to health and mental soundness of their deceased father.
151. Assuming for the sake of arguments that the deceased P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 75/82 testator was of an advanced age when he made the will, and therefore, illness or lack of good health is natural at that age, however, unless the physical health is proved to cause such deterioration in mental health so as to become lack of soundness of mind, it cannot be held that the deceased testator was lacking mental capacity.
152. The petitioners when deposed as PW1 and PW2 were crossexamined at length by the Ld. counsel for the respondent Nos. 2 and 3, both the PW1 and PW2 denied the suggestions that their father was not conscious and not in a condition to write his name or his signatures. However, the respondent Nos. 2 and 3 failed to lead an iota of evidence with regard to the degraded mental health of Samay Singh and him being of unsound mind and infirm either prior or even at the relevant time of signing of the will in question.
153. The respondent Nos. 2 and 3 in their objections and deposition and crossexamination repeatedly state that the will Ex.PW1/B is forged and fabricated as the signatures on the will in question are not that of their father. The respondent Nos. 2 and 3 did not lead any evidence. Respondent No. 3, who deposed as RW1 in her examinationinchief (Ex.RW1/A) in paragraph 4 stated P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 76/82 that the will is forged and fabricated, as she has seen the signature of her father on the letters, when her father used to send from his service of Army. RW1 was cross examined on this point and she stated that it is correct that RW1 has not placed any such document in support of her statement along with the objections/written statement. It is observed that all the petitioners' witnesses deposed in unison that the signature on the will are genuine and that of Samay Singh(deceased), however, the respondent Nos. 2 and 3 failed to lead any evidence to controvert the signatures of Samay Singh(deceased). The respondent Nos. 2 and 3 also failed to elicit any evidence with regard to the handwriting and signatures of Samay Singh(deceased).
154. The respondent Nos. 2 and 3 did not place on record any evidence in support of their statements pertaining to medical health, medical reports and medical expenses borne by the husband of respondent No. 2 (RW2).
155. The respondents failed to place on record any document to substantiate their claim that their mother is being ill treated or beaten by the petitioners, who happen to be her own sons.
156. Interestingly, the document Ex.RW2/DA put to RW2 i.e. P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 77/82 respondent No. 2 during her crossexamination, RW2 admitted and identified her husband's signature namely, Virender Kumar as a witness to compromise/settlement between her brothers - petitioners herein. Ex.RW2/DA also has signature of Sadabraj. Ex.RW2/DA is in Devangiri script of Hindi language. This court cannot lose sight that the same document Ex.RW2/DA also have the signatures of the petitioners and above all there is a noting that both the brothers (Ajnesh and Manoj) shall pay to their mother ₹2,500/ (Rupees Two thousand and five hundred only). It is observed that neither any objection with regard to producing the document - Ex.RW2/DA for the respondent's witness at the time of crossexamination was made nor to its mode. RW2 (Respondent No. 2 herein) admitted the signatures of her husband on the compromise/settlement document entered between her brothers.
157. The Hon'ble High Court of Delhi in Rohtas Singh v.
State & Ors.24 in paragraph No. 5 of the judgment held as under:
"5. Let me now turn to the each ground given by the court below for holding that the 24 2014 SCC OnLine Del 2521 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 78/82 probate petition be dismissed. Before going to the grounds, it is also necessary to state that the courts do not sit in the armchair of the testator to decide whether what he actually bequeathed by the Will ought to have been or ought not to have been done i.e whether certain heirs should not be wholly or partially disinherited. Courts do not go into the moral aspects of the matter as to whether the deceased testator was or was not justified for his reasons in favouring one or more legal heirs as compared to other legal heirs. If the court is otherwise satisfied that there is due execution and attestation of the Will by a person of sound disposing mind and there are found no suspicious/unnatural circumstances, probate of the Will is to be granted, inasmuch as, a Will is proved like any other document. As already stated above, in the present case the Will is duly proved, both by the attesting witnesses and with a notable point that the Will is a registered Will."
[Emphasis laid] P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 79/82
158. The ratio of Rohtas Singh25 is crystal clear that the probate court is to be satisfied that there is due execution of will and attestation of the will by a person of sound disposing mind and there are found no suspicious / unnatural circumstances, probate of the will is to be granted, inasmuch as, a will is proved like any other document.
159. Before this court, the petitioners have proved the will dated 05.08.2008 of late Samay Singh testator as Ex.PW1/B, as per the testimonies of the both the attesting witnesses namely, Jas Ram (PW3), younger brother of Late Samay Singh and Mir Singh (PW4), elder brother of Late Samay Singh. Both the attesting witnesses, who are the real brothers of testator deposed to the due execution and attestation of the will.
160. Nothing material was elicited in the crossexamination as regards the execution, attesting of the will and as well as of the mental soundness of the deceased testator to execute the will.
161. The court's role in matters concerning wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and 25 ibid.
P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 80/82whether the same is a product of free and sound disposing mind.
162. In view of the above factual and legal position, I hold that the petitioners have proved that Samay Singh duly executed the will dated 05.08.2008 in favour of the petitioners and bequeathed the properties admeasuring 210 sq.yds. bearing House No. 100A, village Bindapur, Delhi and admeasuring 400 sq.yds. bearing No. 31 & 32 DBlock, Pratap Garden, village Bindapur, New Delhi to the petitioners.
163. Let the letters of administration of the estate of Samay Singh (deceased) comprising of properties i.e. admeasuring 210 sq.yds. bearing House No. 100A, village Bindapur, Delhi and admeasuring 400 sq.yds. bearing No. 31 & 32 DBlock, Pratap Garden, village Bindapur, New Delhi with the copy of the will dated 05.08.2008 annexed be granted to the petitioners with the seal of the this court in the form set forth in Schedule VII of the Act and also, subject to completion of requisite formalities, such as:
(a) furnishing advalorem court fees on the total value of the above properties, and
(b) furnishing of an administration bond by the petitioners P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 81/82 alongwith the bond of one surety each.
164. File be consigned to record room after completion of all due formalities.
Pronounced in the (HARGURVARINDER S. JAGGI) open court on Addl. District Judge02 South West 22.11.2018 Dwarka Courts Complex New Delhi Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2018.11.22 16:40:29 +0530 P.C. No. 68/2016 Ajnesh Kumar & Anr. v.State & Ors. Page No. 82/82