Delhi District Court
Sh. Paduman Kishan @ Padam Kishan @ Pammi vs State on 15 January, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-47/13/01
In the Matter of:
Sh. Paduman Kishan @ Padam Kishan @ Pammi
Adopted son of Ishwari Devi,
r/o 304/1, Bagh Kare Khan,
Kishan Ganj, Delhi.
.................. Petitioner
VERSUS
1. State
2. Gaddi Sh. Guru Gaddi Param Dhamji
Databya Niyas(Regd)
Sh. Advit Swarup Sanyas Ashram,
Param Puri, Distt-Rohtas, Bihar and
r/o M-1, Sanyas Ashram,
Shastri Nagar, Delhi Through Sadhwi
Nirbhayanand Puriji Maharaj,
President/Chairperson
(LRs of Swami Keshwa Nand Puri)
.................. Respondents
Date of Institution: 17.4.01
Date of Assignment to this court: 9.7.13
Date of Arguments: 6.1.14
Date of Decision: 15.1.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 278 of Indian Succession Act for grant of letter of administration in PC-47/13/01 Page:-1/38 respect of the estate of deceased Smt Ishwari Devi. Brief facts of the case as mentioned in the petition are that petitioner is the adopted son of late Smt. Ishwari Devi and residing with her since his childhood at 304/1, Bag Kare Khan, Kishan Ganj, Delhi. As stated petitioner was adopted by Smt. Ishwari Devi on 28.5.1955 and his marriage was also performed by the said Smt. Ishwari Devi on 23.6.1980 with Smt. Asha Rani at the capacity of mother and the marriage card of the said marriage clearly mentioned about this. Petitioner as well as his wife and children properly looked after the said Ishwari Devi till her death and the said Ishwari Devi was quite happy with their services. Smt. Ishwari Devi as stated died on 7.11.88 and her last rites were also performed by the petitioner and her family members and cremation certificate as well as the receipt of the cremation also clearly mentions the name of the petitioner. As stated property no. 304/1 Bagh Kare Khan, Kishan Ganj, Delhi was in possession of the petitioner and being used for the residence as well as religious purposes as per the wishes of late Smt. Ishwari Devi and the same is still in the continuous possession of the petitioner and the same has been reconstructed in the year 1997 by the petitioner and at present the said property is three storey building consisting of ground floor, first floor and second floor and the site PC-47/13/01 Page:-2/38 plan of this building also shows the said portions whereas the ground floor of the building is a temple, the first floor of the building is being used by the petitioner and his family members for residential purpose and second floor is a hall and the same is also used by the petitioner and his family members therefore the whole property is in the exclusive possession of the petitioner and being used for religious as well as residential purposes by the petitioner. It was stated that from the life time of late Smt. Ishwari Devi the property is being used for religious as well as residential purpose and there was satsang committee and now at present the same is organised and run by the petitioner and his wife. As stated after the death of said Smt. Ishwari Devi one Sita Devi become the member of Satsang committee as such she was allowed to perform the religious duty in the property and a room was given by the petitioner for her residential purpose but said Sita Devi @ Sita Bai become dishonest and with melafide intention and with intention to grab the property she applied for grant of letter of administration before the court and court granted her letter of administration in the year 1991 in PC no. 23/89 titled as Sita Devi Vs. State, however later on the said letter of administration was cancelled on 25.9.97. It was stated that letter of administration was obtained by Sita Devi PC-47/13/01 Page:-3/38 fraudulently and without disclosing any fact tot he petitioner and after obtaining the letter of administration she tried to dispose off the property in question and also received Rs.10 lakhs as earnest money from some intending buyer and when the said facts came into the light then letter of administration was challenged by the respondent no. 2 who claimed the property in question on the basis of gift deed dated 4.8.1971 executed by late Smt. Ishwari Devi in favour of Sh. 108 Paramhans Swami Param Gyananand Ji Puri after whose death respondent no. 2 stated himself to have become the owner of the said property, however he assured the petitioner that he can use the said property and he will never ask him to vacate the premises and the petitioner alongwith his family members can use the property for residential as well as the religious purpose and respondent no. 2 also appointed the petitioner as his attorney to defend the case on his behalf in various courts in respect of property in question as per the instructions of respondent no. 2 and did not claim the property at any time because of the said gift deed made by late Smt. Ishwari Devi in 1971 in favour of her guru Param Gyananand Ji puri and later on all the cases between respondent no. 2 and Sita Devi were disposed off and letter of administration issued to Sita Devi was cancelled on 25.9.97 as Sita Devi PC-47/13/01 Page:-4/38 and Swami Keshwanand Puri entered into compromise and Sita Devi leave all her rights in the property in question and some documents were also executed by said Sita Devi in favour of respondent no. 2 in respect of property in question vide GPA, agreement etc. It was stated respondent no. 2 with malafide intention and with intention to grab the property of petitioner issued a notice on 14.5.99 through his Cl. to the petitioner for vacating the premises which notice was replied by the petitioner vide reply dated 21.5.99 and later on respondent no. 2 tried to forcibly dispossess the petitioner resultantly wife of the petitioner filed a suit for permanent injunction and the same is still pending in the court. It was stated that respondent no. 2 also concealed the fact that vide sale deed dated 25.2.1972 Smt. Ishwari Devi had purchased the property in question from Guru 108 Param Hans Swami Param Gyananand Puri Ji and the same was handed over by one Sh. Ved Prakash to the petitioner in the month of June,1999. It was also stated that considering all the illegal activities of late Swami Keshwa Nand Puri wife of petitioner had filed a criminal complaint against him u/s 323/207/209/420/452/500/506 IPC for which he faced trail, however said case was abated due to his death. It was stated Swami Keshwa Nand Puri was unmarried and after his death an PC-47/13/01 Page:-5/38 application u/o 1 Rule 10 Order 22 Rule 10 r/w Section 151 CPC allegedly claiming that a general body meeting of the executive members of Shree Guru Gaddi Param Dham Niji Databya Nyas was held on 9.8.07 at Haridwar and a resolution was passed authorising Sadhvi Nirbhyanand Puriji Maharaj to deal with all the affairs of the properties left behind by Swami Shree Shree 108 Param Gyanand Puri Maharaj and Swami Keshwa Nand Puri Maharaj which vested in the trust Shree Guru Gaddi Param Dham Niji Databya Nyas(regd.) and prayer was made to substitute her in place of Swami Keshwa Nand Puri Maharaj which application was allowed by the Hon'ble Court vide order dated 26.7.13. It was stated that swami Nirbhayanand Puri is taking false stand in the case that late Swami Keshwa Nand Puri during his lifetime executed a Will dated 26.5.06 by virtue of which all the properties owned and vested in him have been devolve upon said Gaddi Shree Guru Gaddi Param Dhan Niji Databya Nyas(regd.) of which Sadhvi Nirbhyanand Puri Maharaj is the president and chair person. It was sated that Will dated 26.5.06 is forged and fabricated just to create false evidence to contest the petition whereas Swami Deshwa Nand Puri had no right, title or interest in any manner in the property in question. It was accordingly framed that letter of administration in favour of petitioner PC-47/13/01 Page:-6/38 be issued in respect of property no. 304/1, Bagh Kare Khan, Kishan Ganj, Delhi.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however the same was not filed. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " Veer Arjun" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper " Statesman"
on 1.8.01.
4. Initially objections were filed on behalf of objector Swami Keshwanand who was respondent no.2, however after amendment in the petition, amended objections were filed on behalf of Sadhwi Nirbhayanand who was impleaded as respondent no. 2 after demise of Swami Keshwanand. In objections/reply to the present petition preliminary objections were raised to the effect that present petition is not maintainable and in the garb of letter of administration the petitioner is seeking declaration of his alleged adoption. It was stated that petition is bad for non joinder of necessary parties and is based on false, concocted and fabricated facts. Petitioner as PC-47/13/01 Page:-7/38 stated has deliberately concealed the material facts and has no locus standi or cause of action to file the present petition. Even the petition is not verified. On merits it was denied that petitioner is the adopted son of late Smt. Ishwari Devi or that he has been residing with Smt. Ishwari Devi since childhood at house no. 304/1, Bagh Kare Khan, Kishan Ganj, Delhi and it was submitted that petitioner is the son of Sh. Sikandar Lal and has been residing at house no. 328, Padam Nagar, Delhi. It was stated that Smt. Ishwari Devi was Hindu by religion and was governed by customary rights and law prevailing in Hindu Society and on 28.5.1955 i.e. alleged date of adoption, her husband was alive and as such she had no right nor was competent to take into adoption any child without consent of her husband therefore she could not have adopted petitioner. It was stated that it is admitted by the petitioner that Sh. Nanhe Ram was husband of Smt. Ishwari Devi and he died in 1966 at Delhi which fact is within the knowledge of the petitioner as well as counsel for the petitioner therefore as on 28.5.1955 he was very much alive. It was stated that petitioner never claimed that both Smt. Ishwari Devi and Sh. Nanhe Ram adopted him and he even not mentioned who gave the petitioner in adoption to Smt. Ishwari Devi. As stated it is settled law that after adoption the adopted child PC-47/13/01 Page:-8/38 become the son of the person/persons who take the child in adoption and all the rights of the adopted child from the side of his natural parents come to an end but in the present case the name of petitioner's father Sh. Sikandar Lal is being mentioned in all the records and till date the name of petitioner's father is Sh. Sikandar Lal. It is stated that there is not a single document till date that from 28.5.1955 where name of father of the petitioner is mentioned as Nanhe Ram or name of mother as Smt. Ishwari Devi. It is denied that the marriage of petitioner was performed by Smt. Ishwari Devi on 23.6.1980 with Smt. Asha Rani in the capacity of the mother of the petitioner and it is stated that in the marriage card relied upon by the petitioner name of husband of Smt. Ishwari Devi has not been mentioned. As stated the said card has been fabricated by wife and the petitioner in collusion with the relation of the wife of the petitioner and was never got printed by Smt. Ishwari Devi. It is stated that simple mentioning of the name of Ishwari Devi in the said fabricated card does not mean and confirm any status of the petitioner as adopted son of Smt. Ishwari Devi. There is also no document of any ceremony to show that the alleged adoption took place on 28.5.1955. It was stated that petitioner's wife Smt. Asha Devi filed suit no. 223/99 for permanent injunction and in third para of PC-47/13/01 Page:-9/38 said petition it is mentioned that husband of the plaintiff is adopted son of Smt. Ishwari Devi. Even in that plain no date and year of the alleged adoption was mentioned and said date has been fabricated subsequently. It was mentioned that Ld. Trial Court allowed application of petitioner's wife Smt. Asha Devi u/o 39 Rule 1 and 2 CPC and Section 151 CPC vide order dated 4.11.00 against which appeal was filed and the said order was set aside and it was held that plaintiff failed to prove that her husband is the adopted son of Smt. Ishari Devi and as far as plaintiff was concerned she was not having any legal right in the premises. It was stated that plaintiff has claimed that he performed last rites of Smt. Ishwari Devi and has placed on record certificate issued by MCD where Sh. Padam Kishan @ Pamnu s/o Sh. Sikander Lal r/o 328 Bagh Khan, Kishanganj, Delhi and his relation with deceased was shown as Beta Guru which itself shows that petitioner has been shown as son of Sikander Lal and was resident of 328 Bagh Khan, Kishanganj. It is sated that Smt. Ishwari Devi executed a Gift deed on 4.8.1971 and in favour of Sh. 108 Param Hans Swami Param Gyana Nand Ji Puri and in that gift deed she has stated that she is issue less therefore there was reason for the petitioner to have shown himself as beta at the time of her death if he had performed her last rites. It was stated PC-47/13/01 Page:-10/38 that cremation certificate dated 8.11.88 clearly shows that Smt. Ishwari Devi was known by sub name as " Nandpuri" disciple of Sh. 108 Param Hans Swami Param Gyana Nand Ji Puri as well as Swami Keshwanand Puriji Maharaj. It is mentioned that petitioner and his family was getting free two times meals, clothes and charity from swami Keshwanand Puriji Maharaj who had faith in petitioner being his disciple and that is why he nominated petitioner as his power of attorney on 8.12.93 to contest cases/petitions against Sita Devi. However petitioner became dishonest when he received notice dated 14.5.99 from objector/respondent Swami Keshwanand Puri Maharaj whereby his GPA was cancelled as all the cases with Smt. Sita Devi were amicably settled and she admitted that objector/respondent Swami Keshwanand Puriji Maharaj is the owner of the said house no. 304/1, Bagh Kara Khan, Kishanganj, Delhi. It was admitted that there is a temple on the ground floor and goods worth of lacs as bed sheets, quilts, pillows, daries, utensils for bhandara, refrigerator and thousands of other more articles are lying on the second floor which belong to objector Swami Keshwanand Puriji Maharaj and Sita Devi handed over possession of the whole house to objector. The whole house was in possession of objector/respondent Swami Keshwanand Puriji Maharaj till PC-47/13/01 Page:-11/38 14.5.99 and petitioner has no possession over the said house after termination of GPA. It was denied that sale deed was in possession of Sh. Ved Prakash since 1972 and it was submitted that Sh. Ved Prakash has been a near relation of the petitioner and his wife as is clear from the marriage card where he has been shown as relation of the wife of petitioner and it seems that he is in league with the petitioner and his wife. It is stated that the intention of the petitioner has been dishonest, malafide, mischievous to grab the property in question and hence it was prayed that the present petition of the petitioner be dismissed.
5. Rejoinder was filed by the petitioner to the objection of the objector/respondent no. 2 in which case as set out in the petition is reiterated and that of the objectors was denied.
6. Vide order dated 1.3.06 from the pleadings of parties, the following issues were framed:-
1) Whether the petition is bad for non joinder of necessary parties? OPR
2) Whether the petitioner is entitled to the grant of letters of administration?OPP
3) Relief.
7. However later on petitioner sought amendment of petition which was allowed vide order dated 19.8.13 and accordingly amended petition and PC-47/13/01 Page:-12/38 objections facts of which have been detailed above were filed and issues were re-framed vide order dated 29.10.13 as follows:-
1) Whether the petitioner is entitled to grant of letter of administration as prayed for?OPP
2) Whether the petitioner has locus standi to file the present petition?OPP
3) Whether the petition is bad for non joinder of necessary parties? OPR
4) Whether the petition is not maintainable in the present form? OPR
5) Whether the petitioner has concealed the material facts?OPR
6) Relief.
8. It is pertinent to mention here that these are two connected cases i.e. the present probate petition bearing no. 47/11 and a suit bearing no. 178/13 between the parties and vide order dated 8.11.13 both the cases were clubbed. Hence evidence in present probate case as well as in suit for possession, recovery of damages and permanent injunction has to be read in both of them.
9. In evidence, petitioner in the present case and defendant no. 1 in suit produced himself as PW-1, Sh. Ved Prakash Chudhary as PW-2, Sh. Shivaji Yadav as PW-3, Sh. Parveen Kumar as PW-4, Sh. Raj Kumar as PW-5, Sh. Jasraj Verma as PW-6, Sh. Mritunjai Kumar as PW-7. PW-1 is petitioner/defendant no. 1 who reiterated his case in his affidavit of evidence and relied upon marriage card Ex.PW-1/A, cremation PC-47/13/01 Page:-13/38 certificate/entry record as well as received Ex.PW-1/B&C, site plan of property in question Ex. PW-1/D, old site plan Ex. PW-1/D-1, gift deed dated 4.8.1971 was Ex. PW-1/E, sale deed dated 25.2.1972 was Ex. PW-1/F, notice issued by MCD u/s 124(5) dated 1.4.1998 Ex. PW-1/G, original pass book of Smt. Ishwari Devi alongwith receipt of passbook, nomination form and withdrawal receipt Ex. PW-1/H-1 to 4, letter issued by the PM office to Asha Rani dated 29.10.99 Ex. PW-1/I. PW-2 Ved Prakash Chaudhary deposed to the effect that he was handed over Ex. PW-1/F sale deed by Ishwari Devi in the year 1985 which was handed over by him to Pradumankishan in middle of 1999. PW-3 Sh. Shivaji Yadav, Record Custodian from office of Sub Registrar deposed to the effect that Ex. PW-1/F is the original copy of the record maintained by them. PW-4 Sh. Praveen Kumar, Tax Collector brought the record showing the cremation of Ishwari Devi and copy of the same was Ex. PW-4/1 and receipt was Ex. PW-4/2. PW-5 Sh. Raj Kumar stated himself to brother-in-law of petitioner and deposed that marriage card Ex. PW-1/A was published by him and marriage of Padam Kishan was performed by Ishwari Devi. PW-6 Sh. Jasraj Verma, Public Relation Inspector from Malkaganj Post office brought the certificates issued by Sub Post Master which were Ex. PW-6/A PC-47/13/01 Page:-14/38 and he deposed that as per the record account bearing no. 870219 was in the name of Smt. Ishwari Devi r/o 304/1 Bag Kade Khan, Delhi-7 which was opened on 1.1.80 and was closed on 3.3.99 vide order dated 20.1.99 of Chief Post Master, Head Post Office, Delhi. PW-7 Sh. Mritunjai Kumar, Moza Clerk, Civil Record Room, Tis Hazari Court brought he written statement, ordersheet w.e.f 15.10.96 to 28.5.97 filed in suit no. 205/96 titled as Smt. Sita Devi Vs. Swami Keshvanand Puri which were collectively Ex. PW-7/1. Certified copy of complaint against Keshwanand Puri and ordersheets before the court of Sh. Pooran Chand,MM were tendered by the Cl. for petitioner and were Ex. X-1 and X-2.
10.In defence, objector no.2in the present petition/plaintiff in connected suit produced PW-1/RW Gian Prakash Chela Swami Keshvanand Puri ji Maharaj and PW-2/RW Sh. Shiv Kumar Singh. PW-1 reiterated the case of the objector no. 2 and relied upon power of attorney Ex. PW-1/1, copy of gift deed Ex. PW-1/2, site plan Ex. PW-1/3, cremation certificate no. 100/67418 Ex. PW-1/4, copy of petition/objection filed u/s 263 of India Succession Act Ex. PW-1/5, copy of statement of Smt. Sita Devi Ex. PW-1/6, copy of statement given by Praduman Kishan on behalf of plaintiff Ex. PW-1/7, copy of orders passed were Ex. PW-1/8 and Ex. PW-1/9, PC-47/13/01 Page:-15/38 attorney vide which Swami Keshvanad Puri Ji Maharaj appointed Sh. Pradum Kishan as is attorney was Ex. PW-1/10, copy of notice cancelling the said attorney was Ex. PW-1/11, copy of General Power of Attorney dated 19.5.97 executed by Smt. Sita Devi Ex. Pw-1/12, Will executed by Smt. Sita Devi was Ex. PW-1/13, copy of plaint filed by Pradumnan Kishan Ex. PW-1/14, copy of application u/o 39 Rule 1 and 2 CPC was Ex. PW-1/15, order dated 1.4.00 was Ex. PW-1/16, copy of order accepting the appeal against said order was Ex. PW-1/17, revision filed against order dated 4.4.01 was Ex. PW-1/18, judgment dated 29.4.02 of Hon'ble High Court was Ex. PW-1/19, copy of notice dated 24.12.01 was Ex. PW-1/20 and its reply was Ex. PW-1/21, copy of registration of trust was Ex. PW-1/22, death certificate of Swami Keshvanand Puri Ex. PW-1/23, copy of resolution was Ex. PW-1/24, Will executed by Swami Keshwanandpuri Ji Maharaj was Ex. PW-1/25. However during tendering of the affidavit documents Ex. PW-1/15, PW-1/16 and PW-1/24 were de-exhibited and were marked A,B and G respectively. The photocopies of house tax receipt were marked as Mark C to F. PW-2/RW Sh. Shiv Kumar brought the original minute book of Sh. Guru Gaddi Param Dham Niji Datavya Nyas(Regd) and deposed that a resolution dated 9.8.07 was passed in PC-47/13/01 Page:-16/38 executive cum general body meeting at Haridwar which resolution is in handwriting of the Secretary Sh. Mohan Lal Dinona. Copy of said resolution was Ex. PW-2/1.
11. I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
12. Issue no. 1, 2, 4 & 5 :- All these issues are taken up together being inte- related. Before proceeding to decide these issues, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
13. Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is PC-47/13/01 Page:-17/38 the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
PC-47/13/01 Page:-18/38
14.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
15. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that PC-47/13/01 Page:-19/38 more than one witness be present at the same time, and no particular form of attestation shall be necessary."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
PC-47/13/01 Page:-20/38
16. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the PC-47/13/01 Page:-21/38 Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it PC-47/13/01 Page:-22/38 would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
17. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
18. The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of PC-47/13/01 Page:-23/38 one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
19. The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies PC-47/13/01 Page:-24/38 are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain PC-47/13/01 Page:-25/38 and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications PC-47/13/01 Page:-26/38 are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
20. Now I have to see whether in the present case the above principles have been duly made out or not. In the present case the petitioner has based his claim for grant of letter of administration with respect to property in question on the assertion that he is the adopted son of Smt. Ishwari Devi who though firstly executed a gift deed in favour of 108 Param Hans Swami Param Gyana Nand Ji Puri dated 4.8.1971 but later on he sold the said property to Smt. Ishwari Devi vide registered sale deed Ex. PW-1/E dated 25.2.1972. Firstly, I deal with the contention of petitioner regarding his adoption by Smt. Ishwari Devi. Objector no. 2 has raised the objection that in the whole petition name of husband of late Smt. Ishwari Devi has not been mentioned and name of father of petitioner has always been mentioned as Sikander Lal in all the records whereas name of husband of Ishwari Devi was Nanhe Ram. Petitioner has examined himself as PW-1 in the present case and during cross examination he stated name of his parents as Ishwari Devi and Nanhe Ram alias Sikander Lal and that Nanhe Ram and Sikander Lal are the names of same person. However, PC-47/13/01 Page:-27/38 this is for the time when the petitioner stated the name of his father as Nanhe Ram @ Sikander Lal whereas in whole of the present petition nowhere the said fact was mentioned that Nanhe Ram and Sikander Lal were the same person or that he was the husband of late Smt. Ishwari Devi. Even during cross examination it was admitted by petitioner that he did not have any proof that Sh. Sikander Lal was the husband of Smt. Ishwari Devi and made voluntary statement that his mother Smt. Ishwari Devi herself mentioned her husband's name as Sikander Lal at the time when he got the job and she herself used to tell him that Sh. Sikander Lal is her husband. Petitioner/PW-1 also admitted that he did not have any written proof to show that the name of husband of Smt. Ishwari Devi was Nanhe Ram alias Sikander Lal either at his house or with his Cl. or filed in the Court. He even admitted that he had not seen Nanhe Ram Sikander Lal. If the above version of petitioner that his mother used to tell him that Sh. Sikander Lal was her husband and Nanhe Ram alias Sikander Lal were the same person is true then the same fact should have been mentioned in the gift deed Ex. PW-1/F dated 4.8.1971 as well as the sale deed Ex. PW-1/E which documents have been admitted by the petitioner to be executed by Smt. Ishwari Devi but in both the said documents Ishwari Devi PC-47/13/01 Page:-28/38 was shown as widow of Nanhey Ram and even in sale deed dated 25.2.1972 name of husband of Smt. Ishwari Devi has been mentioned as Nahey Ram alias Nanhey Ram. If the name of her husband was Sikander Lal then she should have got recorded the same in the said documents, however the same was not done and even the name Sikander Lal is not mentioned as alias to Nahey Ram or Nanhey Ram which clearly proves that name of husband of Smt. Ishwari Devi was Nahey Ram alias Nanhey Ram and not Sikander Lal. Even at one place in cross examination PW-1 stated that he had mentioned the fact that Sh. Sikander Lal was husband of Smt. Ishwari Devi and the said fact was told by him to his advocate while preparation of his affidavit of evidence Ex. PW-1/X but when he was confronted with the said affidavit the said fact was not found mentioned therein. It is settled law that after adoption adopted child become the son of the person who take the child in adoption and all rights of the adopted child from the side of his natural parents come to an end, however in the present case petitioner has been using name of Sh. Sikander Lal as his father and not Nanhe Ram who was husband of Ishwari Devi alleged person who adopted the petitioner. Accordingly the above testimony of petitioner itself has falsified the stand of petitioner and it is very clear that PC-47/13/01 Page:-29/38 petitioner has taken this stand during his evidence just to cover up a major lacunae of his case that in all records he has been shown as son of Sh. Sikander Lal and not of Nanhey Ram. Further, it is the case of petitioner that he was taken in adoption on 28.5.1955 and was residing with her since then, however during cross examination he stated that he did not know any relatives of Ishwari Devi or relatives of his father Nanhe Ram Sikander Lal and even not seen Nanhe Ram Sikander Lal or know who conducted ceremonies of his father Nanhe Ram Sikander Lal. He even stated that he did not have any document of adoption or any other document and did not even know who had given him in adoption. Though at one place PW-1/petitioner deposed that 28.5.1955 was celebrated as his birthday by his mother but admitted that he did not have any proof to show that 28.5.1955 was celebrated as his birthday and even could not tell how many persons attended the birthday as he was a small child. It has come in deposition of PW-1 that he was about 5/6 years old child when he was adopted by Smt. Ishwari Devi. At the age of 5/6 years a child can very well recognise his father and mother and for petitioner to say that he had never seen husband of Ishwari Devi certainly creates doubt on his plea of adoption by Ishwari Devi. Though objector no.2 has pleaded that Nanhe PC-47/13/01 Page:-30/38 Ram expired in the year 1966 but no documentary proof regarding the same has been placed on record by the objector. Even specific question regarding death of Nanhe Ram in the year 1966 was put to the petitioner to which he stated that he cannot admit or deny the same. Even if it is presumed that at the time of adoption of petitioner Sh. Nanhe Ram was not alive still atleast he could have seen the photograph of his father or could have asked about his existence from his mother Ishwari Devi but nowhere petitioner has talked about his father. Further, PW-1/petitioner deposed that he had not seen his natural parents and did not know when they died or where they lived. He even did not know whether he had brothers and sisters from his natural parents. However, during later stage of cross examination he admitted that Kewal Kishan Handa was his brother who was residing at Dilshad Garden though he had no link with him. He even admitted that Sh. Ram Handa had also been his brother who was residing at 75, United Apartments, Phase-1, Mayur Vihar. He further stated that his brother expired but he cannot tell the year of his death. He even stated that both his above brother were married since they were elder to him. Further at one place he stated that he never met his brother and he is not on visiting terms with them but on the other place he deposed that he know PC-47/13/01 Page:-31/38 about death of his brothers and bhabhies for the reasons that son of his elder brother came to him. The above contradictory stand taken by the petitioner clearly falsify his stand that he had never seen his natural parents or do not know anything about them since if the same is true then he would not have know as to who are his brothers and it is apparent that deliberately petitioner has concealed about his natural parents and real family. Petitioner has placed reliance on his marriage card PW-1/A and cremation certificate Ex. PW-1/B and stated his mother got printed the same. However, PW-5 Sh. Raj Kumar own brother-in-law of petitioner during cross examination admitted that no marriage card was got printed by Smt. Ishwari Devi and during chief examination he stated that card Ex. PW-1/A was published by him. Mere publication of name of Smt. Ishwari Devi in marriage card of petitioner does not prove that petitioner was adopted by her and rather when it has come on record that the same was not published by Ishwari Devi and was published by own brother-in-law of petitioner, hence no reliance can be placed on the same and possibility of fabrication cannot be ruled out. In the cremation document Ex. Pw-1/B petitioner has been mentioned as beta guru and though from the said document it can be said that cremation of Ishwari Devi could have PC-47/13/01 Page:-32/38 performed by the petitioner but that document does not prove that petitioner was adopted by Smt. Ishwari Devi. Even in the said record petitioner has been referred as beta guru and it is admitted case of both parties that Smt. Ishwari Devi was devotee of god and her residence was being used for religious satsang and kirtans and even executed a gift deed dated in favour of 108 Param Hans Swami Param Gyana Nand Ji Puri, hence petitioner being addressed as guru beta in the said document only shows the possibility that petitioner was also member of the said satsang group and performed last rites of Smt. Ishwari Devi being related to her as a satsang/religious member where younger generation might be addressed as son. Even otherwise in the gift deed Ex. PW-1/E executed by Smt. Ishwari Devi which is not disputed by the petitioner nowhere mention the fact of adoption of petitioner and she had mentioned herself as issue less. There is no documentary or oral evidence available on record except for the bald assertion/stand of petitioner to show that any legal adoption of petitioner had taken place and even it has not come on record that any adoption ceremonies as required by law ever took place. Thus, plea of petitioner regarding his adoption by Smt. Ishwari Devi is not proved on record and thus is rejected and accordingly it is held that petitioner has no PC-47/13/01 Page:-33/38 locus standi to file the present case. It is also accordingly proved that the present petition is not maintaintainable. Even in view of the above, it stands proved on record that petitioner has concealed about his natural parents and family. Though adoption of petitioner by Smt. Ishwari Devi as already observed has not been proved and it has already been held that petitioner has no locus standi to file the present case but still the factum of gift deed Ex. PW-1/E dated 4.8.71 and sale deed dated 25.2.1972 Ex. PW-1/F are to be seen. Gift deed Ex. PW-1/E executed by Smt. Ishwari Devi in favour of 108 Param Hans Swami Param Gyana Nand Ji Puri is not in dispute and it is only the case of the petitioner that a sale deed 25.2.1972 was executed by 108 Param Hans Swami Param Gyana Nand Ji Puri in favour of Smt. Ishwari Devi with respect to the property in question which fact of concealed by him by late Sh.Swami Keshwanand Puri who was earlier objector no. 2 and the said sale deed was handed over to him by Sh. Ved Prakash. On the other hand objector no. 2 has challenged the said sale deed and stated that the same was never executed by 108 Param Hans Swami Param Gyana Nand Ji Puri. It is the case of the petitioner that Sh. Ved Prakash handed over the said sale deed to him and the same was in his possession, however during cross examination PC-47/13/01 Page:-34/38 PW-1/petitioner himself stated that Sh. Ved Prakash is not the relative of Ishwari Devi and he did not know how Ved Prakash was known to Ishwari Devi. He staed that he was not knowing Ved Prakash before 1999. Sh. Ved Prakash PW-2 also appeared in witness box and contradicted the statement of PW-1 by stating that Smt. Ishwari Devi was known to him and handed over the sale deed Ex. PW-1/F which was handed over by him to Padumankishan in middle of 1999. However during cross examination he stated that he did not know anything about the case and facts are not known to him and he did not know as to what is the dispute between the parties. He even stated that he did not know the name of husband of Ishwari Devi and never seen him. PW-4 Ved Prakash simply stated that Ishwari Devi was known to him but how he was not know to her has not come on record. He even shown his ignorance about the dispute between the parties and even facts are not known to him and besides that petitioner stated that he was not related to Ishwari Devi which shows that Sh. Ved Prakash was not even having status of close family friend of Ishwari Devi. When Sh. Ved Prakash was not a relative of Ishwari Devi and was not in close family relation with her then it is not made out as to why Smt. Ishwari Devi would choose him over the petitioner who alleges himself to be PC-47/13/01 Page:-35/38 adopted son to hand over the sale deed in question. No person would ever hand over such an important document to a third person who is not a family member or relative. Rather name of Ved Prakash finds mention in the marriage card of petitioner Ex. PW-1/A and he is shown to be from the side of bride. Further, it has come on record that one Sita Devi filed a case for grant of letter of administration in respect of property in question being sister of Smt. Ishwari Devi which was granted to her but objector no 2 Sh. Swami Keshvanand filed revocation petition for cancellation of said letter of administration on the basis of gift deed dated 4.8.1971 which was allowed and said letter of administration was cancelled and later on matter was compromised between Sita Devi and Swami Keshvanand. It is also the admitted case of petitioner that he stood GPA for Swami Keshvanand and contested the said case on his behalf and agaist Smt. Sita Devi and only when he came to know about the existence of sale deed dated 25.2.1972 then he had dispute with Swami Keshvanand. When petitioner himself was admitted Swami Keshvanand as owner by virtue of gift deed dated 4.8.1971 and was contesting cases on his behalf then it does not lie in the mouth of the petitioner to challenge the status of objector no. 2 later on and that to on the basis of a sale deed execution of which as is already PC-47/13/01 Page:-36/38 observed is under the shadow of doubt and cannot be given a clean chit. As already observed concealment of facts by petitioner has been proved on record and it cannot be ruled out that the petitioner intially supported the case of objector no. 2 but later on got dishonest and then created the story of adoption and existence of sale deed dated 25.2.1972. Accordingly in view of the above, petitioner is held not entitled for grant of letter of administration and is held to have no locus standi to file the present case. Hence issues no. 1,2,4 and 5 are decided in favour of the objectors and against the petitioner.
21. Issue no. 3:- The onus to prove this issue was on objector no. 2, however no evidence has been led by the objector to prove the same. It is the contention of the petitioner that Smt. Ishwari Devi was issueless and there is no legal heir of her except the petitioner who is her adopted son. As far as adoption of petitioner is concerned, the same has already been discarded while deciding issues no. 1,2 and 5. Objector no. 2 also not brought on record as to who are legal heirs of Smt. Ishwari Devi.The only name which has come on record as LR of Smt. Ishwari Devi is Sita Devi who is her real sister, however it has duly come on record that earlier letter of administration was granted in her favour in separate proceedings filed by PC-47/13/01 Page:-37/38 her which was cancelled on moving of revocation petition by objector no. 2 and finally the said case was compromise between her and objector no. 2. Though petitioner in the presen proceeding has denied the knowledge of relation of Smt. Sita Devi with Ishwari Devi but it is admitted case of petitioner himself that he was contesting the cases against Smt. Sita Devi on behalf of Swami Keshwanand, objector no. 2 and it is by no stretch of imagination can be presumed that he was ignored about the relation of Smt. Sita Devi with Smt. Ishwari Devi. Though Smt. Sita Devi had settled her scores with objector no. 2 but if the petitioner has filed a probate petition and it was in his knowledge that Smt. Sita Devi was real sister of Ishwari Devi then it was incumbent upon him to implead her as a party to the present and accordingly the present petition is held bad for non joinder of necessary parties. This issue is accordingy decided in favour of the objectors and againt the petitioner.
22. Relief:- In view of the above findings on issues no. 1,2,4 and 5, instant petition is hereby dismissed with costs. File be consigned to record room.
Announced in the open court on (AJAY GOEL) 15.1.14 ADJ-12(Central)Delhi. PC-47/13/01 Page:-38/38