Delhi District Court
Sh. Satish Kumar vs State Through Govt. Of Nct on 5 July, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
(Old Case)
PC-41/11/06
In the Matter of:
1. Sh. Satish Kumar
s/o Sh. Davinder Kumar,
r/o WZ-103, Meenakshi Garden,
New Delhi-110018
2. Davinder Kumar @ Natha Ram
s/o late Sh. Kirpa Ram,
r/o WZ-A-4A, Ram Dutt Enclave,
New Delhi-1100018
.................. Petitioner
VERSUS
1. State through Govt. of NCT
of Delhi
2. Sh. Mahesh Kumar
s/o Sh. Davinder Kumar,
r/o WZ-103,Meenakshi Garden,
New Delhi-110018
3. Sh. Parveen Kumar
s/o Sh. Davinder Kumar
r/o WZ-103,Meenakshi Garden,
New Delhi-110018
4. Kamlesh
w/o late Sh. Amarjit
pre deceased son of Sh. Kirpa Ram
r/o WZ-867, Village Tihar, New Delhi.
A. Smt. Seema
d/o late Sh. Amarjit
r/o A-1/89, Nand Ram Park, Uttam Nagar, New Delhi.
B. Smt. Kanchan
PC- 41/11/06 Page:-1/33
d/o late Sh. Amarjit
r/o D-38A, Kiran Garden, Uttam Nagar, New Delhi.
C. Smt. Rekha @ Apple
d/o late Sh. Amarjit
r/o 13/64, Subhash Nagar, New Delhi.
5. Smt. Shakuntala Rani
w/o Sh. Goverdhan Lal,
r/o DDA Flats/SFS, flat no. 348, IInd Floor, Pocket-1,
Sector-V, Dwarka, New Delhi.
6. Smt. Swaran Kanta @ Swarna
w/o late Sh. Sat Pal,
d/o late Sh. Kirpa Ram,
r/o D-38-A, Kiran Garden, Uttam Nagar, New Delhi.
................ Respondents
Date of Institution: 1.2.06
Date of Assignment to this court: 13.9.12
Date of Arguments: 27.5.14
Date of Decision: 5.7.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 213 & 216 of Indian Succession Act for grant of probate in respect of the estate of deceased Sh. Kirpa Ram in view of Will dated 28.6.04. The brief facts of the case as narrated in the petition are that Sh. Kirpa Ram was registered owner of built up immovable property no. 45-WZ-103, Meenakshi Garden, New Delhi-18 measuring 290 sq. yards having purchased the same for valuable consideration from previous owner Smt. Kaushalya Devi. As stated during his life time the deceased Kirpa Ram PC- 41/11/06 Page:-2/33 executed his last and final registered Will dated 28.6.04 in favour of the petitioner no. 1 and 2 and cancelled all previous will and codicil executed by him whereby he bequeathed the absolute right of ownership of the said property to petitioner no. 1 whereas petitioner no. 2 was given right to collect rent of all the four shop let out on rent during his life time and objectors no. 2 and 3 were given limited right to use the different portion of the property as their residence. However respondent no. 2 who is grandson of the deceased Sh. Kirpa Ram also claims to have purchased the said properties from Sh. Kirpa Ram vide agreement to sell, Gpa, Spa, affidavit, possession letter and receipt and registered Will dated 19.2.03 and present he is in possession of a portion of the suit property. It was stated that Sh. Kirpa Ram expired on 9.12.04 at Delhi at the age of 102 years. During his lifetime Sh. Kirpa Ram also took a loan of Rs. 50,000/- on 9.2.1988 from Smt. Durga Devi wife of his one of the tenant Sh. Roshan Lal, however Sh. Roshan Lal and Smt. Durga Devi got his signatures and thumb impression by misrepresentation on a false and forged document of agreement to sell, GPA and registered receipt for sale of the property in question for Rs.8 lakhs and subsequently Smt. Durga Devi filed a suit for specific performance bearing no. 1201/88(507/05) against Sh. Kirpa Ram PC- 41/11/06 Page:-3/33 which was pending. Sh. Kirpa Ram also filed a counter case bearing no. 303/93(506/2005) for cancellation of the aforesaid agreement to sell, GPA and receipt etc. dated 19.2.88 against Smt. Durga Devi which was also pending. It was stated that after death of Kirpa Ram, respondent no. 2 has not only started collecting rent from various tenants of late Sh. Kirpa Ram on the basis of Will dated 19.2.03 but has also moved an application u/s 22 Rule 10 r/w Section 151 CPC in the suit no. 506/05 to be impleaded as only plaintiff being owner of the suit property on the basis of agreement to sell, GPA and Will dated 19.2.03. It was also submitted that petitioners also moved an application for impleading them as LRs of Sh. Kirpa Ram in suit no. 506/05 and 507/05. As stated petitioner no. 1 has also served a legal notice dated 5.2.05 on respondent no. 2 through Cl. informing him the existence of Will dated 28.6.04 and has advised him not to claim rent from the tenants in view of the registered Will dated 28.6.04. It was stated that Sh. Roshan Lal has already deposited the arrears of rent in the court of Sh. Daya Prakash, SCJ u/s 31 of Punjab Relief and indebtedness Act and vide suit no. 120/05 filed against Davinder and Mahesh Kumar as respondent which was decided by the Ld. Court vide order dated 8.8.05 in which it was held that the respondent get their dispute regarding the ownership settled PC- 41/11/06 Page:-4/33 through competent court of law and then take the amount without prejudice to his right or claim against the petitioner. It was further stated that a controversy has arisen between the petitioners no. 1 and 2 on the one side and respondent no.2 on the other side as who is the real owner of the suit property and is legally entitled to collect rent and to represent the estate of the deceased Kirpa Ram in various suit/litigation specially suit no. 507/05 Smt. Durga Devi Vs. Kirpa Ram and suit no. 506/05 Kirpa Ram Vs. Durga Devi besides other eviction proceeding filed by late Sh. Kirpa Ram against his tenant. It was stated the petitioner had no other alternate and suitable remedy except to obtain a probate on the last and final Will dated 28.6.04 executed by Sh. Kirpa Ram with a view to establish his right to represent late Sh. Kirpa Ram in various pending litigations. As stated the Will dated 19.2.03 in possession of the respondent no. 2 alongwith other documents of ownership are false and fabricated. It was accordingly prayed that probate/letter of administration be granted to the petitioner in respect of last Will of the deceased dated 28.6.04.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report. However, valuation report was not filed Notice was also issued to respondents/near relatives of the deceased and PC- 41/11/06 Page:-5/33 besides that citation to the general public was issued by way of publication in the daily newspaper " Navbharat Times(Hindi)" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper "Navbharat Times" on
4. Objections to the present petition were filed on behalf wherein it was stated that the present petition was not verified by one of the witness to the Will and there is non compliance of Section 281 of the Indian Succession Act. It was stated that in the entire petition the Will is claimed to be dated 28.6.04 whereas on the Will the date is mentioned as 30.11.95 which is purported to have been registered on 28.6.04. Besides that it was stated that the petitioner no. 2 who is also the beneficiary in the said Will signed the same as witness and even the said Will was executed on a stamp paper of Rs.100/- whereas the deceased was well aware of the formalities required to be completed for execution of a Will as he had in the past executed number of wills with regard to the property in question. It was stated that the mode, manner and style of the signatures of the deceased Kirpa Ram was altogether different. It was stated that at the relevant time when the Will in question was executed eviction proceedings with regarding PC- 41/11/06 Page:-6/33 to the property were going on against the tenants of the property and there is strong possibility of petitioners obtaining signature of the deceased on a blank stamp paper on the pretext of filing the same in the court where those proceedings were pending to look after the proceedings on behalf of Sh. Kirpa Ram. It was stated that in the Will in question petitioner no. 1 and respondent no. 3 were shown as resident of WZ-103, Meenakshi Garden, New Delhi whereas the fact is that neither at the time of execution of the alleged Will nor at the time of filing of the petition for probate they ever resided at the said address nor were in possession of any fringe of the portion of the said property. It was stated that the deceased did not execute any valid and last will purported to be dated 30.11.95 and the said Will was obtained by the petitioners fraudulently and by misrepresentation with a sole intention to deprive the respondent no. 2 of his ownership right with regard to the property. As stated the purported Will is not an outcome of the deceased love and affection. Rather in earlier Will the deceased had stated that the petitioner no. 2 is not obedient to hi. It was submitted that deceased cancelled all his previous wills or codicils on 19.2.03 vide a deed of cancellation which was duly registered with the office of Sub Registrar, Delhi. Accordingly it was prayed that the probate petition filed by the PC- 41/11/06 Page:-7/33 petitioner by dismissed.
5. Objections were also filed on behalf of respondent no. 4(A,B,C) 5& 6 wherein it was stated that late Sh. Kirpa Ram executed registered Will dated 28.9.1987 in favour of late Sh. Amarjeet, husband of respondent no. 4 whereby he bequeathed the property in question to Sh. Amarjeet and after his demise, respondent no. 4 Kamlesh his wife became the absolute owner of the property in question. It was stated that deceased Sh. Kirpa Ram never executed any Will dated 28.6.04 and the same is forged and fabricated document. It was denied that the defendant no. 2 purchased the properties in question from Sh. Kirpa Ram vide agreement to sell, GPA, receipt, affidavit etc. and registered Will dated 19.2.03. It was stated that Will dated 19.2.03 is also forged and fabricated document. It was accordingly prayed that instant petition be dismissed.
6. Respondent no. 3 Parveen Kumar gave his no objection to the present petition as depicted from ordersheet dated 28.2.06.
7. Separate rejoinder to objections of objectors were filed on behalf of the petitioner in which contents of the petition were reiterated and those of the objections were denied.
8. It is pertinent to mention here that these are two probate cases i.e. present PC- 41/11/06 Page:-8/33 case bearing no. 41/11/06 titled as Satish Kumar Vs State and another petition no. 40/11//06 Mahesh Chander Monga Vs. State which were consolidated vide order dated 17.8.06.
9. Vide order dated 17.8.06 from the pleadings of parties, the following issues were framed:-
1) Whether the allege executed and registered Will dated 28.6.04, propounded by the petitioners Satish Kumar and Devender Kumar is the duly executed last and final Will of late Sh. Kirpa Ram in sound physical and disposing state of mind?OPP
2) Whether the petition is liable to be rejected in view of preliminary objections taken by respondent no. 2 Mahesh Chander? (Onus placed on respondent no. 2)
3) Whether the alleged Will dated 19.2.03, propounded by respondent no. 2 Mahesh Chander Monga is the duly executed last and final Will of late Sh. Kirpa Ram in sound disposing state of mind?(Onus placed on respondent no. 2)
4) Relief.
10. In evidence, petitioner produced PW-1 Ranjeev Shoukin, LDC from office of Sub Registrar-II, PW-2 Ramesh Chander, LDC from office of SDM, PW-3 Sh. O.P. Chaudhary, PW-4 Satish Kumar, petitioner no. 1, PW-5 Sh. Davinder Kumar, petitioner no. 2, PW-6 Sh. Inderjeet Barnala, PW-7 Sh. Shadi Lal. PW-1 Sh. Rajeev Shoukin, LDC from the office of Sub PC- 41/11/06 Page:-9/33 Registrar who brought registered Will bearing no. 3732 book no. 3 Vol. no. 795 pages 63 to 65 dated 28.6.04 executed by Sh. Kripa Ram and deposed that he had seen the original Will Mark A on record which is correct according to is record. He after going through the contents of Will Mark A and the copy of the Will pasted in the Bahi brought by him deposed that in mark A there is only one thumb impression whereas in the photocopy of his bahi brought by him there are two thumb impression. He further stated that in Mark A in Urdu languate is appearing at one point in front page whereas in photocopy of the summoned record Urdu languate is appearing at two places. He also stated that in mark A there is is no dot above the work 'raised' appearing in the second para of first page of the Will whereas there is a dot at the same pace in the summoned Will brought by him. PW-2 Sh. Ramesh Chander, LDC from office of SDM brought the summoned record of non judicial stamp paper of Rs.100/- bearing no. 30658 dated 28.6.04 and deposed that the said stamp was purchased by Sh. Kirpa Ram from the stamp vendor with license no. 214 whose name was Sh. Mahesh Khanna who was having his sale counter at District Center Janakpuri. He deposed that in his original record page no. 766 the signatures of Kirpa Ram were appended in Urdu and the date and PC- 41/11/06 Page:-10/33 other particulars of the stamp papers were correct accordingly to his record which was purchased on 28.6.04. PW-3 Sh. O.P. Chaudhary stated himself to be the witness no. 2 in the Will dated 28.6.04 and identified his signatures on the same. He stated that witness no. 1 came to him and he requested him to present this Will. He further stated that witness no. ` signed in his presence, however he was not present when the Will was presented for registration. He could not identify any other signatures and stated he did not have any knowledge of the contents of the Will Mark A. PW-4 Satish Kumar, petitioner no. 1 reiterated his case as set out in the petition and relied upon his affidavit Ex. PW-4/A and death certificate of Sh. Kirpa Ram Ex. PW-4/B. PW-5 Davinder Kumar, petitioner no. 2 also reiterated his case as set out in petition. PW-6 Sh. Inderjeet Barnala stated that Sh. Kirpa Ram, father of Devender Kumar is known to me since last 5-6 years being his client and had a property dispute. He stated that he filed a suit for permanent injunction on behalf of Sh. Kirpa Ram as an advocate. He relied upon Ex. PW-6/A certified copy of the plaint and identified his signature on the original plaint as well as identified the signatures of Sh. Kirpa Ram on his original affidavit certified copy of which was Ex. PW-6/B. He also stated that he gave statement on behalf of Sh.
PC- 41/11/06 Page:-11/33 Kirpa Ram at his instruction on 5.6.04. He stated that Kirpa Ram was aged but was hale and hearty otherwise at the time of filing of plaint on 1.6.04 and also on 5.6.04. PW-7 Sh. Shadi Lal, UDC from office of Sub Registrar stated that he was an ex-employee of Sub Registrar office and was working as UDC. He identified his signatures on the original Will at point A and also recognized the signatures of the then Sub Registrar Sh. Mathur at points B and C.
11.In defence, objector no. 2 examined himself as R2W1, R2W2 Sh. O.P. Chaudhary and, R2W3 Harjeet Singh. Objectors no. 4 to 6 produced R4W1 Smt. Kamlesh. R2W1 i.e. objector no. 2 reiterated his case as set out in the objections filed by him and relied upon certified copy of the deed of cancellation of the Will Ex. R2W1/1, general power of attorney Ex. R2W1/2, special power of attorney Ex. R2W1/3, agreement to sell Ex. R2W1/4, receipt of consideration Ex. R2W1/5, affidavit & possession letters Ex. R2W1/6& 7, counter foils of the rent receipts Ex. R2W1/8 to 14, certified copy of order of Hon'ble High Court Ex. R2W1/15, death certificate of Kirpa Ram Ex. PW-4/B and Will dated 19.2.03 was Mark RX. R2W2 Sh. O.P. Chaudhary, advocate stated himself to be witness of the Will dated 19.2.03 Mark RX. He identified the signatures of Sh. Kirpa Ram at point B and PC- 41/11/06 Page:-12/33 other witness Harjeet Singh at point C on the Will Mark RX. He stated that the Will was first signed by Kirpa Ram then by Harjeet Singh and thereafter by him. He also stated that the testator signed the Will after being read over the same. The original Will was Ex. R2W2/A. He also identified the signatures and thumb impression of Kirpa Ram on cancellation of Will Ex. R2W1/1 as well as signatures of Sh. Harjeet Singh and his own signatures. He also identified signatures of Sh. Kirpa Ram, Harjeet Singh and his own on the general power of attorney dated 19.2.03 Ex. R2W1/2. Similarly R2W3 Sh. Harjeet Singh also stated himself to be witness on Ex. R2W2/A and identified his own signatures as well as signatures of Sh. Kirpa Ram on the same. He stated that the said Will was first signed and thumb impression by Sh. Kirpa Ram, then by him and thereafter by Sh. O.P. Chaoudhary. He also identified his own signatures, signatures of Kirpa Ram and signatures of Sh. O.P. Chaudhary on Ex. R2W1/1 and on Ex. R2W1/2. He also identified his signatures, signatures & thumb impression of Kirpa Ram and signatures of Mahesh Chander on Ex. R2W1/4. Similarly he identified the signatures & thumb impression of Kirpa Ram and other witnesses on Ex. R2W1/6, R2W1/5, R2W1/7. He stated that the aforesaid documents were drafted and prepared by Sh. Dalip Bajaj and he took to PC- 41/11/06 Page:-13/33 Sh. O.P. Choudhary for registration of the aforesaid documents and for notorisation. R4W1 Kamlesh, objector no. 4 reiterated her case as set out in her objections.
12.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.
13. Issue no. 1 and 2 :- 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.
14.Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its PC- 41/11/06 Page:-14/33 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 Vashram Vs. State of Gujrat. 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 Ku. Chandan & Anr. Vs. Longa Bai& Anr."
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 PC- 41/11/06 Page:-15/33 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 more than one witness be present at the same time, and no particular form of attestation shall be necessary."
16.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.
17. 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 PC- 41/11/06 Page:-16/33 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 Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
18. 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 PC- 41/11/06 Page:-17/33 Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
19. 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.
20.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 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 PC- 41/11/06 Page:-18/33 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 (1971) 1 MLJ 127 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 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 PC- 41/11/06 Page:-19/33 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."
21.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 PC- 41/11/06 Page:-20/33 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 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 PC- 41/11/06 Page:-21/33 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 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.
22.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 PC- 41/11/06 Page:-22/33 given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
23. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also PC- 41/11/06 Page:-23/33 contribute and indicates towards the particular inference cumulatively and collectively.
24. Since these are two connected probate petitions which were clubbed together and common issues have been framed in both of them as well as common evidence was led, hence I proceed to decide both the petitions simultaneously. Issue no. 1 & 2 regarding Will dated 28.6.04 as propounded by Sh. Satish Kumar and Devender Kumar are being decided in the present case whereas issue no. 3 regarding Will dated 19.2.03 is being decided in the connected case. Now I have to see whether in the present case the above principles have been duly made out or not.
25. As far as the ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will dated 28.6.04 is concerned objector Mahesh Chander Monga had not taken any objection in this respect and objection in respect was taken by the group of objector represented by Smt. Kamlesh Rani whereby they stated that Sh. Kirpa Ram became insane in the year 2000, however there is nothing on record to show that testator was not in good mental state at the relevant time. Except for the bald assertion of the objectors there is no medical document PC- 41/11/06 Page:-24/33 on record which could show that the testator was suffering from any disease which could have effected his cognitive faculties. Hence it is held that testator was not suffering from any disease at the relevant time of execution of the Will in question which would have effected his cognitive faculties.
26.Now I will deal with the question of valid execution of the Will dated 28.6.04. It is contended on behalf of the objector that the date of the Will in question mentioned in the same is 30.11.95 and not 28.6.04 whereas the same was registered on 28.6.04, hence there is long gap of nine years in the execution and registration of the Will. On the other hand petitioners have submitted that the same was a typographical error whereas the Will was registered on 28.6.04. Perusal of the Will shows that the Will was dated 30.11.95 and not 28.4.04. If the same was a typographical error then the same could have been corrected by the testator or the witnesses at the time of signing the same or by the staff of Sub Registrar. It is also a point of consideration that one of the attesting witness to the Will in question was an advocate himself and could have identified the said mistake. Even afterwards steps could have been taken to correct the said typographical error but that is not the case here. Rather there is no mention of said PC- 41/11/06 Page:-25/33 mistake in the present petition. Besides that in the last para of first page of the said Will it was mentioned that Sh. Kirpa Ram was having two living sons and two daughters namely S/Sh. Devender Kumar @ Natha Ram, Amarjit, Smt. Shakuntala and Smt. Swarnkanta @ Swarna and it has come in the statement of Smt. Kamlesh widow of late Sh. Amarjit R4W1 that her husband Amarjit expired on 28.8.97. If the Will in question was executed on 28.6.04 then how come the testator had included his dead son Sh.Amarjit in the category of his living sons. Hence from the abovesaid contradiction as pointed out above as well as wrong mentioning of date in the Will certainly raise suspicion on the execution of the said Will.
27.Other objection taken by the objectors is that the Sh. Davender Kumar who is shown to be attesting witness no. 1 in the said Will is also the beneficiary in the said Will. On the other hand it is submitted by the petitioners that if an attesting witness to the Will happens to be its beneficiary also then his testimony on oath cannot be rejected, however his evidence can be read with due care and caution by Court to see that he has not influenced the testator in any manner. In the present case Sh. Devender Kumar is also the beneficiary in the Will in question. It is admitted case Sh. Devender Kumar that he was present at the office of PC- 41/11/06 Page:-26/33 Sub Registrar on the relevant day of execution of the Will and had also signed as attesting witness. Though during cross examination he stated that on 28.6.04 Kirpa Ram asked him on telephone to reach the District Center Authority and accordingly he reached there at about 10.00-11.00 am as asked by him and by that time had he had got the papers ready. He also stated during cross examination that he did not know as to who drafted the Will in question. His father himself got the document Mark-A typed. The Will was typed at Janakpuri and he was not present at the time of typing of the Will. However in cross examination recorded on 19.7.07 he stated that his father was dictating the same in Urdu and the same was typed by typist in English after translating the same. When Sh. Devender Kumar was not present at the time of drafting of the Will then how come he knew that his father was dictating the same in Urdu and the same was typed by the typist in English after translating the same. Even PW-3 Sh. O.P Chaudhary, witness no. 2 in the Will had deposed that witness no. 1 had come to him and requested him to present this Will whereas PW-5 Sh. Devender Kumar during cross examination at one place stated that document mark A was signed by his father, by himself and Sh. O.P Chaudhary before it was placed before the Sub Registrar, however subsequently stated that he did PC- 41/11/06 Page:-27/33 not know Sh. O.P. Chaudhary, Advocate. The above contradictions surely raised doubt and possibility of Sh. Devender Kumar to be present at the time of drafting of the Will also cannot be ruled out. The testimony of Sh. Devender Kumar suffers from above contradictions and does not inspire confidence as well as his influence on the testator cannot be ruled out. Further PW-5 during cross examination admitted that his father did not go through the contents of the Will as he could not read English. The said deposition of PW-5 shows that even the Will was not read over to the testator to make him understand the contents of the same. The deposition of other attesting witness PW-3 Sh. O.P. Chaudhary remained silent on this aspect. Rather PW-3 Sh. O.P. Chaudhary another attesting witness during cross examination admitted that the executant and the witnesses had not signed in his presence. PW-3 also admitted that his signatures at point Mark-A on Will Mark-A does not bear the date and also that he did not enter the date in his writing on the first and second page of the Will. He further stated that he gave the date of putting his signatures as 28.6.04 in his examination in chief as the same was put to him by the counsel for petitioner. It has also come in the cross examination of PW-5 at one place that at the time when he signed the document Mark A, it was bearing the PC- 41/11/06 Page:-28/33 signatures of his father only whereas on the other place he stated that the document Mark A was signed by his father, O.P. Chaudhary and himself before it was placed before the Sub Registrar. However as already observed the version of PW-3 was different as he did not state that he signed in presence of executant and other attesting witness. The above contradictory statements made by PW-3 and PW-5 have completely destroyed the case of petitioners since for a valid execution of a Will it is mandatory that the testator and the witnesses should sign the same in presence of each other whereas in the present matter that is not the case and even it has not come on record that the contents of the Will was read over to the testator who admittedly was not knowing English language. Rather in the Will in question on the last page words 'drafted by me' appear after the signatures of testator. When admittedly the testator was not knowing English language and when not even the Will was read over to him then how come said words find mention after the signatures of the testator. Besides that it is also pertinent to mention here that PW-1 Sh. Ranjeev Shoukin, LDC from SDM office who had brought the register of the Will Mark A deposed that the said Will was presented on 22.6.05. He also stated in Mark A there is only one thumb impression whereas in the PC- 41/11/06 Page:-29/33 photocopy of the Will brought by him there were two thumb impressions. He also deposed that in mark A in Urdu languate is appearing at one point in the front page of mark A whereas in the photocopy of the summoned record Urdu language is appearing at two places. It was also stated by him that in mark A there was no dot above the word 'raised' appearing in the second para of first page of Will where there was a dot at the same place in the summoned Will brought by him. The said differences pointed out by PW-1 in the Will mark A which is on record and the copy of Will brought from the office of Sub Registrar are also apparent on record and raise doubt on the genuineness of the Will in question. Hence, the execution of the Will in question is surrounded with heavy suspicion and the Will in question cannot be given a clean chit.
28. Perusal of the Will in question shows that in the second page last para it is written that " In my life time and after my death Sh. Devinder Kumar shall be received the rent of 4 shops and my son Devinder Kumar shall be full right to any decision against the above said shops". The words " in my life time seems to have added in the said lines and besides that a Will is made by any person to have given effect to after his or her death and is not made to give immediate effect to any wish of the testator. Hence the Will PC- 41/11/06 Page:-30/33 in question also fails on this ground.
29. Further, the deceased Kripa Ram had two sons and two daughters namely Sh. Devinder Kumar, petitioner no. 2 , Sh. Amarjit ,Smt. Shakuntala Rani and Smt. Swaran Kanta. The main beneficiaries in the Will in question are Devinder Kumar and his son Satish Kumar whereas other two sons of Devinder Kumar namely Mahesh Kumar, respondent no. 2 and Sh. Parveen Kumar were only given user right in property in question. No reasons have been given for debarment of two daughters of testator and legal heirs of other son namely Amarjit who admittedly expired during the lifetime of testator. Petitioner no. 1 Satish Kumar during cross examination admitted that testator made a Will in 1987 favour of Amarjeet and even as per Will in question Will dated 28.9.1987 was revoked by the testator. No reasons have been given as to why previous Will dated 28.9.1987 was revoked by the testator and why the LRs of Sh. Amarjeet were debarred in the Will in question dated 28.6.04 when nothing is on record to show that LRs of late Amarjeet had any strained relationship with the testator. Besides that in the Will in question it is clearly mentioned that Satish Kumar and Sh. Mahesh Chand were serving the testator in his old age particularly Sh. Satish Kumar Monga have been rendering him all sorts PC- 41/11/06 Page:-31/33 of service and support in his old age affectionately. When Sh. Mahesh Chand, respondent no. 2 as per the Will in question itself was serving the testator then why he was debarred by the testator from having any ownership right in the property in question and was just given user right. The Will in question is silent in regard to the reasons of debarment of objectors and the same are not only fully explained by the testator while executing the Will which give rise to unnatural and suspicious circumstances. Hence, the execution of the Will in question is surrounded with heavy suspicion and the Will in question cannot be given a clean chit. Rather Wills dated 29.9.87, 23.3.99, 19.2.03, 28.6.04, 30.11.95 alleged to be executed by the testator have been pleaded by the respective parties which goes to show that testator had inconsistent stand and was not sure as to whom he should bequeath his property. Accordingly in view of the above said Will dated 28.6.04 Mark-A cannot be stated to be the last testamentary disposition of the testator out of free will and without coercion and is accordingly rejected.
30.As far as the plea of objectors that the petition has not been verified by one of the attesting witnessses of the Will is concerned petitioner has argued that if one the attesting witness comes and depose before the court PC- 41/11/06 Page:-32/33 that he has seen testator executing the Will in question then requirement of Section 281 stands satisfied. Though the Will in question has already been rejected but even otherwise in a case where executor is appointed by the testator in the Will then Section 281 of Indian Succession Act applies and if no executor is appointed then Section 278 applies for grant of letter of administration wherein there is no mandatory requirement of one attesting witness to sign the petition. In the present case no executor has been appointed in the Will in question, so there is no requirement of attestation of petition by one of the witness. Hence the said plea of objectors stands rejected. In view of the above, issue no. 1 and 2 are decided in favour of the objectors and against the petitioners.
31. Issue no. 3:- Issue no. 3 has been decided simultaneously in the connected petition since the same relate to the Will dated 19.2.03 which has been propounded by objector no. 2 Sh. Mahesh Kumar in the connected petition filed by him. This issue accordingly stands disposed off.
32. Relief:- In view of the findings on issue no. 1 and 2, instant petition stands dismissed. File be consigned to record room.
Announced in open court (Ajay Goel) on 5.7.14 ADJ-12(Central)/Delhi PC- 41/11/06 Page:-33/33