Delhi District Court
Smt. Gurbachan Kaur vs B.N. Thimmajamma on 9 April, 2010
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, DISTRICT JUDGE-II
NORTH DISTRICT : DELHI
P.C. No. 11 / 2006 (Old PC No. 132/05)
Date of institution: 20.04.2005
Judgment reserved on: 29.03.2010
Judgment pronounced on: 09.04.2010
1. Smt. Gurbachan Kaur
W/o late S. Harbans Singh Sethi
R/o 17/54-A and B, Tilak Nagar,
New Delhi-110018
2. Shri Prabhjot Singh
S/o late S. Bhupinder Singh
R/o H.No. 204-A, Gali No.12,
Shiv Nagar, New Delhi-110058
Versus
State ......Respondents
Petition for grant of Letters of Administration
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JUDGMENT
The petitioners have filed the present petition for grant of Letters of Administration in respect of Will dated 07.04.1998 of late S. Harbans Singh Sethi son of late S. Prem Singh Sethi.
2. Briefly stated, the case of the petitioners is that S. Harbans Singh Sethi died on 18.11.2004 at Delhi, he had a fixed and permanent Probate Case No. 11/2006 Page 1 of 30 -: 2 :- abode at Delhi. The death certificate has been filed with the petition. S. Harbans Singh Sethi left his last registered Will and testament dated 07.04.1998, copy of Will has been filed with the petition.
3. It is averred by the petitioners that petitioner No.1 is the widow of deceased and petitioner No.2 is the maternal grandson of deceased, son of his only daughter Ravinder Kaur. S. Harbans Singh left behind the petitioner No.1, four sons namely Shri Taranjit Singh, Jagjit Sigh, Jasbir Singh, Balvinder Singh and daughter Smt. Ravinder Kaur. The list of legal heirs has been filed as Annexure-B annexed with the petition. The details of debts, securities etc. left by deceased has been detailed in Annexure-A.
4. The petition has been verified by Shri Charanjit Singh Advocate, one of the attesting witness to the Will.
5. The notice of the petition was issued to State through Collector. The citation for general public was got published in the newspaper 'Rashtriya Sahara' dated 08.06.2005 and a copy of citation was also displayed on the notice board of the Court. Nobody appeared from the general public and no objection was filed.
6. Notice was also issued to respondents. The respondent No.2 Shri Taranjit Singh made statement on 13.07.2005 that he has no objection if the petition is allowed in favour of petitioners.
Probate Case No. 11/2006 Page 2 of 30 -: 3 :-7. The respondents No. 3 to 5 namely Shri Jagjit Singh, Jasbir Singh and Shri Balvinder Singh filed joint objections on the grounds interalia that alleged Will is in violation of Section 63 of the Indian Succession Act. From the morning of 07.04.1998 Late S. Harbans Singh Sethi was with his second son Shri Jagjeet Singh at A-26, Gali No.8, Krishna Park Extn., New Delhi till early morning of 09.04.1998 and there was no occasion for him to sign the alleged Will. The attesting witnesses never met late S. Harbans Singh Sethi on 07.04.1998. The contents of the alleged Will are far from factual position which were very well known to late S. Harbans Singh Sethi. The estate referred in the alleged Will is not the sole and absolute property of the alleged testator. The objector Shri Jagjit Singh invested money amounting to Rs. 23,00,000/- in raising the structure of the property. The objector Shri Jasbir Singh also incurred expenses amounting to Rs.50,000/- to Rs.1,00,000/- and objector No.3 contributed more than Rs.50,000/- in the development of said estate. The property referred in the alleged Will and alleged to have been purchased in favour of Shri Taranjeet Singh was infact sold by late S. Harbans Singh Sethi in the year 1996 by himself, property referred in the alleged Will purchased in favour of Shri Jagjeet Singh was infact purchased by Jagjeet Singh of his own and the property alleged to have been purchased in favour of Shri Jasbir Singh was infact a shop on lease of Shri Jasbir Singh and his wife jointly. The property alleged to have been bought in favour of Shri Balvinder Singh is a self acquired property of Shri Balvinder Singh in the year 1992. The daughter of late S. Harbans Singh Sethi was divorced from the first marriage in the year Probate Case No. 11/2006 Page 3 of 30 -: 4 :- 1982 and since then she has been attending and interfering in each and every activity of late S. Harbans Singh Sethi. Smt. Ravinder Kaur used to take the signatures of late S. Harbans Singh Sethi in advance on blank papers / cheque etc. The alleged Will is a malafide manifestation fabricated and forged by Smt. Ravinder Kaur with their evil motive to grab the whole property of late S. Harbans Singh Sethi. S. Harbans Singh Sethi since the year 1995-96 has been suffering from chronic ailments like heart trouble, high blood pressure, depression coupled with consistent weakness. He used to suffer from attack of tongue murmuring and stammering and for these reasons he had to follow the instructions of his wife and his daughter according to their wimps. The attesting witness Shri Charanjeet Singh Advocate was not having good relation with S. Harbans Singh Sethi. The other attesting witness namely Shri S.K. Duggal Advocate was in no manner known to late S. Harbans Singh Sethi. The Will is alleged to have been executed on 07.04.1998, alleged to have been registered on 09.03.1999 and has come to the knowledge of the objectors upon the service of the summons of the petition i.e. in June-July 2005 whereas late S. Harbans Singh Sethi expired on 18.11.2004 and there was no whisper of the execution of any Will by late S. Harbans Singh Sethi till his death. The estate relates to the jurisdiction of Sub-Registrar, Janakpuri, New Delhi whereas the alleged Will is registered at Sub- Registrar, Karol Bagh, New Delhi having no jurisdiction in the subject matter. The valuation of the property has been grossly undervalued by the petitioners. On merits, it is denied that S. Harbans Singh Sethi left his last registered Will and testament dated 07.04.1998.
Probate Case No. 11/2006 Page 4 of 30 -: 5 :-8. The petitioners filed reply to the objections, denied the allegations made in objections and reiterated the plea taken in the petition.
9. During the pendency of petition, relation No.6 Smt. Ravinder Kaur expired on 17.12.2005 and on an application her legal heirs namely petitioner No.2, Shri Surjit Singh and Jaspreet Singh were substituted, vide order dated 25.01.2006. The LRs Surjit Singh and Jaspreet Singh filed no objection on 19.04.2006.
10. On the pleadings of parties, following issues were framed by my learned predecessor on 29.11.2006:-
1. Whether the Will dated 07.04.1998, propounded by the petitioners is the duly executed last and final Will of late Sardar Harbans Singh in good health and good state of mind? OPPs
2. Whether the petitioners are entitled to the grant of Letters of Administration? OPPs.
3. Relief
11. Thereafter, the objectors moved an application under Order 14 Rule 1 read with Section 151 CPC for framing of additional issues and vide order dated 29.03.2007 following additional issue was framed by my learned predecessor:-
1A. Whether the registration of the alleged Will of late S. Harbans Singh Sethi is in contradiction of the provisions of Indian Registration Act? If yes, its effect? O.P. Objector Probate Case No. 11/2006 Page 5 of 30 -: 6 :-
12. In support of their case, the petitioners have examined as many as three witnesses. PW-1 Smt. Gurbachan Kaur is petitioner No.1. She has tendered her affidavit, which is Ex.P-1. By way of her affidavit, she has deposed in terms of the petition. She has deposed that her husband late S. Harbans Singh Sethi died on 18.11.2004 and death certificate is Ex.Pw-1/1. Her husband executed Will in sound disposing state of mind and by having true possession of his mental faculties on 07.04.1998. The Will of her husband was also got registered with Sub-Registrar, Karol Bagh, New Delhi in the presence of Shri Charanjit Singh and Shri S.K. Duggal Advocates. In cross examination she stated that she came to know of the Will after the death of S. Harbans Singh Sethi through Charanjeet Singh, who was having the custody of the Will. She admitted that S. Harbans Singh Sethi was admitted in Kukreja Hospital for a night. She explained that he was little unwell as he had got fever due to cold. She denied that S. Harbans Singh Sethi was having loss of memory in 2004-05. She admitted that S. Harbans Singh Sethi occasionally used to have high B.P. but it was not abnormally high. The objectors used to visit her house on family functions. She denied that Ravinder Kaur used to visit her house everyday or that her daughter indulged in forgery of signatures of her husband on his medical papers of Kukreja Nursing Home with a view to get false claim or that a case was made against her on this account. She admitted that her counsel in the suit for partition is Shri Charanjit Singh. She admitted that Mr. Charanjit Singh Advocate used to meet late S. Harbans Singh Sethi in relation to Gurudwara cases. The objectors had sent a notice to her but she Probate Case No. 11/2006 Page 6 of 30 -: 7 :- could not tell the date of notice or contents thereof as the same was not received by her. She denied that notice was not sent to her or that it was sent to the authority to prevent her from alienating the propperty.
She denied that she in collusion with Ravinder Kaur and the witness Shri Charanjit Singh obtained the signatures of late Sardar Harbans Singh Sethi fraudulently on the alleged Will. She could not tell which medicine was prescribed to her husband by Kukreja Nursing Home, Agrasen Hospital, Chanan Devi Hospital and Kochar Nursing Home. She denied that her husband was undergoing treatment of his nervous disorder, depression, heart problem, high blood pressure in the hospitals.
13. PW-2 Shri Prabhjot Singh is petitioner No.2. He has tendered his affidavit, which is Ex.P-2. By way of his affidavit he has deposed that S. Harbans Singh Sethi died on 18.11.2004 and he was his maternal grandfather and petitioner No.2 is his maternal grandmother. He is the only son of Smt. Ravinder Kaur, who died on 17.12.2005, from his mother's first husband S. Bhupinder Singh. The death certificate of his mother is Ex.PW-2/1. In cross examination he stated that S. Harbans Singh Sethi died a natural death and at the time of his death his mother Ravinder Kaur was residing at her residence at Shiv Nagar. He came to know about the Will after his marriage, which was in February-2005. He could not tell in which hospitals late H.S. Sethi had taken medical assistance during the last ten years before his demise, but he was enjoying good health. Late Harbans Singh Sethi himself was attending daily chores including his Probate Case No. 11/2006 Page 7 of 30 -: 8 :- bathroom etc. He knows Shri Charanjeet Singh Advocate, who is a family friend. He could not tell when his deceased mother Ravinder Kaur had gone to the house of objector. He denied that late Harbans Singh Sethi was not the absolute owner of property No. 17/54A & B, Tilak Nagar. He denied that Harbans Singh Sethi was suffering from Neurological problem or that due to said problem, he was steamering and was having loss of memory during ten years prior to his death or that he was dependent upon his daughter late Ravinder Kaur and wife Gurbachan Kaur for his day to day needs. He also denied that financial aspects of late Harbans Singh Sethi were looked after by his daughter Smt. Ravinder Kaur or that he has filed the present petition after coming to know of the objections filed by the objectors before L&DO and MCD regarding alienation of the property. He denied that Will has been fabricated by his mother in connivance with his maternal grandmother.
14. Pw-3 Shri Charnjit Singh Advocate is one of the attesting witness to the Will. He has tendered his affidavit, which is Ex.P-3. By way of his affidavit, he has deposed that Sardar Harbans Singh Sethi came to him, he drafted a Will of Sardar Harbans Singh Sethi. The Will was sent to Sardar Harbans Singh Sethi through his father late Sardar Jaswant Singh on 07.04.1998. The Will remained with Sardar Harbans Singh Sethi for about 10/11 months. In the first week of March 1999 his father handed over the Will duly signed by Sardar Harbans Singh Sethi and his father told him that Shri Harbans Singh Sethi had signed and he should also sign on the Will. The Will had Probate Case No. 11/2006 Page 8 of 30 -: 9 :- already been signed by Shri Harbans Singh Sethi at point A, A-1 and A-2. Mr. Harbans Singh Sethi signed on the back side of Will before the Sub-Registrar and he was also present at that time. The Will is Ex.PW-3/1. The health of Mr. Harbans Singh Sethi was good when he came to him in April, 1998 and in March, 1999 when Harbans Singh Sethi came for registration of Will, his health was good. I had no talk with Harbans Singh Sethi before registration of the Will. He collected the Will from the office of Sub-Registrar and handed over to his father and after the death of his father, the original Will remained with him. He handed over the original Will of Shri Harbans Singh Sethi to his wife Smt. Gurbachan Kaur after the death of Shri Harbans Singh and after performance of his Kriya Ceremony. In cross examination he stated that he knew Smt. Ravinder Kaur mother of petitioner No.2 since her birth. He admitted that he was counsel in the petition for divorce for Smt. Ravinder Kaur. He signed on the Will Ex.PW-3/1 of Shri Harbans Singh Sethi. He admitted that when he signed on the Will Ex.PW3/1 Shri Harbans Singh Sethi was not present in his house. When he put his signatures on Will Ex.PW-3/1, he and his father only were present. Mr. Harbans Singh Sethi took the slip from the office of sub-registrar and handed over the same to him for taking delivery of original Will. No proceeding was conducted in respect of the Will of Shri Harbans Singh Sethi on 23.04.1998. The date as 23.04.1988 written at point X on the Will Ex.PW3/1 appears to be the date of issuance of election I- Card of Shri Harbans Singh. He admitted that there is no stamp of the office of Sub Registrar on the photograph of Shri Harbans Singh Sethi and on the first page of Will near the Probate Case No. 11/2006 Page 9 of 30 -: 10 :- photograph. On 09.03.1999 his father also got his Will registered in the office of Sub Registrar, in his presence. Mr. Harbans Singh Sethi knew Shri S.K. Duggal, advocate through him. He admitted that relations between Shri Harbans Singh Sethi and the objectors namely Shri Jagjit Singh, Jasbir Singh and Shri Balvinder Singh were good during the life time of Harbans Singh Sethi and objectors were on visiting terms to the house of Harbans Singh Sethi. He also admitted that he had been obtaining the signatures of Shri Harbans Singh Sethi on the documents prepared by him on behalf of the school and Gurudwara Singh Sabha. He cannot identify the signatures of Shri Harbans Singh Sethi on the papers. He denied that Shri Harbans Singh Sethi never came to him or that he never asked him to draft his Will or that the Will Ex.PW3/1 was fabricated by petitioner No.1 Smt. Gurbachan Kaur and mother of petitioner No.2 in collusion with him.
15. Thereafter, on 06.01.2009 Shri M.L. Bajaj, learned counsel for the petitioners closed evidence on behalf of petitioners and stated that affidavit of Shri S.K. Duggal Advocate may not be read in evidence.
16. The objectors have examined as many as six witnesses. RW-1 Shri Balvinder Singh is objector. He has tendered his affidavit, which is Ex.R-1. By way of his affidavit, he has deposed in terms of the objections. He has deposed that medical receipt dated 22.09.1997 regarding admission of the deceased in Mata Chanan Devi Hospital, New Delhi is mark A. He sent notice dated 13.03.2005 to MCD, copy Probate Case No. 11/2006 Page 10 of 30 -: 11 :- of notice is Ex.RW-1/1 and another notice was sent to L&DO, carbon copy of said notice is Ex.RW-1/2. He obtained the report of handwriting expert dated 26.07.2006, said report is mark B and the supplementary report dated 01.09.2006 is mark C and valuation report prepared by Shri P. Singh, Architect is mark D. In cross examination he stated that the property No. 17/54-A &B, Tilak Nagar, New Delhi was purchased before his birth, in the year 1954-55. He paid about Rs.50,000/- to his father in cash on different occasions but he could not tell the date, month or year. On 07.04.1998 his father was in the house of Jagjit Singh at Krishna Park as there was occasion of birthday of Jagjit Singh. He admitted that Shri Charanjit Singh Advocate and Shri M.L. Bajaj Advocate have been counsels on behalf of his family for the last about 30 years and his father was President of Gurudwara Singh Sabha, Tilak Nagar and Shri Charanjeet Singh Advocate was Secretary. He also admitted that his brother Jasbir Singh is employed with State Bank of India, his sister was also employed with State Bank of India. His sister remarried and she expired in the matrimonial house of her husband. He denied that his mother and Prabhjot Singh never forged signatures of his father when he was admitted in hospital or that his father was not admitted in ICU of Kukreja Hospital. He also denied that he obtained false reports mark B, C and D. He also denied that his father was in good health and in sound disposing state of mind on 07.04.1998 and 09.03.1999.
17. RW-2 Shri N.S. Khosla is from the office of MCD. He has deposed that notice dated 13.03.2005 sent by Shri Ajit Nair Advocate Probate Case No. 11/2006 Page 11 of 30 -: 12 :- in respect of property No. 17/54, Tilak Nagar, New Delhi was received in their office, copy of said notice is Ex.RW-2/1. In cross examination he stated that notice dated 13.0-3.2005 sent by Shri Ajit Nari Advocate was received in the office of MCD on 23.03.2005.
18. RW-3 K.R. Nair is from Mata Chanan Devi Hospital. He has deposed that summoned record has been destroyed. The letter dated 30.10.2009 signed by Dr. S.K. Bhateja, Medical Superintendent is Ex.Pw-3/1 and same bears signatures of Dr. S.K. Bhateja at point A.
19. RW-4 Shri Sunil Kumar is from the office of L&DO. He has deposed that copy of notice dated 13.03.2005 sent by Shri Ajit Nari Advocate in respect of property No. 17/54, Tilak Nagar, New Delhi is Ex.RW-4/1 and the receiving stamp on Ex.RW-1/2 is of their office. In cross examination he stated that as per file brought by him, notice dated 13.03.2005 was received in the office of L&DO by registered AD post on 17.03.2005.
20. RW-5 Smt. Kamlesh Nehra has deposed that her husband Shri T.R. Nehra died on 11.12.2007 and his death certificate is Ex.RW- 5/1. Copy of her driving license is Ex.RW-5/2. Her husband was working as Handwriting Expert and she can identify his handwriting and signatures as she had seen him signing and writing. The report No. 67/69 bears signatures of her husband Shri T.R. Nehra at point A on each page and same is EX.RW-5/3. The supplementary report dated 01.09.2006 also bears signatures of his husband at point A on each Probate Case No. 11/2006 Page 12 of 30 -: 13 :- page and same is Ex.RW-5/4. In cross examination she stated that she is not an expert of finger print and handwriting. She cannot say anything about the report except the signatures on the report. He could not tell if anybody else assisted his husband at the time of preparing of report Ex.RW-5/3 and Ex.RW-5/4.
21. RW-6 Shri B.P. Singh is a Registered Architect and Valuer. He has deposed that he is practicing as Registered Architect and valuer in the name of M/s. P. Singh and Associates. On 20.07.05 he had visited property No. 17/54 AB, Tilak Nagar, New Delhi and inspected the property. After inspection he prepared valuation report, the valuation report dated 20.07.05 bears his signatures at point A and same is Ex.RW-6/1. In cross examination he admitted that on the top of report the name of P. Singh and Associates is mentioned. The name of his associate is Shri Puran Singh. The value of land mentioned in his report is as per market value and not as per specified rate of CPWD and L & DO. He denied that the market rate of land including construction of the property in question was not more than Rs. 6000/- per Sq. Meter in the year 2005. Mr. Jagjit Singh disclosed himself as owner of the property, he had not obtained the title deed of the property from Jagjit Singh. He denied that the valuation of Rs. 81,20,000/- given by him is not correct. His qualification is mentioned at point X on report Ex.RW-6/1. He denied that he is not a registered architect or that he had not visited the spot.
Probate Case No. 11/2006 Page 13 of 30 -: 14 :-22. Thereafter, learned counsel for the objectors closed evidence on behalf of objectors No. 2 to 4 vide his statement dated 14.12.2009.
23. I have heard Shri M.L. Bajaj Advocate, learned counsel for the petitioners and Shri Ajit Nair Advocate, learned counsel for objectors No. 2 to 4. I have also carefully gone through material on record. My finding on the above issues is as under:-
ISSUE NO.1 AND ISSUE NO. 1A
24. Both the issues are being taken together as both the issues are inter related. Learned counsel for the petitioners submitted that Shri Harbans Singh Sethi was owner of the property in question, he had executed a Will dated 07.04.1998, which was got registered in the office of Sub-Registrar on 09.03.1999. The deceased Shri Harbans Singh Sethi was survived by his wife Smt. Gurbachan Kaur, four sons namely Shri Taranjeet Singh, Jagjit Singh, Jasbir Singh and Balvinder Singh and one daughter namely Smt. Ravinder Kaur. The deceased bequeathed the property in question to his wife and Shri Prabhjot Singh, who is maternal grandson of the deceased. The deceased had not cancelled the Will during his life time.
25. Another submission of learned counsel for the petitioners is that petitioners have examined one of the attesting witness to the Will namely Shri Charanjeet Singh Advocate (Pw-3), who has proved the Probate Case No. 11/2006 Page 14 of 30 -: 15 :- original Will as Ex.PW-3/1. The objectors disputed the signatures of the testator but the objectors have not established that the Will Ex.Pw- 3/1 does not bear signatures of the deceased. The objectors have also not adduced any evidence to show that the deceased was not having sound mind at the time of execution of the Will.
26. Learned counsel for petitioners pointed out that the objectors have produced the report of handwriting expert prepared by Shri T.R. Nehra but he could not be examined as he died. The objectors have examined Smt. Kamlesh Nehra widow of Shri T.R. Nehra as RW-5 but she is not a Finger Print and Handwriting Expert and she could not prove the contents of the report.
27. Learned counsel for petitioners relied upon Judgments in case titled as H. Venkatachala Iyenger Vs. B.N. Thimmajamma reported as AIR 1959 Supreme Court 443, Sunder Vs. Smt. Sunderi & Anr. reported as 1970 (Volume LXXII) Punjab Law Reporter 30, Punnakkal Konnu's daughter Ammu Vs. Thekkekara Kunhunni's son Krishnan & Ors reported as AIR 1965 Kerala 32, Theresa Vs. Francis J. Misquita reported as AIR 1921 Bombay 156, Mir Syed Hasan & Anr Vs. M.T. Taiyaba Begum & Ors reported as AIR 1914 Oudh 52 and Labh Singh & Ors. Vs. Pyara Singh reported as AIR 1984 Punjab & Haryana 270
28. Per contra, learned counsel for objectors urged that the Will Ex.Pw-3/1 is dated 07.04.1998 and the same was registered on Probate Case No. 11/2006 Page 15 of 30 -: 16 :- 09.03.1999 i.e. after about 11 months. Both the attesting witnesses to the Will are not related to the deceased. On the photograph affixed on the Will there is no signature of the testator or the Sub-Registrar. He also pointed out that the Will was got registered with Sub-Registrar, Karol Bagh, New Delhi whereas the property falls within the jurisdiction of Janakpuri, New Delhi.
29. Mr. Nair Advocate appearing for the objectors further submitted that the petitioners have examined Shri Charanjeet Singh Advocate as Pw-3 but he has not proved the Will in accordance with Section 63 (c) of Indian Succession Act. He has deposed that he cannot identify signatures of the deceased Harbans Singh Sethi and the testator had not signed in his presence.
30. Another submission of learned counsel for the objectors is that the Will dated 07.04.1998 is a forged and fabricated document, the deceased had not executed the said Will. According to him on 07.04.1998 the deceased was in the house of objector Shri Jagjit Singh as there was birthday of his son. The petitioners did not prove the signatures of the testator on the Will Ex.Pw-3/1, petitioners have not produced any other document signed by the testator. The objectors have produced copy of conveyance deed and income tax returns bearing signatures of the testator and signatures of Shri Harbans Singh Sethi on the Will Ex.Pw-3/1 were got compared by Shri T.R. Nehra, Handwriting Expert who opined that the writer late S. Harbans Singh Sethi of the admitted signatures did not write the disputed signatures Probate Case No. 11/2006 Page 16 of 30 -: 17 :- on the Will. The report of Handwriting Expert has been proved as Ex.RW-5/3 and RW-5/4.
31. Another submissions of learned counsel for objectors is that the Will Ex.Pw-3/1 was not drafted on the instructions of the testator. The manner in which the Will has been drafted shows that the same was not drafted on the instructions of the testator. According to him, no person would describe his maternal grandson as son of daugther from her first husband. He pointed out that the name of daughter Smt. Ravinder Kaur is mentioned at Sr. No.6 on the Will Ex.Pw-3/1 whereas her name should have been at Sr. No.5. He also pointed out that on page 2 of the Will it is mentioned that Prabhjot Singh is son of his daughter Smt. Ravinder Kaur from her first marriage with Shri Bhupinder Singh. The petitioner No.2 Shri Prabhjot Singh has filed his affidavit, which is Ex.P-2, he mentioned the name of his father as Shri Bhupinder Singh but while appearing as Pw-2 on 23.01.2008 and 10.07.2008 he disclosed the name of his father as Surjeet Singh. He also pointed out that the details of properties mentioned in the Will were not properties of the deceased.
32. I have given my thoughtful consideration to the submissions made by learned counsel for both the parties. Section 63 of the Indian Succession Act reads as under:-
"63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will Probate Case No. 11/2006 Page 17 of 30 -: 18 :- according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his 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 signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
33. On perusal of the aforesaid provisions of Section 63 of the Act, it is clear that attesting witness must state that each of the two witnesses had seen the executor sign or affix his mark to the Will or has seen some other persons signing the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the Will in the presence of the executant. These are the ingredients of the attestation and have to be proved by the witnesses. The word 'execution' in Section 63 of the Act includes attestation as required by law. The propounder can discharge the onus on proof of aforesaid essential ingredients.
Probate Case No. 11/2006 Page 18 of 30 -: 19 :-34. Section 68 of Indian Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
35. The Apex Court in case titled as Indubala Bose & Ors Vs. Manindra Chandra Bose & Anr reported as AIR 1982 Supreme Court 133, has observed that mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act.
36. It is also well settled that the Will has to be proved not only by proving the signatures of the executor but it should be found to be free from any suspicious circumstance. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signatures of the testator as required by law, is sufficient to discharge the onus. In this regard reliance can be placed on Judgment in case titled as Shasi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee reported as AIR 1964 S.C. 529.
37. In case titled as H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors reported as AIR 1959 SC 443, the Will was duly registered. In para 19 & 20 of the Judgment the Apex Court laid down Probate Case No. 11/2006 Page 19 of 30 -: 20 :- the test to be considered regarding proof of Wills. In para 20 and 21 of the Judgment Hon'ble Supreme Court dealt with some suspicious circumstances and it was held that;
" 20. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
21. There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove Probate Case No. 11/2006 Page 20 of 30 -: 21 :- the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free Will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be part of the initial onus to remove any such legitimate doubts in the matter."
38. I have gone through the Judgments relied upon by learned counsel for the petitioners. In Sunder's case (supra), it was held that it must be affirmatively established by the propounder of the Will that the signatures of the attesting witnesses had been made in the presence of the testator. In Punnakkal Konnu's case (supra), it was held that in a case under transfer of property Act, where a document becomes complete and valid only on registration, the Sub-Registrar and the identifying witnesses at registration may not become attesting Probate Case No. 11/2006 Page 21 of 30 -: 22 :- witnesses. But in a case where a document is a Will which does not require registration, the Sub-Registrar and the identifying witnesses if they confirm to the law regarding attestation, may become attesting witnesses. In Theresa's case (supra), it was held that endorsement on the Will made by the Registrar and his certificate of registration are admissible for the purposes of proving that the document has been duly registered and that the facts mentioned in the endorsement have occurred.
39. In Mir Syed Hasan's case (supra), the Will after having been executed but without having been signed by any attesting witness was deposited in a sealed cover at the office of Sub-Registrar. After about ten years the executant went the Sub-Registrar's office, took out the Will from sealed cover and formally presented it for registration as a Will and admitted its execution in the presence of attesting witnesses and these witnesses as well as the executant himself signed the document in the proper places. It was held that execution and registration effected on the same day and the same is valid. In Labh Singh's case (supra), it was held that the registering officer cannot be regarded as attesting witness if he had not appended his animo attestandi i.e. for the purpose of attesting the fact that he had seen the executant signed or had received from him a personal acknowledgment of his signatures. He should also signed the endorsement of registration in the presence of testator.
Probate Case No. 11/2006 Page 22 of 30 -: 23 :-40. Now the basic question which comes up for consideration is whether the petitioners have proved the Will dated 07.04.1998, which is Ex.Pw-3/1 according to provisions of Section 63 of Indian Succession Act and Section 68 of the Evidence Act. Section 63 (c) of Indian Succession Act requires that the Will shall be attested by two or more witnesses and the attesting witness must state that each of the two witnesses had seen the testator sign or affix his mark to the Will or has seen some other person signing the Will, in the presence and by the direction of the executant. It also requires that witnesses should further depose that each of the attesting witnesses signed the Will in the presence of the executant. In this regard reliance can be placed on a Judgment in case titled as Benga Behera & Anr. Vs. Braja Kishore Nanda & Ors reported as 2007 (7) SCALE 228.
41. In Labh Singh's case (supra), relied upon by learned counsel for petitioners it was held that it has to be proved that Will was attested in accordance with clause (c) of the Act. Before execution of a Will is considered to be proved the Court has to satisfy itself that the Will was attested by two or more witnesses each of whom had either seen the testator sign or affix his mark to the Will or had received from the testator a personal acknowledgment of his signatures or mark. Each of the witnesses must also sign or affix his mark on the Will in the presence of the testator.
42. The Apex court in case titled as Moonga Devi Vs. Radha Ballab reported as AIR 1972 SC 1471 observed that it is not merely Probate Case No. 11/2006 Page 23 of 30 -: 24 :- the genuineness of signatures or mark of the testator on which the proof of execution of the Will under Section 63 of the Succession Act depends. It has to be proved that the Will was attested in accordance with clause (c) of that Section.
43. A similar question cropped up before the Apex court in case titled as Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported as 2003 (2) SCC 91. It was held that:-
"8. To say will has been duly executed the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the Will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved. According to the said Section, a document Probate Case No. 11/2006 Page 24 of 30 -: 25 :- required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 689 of Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though will has to be attested at least by two attesting witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will to put in other words, if one attesting witness can prove execution of the will in terms Probate Case No. 11/2006 Page 25 of 30 -: 26 :- of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
44. A similar view was taken in another case titled as Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria & Ors. reported as 2009 (1) Scale 328, after relying upon Judgment in Janaki Narayan Bhoir's case (supra).
45. In the instant case there are two attesting witnesses to the Will dated 07.04.1998, namely Shri Charanjeet Singh Advocate and Shri S.K. Duggal Advocate. The Will was executed on 07.04.1998 and was registered on 09.03.1999. The petitioners have examined one of Probate Case No. 11/2006 Page 26 of 30 -: 27 :- the attesting witness namely Shri Charanjeet Singh Advocate as PW-3. He has deposed that he drafted the Will, the Will was sent to Sardar Harbans Singh Sethi through his father late Shri Jaswant Singh on 07.04.1998. The Will remained with Sardar Harbans Singh Sethi for about 10/11 months. In the first week of March-1999 his father handed over the Will duly signed by Sardar Harbans Singh Sethi and his father told him that he should also sign on the Will. The Will had already been signed by Shri Harbans Singh Sethi. The same shows that the Will Ex.Pw-3/1 was neither signed by the testator in his presence nor he signed in the presence of testator nor the other witness signed in the presence of testator.
46. PW-3 Shri Charanjeet Singh has also deposed that he had no talk with Harbans Singh Sethi before registration of the Will. He collected the Will from the office of Sub-Registrar and handed over to his father. He has also deposed that after the death of his father, the original Will remained with him. After death and Kirya ceremony of Harbans Singh Sethi he handed over original Will to the wife of deceased namely Smt. Gurbachan Kaur. In his cross examination he admitted that when he signed on the Will Ex.Pw-3/1 Shri Harbans Singh Sethi was not present in his house. When he put his signatures on the Will, he and his father only were present. He also deposed that he cannot identify the signatures of Shri Harbans Singh Sethi on the papers, if shown to him. The testimony of Shri Charanjeet Singh Advocate (Pw-3) clearly indicates that neither the testator signed in his presence nor the other witness signed in his presence nor he signed in Probate Case No. 11/2006 Page 27 of 30 -: 28 :- the presence of testator or the second attesting witness. Hence, the petitioners failed to comply with the provisions of Section 63(c) of Indian Succession Act.
47. The objector Shri Balvinder Singh while appearing as RW-1 categorically deposed that on 07.04.1998 there was birthday of grandson of the deceased i.e son of Jagjit Singh and the testator was present in his house since morning of 07.04.1998 till morning of 09.04.1998. He was not cross examined on this aspect. No suggestion was given that the testator had not gone to the house of Jagjit Singh in the morning of 07.04.1998 and did not remain there till 09.04.1998. The same amounts to admission on the part of petitioners. In case the testator was in the house of Jagjit Singh in the morning of 07.04.1998, it is not clear on whose instructions the Will was drafted.
48. The petitioners have failed to dispel the following suspicious circumstances:-
(i) the Will is dated 07.04.1998 and was registered on 09.03.1999 i.e. after about 11 months. There is no explanation for non registration of the Will on the same day.
(ii)the Will Ex.Pw-3/1 does not bear signatures of the testator on 1st and 2nd page.
(iii)The property which is subject matter of Will falls within the jurisdiction of Sub-Registrar, Janakpuri, New Delhi but the Will Ex.Pw-3/1 was registered with Sub-Registrar, Karol Bagh, New Delhi.Probate Case No. 11/2006 Page 28 of 30 -: 29 :-
(iv)both the attesting witnesses are Advocates and are not related to the testator.
(v)the other witness Shri S.K. Duggal Advocate has not been examined.
(vi)the due execution and attestation of the Will EX.Pw-3/1 has not been proved as required by Section 63(c) of Indian Succession Act & Section 68 of Evidence Act.
(vii)the testator had remained at the house of his son Jagjit Singh from the morning of 07.04.1998 to 09.04.1998, who gave instructions for drafting the Will.
(viii)the Will remained in the custody of Shri Charanjeet Singh Advocate, till the death of the testator.
(ix)in the Will petitioner No.2 Shri Prabhjot Singh is mentioned as son of Smt. Ravinder Kaur from her first marriage with Shri Bhupinder Singh and while appearing as PW-2 Shri Prabhjot Singh has disclosed the name of his father as Shri Surjeet Singh
49. On the basis of material brought on record, I hold that Will dated 07.04.1998 Ex.PW-3/1, propounded by the petitioners is not free from suspicious circumstances. Accordingly, issues No.1 and 1A are decided in favour of the objectors and against the petitioners. ISSUE NO.2
50. In view of my finding on issues No.1 and 1A, the petitioners are not entitled to Letters of Administration, as claimed in the petition. Accordingly, issued No.2 is decided in favour of the objectors and against the petitioners.
Probate Case No. 11/2006 Page 29 of 30 -: 30 :-ISSUE NO.3 (RELIEF)
51. As a result of above discussion and my finding on issues No. 1, 1-A and 2, petition fails, same deserves to be dismissed and the same is hereby dismissed. File be consigned to Record Room.
Announced in open Court (V.P. VAISH)
on this 9th day of April, 2010 DISTRICT JUDGE-II
(NORTH) DELHI
Probate Case No. 11/2006 Page 30 of 30