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Delhi District Court

Sh. Prem Kumar Dhawan (Now Deceased) vs The State (Nct Of Delhi) on 6 June, 2014

                                                                      1

     IN THE COURT OF SH. PARAMJIT SINGH : ADDL. DISTRICT JUDGE
                 (WEST)­02, TIS HAZARI COURTS:DELHI



Probate Case No. 54/11/08
Unique ID Case No.­02401C0410802011


1.        Sh. Prem Kumar Dhawan (Now Deceased)
          Through Legal Representatives 

          1 (a) Sh. Praveen Dhawan
                S/o Sh. Prem Kumar Dhawan
                R/o­ KII/80, Lajpat Nagar, New Delhi

          1 (b) Sh. Rohit Dhawan
                S/o Sh. Prem Kumar Dhawan
                R/o A/775, Sarita Vihar, 
                Delhi­110076

          1 (c) Smt. Poonam
                D/o Sh. Prem Kumar Dhawan
                R/o ­16, Gagan Vihar,
                Delhi­110051

2.        Sh. Vijay Kumar Dhawan
          S/o late Sh. Amar Nath Dhawan
          R/o II­K/80, Lajpat Nagar,
          New Delhi­110024                                                                         ... Petitioners
                 Vs. 
1.        The State (NCT of Delhi)
          Through Chief Secretary
          NCT of Delhi


PC No. 54/11/08                                                                                                                       1/56
                                                                       2



2.        Sh. Rajinder Dhawan
          S/o late Sh. Amar Nath Dhawan
          R/o C­301, Kaveri Apartment, 
          Alaknanda, Kalkaji,
          New Delhi­110019

3.        Sh. Mahinder Dhawan
          S/o late Sh. Amar Nath Dhawan
          R/o M­14B, Lajpat Nagar­II,
          New Delhi­110024

4.        Smt. Kamlesh Kapur
          W/o Sh. Jitender Nath Kapoor,
          R/o Pocket­14, House No. 74,
          Himgiri Apartment, Kalkaji,
          New Delhi­110019

5.        Smt. Santosh Puri
          W/o Sh. Maharaj Krishan Puri
          R/o H. No. 41­B, Model Town,
          Yamuna Nagar, 
          Haryana.

6.        Smt. Swaran Puri
          W/o Sh. Gulshan Puri
          R/o C­1­110, Keshav Puram
          New Delhi­110035

7.        Sh. Surender Dhawan
          S/o late Sh. Amar Nath Dhawan
          C/o II­K/80, Lajpat Nagar,
          New Delhi­110024


PC No. 54/11/08                                                                                                                       2/56
                                                                       3

          And Also at :
          2621, Golf Land Road, Turf Valley,
          Merryland (MD)­21042
          USA

8.        Sh. Ashok Dhawan
          S/o late Sh. Amar Nath Dhawan
          C/o II­K/80, Lajpat Nagar,
          New Delhi­110024
          And also at :
          8304 Governor Ridgely Lane,
          Ellicott City,
          Merryland (MD)­21043­3451
          USA                                                                                ... Respondents


Date of  original institution of the case­28.07.2008
Date for which  remanded back­03.8.2010
Date  on which, judgment have been reserved­26.5.2014 
Date of pronouncement of judgment­06.6.2014


JUDGMENT:

The present petition u/s­264 & 270 r/w Section 276 of Indian Succession Act for grant of probate in respect of the Will dated 24.03.1996 executed by late Smt. Saraswati Devi w/o late Sh. Amar Nath Dhawan has been filed on behalf of the petitioners.

It is pertinent to mention here that earlier the present probate petition was dismissed vide order dated 19.12.2009 passed by one of the Ld. Predecessors of this court.

Petitioners herein preferred an appeal against the above said order PC No. 54/11/08 3/56 4 dated 19.12.2009 and vide order dated 05.7.2011 passed in FAO No. 120/2010, the Hon'ble High Court of Delhi set aside the above said impugned order/judgment and remanded back this matter .

The operative portion of the above said order dated 05.7.2011 passed by the Hon'ble High Court of Delhi reads as under:­ " In view of the above, the appeal is accepted, subject to aforesaid observations of the issue of limitation being left open to be decided at the stage of final arguments in the suit, by setting aside the impugned judgment dated 19.12.2009. The trial Court will now proceed to dispose of the petition from the stage when the impugned order dated 19.12.2009 was passed. Nothing contained in the present order will in any manner prejudice either of the parties with respect to the merits of the matter at the stage of final arguments in the petition. "

2. Brief facts as made out from the petition are that the petitioners are the sons and legal heirs of late Smt. Saraswati Devi and late Sh. Amar Nath Dhawan. It is further stated that late Smt. Saraswati Devi, mother of the petitioners had purchased an immovable property bearing no. II­K/80, Lajpat Nagar, New Delhi­110024 from her own funds and sources and she was the sole absolute and exclusive owner of the said property and also of her other movable properties. It is stated that late Smt. Saraswati Devi died on 5.7.2002 at the residence of the petitioners at II­K/80, Lajpat Nagar, New Delhi­110024 and she was living with the petitioners at that relevant time. It is further stated that during her life time, late Smt.Saraswati Devi executed her last Will on 30.03.1996 which was prepared and PC No. 54/11/08 4/56 5 typed on her instructions on 24.03.1996 in the presence of petitioner nos. 1 & 2 and respondent nos. 2, 5 & 7, who signed the Will and the said Will was also witnessed by other independent witnesses Sh. D.P. Singh and Sh. M.N. Sharma. It is stated that through the said Will, late Smt. Saraswati Devi devised and bequeathed the above said property bearing no. II­K/80, Lajpat Nagar, New Delhi­110024 in favour of the petitioners and as per the said Will, the above said property was to be held and enjoyed equally by the petitioners with full and absolute power of disposal. It is further stated that the said Will was duly registered at document no. 14752, in Additional Book No. III, Vol. No. 2631 on pages no.49 to 51 in office of the Sub­ Registrar, New Delhi on 4th April, 1996. It is further stated that in the aforesaid Will, late Smt. Saraswati Devi had specifically declared that movable assets belonging to her such as cash, bank accounts, jewelery etc shall be kept under the custody of Sh.Prem Kumar Dhawan and Sh. Rajinder Kumar Dhawan and she further expressed her Will that they shall be empowered to distribute, draw, operate and use said movable assets to the best of their wisdom to be disbursed, utilized or paid for the benefits of all the six sons i.e. petitioners and respondent no. 2, 3, 7 & 8 in equal proportions. It is further stated that in the said Will, it has been specifically mentioned that her daughters namely Smt. Kamlesh Kapoor, Smt. Santosh Puri and Smt. Swaran Puri the respondent nos. 4 to 6 herein are all married and well­settled and they have been well provided for by her during their marriages & thereafter and therefore they are not given any share in the properties under the Will. It is further stated that in the Will, Smt. Saraswati Devi has also specifically mentioned that her two sons namely Sh. Rajinder Dhawan & Sh. Mahinder Dhawan, respondent nos. 2 PC No. 54/11/08 5/56 6 & 3 have been given sufficient funds from joint family sources and have built their independent houses and they shall have no right, title, interest or any claim in property bearing no. II­K/80, Lajpat Nagar, New Delhi­110024. It is stated that in view of the aforesaid Will of late Smt. Saraswati Devi, the petitioners and respondent nos. 7 & 8 have become absolute owners of property bearing no. II­K/80, Lajpat Nagar, New Delhi­110024 and respondent nos. 2 to 5 herein have already executed a relinquishment deed dated 27.3.2004 in favour of the petitioners and respondent nos. 7 & 8. It is further stated that petitioners being the beneficiaries of the above said last Will dated 24.03.1996 are entitled to get probate of the said last Will of deceased Smt. Saraswati Devi. It is also stated that there was no legal or other impediment in grant of Probate and it has been prayed that the Probate in respect of the said last Will of deceased Smt. Saraswati Devi may be granted in favour of the petitioners.

3. Upon filing of the present petition, the notices of the same were issued to respondents and accordingly the respondents entered their appearance.

Citation for general public was also ordered to be got published in the newspaper 'Hindustan Times' and accordingly, the said citation was published in the newspaper 'Hindustan times' on 18.10.2008.

It is pertinent to mention that the value of the property in question bearing no. II­K/80, Lajpat Nagar, New Delhi­110024 has been assessed to the tune of Rs.1,70,06,100/­ by the Tehsildar/Asstt. Collector, Defence Colony, B.M. Road, Saket, New Delhi.

PC No. 54/11/08 6/56 7

4. In the instant case, reply/NOC have been filed on behalf of the respondent no.5 & 8, wherein it has been stated that they have no objection to the grant of Probate of the Will dated 30.03.1996 executed by late Smt. Saraswati Devi.

It is pertinent to note that the right to file the reply/WS of respondent nos. 3 & 7 was deemed to have been closed as is evident from order dated 12.3.2009 passed by one of the Ld. Predecessors of this court.

5. The objections to the present petition have been filed on behalf of the respondent no2, wherein it has been stated that the executrix was an illiterate lady aged about 85 years suffering from various vagaries of old age including neurological, blood pressure, eyesight problems besides had extreme loss of memory and hearing at the time of execution of the alleged Will. It is further stated that executrix was unable to hear anything without hearing aid and without which it became very difficult for her to understand or make out even simple conversations. It is stated that executrix had become very weak and on little exertion felt dizzy due to which she had even fallen down and thereby injuring herself severely on various occasions and on account of these ailments, she had very restricted movements. It is further stated that the executrix was not having any knowledge of English language and chances of her executing the alleged Will in question out of her own free will, fully understanding the contents of the document is not possible. It is stated that the execution of the Will is also suspicious as there is highly un­natural disposition in favour of the petitioners and respondent no.7, who have played exclusive, active and PC No. 54/11/08 7/56 8 leading part in drafting, typing, execution, attestation and registration of the alleged Will. It is further stated that alleged Will was not executed or attested according to the provisions of Indian Succession Act and that there were many inconsistencies and presence of extremely suspicious circumstances regarding the execution of the alleged Will. It is stated that heading of the petition postulates that alleged Will was executed on 24.03.1996 but goes on to propose later in the fourth para that it was executed on 30.03.1996 and this itself, casts doubts about the genuineness of the alleged Will. Further, the attesting witnesses are also shown to have put their signatures on alleged Will on subsequent date (s) i.e. 30.03.1996 or beyond and that also casts doubts upon its genuineness and this fact makes the alleged Will absolutely tainted. It is further stated that the alleged Will also shows inconsistencies in drafting & signing of Will by the testator and attestation by attesting witnesses and hence its due execution is highly suspicious, dis­entitling the petitioners from relief prayed for in this petition. It is stated that deceased was in habit of discussing, consulting and taking consent of other family members on important issues, specifically before signing any documents as she was illiterate, ailing and in advanced age and she distrusted the petitioners and respondent no.7 because of various wrongful acts attributable to them and therefore she had desired that any Will, she would execute, shall have consent of all her children and not only of petitioners and respondent no.7. It is further stated that the very existence of the Will came to the knowledge of all the family members only after the death of the testator when open letter dated 11.08.2002 was written by the respondent no.7 to all of them and even in the said letter, the respondent no.7 has not mentioned any date of PC No. 54/11/08 8/56 9 execution of the alleged Will. It is stated that alleged Will in question is not a duly and validly executed Will as it does not contain the signatures and thumb impressions of the deceased on each and every page thereby raising many suspicions about its execution. It is further stated that the alleged Will though registered, suspiciously do not contain any averment or marking by the concerned Sub Registrar relating to the date of execution/attestation of the alleged Will. It is stated that a document titled Family Settlement Deed dated 07.12.2007 was executed by the petitioners alongwith the respondent nos. 7 & 8 and copies thereof were transmitted to all the family members on their own free motion and the document acknowledges another Will of Smt. Saraswati Devi Dhawan executed by her on 26.03.1996 and not 24.03.1996. It is stated that the testator knew that her immovable property in question bearing address K­80, Lajpat Nagar­II, New Delhi­110024 was jointly purchased, owned, developed family property of all the brothers and their father and it was deliberately held in her name to show her respect, convenience and as assurance of secure old age only, although the testator had never worked anywhere, nor inherited anything and was a housewife throughout her life and always economically dependent on her husband and sons. It is further stated that apart from being aged, illiterate person suffering from various vagaries of old age, the testator also did not posses a sound and free disposing state of mind at the time of execution of the alleged Will. It is stated that as per the knowledge of the present objector, the propounders of the alleged Will, the beneficiaries suspiciously got two documents registered simultaneously on the same date, allegedly executed by the deceased executrix which fact gives strength to the genuine doubts of the objector that PC No. 54/11/08 9/56 10 deceased was not aware of the contents of at least one of the documents and was kept in dark about the true nature and impacts of such documents, she allegedly executed. It is further stated that the date on which the alleged Will was executed and registered, another document i.e. General Power of Attorney is also stated to be executed by the testatrix and the said General Power of Attorney was executed on the basis of the thumb impressions only and signatures of the testator appear only once on the last page of the alleged Will and none appear at all on the General Power of Attorney and this raises many questions and suspicions including which of the document she actually wanted to execute and register. It is further stated that the petitioners/attesting witnesses have acknowledged in their affidavits that executrix had signed in their presence which concurrently implies that she had the capacity to sign, however the document i.e. Will shows that it was not signed on all the pages and another document i.e. General Power of Attorney does not bear any signatures and these facts raise genuine apprehensions about the testator's sound disposing state of mind. It is stated that there are several mutually destructive inconsistencies in the alleged Will which are indicative of the fact that the testator was not in a free and sound disposing state of mind. It is further stated that the testator had other children besides beneficiaries yet presence of none of them is shown/confirmed on any of the registered documents thereby indicating clearly that none were called to accompany her or were made aware about the alleged registration. It is stated that the petitioners and respondent no.7 first drafted the Will containing execution date of 24.03.1996 which the testator outrightly refused to execute and thereafter they drafted Will containing execution date 26.03.1996 in such a manner that the last page of both the PC No. 54/11/08 10/56 11 Will's remained same and only first two pages were different and this Will was also agreed to be executed/finally signed by the testator only if all her children consented and the second Will was signed first by the petitioners and respondent no.7 and then was presented to other legal heirs for signing. It is further stated that thereafter the petitioners and respondent no.7 fraudulently replaced the original signed first two pages of the said alleged Will containing execution date 24.03.1996 and the alleged Will which was formed by mixture of two Wills was allegedly executed and registered in guise of registering and executing a simple General Power of Attorney which also was not shown to other family members at that point of time. It is stated that the petitioners have filed this probate petition after six years of death of the testator without explaining the delay in filing the same. It is further stated that signatures of the testator on the Will are distinctly different from her usual signatures and forgery in these signatures cannot be ruled out. It is stated that the circumstances around the time of execution of the said Will coupled by illiteracy of the testator and dependence on petitioners points to the presence of undue influence of the petitioners and respondent no.7. It is further stated that the testator had complained to the respondent no.2 specifically saying that the petitioners routinely pressurized her to sign a Will and make them beneficiaries as she was mostly staying with them and it was they who were providing for her and taking care of her in her old age and accordingly respondent no.2 had brought the testator to his residence in the month of January and February, 1996, however she went back to her house in or around March, 1996 as respondent no7 was visiting India and was staying with her in the same house and it was during this time that the Will was PC No. 54/11/08 11/56 12 allegedly executed and registered. All other averments made in the petition have also been denied on behalf of the respondent no.2 and it has been prayed that the present petition filed on behalf of the petitioners may be dismissed.

6. The objections to the present petition have also been filed on behalf of the respondent no. 6, wherein it has been stated that the present petition is hopelessly barred by limitation. It is further stated that cause of action, if any for filing the instant petition accrued to the petitioners when this respondent objected the alleged Will on the ground that, it was a fabricated and concocted document and was shrouded in mysterious circumstances in 2004 or even earlier and this respondent for that reason flatly refused to sign the relinquishment deed in favour of the petitioners and this fact has been corroborated by the petitioners themselves in para­9 & 10 of their petition. It is stated that the cause of action and right to sue admittedly accrued on 27.03.2004 and since Article 137 of Limitation Act is applicable to grant of probate, the present petition has been filed more than three years after accrual of cause of action and therefore it was barred by limitation. It is further stated that the subject property mentioned in the alleged Will was purchased by the predeceased husband of the testatrix and not by testatrix, who was an uneducated mother of nine children who never worked for gain anywhere. The husband of the testatrix was a government servant and he predeceased her and had died intestate and therefore the parties herein are entitled to succeed to the property left intestate by virtue of Section­ 8 of Hindu Succession Act as all the parties herein including testatrix fall within the ambit/scope of Schedule­1 of legal heirs r/w PC No. 54/11/08 12/56 13 Section­ 8 of Hindu Succession Act. It is stated that the present petition does not disclose any cause of action for filing the petition and the petition showcases no material facts to show as to when the dispute over alleged Will arose between the legal heirs. It is further stated that the petitioners have no locus­standi to file the present probate petition as they have neither been appointed executors in the alleged Will nor have ever acted upon the alleged Will as executors. It is stated that the petitioners actions/inactions operate as estopples against enforcing their claim under the alleged Will and the petitioners have failed to show that they acted as per directions of the alleged Will in distribution of movable property. It is further stated that the registration of the alleged Will is perfunctory as registration of the documents used to take place after taking right thumb impression in case of ladies but in the present case the impressions of left thumb appear and further the identifying documents used to identify the testatrix are also shrouded in mystery. It is stated that testatrix allegedly executed and registered two documents on 04.04.1996, firstly the alleged Will and secondly a General Power of Attorney and suspiciously on the same day the alleged Will containing single signature on the last page and unsigned General Power of Attorney have been executed and even so called attesting witnesses Sh. M.N. Sharma and Sh. D.P. Singh remained common for both these documents. It is further stated that the presence of only respondent no. 7/main beneficiary amongst all other children is confirmed in the Registrar's office on that day and since he being alleged beneficiary has been taking keen interest in the alleged execution and registration of the alleged Will and as such the alleged Will is fraught with suspicious circumstances and cannot be probated. It is stated that PC No. 54/11/08 13/56 14 deceased testatrix had on various occasions especially after 1996 i.e during her lifetime denied executing any Will to this objector and further the alleged Will was taken away by the respondent no.7 with him to USA and this way the critical aspect of free agency of deceased testatrix was also breached and testatrix never knew that she had executed a Will and this grave suspicion appear also because the first two pages of the alleged Will were not signed and could have been easily replaced by anyone especially petitioners as they have been into the business of documentation. It is further stated that deceased testatrix was totally illiterate, octogenarian lady who was never employed anywhere in her lifetime and therefore the immovable property in question is not a self acquired property. Further at the time of execution of the alleged Will, testatrix was engulfed in many old age travails like impaired hearing, weakness of limbs, blood pressure problems etc and she had been taking extensive medications and while in such a fragile state, the execution of alleged Will in English language, a language she did not write/read or understand, is highly unlikely. It is stated that admitted participation of the main beneficiaries i.e. the petitioners and respondent no.7 in the drafting, attestation, execution, registration of the alleged Will make its existence/legitimate execution without coercion, undue influence or fraud very unlikely. It is further stated that the alleged Will has not been executed or attested as per provisions of Indian Succession Act and signatures on the alleged Will are also disputed. All other averments made in the petition have also been denied on behalf of the respondent no. 6 and it has been prayed that the present petition filed on behalf of the petitioners may be dismissed. PC No. 54/11/08 14/56 15

7. The reply/rejoinder to the above said objections of respondent no. 2 & 6 have been filed on behalf of the petitioners, wherein the averments made in the said objections have been denied as incorrect and those made in the petition have been reiterated as correct.

8. On the basis of the pleadings of the parties, the following issues were framed on 23.07.2012 by this court.

ISSUES :

1. Whether the present petition is barred by limitation? OPR­ 2&6.

2. Whether the Will dated 24.03.1996 stated to be executed by testatrix Smt. Saraswati Devi on 30.03.1996 and registered on 04.04.1996 is a valid, legal and genuine Will? OPP.

3. Whether the petitioner is entitled to the grant of probate/Letter of Administration in respect of the aforesaid Will executed by testatrix Smt. Saraswati Devi, as prayed for? OPP

4. Relief.

9. In their PE, the petitioners have examined PW­1 Sh. Vijay Dhawan, PW­2 Sh. Praveen Dhawan, PW­3 Smt. Kamlesh Kapoor, PW­4 Sh. M.N. Sharma and PW­5 Sh. Surender Dhawan.

10. In the RE on behalf of respondent no.2, Sh. Jatin Dhawan, son/attorney of the said respondent have examined himself as RW­1. Apart from him, RW­2 PC No. 54/11/08 15/56 16 Sh.Sunil Dutt, LDC, L&DO Department, RW­3 Sh. Naresh Kumar Handa, Manager, Syndicate Bank, RW­4 Sh. K. Srikanth Reddy, Asstt. Manager, Andhra Bank, RW­5 Sh. S.K. Gupta, Zonal Inspector, South DMC, RW­6 Sh. Giri Raj Sharma, LDC, Passport Office, RW­7 Sh. Dinesh Narain Sharma, Sr. Manager, Central Bank of India, RW­8 Sh. Mukesh Kumar and RW­9 Sh. B.M. Srivastava have also been examined on behalf of the respondent no.2.

It is pertinent to mention here that during the trial of this case, Ld.counsel for the respondent nos. 4, 5, 7 & 8 got recorded his statement in the court, wherein he stated that he has the instructions to state that the said respondent nos. 4, 5, 7 & 8 do not want to lead any RE in this case.

Further, Ld. counsel for the respondent no.6 also got recorded his statement in the court, wherein he stated that he has the instructions to state that the said respondent no. 6 adopts the RE, led on behalf of the respondent no.2 and do not want to lead any further RE in this case.

11. I have heard the arguments at length put forward on behalf of the petitioners and respondent no.2 and have carefully gone through the record of the case. I have carefully considered the evidence adduced on behalf of the petitioners and respondents. I have also carefully perused the written arguments filed on behalf of respondent no.2 & brief written notes filed on behalf of the petitioners as well as the case law relied upon by the Ld. counsel for the petitioners and respondents in support of their respective contentions.

It is pertinent to mention here that during the course of final arguments, PC No. 54/11/08 16/56 17 Ld. Counsel for the respondent nos. 4, 5, 7 & 8 got recorded his statement in the court, wherein he stated that he has the instructions to state that the said respondent nos. 4, 5, 7 & 8 do not want to address any separate arguments and they adopt the final arguments addressed on behalf of the petitioners in this case.

In addition to above, Ld. Counsel for the respondent no. 6 also got recorded his statement in the court, wherein he stated that he has the instructions to state that the said respondent no. 6 do not want to address any separate arguments and she adopts the final arguments addressed on behalf of the respondent no.2 in this case.

12. The findings on the issues are as under :­

13. Issue No. 1 :

The onus to prove this issue no. 1 was upon respondent nos. 2&6. It has been submitted on behalf of the said respondents that Article­137 of Limitation Act is applicable to the petition for grant of probate or letter of Administration and it prescribes for a period of limitation of three years from the date on which propounders/beneficiaries under the Will could be justifiably ascribed with knowledge that Will on which their claim is founded is likely to be disputed by the other specially the natural heirs of the testatrix. It is further submitted that in the instant case, executrix expired on 05.7.2002 and the present probate petition qua disputed Will have been filed in July, 2008 i.e almost after six years of the death of executrix without explaining the delay in filing the same and PC No. 54/11/08 17/56 18 during this period the petitioners have tried to legitimize their right over the immovable property through other means i.e by getting it mutated in their names, by inducing other legal heirs to execute disputed relinquishment deeds under the guise of various settlement and alleged family settlement. It is submitted that cause of action, if any for filing the instant petition accrued to the petitioners when these respondents objected the alleged Will on the ground that, it was a fabricated and concocted document and was shrouded in mysterious circumstances in 2004 or even earlier and respondent no.6 for that reason flatly refused to sign the relinquishment deed in favour of the petitioners. It is also submitted that the cause of action and right to sue accrued in this case in March, 2004 and since Article 137 of Limitation Act is applicable to grant of probate, the present petition has been filed more than three years after accrual of cause of action and therefore it was barred by limitation.

On the other hand, it has been submitted on behalf of the petitioners that present probate petition has been filed on behalf of the petitioners within the period prescribed by law and there is no delay and as such the same is not barred by limitation. It is further submitted that in March, 2007 Sh. Surinder Dhawan and Sh.Ashok Dhawan, who are living in USA, visited India and at that time various options regarding property no. K­80 Lajpat Nagar­II, New Delhi were discussed amongst the beneficiaries, however, they could not arrive at any decision about how to deal with the said property. It is submitted that thereafter Sh. Surinder Dhawan again visited India in the month of November/December, 2007 and during this period the beneficiaries brothers could reach a consensus that the Lajpat Nagar PC No. 54/11/08 18/56 19 property should be disposed of and it was at that time that respondent no.2 Sh.Rajinder Dhawan and respondent no.6­Ms. Swaran Puri did not agree with the idea of sale of house and for the first time chose to deny the Will. It is further submitted that as far as the averment that cause of action and right to sue accrued in March, 2004 is concerned, the said averment have been specifically denied on behalf of petitioners and no evidence whatsoever regarding the said fact has been led on behalf of respondents, especially the respondent no.6 who has chosen not to enter the witness box in this case. It is also submitted that the period of limitation in the instant case starts from the year, 2007 and the present petition has been filed in the year 2008 i.e well within the period prescribed by law and therefore, the present petition is not barred by limitation.

14. In the instant case, it is being submitted on behalf of the respondent nos. 2& 6 that executrix expired on 05.7.2002 and the present probate petition qua disputed Will have been filed in July, 2008 i.e almost after six years of the death of executrix without explaining the delay in filing the same and during this period the petitioners have tried to legitimize their right over the immovable property through other means. It is further submitted that cause of action, if any for filing the instant petition accrued to the petitioners when these respondents objected the alleged Will on the ground that, it was a fabricated and concocted document and was shrouded in mysterious circumstances in 2004 or even earlier and respondent no.6 for that reason flatly refused to sign the relinquishment deed in favour of the petitioners. It is also submitted that the cause of action and right to sue admittedly PC No. 54/11/08 19/56 20 accrued on March, 2004 and since Article 137 of Limitation Act is applicable to grant of probate, the present petition has been filed more than three years after accrual of cause of action and therefore it was barred by limitation, however the said contentions put forward on behalf of the respondent nos. 2 & 6 are not tenable as filing of such a petition is a continuous right which can be exercised anytime after the death of the deceased as long as right to do so survives and object of trust exists or any part of the trust, if created, remains to be executed as has been laid down in the case cited as 2008 XII AD (SC) 580.

In the aforesaid case titled as, "Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur & Ors. {cited as 2008 XII AD (SC) 580}", it has been laid down by the Hon'ble Supreme Court of India that :

"15. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letter of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in The Kerala State Electricity Board's case (Supra).

16. Similarly reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani VS. Sajni Prem Lalwani (AIR 1983 Bom.268) Para 16 reads as under :

"16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus :­ (a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made.

(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the PC No. 54/11/08 20/56 21 deceased, is unwarranted ;

(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;

(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death ;

(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;

(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and

(g) once execution and attestation are proved suspicion of delay no longer operates".

17. The conclusion 'b' is not correct while the conclusion 'c' is the correct position of law.

18. In view of the factual scenario, the right to apply actually arose on 9.8.1999 when the proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed within three years, the same was within time and thereafter the appeal is without merit, deserves dismissal." Hence, in view of the above, it is clear that right to file a probate petition is a continuous right which can be exercised anytime after the death of the deceased as long as right to do so survives and the object of the trust exists. Further, it is also evident that the petition for grant of Probate/Letter of Administration is required to be filed within three years from the date on which the right to apply PC No. 54/11/08 21/56 22 actually arises.

In the instant case, in his evidence by way of affidavit (Ex. PW­2/A), PW­2 stated that his uncles Sh. Surinder Dhawan and Sh. Ashok Dhawan are living in USA and they visited India in March, 2007 when various options regarding property no K­80 Lajpat Nagar­II, New Delhi were discussed between the brothers, who have inherited the said property and he was also present in the said discussions, however, they could not arrive at any decision about how to deal with the said property at that time. PW­2 further deposed that Sh. Surender Dhawan visited India again and stayed here from 17.11.2007 till 08.12.2007 and during this time the beneficiaries brothers could reach a consensus that the Lajpat Nagar property should be disposed of. PW­2 also deposed that Sh. Surender Dhawan returned to America and Sh. Prem Dhawan alongwith his brother Sh. Vijay Dhawan presented the said plan to all the stake holders and it was at this time that Sh.Rajendra Dhawan, respondent no.2 and Smt. Swaran Puri , respondent no.6 did not agree with the idea of sale of the house and for the first time chose to deny the Will.

It is pertinent to note here that this witness i.e PW­2 Sh. Praveen Dhawan has been cross examined at length on behalf of respondent no.2 & 6, however no the suggestion whatsoever qua the denial of the above said facts deposed by the PW­2 have been given on behalf of the said respondents. Further, in the present case, in her objections, it has been stated by the respondent no.6 that the cause of action arose when she flatly refused to sign the relinquishment deed in favour of the petitioners in the year, 2004, however, the perusal of the record PC No. 54/11/08 22/56 23 reveals that the said averments have been specifically denied on behalf of the petitioners in their rejoinder to the said objections. In these circumstances, in order to prove the aforesaid averments on record, it was incumbent upon the respondent no.6 to lead her evidence in respect thereof, however she has chosen not to depose as a witness in this case and as such, the said averments made on her behalf have not been proved on record in accordance with law in this case.

In addition to above, it is pertinent to note here that in the written arguments ( part­2) , it has been stated on behalf of son/attorney of respondent no.2 that he or his father did not challenge the said Will before any court because the copy of the Will was not available with them and they also did not have any clear information regarding the beneficiaries in the said Will and they made inquiry with the Sub Registrar in June 2008 and obtained its certified copy. It is also stated therein that they did not lodge any complaint with the Sub Registrar regarding the invalidity of the aforesaid Will because immediately after coming to know about the execution and registration of the said Will, they found out that the petitioners ­ beneficiaries are in process of filing probate petition and they found appropriate to object to it in Succession Court.

In the present case, in view of the material record, it is evident that right to sue/apply arose in favour of the petitioners in November/December, 2007 and thereafter the present petition has been filed by the petitioners within the period prescribed by law and as such the same is not time barred.

The respondent no.2 has relied upon the case law cited as 2000 (83) DLT 469, 2010 (7) AD (Delhi) & 2010 (173) DLT 132, however the said case law is PC No. 54/11/08 23/56 24 not applicable in this case as the fact and circumstances of the present case are distinguishable from the fact and circumstances of the cases discussed therein.

Hence, in view of the discussion & observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the present petition filed on behalf of the petitioners is within limitation and is not time barred and accordingly issue no. 1 is decided in favour of the petitioners and against the respondents.

15 . Issue Nos. 2 & 3:

Issue Nos. 2 & 3 are being taken up together as both these issues are interconnected and have to be decided on the basis of same evidence.

The onus to prove the issue nos. 2 & 3 was upon the petitioners and in order to discharge the said onus, the petitioners have examined PW­1 to PW­5.

PW­1 Sh. Vijay Dhawan was examined and partly cross examined and thereafter this witness was never produced by the petitioners and on 17.1.2013, Ld. Counsel for the petitioners submitted that he want to give up /drop the said witness as he was not in a position to depose further in the court due to serious medical ailments.

PW­2 Sh. Praveen Dhawan is one of the petitioners in the present petition and he has filed his evidence by way of affidavit which is Ex. PW­2/A. PW­3 Smt.Kamlesh Kapoor is one of the daughters of deceased Smt.Saraswati Devi and she has filed her evidence by way of affidavit which is Ex. PW­3/A. PC No. 54/11/08 24/56 25 PW­4 Sh. M.L.Sharma is one of the attesting witnesses to the Will in question dated 24.3.1996 executed by Smt. Saraswati Devi and he has filed his evidence by way of affidavit which is Ex. PW­4/A. PW­5 Sh. Surender Dhawan is respondent no.7 in this petition and is also one of the son of deceased Smt. Saraswati Devi and he has filed his evidence by way of affidavit which is Ex. PW­5/A. It is pertinent to note here that evidence led on behalf of the petitioners have also been adopted by respondent nos. 4,5,7&8.

16. On the other hand, in the evidence on behalf of respondent nos. 2, the nine witnesses i.e RW­1 to RW­9 have been examined .

RW­1 Sh. Jatin Dhawan is the son and attorney of respondent no.2 and he has filed his evidence by way of his affidavit which is Ex. RW­1/A and the gist of his evidence is that late Smt. Saraswati Devi Dhawan was his grandmother and she was an illiterate lady aged about 83 years suffering from various vagaries of old age including neurological, blood pressure, eyesight problems besides had extreme loss of memory and hearing at the time of execution of the alleged Will and she was unable to hear anything without hearing­aid and without which it became very difficulty for her to understand or make out even simple conversation. RW­1 further deposed that executrix was not having any knowledge of English language and she could not read or write any language and she could speak/understand only Punjabi & Hindi languages. RW­1 deposed that alleged Will suspiciously postulates a highly unnatural disposition in favour of the petitioners and respondent no.7 & 8, who had PC No. 54/11/08 25/56 26 played exclusive, active and leading part in drafting, typing, execution, attestation and registration of the alleged Will and the said Will was not executed or attested according to the provisions of Indian Succession Act. RW­1 further deposed that alleged Will does not contain the signatures and thumb impressions of deceased and that testatrix was habitual to putting her signatures on all the documents and the alleged Will is exceptional, which contains only thumb impressions on page nos. 1 & 2. RW­1 deposed that beneficiaries suspiciously got two documents registered simultaneously on the same date, alleged executed by the deceased executrix which fact gives strength to the genuine doubts of the objector that the deceased was not aware of the contents of at least one of the documents and she was kept in dark about the true nature and impact of the said documents. RW­1 further deposed that between January to March,1996 his grand mother was in unsound frame of mind was not in a position to talk or identify her own children leave alone sign any document. RW­1 deposed that after execution neither original nor copies of alleged Will were left with the testatrix and the original Will alongwith all its copies were taken away by respondent no. 7 to USA. RW­1 further deposed that the petitioners and respondent no. 7 first drafted a Will containing execution dated of 24.03.1996 and upon proposing the same to the testatrix, it was refused and then the beneficiaries typed another Will containing execution dated 26.03.1996 in such a manner that the last page of both the Wills remained same and only first two pages were different and this Will was agreed to be executed/finally signed by the testatrix only if all her children consented but the petitioners and respondent no.7 fraudulently replaced the original signed first two pages of the said alleged Will PC No. 54/11/08 26/56 27 containing execution date of 26.03.1996 with unsigned pages of Will containing execution date as 24.03.1996 and the typesetting of the pages/pagination was easy job for the petitioners, who were in the business of office documentation. RW­1 deposed that the alleged Will which was hence formed by mixture of two Wills was allegedly executed and registered in guise of registering and executing a simple General Power of Attorney. RW­1 further deposed that the signatures of the testatrix on the Will are distinctly different from her usual signatures and forgery in these signatures cannot be ruled out. RW­1 deposed that circumstances around the time of execution of the said Will coupled by illiteracy of the testatrix and dependence of the petitioners points to the presence of undue influence of the petitioners and respondent no. 7.

RW­2 Sh. Sunil Dutt, LDC from L&DO Department produced the summoned record pertaining to RTI applications dated 18.03.2009, 27.03.2009 & 24.04.2009 alongwith their reply and letter dated 14.08.1996 written on behalf of Smt. Saraswati Devi to L&DO regarding conversion from lease hold to free­hold.

RW­3 Sh. Naresh Kumar Handa, Manager from Syndicate Bank produced original RTI application dated 4.12.2008 alongwith its reply. He also produced original specimen signatures of Smt. Saraswati Devi as appearing in Account No.1886 in the bank as well as original specimen signatures of Smt.Saraswati Devi and Sh. Prem Kumar Dhawan appearing in Account No. 18266.

RW­4 Sh. K. Srikanth Reddy, Asstt. Manager, Andhra Bank produced the summoned record i.e. statement of account from the period 22.2.2007 to PC No. 54/11/08 27/56 28 31.8.2008 of Sh. Rajinder Nath Dhawan and Smt. Parvesh Dhawan bearing account no. SB/01/00003038 (old no. 3038) and proved the same as Ex. RW­4/1. He also proved his authorization letter dated 27.4.2013 as Ex. RW­4/2.

RW­5 Sh.S.K.Gupta, Zonal Inspector, South Delhi Municipal Corporation produced the summoned record i.e. original RTI application dated 11.5.2009 filed by Mr. R.N. Dhawan and office copy of its reply dated 22.5.2009 and the original documents copy of which was supplied to Mr. R.N. Dhawan.

RW­6 Sh.Giriraj Sharma, LDC, Passport Office produced the summoned record i.e. scanned copies of RTI Application, appeal alongwith replies/order and he also produced letter dated 01.05.2013 of Asstt. Passport Officer stating that all records of the RTI application have been weeded out as per existing Ministry's directions regarding retention period of such documents, however the electronic records have been maintained in the system.

RW­7 Sh. Dinesh Narain Sharma, Sr. Manager, Central Bank of India stated that he was not able to produce the summoned record i. e. Money Multiplier Deposit Certificate No. 759625 of a/c no. 30/1191 as the record pertaining to that period is very old and is not available with the branch and he has proved his letter/report in this regard as Ex. RW­7/1.

RW­8 Sh. Mukesh Kumar, Head Customer Service (North), Canara Robeco Mutual Fund deposed that he had seen the document already exhibited as Ex. RW­1/4 (colly.) and stated that its original is with the mutual fund holder and the information about the same is maintained by Registrar & Transfer Agent (RTA), Banglore.

PC No. 54/11/08 28/56 29

RW­9 Sh. B.N. Srivastava is the hand writing expert and he has filed his evidence by way of affidavit (Ex. RW­9/A) and he has proved his report as Ex. RW­9/1. He also proved the photographs as Ex. RW­9/2 to Ex. RW­9/8 and their negatives CD as Ex. RW­ 9/9 and as far as this witness i.e RW­9 is concerned, his testimony is not of much use to the respondent no.2 as in his cross examination on behalf of the petitioners, this witness stated that whenever their report is against their clients, then the reports are not filed by the clients. He admitted that in all cases in which he have deposed, the deposition have been in favour of the party , who engaged him. RW­9 further admitted that the two signatures of any individual written at the same time or at different time will not be exactly the same and natural variations will always be found. He also admitted that effect of age, weather conditions, situation and such others affect the signatures.

It is pertinent to note here that evidence led on behalf of the respondent no.2 have also been adopted by respondent no. 6.

17. The present petition for grant of probate qua the Will dated 24.3.1996 of late Smt. Saraswati Devi has been filed on behalf of the petitioners.

In order to prove the above said Will dated 24.03.1996 on record, the petitioners have examined PW­4 Sh. M.N.Sharma, who is one of the attesting witnesses to the said Will.

PW­4 Sh. M.N. Sharma, has filed his evidence by way of affidavit (Ex. PW­4/A), wherein it has been stated that he knew Smt. Saraswati Devi during her lifetime and she had called him in March,1996 and expressed a desire that she PC No. 54/11/08 29/56 30 wanted to make her Will. PW­4 further deposed that though she was of advanced age, but she was in normal good health and mind and she conveyed to him the contents of her will and after some discussions, she told him that she had discussed the contents of the will with her children and they were in agreement with it and thereafter he drafted the Will on 24.03.19996 as per her instructions. PW­4 deposed that Smt. Saraswati Devi executed the said Will on 30.03.1996 at her residence and he was present on the occasion. PW­4 deposed that several of her family members namely Sh. Prem Kumar Dhawan, Sh. Surender Dhawan, Sh. Vijay Dhawan, Ms.Santosh Puri and Sh. Rajender Dhawan were also present there and they signed the Will in confirmation of its contents below the typed words witnesses and thereafter Smt. Saraswati Devi expressed her desire to register the said Will and he alongwith Sh. D.P. Singh, Advocate signed the Will as attesting witnesses. PW­4 deposed that the Will was registered on 04.04.1996 in his presence and in the presence of Sh D.P. Singh, Advocate, Sh. Prem Kumar Dhawan and Sh. Surender Dhawan. PW­4 further deposed that he has seen the Will dated 24.3.1996 executed by Smt. Saraswati Devi and it bears her signatures at point E and her left thumb impressions are at point­ A on the first page and endorsement on point­B & C on the back of first page, at point­D on the second page and at point E on the last page of the Will. PW­4 deposed that he has signed the Will as an attesting witness and as the person, who had drafted the said Will and his signatures are at point­F on the endorsement at the back of first page of the Will and at point­G & H on the third page alongwith his seal. PW­4 further deposed that Sh. D.P. Singh was the other attesting witness who signed in his presence and he identifies his signatures at PC No. 54/11/08 30/56 31 point­ J on the last page and at point­K on the endorsement at the back of first page of the Will. PW­4 also deposed that some family members of testatrix had also signed on the third page of the Will in his presence.

This witness i.e PW­4 has been cross examined on behalf of the respondents, however, nothing material has come on record which could assail the credibility or trustworthiness of this witness or which could be of any help to respondents in this case .

In his cross ­examination on behalf of respondent nos. 4,5,7&8, PW­4 stated that he had signed as an attesting witness of the Will Ex. PW­4/A at the asking of testatrix Smt. Saraswati Devi. He further stated that Smt. Saraswati Devi had signed the Will and put her left thumb impressions on it in his presence and he had signed the Will as an attesting witness in the presence of testatrix. He also stated that the Will was drafted at the instructions of the testatrix as per her desire.

Further in his cross examination on behalf of respondent no.2, PW­4 stated that on 24th March, 1996, Smt. Saraswati Devi called him for drafting her Will and on the same day, she instructed him about the contents of her Will which he drafted the same day. He further stated that Smt. Saraswati Devi gave him instructions in Hindi and Punjabi languages and he drafted her Will in English language and first of all, he got signed the Will from Smt. Saraswati Devi thereafter her sons signed the same. In her cross­examination, PW­4 further stated that Smt.Saraswati Devi alongwith her two sons namely Sh. Prem &Sh. Rajinder and Sh.D.P. Singh and he were present on 4.4.1996 in the office of Sub Registrar. PW­4 PC No. 54/11/08 31/56 32 denied the suggestion that he was not attesting witness to the Will in question and he further denied the suggestion that the Will in question was a forged and fabricated document. PW­4 denied the suggestion that first two pages of the Will were changed at the time of getting it registered. He also denied the suggestion that he was deposing falsely at the instance of the petitioners.

In his cross­examination on behalf of respondent no.6, PW­4 stated that on 24.3.1996, he visited the house of Smt. Saraswati Devi between 10­11 A.M and noted the particulars to be incorporated in her Will and in the evening he delivered her the drafted Will. PW­4 further stated that on 30.3.1996, he went to the house of Smt. Saraswati Devi in the evening and many of her family members, relatives and guests were present at that time. PW­4 denied the suggestion that there was no gathering or family function on 30.3.1996 or that he have made a false story in this regard. He further denied the suggestion that he had not seen the Will in question prior to 04.4.1996. PW­4 denied the suggestion that he mixed­up the pages of above­said Will and Power of Attorney and obtained thumb impressions of Smt.Saraswati Devi on every page. He further denied the suggestion that he obtained her signatures on the last page of the Will purporting to be the last page of Power of Attorney. PW­4 denied the suggestion that he fraudulently and deceitfully obtained the thumb impression and signatures of Smt.Saraswati Devi on the Will, Ex. PW­1/2 without her knowledge and consent. PW­4 further denied the suggestion that he obtained the signatures of Smt.Saraswati Devi on the above said Will and Power of Attorney at the instance of Sh. Prem Kumar Dhawan. PW­4 also denied the suggestion that his affidavit contains false allegations or that he PC No. 54/11/08 32/56 33 have deposed falsely before the court.

18. In order to corroborate the testimony of PW­4, the petitioners have also examined PW­5 Sh. Surender Dhawan, who has filed his evidence by way of affidavit (Ex. PW­5/A), wherein it has been stated Smt. Saraswati Devi was his mother and she unfortunately expired on 05.07.2002 and he has proved her death certificate as Ex. PW­5/1. PW­5 further deposed that Smt. Saraswati Devi during her lifetime had a fixed place of abode at K­80, Lajpat Nagar­II, New Delhi and she has left behind the legal representatives i.e. the petitioner nos. 1 & 2 and respondent nos. 2 to 8 in the present petition. PW­5 deposed that petitioner no.1 Sh. Prem Kumar Dhawan unfortunately expired on 07.10.2011 during the pendency of the present probate petition and his legal representatives have been brought on record. PW­5 further deposed that respondent no.3 Sh. Mahinder Dhawan has also expired during the pendency of the petition and he had left no legal representative. PW­5 deposed that Smt. Saraswati Devi had informed him that she had requested Sh. M.N. Sharma, Advocate to draft her Will and he was also informed that Sh. M.N. Sharma, Advocate had visited his mother for obtaining instructions about her will on 24.03.1996 and his mother informed him that Sh. M.N. Sharma had prepared her Will and delivered it to her on the same day and she had informally discussed the contents of her Will with her children before she called Sh. M.N. Sharma to instruct him about it. PW­5 further deposed that there was a family gathering of about 14­15 persons in the house on 30.03.1996 and his mother on that day had also called Sh.M.N. Sharma to their residence and he was accompanied with Sh. D.P. Singh, PC No. 54/11/08 33/56 34 Advocate. PW­5 deposed that his mother then called the family members present in the house to her room and apart from him, were present and at the request of his mother, Sh. M.N. Sharma, Advocate read her Will and explained its contents to the persons present in the room and thereafter Smt. Saraswati Devi confirmed to the persons present there that the Will had been made in accordance with her wishes and she also requested the persons present there to sign the Will. PW­5 deposed that Smt. Saraswati Devi in the presence of the said persons, put her thumb impressions on all three pages of the Will and signed the Will on its last page and family members named above also signed the said Will in acceptance of its contents and as witnesses to the Will and Sh. M.N. Sharma, Advocate and Sh. D.P. Singh, Advocate signed the Will as attesting witnesses. PW­5 further deposed that Smt. Saraswati Devi wanted to get her said Will registered and therefore on 04.04.1996, Smt.Saraswati Devi went to office of the Sub Registrar at Kashmere Gate, Delhi and at her request, he and Sh. Prem Kumar Dhawan accompanied her. PW­5 deposed that they met Sh. M.N. Sharma and Sh. D.P. Singh, Advocates there and Sh. M.N. Sharma took them to the office of Sub Registrar to complete the formalities and his mother had taken her passport for identification which she produced before the Clerk to complete the formalities and thereafter they appeared before the Sub Registrar. PW­5 further deposed that the Sub Registrar examined the Will and enquired from his mother about its contents and verified that she knew the contents and the Will was the product of her own mind and accepted the document for registration. PW­5 deposed that Smt. Saraswati Devi had executed her Will voluntarily and without any coercion or importunity upon her and she was in PC No. 54/11/08 34/56 35 reasonably good health and there was no impediment in her capacity to think and decide about the bequeathments of her estate in the Will and the bequeathments made in the Will were decided entirely by her and it reflects her last desire.

This witness i.e PW­5 has also been cross examined on behalf of respondent no.2 & 6, but nothing material has come on record which could shake the credibility or trustworthiness of this witness.

In his cross examination on behalf of respondent no.2, PW­5 stated that no funds were contributed by his parents for purchase of the house at USA. He further stated that his mother was not having any neurological problem. PW­5 denied the suggestion that she was having neurological problem and she was shifted to Vimhans hospital for the same. He further denied the suggestion that his mother could neither write nor read any language or that his mother could only sign that to in Hindi language. In his cross examination, PW­5 stated that deceased had discussed about the contents of her Will with all his brothers and sisters including Sh. Rajinder and Sh. Prem Dhawan and others individually. He further stated that the day 30th March, 1996 was chosen by his mother and she invited all his brothers and sisters and her counsel at dinner for the purpose of executing the Will. PW­5 denied the suggestion that there was no such gathering on 30.3.1996. He further denied the suggestion that the contents of the Will were not discussed with any family members or that no Will was executed on that day. PW­5 stated that Sub Registrar talked to his mother regarding the contents of the Will and wanted to make sure the contents of the Will and when he was satisfied, he stamped it. PW­5 further stated that his mother and witnesses signed some documents on 4 th PC No. 54/11/08 35/56 36 April, 1996 in the office of Sub Registrar but he do not know if the Sub Registrar asked for the documents of the property. PW­5 denied the suggestion that the contents of the Will were not read over and explained by the Sub Registrar to his mother. PW­5 denied the suggestion that no Will was to be signed or registered on 04.4.1996 but only a GPA was to be registered. He further denied the suggestion that he and petitioner mixed up the pages and got a Will registered fraudulently. PW­5 stated that he always stayed at his mother's house at K­80, Lajpat Nagar­II, New Delhi whenever he visited India. He further stated that he have documents to show that Mr. Rajinder Dhawan took steps relating to the mutation of the property i.e K­80, Lajpat Nagar­II, New Delhi. PW­5 denied the suggestion that his mother wanted to bequeath K­80, Lajpat Nagar­II, N. Delhi to all her sons in equal shares. He further denied the suggestion that there are other Wills also executed/signed by his mother bequeathing the above property to all her sons. He also denied the suggestion that the contents of the Will in question Ex. PW­1/2 are entirely different from her wishes. PW­5 denied the suggestion that Smt. Swarn Puri did not sign the document Ex. PW­5/R2­7 as she disputed the Will in question. PW­5 denied the suggestion that there was a requirement of family settlement since there were dispute about the Will in question from the very beginning and stated that there were no disputes about the Will in 2004. PW­5 further denied the suggestion that Sh. Rajinder and Smt. Swarn Puri had disputed the Will even in 2004 and stated that Sh. Vijay was not having any dispute with him in 2007 about the Will. PW­5 denied the suggestion that the Will in question was obtained fraudulently. PW­5 further denied the suggestion that the Will in question is the product of his mind. PW­5 PC No. 54/11/08 36/56 37 denied the suggestion that he drafted the Will in question in collusion with the petitioners and obtained signatures and thumb impressions of his mother fraudulently. He further denied the suggestion that the requirement to get a family settlement and relinquishment deed arose as there were disputes about the Will in question from the very beginning. He further denied the suggestion that the probate petition is incorrect. PW­5 denied the suggestion that his mother did not understand the contents of the Will in question or that the contents of the Will were never told or explained to her by anyone. He further denied the suggestion that the Will in question was drafted and registered in connivance with Sh. M.N. Sharma and Sh.D.P. Singh. PW­5 also denied the suggestion that he was deposing falsely to derive benefits from the Will in question.

Further in his cross examination on behalf of respondent no.6, PW­5 stated that Smt. Saraswati Devi had informed him sometime between 15­24 March, 1996 that she had requested Sh. M.N. Sharma, Adv to draft her Will. He further stated that Smt. Saraswati Devi consulted other members of the family about the contents of the Will at around the same time when she had consulted with him. PW­5 denied the suggestion that he had not seen the Will in question before 4th April, 1996 or that he have deposed falsely in this regard. He further denied the suggestion that no family gathering as mentioned by him in para­6 of his affidavit took place on 30th March, 1996 or that this was a falsely fabricated story. He also denied the suggestion that Sh. M.N. Sharma, Adv had never explained or read over the contents of the Will on 30th March, 1996 at the residence of his mother. In his cross­examination, PW­5 further stated that he do not know the exact words used PC No. 54/11/08 37/56 38 by the Sub Registrar but he did ask about the contents of the Will and he checked with his mother if she knew the property was going to her four sons and some cash was also going to all her sons and some jewelery were also given to her daughters and grand­daughters. PW­5 denied the suggestion that the Sub Registrar had not asked anything from his mother except that those documents belonged to her. He further denied the suggestion that his mother was not aware of execution of the Will by her or her signatures were fraudulently obtained on the Will on the pretext of signing the GPA. PW­5 denied the suggestion that there was no instrumentality of Sh. Rajinder Dhawan either in respect of distribution of cash or jewelery or amount lying in bank account of Smt. Saraswati Devi or that he deposed falsely in this regard. He further denied the suggestion that he has deposed falsely about the visit of Smt. Swarn Puri at her mother's house on 30.3.1996. He also denied the suggestion that Smt. Swarn Puri came to know about the Will in question on 11.8.2002 for the first time and his earlier statement suggesting otherwise was false. PW­5 denied the suggestion that the Will in question was not in the knowledge of deceased Smt. Saraswati Devi. He further denied the suggestion that they fraudulently got the thumb impressions and signatures of their mother to deprive the other LRs from inheritance of mother's estate. PW­5 also denied the suggestion that his affidavit was false or that he was deposing falsely.

19. In support of their case, the petitioners have also examined PW­2 Sh. Praveen Dhawan & PW­3 Smt. Kamlesh Kapoor.

PW­2 ­Sh. Praveen Dhawan has filed his evidence by way of affidavit PC No. 54/11/08 38/56 39 (Ex. PW­2/A), wherein it has been stated that Smt. Saraswati Devi was the owner of property no. K­80, Lajpat Nagar­II, New Delhi and she made and executed her last Will dated 24.03.1996, which is Ex. PW­1/2. PW­2 further deposed that he has been living with her grand mother in the house and she has been in a reasonably good health in the year 1996 when she executed her last Will. PW­2 deposed that after the death of Smt. Saraswati Devi, his uncle Sh. Rajendra Dhawan took active steps in identifying the legal process to complete the succession and he was instrumental in filing all the applications for the mutation of the property in favour of the four beneficiaries under the Will and the applications made to the Syndicate Bank. PW­2 further deposed that after the death of Smt. Saraswati Devi, Sh. Rajender Dhawan got prepared and executed a relinquishment/disclaimer deed dated 27.03.2004 in favour of the beneficiaries of the Will and the said deed was Ex. PW­2/1. PW­2 deposed that from 17.11.2007 till on 08.12.2007, Sh. Surender Dhawan visited India and during that time the beneficiaries brothers could reach a consensus that the Lajpat Nagar property should be disposed of.

This witness i.e PW­2 has been cross­examined on behalf of respondent no.2, but nothing material has come on record which could assail the credibility or trustworthiness of this witness.

In his cross­examination on behalf of respondent no.2, PW­2 stated that he was aware that his father Sh. Prem Kumar Dhawan was present at the time of registration of the Will as he has seen him in going there and at that time, he was accompanied by Sh. Surender Dhawan, Sh. Rajindera Dhawan & Sh. Vijay Dhawan. He further stated that he had seen his grand mother Smt. Saraswati Devi signing on PC No. 54/11/08 39/56 40 various documents including cheques throughout her life time and apart from cheques, he had seen her putting her signature on documents relating to MCD and other letters and she used to sign in Hindi Language. PW­2 denied the suggestion that the property in question was joint family property or that it was purchased by the funds of the other family members including respondent no. 2 Sh. Rajindera Nath Dhawan. PW­2 further stated that Sh. Rajindera Dhawan prepared the documents relating to withdrawal of the amounts from the account of Smt.Saraswati Devi, documents relating to mutation & house tax of the property in question and relinquishment deed was got prepared and got signed from the parties and some other papers. PW­2 denied the suggestion that no such relinquishment / disclaimer deed dated 27.03.2004 was ever executed. He further stated that his grand mother Smt. Saraswati Devi used to reside at K­80, Lajpat Nagar­II, New Delhi in the year 1996 and he and his family also used to stay in the said property. He denied the suggestion that he and his family resided at Flat No. 203 from 2000 to 2008. He also denied the suggestion that he and his family never resided at K­80, Lajpat Nagar­II, New Delhi. PW­2 stated that a meeting was held at K­80, Lajpat Nagar­ II, New Delhi during the visit of Sh. Surinder Dhawan to India between the period 17.11.2007 to 08.12.2007 and he do not remember the exact date when such meeting took place and the said meeting was attended by four brothers namely Sh. Surinder Dhawan, Sh. Ashok Dhawan, Sh. Prem Kumar Dhawan, Sh.Vijay Dhawan. He further stated that it was mutually decided during the said meeting that the property bearing no. K­80, Lajpat Nagar­II, New Delhi shall be sold and proceeds thereof shall be divided in five equal shares. PW­2 denied the suggestion that no such Will PC No. 54/11/08 40/56 41 dated 24.03.1996 was ever executed by Smt. Saraswati Devi. He further denied the suggestion that said Will was forged and fabricated document. PW­2 also denied the suggestion that his grand mother was physically, mentally & emotionally unwell during March, 1996 and even prior thereto or that he was deposing falsely.

In his cross examination on behalf of respondent no.6, PW­2 denied the suggestion that the probate petition filed by his father and uncle was liable to be dismissed for the legal defect. He further denied the suggestion that respondent no. 6 did not sign the relinquishment/disclaimer deed because the Will propounded by the petitioners was forged and fabricated document. PW­6 also denied the suggestion that he was deposing falsely.

20. PW­3 Ms. Kmalesh Kapoor has also filed her evidence by way of affidavit (Ex. PW­3/A), wherein it has been stated that Smt. Saraswati Devi was her mother and sometime in March, 1996 she had told her that she wanted to make a Will and discussed with her some contents of the Will and asked if she wanted a share in it and she told her that she was well settled and was living happily with her husband and children and therefore she had suggested that she be not given any share from her property. PW­3 further deposed that her mother also told her that Sh.Rajender and Mahender had received sufficient funds from the joint family property and had their independent houses to live in and therefore she did not want to give any share in the house property to them. PW­3 deposed that Smt. Saraswati Devi subsequently told her that she had made her Will bearing the date 24th March, 1996 and she had also showed her the Will and she had noticed that the Will was PC No. 54/11/08 41/56 42 registered and it contained the signatures and thumb impressions of her mother. PW­3 further deposed that her mother had also confirmed that she had bequeathed the property no. K­80, Lajpat Nagar­II, New Delhi to her four brothers Sh. Prem Dhawan, Sh. Surender Dhawan, Sh. Vijay Dhawan and Sh. Ashok Dhawan. PW­3 also deposed that the Will bearing the date 24th March, 1996 was her last Will and testament and was executed by her out of her own will and decision.

This witness i.e PW­3 has also been cross­examined on behalf of respondent nos. 2 & 6 but nothing material has come on record which could be of any help to the said respondents.

In her cross­examination on behalf of respondent no.2, PW­3 stated that she used to visit her mother Smt. Saraswati Devi every week or 10 days and she used to visit her mother Smt. Saraswati Devi even during 1996 at address IInd­ K­80, Lajpat Nagar, New Delhi. She further stated that sometime in March 1996, a WILL of her mother Smt Saraswati Devi was shown to her, which was prepared with the consent of Sh. Prem Dhawan, Sh. Rajinder Dhawan, Sh. Surinder Dhawan, Sh. Mahender Dhawan, Sh. Vijay Dhawan, Sh. Ashok Dhawan, Smt. Santosh Puri, Smt. Swarn Puri and her self. PW­3 further stated that she was shown the WILL after its registration and prior to that she was informed about the execution of the WILL and as she refused that she do not want any share in the properties, no bequest was made by her mother in her favour, while executing the WILL. PW­3 stated that her mother always used to sign on the documents and she had seen her mother putting her signatures on various cheques and other documents also. She further stated that her mother could not walk properly but she was mentally fit and PC No. 54/11/08 42/56 43 she used to listen properly with or without the hearing aid. PW­3 stated that her mother purchased the property out of her own savings and nothing was contributed by anyone. In 1962, when this house was built, except the elder brother Sh. Prem Dhawan, no one was earning and Sh. Prem Dhawan was also having his own family to take care of. He further stated that sometime in 1978­79, her mother had given money to Sh. Rajinder Dhawan and Sh. Mahender Dhawan and they purchased properties at Lajpat Nagar from this funds. PW­3 also denied the suggestion that WILL Ex.PW1/2 was not the last WILL of her mother or that she was deposing falsely.

In her cross examination on behalf of respondent no.6, PW­3 stated that she has very good relations with all her brothers. She denied the suggestion that she do not have any relations with Sh. Rajinder Nath Dhawan for the last about 4­5 years. She further denied the suggestion that her relations were strained with Sh.Rajinder Nath or that he got built his house from his own resources. PW­3 denied the suggestion that her brother Sh. Surender never used to send any money to her mother from USA. She further denied the suggestion that her mother was not having any other source of income apart from family pension of her father. PW­3 denied the suggestion that a false and fabricated Will has been got prepared by the petitioners and respondent nos. 7 & 8 and they got the same signed from her mother. She further denied the suggestion that her mother was not aware that she was signing a Will. PW­3 denied the suggestion that the petitioners and respondent nos. 7 & 8 got the Will in question signed from her mother while she was signing the Power of Attorney or that she was not aware that she was signing a Will. PW­3 PC No. 54/11/08 43/56 44 denied the suggestion that her affidavit in evidence i.e. Ex. PW­3/A is a false affidavit or that she has filed the same at the instance of the petitioners and respondents nos. 7 & 8. She also denied the suggestion that she was deposing falsely.

21. Hence, in view of the above, it is evident that the aforesaid witnesses examined on behalf of the the petitioners have been cross examined at length by respondent nos. 2&6, but nothing material has come on record which could assail the credibility or trustworthiness of the said witness or which could be of any help to the respondent nos. 2&6 in this case.

22. In the present case, during the course of arguments, Ld. Counsel for respondent no.2 submitted that there were various suspicious circumstances surrounding the execution & registration of the Will in this case, which makes genuineness or validity of the said Will doubtful.

In this regard, it has been submitted on behalf of the respondent no.2 that the first suspicious circumstance is that it is not clear who are attesting witnesses to the Will in question executed by the testatrix Smt. Saraswati Devi and qua this, Ld. Counsel for the petitioners stated that the Will in question was signed by Sh.M.N. Sharma, Sh. D.P. Singh, Sh. Prem Kumar Dhawan, Sh. Vijay Dhawan, Smt.Santosh Puri, Sh.R. N. Dhawan, Sh. Surinder Dhawan etc. and each one of them had seen the testator sign the Will and each one of them had also signed in the presence of the testator and thus , all these persons are attesting witnesses to PC No. 54/11/08 44/56 45 the Will .

Secondly, it has been argued on behalf of the respondent no.2 that it has not been explained by the petitioners as to why the second attesting witness Sh. D.P.Singh was not examined as PW in this case and to this, it is stated on behalf of the petitioners that law requires that any one of the attesting witness can be examined for proving the Will on record and since one of the attesting witness Sh.M.N. Sharma have already been examined in this case, there was no need for the petitioners to examine Sh. D.P.Singh .

Thirdly, it has been submitted on behalf of respondent no.2 that non examination of Sub­Registrar also creates suspicion in this case. Whereas on the other hand, it has been submitted on behalf of the petitioners that petitioners have proved the due execution of the Will on record by the evidence of PW­4 Sh. M. N. Sharma and PW­5 Sh. Surender Dhawan, who were present at the Sub­Registrar's office at the time of registration of the Will and as such, the petitioners did not deem it necessary to examine Sub­Registrar as due execution and registration of the Will in question has been proved on record by the above ­said PW­4 and PW­5.

Fourthly, it is submitted on behalf of respondent no.2 that date of execution of the Will in question is not clear in this case and in this regard it has been submitted on behalf of the petitioners that Will was prepared by Sh.M.N.Sharma Advocate on 24.3.1996 and the testatrix Smt. Saraswati Devi executed the said Will on 30.3.1996 and she got it registered on 04.4.1996 and this fact has been duly stated in the petition and have also been confirmed by the PC No. 54/11/08 45/56 46 witnesses of the petitioners.

Further, it is submitted on behalf of the respondent no.2 that the GPA executed on the same date i.e 04.4.1996 have not been produced and the said GPA does not contain the signatures of testatrix, the Will contains her signatures and qua this, it has been submitted on behalf of the petitioners that the GPA was not required to be produced as no adjudication on the same has been sought on behalf of the petitioners in this case. It is further submitted that GPA contains thumb impressions of Smt.Saraswati Devi and the Sub­Registrar had duly satisfied himself before its registration and in any case, it does not impinge upon the validity of the Will in any way.

It is further submitted on behalf of respondent no.2 that it has not been pointed out by the witnesses as to at what point testatrix signed before Sub­ Registrar. In this regard, it is submitted on behalf of the petitioners that PW­4 Sh.M.N.Sharma has specifically stated and marked the points in the Will Ex. PW­1/2 where various persons have signed or put their thumb impressions and in this regard, PW­4 has specifically stated that he has seen the Will dated 24.3.1996 executed by Smt. Saraswati Devi and it bears her signatures at point­E and her left thumb impressions at point­A on the first page and endorsement on point B&C on the back of first page, at point­D on the second page and at point­E on the last page of the Will.

Further, it has been submitted on behalf of respondent no.2 that movable properties forming part of the estate of the testator have not been distributed as per the Will and and this again creates suspicion qua the execution PC No. 54/11/08 46/56 47 of the Will. On the other hand, it has been submitted on behalf of the petitioners that beneficiaries and other LRs of the testator including sisters as per their common agreement distributed the monies from the bank account of the testator to all the children of the testator and this fact is duly stated in the examination of the chief of PW­5 Sh.Surender Dhawan and such amicable settlements are permissible in law including in the case of a testamentary succession. It is also submitted that if the beneficiaries under the Will made some adjustments with other LRs of the deceased in respect of a small part of the bequest, that does not dis­entitle them from claiming the other portions of the bequest.

It has been submitted on behalf of respondent no.2 that PW­4 Sh.M.N.Sharma did not produce his notes which again creates suspicion about the drafting and execution of the Will. In this regard, it is submitted on behalf of the petitioners that the said witness PW­4 Sh. M.N.Sharma had stated during his evidence that he can produce his notings and briefs regarding the Will, if the same were available with him, but contesting respondents did not ask him to produce the said notes nor any directions in this regard was sought from the court.

Further, it is submitted on behalf of respondent no.2 that Dr. Kiran has also signed the the Will, but she was not examined by the petitioners and in this regard, it has been submitted on behalf of the petitioners that the said doctor was only Eye Specialist and was not required to be examined as witness in the present case as the execution and registration of the Will in question have been duly proved on record by the other witnesses examined on behalf of the petitioners. PC No. 54/11/08 47/56 48 It is further submitted that Dr. Kiran was not specialist witness of the ailments suffered by the testatrix or to her physical or mental condition and as such examination of the said Eye Specialist was not relevant.

It is submitted on behalf of the respondent no.2 that it has not been disclosed by the petitioners or other witnesses as to when and to whom, the registered Will was handed over and qua this, it has been submitted on behalf of the petitioners that the said fact have been duly disclosed by the PW­4 Sh. M.N.Sharma, who in his cross examination, has specifically stated that he took the delivery of the Will from the office of Sub Registrar after the same was registered on 04.4.1996 and thereafter he handed over the same to Smt. Saraswati Devi after about a week or so.

It is further submitted on behalf of respondent no.2 that petitioner have failed to prove mental condition of Smt. Saraswati Devi on record and in this regard, it is submitted on behalf of the petitioners that the physical and mental condition of the testatrix and her capacity to execute the Will has been duly proved on record by the witnesses examined on behalf of the petitioners and it was the respondent no.2, who has alleged that she was suffering from neurological problems but he has failed to prove the said fact on record in accordance with law.

Further, it has been submitted on behalf of respondent no.2 that number and name of persons present at the time of registration of the Will have not been disclosed or explained on behalf of the petitioners. Whereas on the other hand, it is submitted on behalf of the petitioners that number of persons who PC No. 54/11/08 48/56 49 accompanied the testatrix to the office of Sub­Registrar had no relevance to the question involved in this lis and it was not necessary for the petitioners to fill in the petition with all unnecessary information including the name of the scribe, the typist and who all accompanied her to the Sub­Registrar.

It has been submitted on behalf of respondent no.2 that the petitioners have not examined any person from the passport office to prove the passport referred in the Will and in this regard, it is submitted on behalf on behalf of the petitioners that respondents themselves have examined RW­6, LDC from the passport office, who deposed after seeing the Ex. PW5/R2­10 that passport issued in the name of Smt. Saraswati Devi was B055809 and the said witness also stated that application under RTI moved on behalf of the said respondent did not contain full number of the passport and name of the passport holder as mentioned in the passport.

It is further submitted on behalf of respondent no.2 that thumb impressions of the testatrix on the Will and GPA have not been proved or got compared by the petitioners. On other hand , it has been submitted on behalf of the petitioners that respondents have not seriously disputed the thumb impressions of the deceased testatrix in this case. Further, in the instant case, respondents have engaged RW­9 Sh. B.N. Shrivastava and even he was not asked for an inter­ se examination of the thumb impressions i.e the thumb impressions available in the Will and GPA and this fact was also admitted by him during his cross­ examination.

It is submitted on behalf of respondent no.2 that need of filing of PC No. 54/11/08 49/56 50 probate has not been mentioned in the pleadings, however this fact has been denied on behalf of the petitioners and they stated that the said need has been specifically mentioned in para­6 of the probate petition, wherein it has been stated that the grant of aforesaid probate is necessary so that the beneficiaries may deal with the property in question in the manner they deem fit and proper.

Further, it is submitted on behalf of respondent no.2 that the name of scribe of the Will have not been mentioned in the petition as well as in the Will and in this regard it is submitted on behalf of the petitioners that section ­63 of Indian Succession Act provides the rules according to which a Will is to be executed and it requires that the testator shall sign or affix his mark thereon in the presence of the two or more attesting witnesses, who shall also sign the same in his presence and section does not provide any legal requirement for mentioning of the name of the scribe. It is further submitted that in the present case, scribe and attesting witness was same person i.e PW­4 who specifically testified to this effect and his evidence has also been corroborated by PW­5. It is also submitted that name of the scribe was not required to be mentioned in the Will or in the pleadings and it has no impact on the legality or otherwise of the Will.

Further, it is also submitted that the typist, who typed the Will upon instructions of Sh. M.N.Sharma have also not been examined and in this regard, it has been submitted on behalf of the petitioners that examination of the said typist was not required as per law and in any case, the petitioners have examined PW­4 Sh.M.N.Sharma , who was scribed as well as attesting witness to the Will in question.

PC No. 54/11/08 50/56 51

23. In the present case, the respondent no.2 has referred to the above mentioned suspicious circumstances and according to him, those circumstances create doubt qua the valid execution and registration of the Will in question, however the said submissions made on behalf of respondent no. 2 are devoid of any merits and are contrary to the record as perusal of the record reveals that no such suspicious circumstance regarding the drafting, execution and registration of the Will exist in this case. The first circumstance pointed out in this regard by the respondent no.2 is that it is not clear, who are the attesting witnesses to the Will in question, however the perusal of the Will (Ex. PW­1/2) reveals that the said Will have been signed by the various witnesses and it has also been submitted on behalf of the petitioners that Will in question have been signed by the attesting witnesses mentioned therein and each of them had signed the same in the presence of the testator and the testator have also signed or affixed her thumb impression in the presence of the said witnesses. It is further submitted on behalf of the respondent no.2 that second attesting witness Sh. D.P.Singh have not been examined in this case and this also create suspicion regarding the due execution of the Will, however the said contention put forward on behalf of the respondent no.2 is not tenable as petitioners were required to examining any one of the attesting witnesses for the purpose of proving Will in accordance with law and in this case, the petitioners have examined two such witnesses namely Sh.M.N. Sharma ( PW­4) and Sh. Surinder Dhawan (PW­5).

In addition to above, it has also been submitted on behalf of the respondent no.2 that Sub Registrar, Dr.Kiran, official from passport office as well PC No. 54/11/08 51/56 52 as the typist, who typed the Will, have not been examined on behalf of the petitioners and this again creates doubt regarding due execution and registration of the Will in question, however, the said contention put forward on behalf of respondent no.2 does not hold water as none of those witnesses were relevant for the purpose of deciding the genuineness, validity or otherwise, of the Will of the testatrix in the instant case and even otherwise, reasonable and justifiable explaination qua the non examination of the said witnesses have also been given on behalf of the petitioners in this case.

Further, it has been submitted on behalf of respondent no.2 that date of execution of the Will is not clear and that the name of scribe of the Will have also not been mentioned, however the said submissions made on behalf of the respondent no.2 are devoid of any merits as in the instant case, it has been duly explained and proved on record by the petitioners that Will in question was drafted by Sh. M.N.Sharma on 24.3.1996 and the testatrix Smt Saraswati Devi executed the said Will on 30.3.1996 and she got it registered on 04.4.1996. Apart from this, the name of scribe of the Will is not required to be mentioned in the Will and non­mentioning of the said name does not in any manner effect the validity of the Will.

In addition to above, it has been submitted on behalf of respondent no.2 that it has not been disclosed by the petitioners or other witnesses as to when and to whom the registered Will was handed over and the petitioners have also failed to prove mental condition of Smt. Saraswati Devi on record and even the need for filing the probate petition have not been mentioned on behalf of the PC No. 54/11/08 52/56 53 petitioners, however the said averments made on behalf of respondent no. 2 are contrary to record as perusal of the record reveals that PW­4 Sh. M.N.Sharma has specifically stated in his cross examination that he took the delivery of the Will from the office of Sub Registrar after the same was registered on 04.4.1996 and thereafter he handed over the same to Smt. Saraswati Devi after about a week or so. Further, in view of the evidence and material on record , it is clear that petitioners have also duly proved the physical and mental condition of the testatrix as well as her capacity to execute the Will on record. In fact, it was respondent no.2, who had alleged that testatrix was suffering from neurological problems but no evidence, documentary or otherwise, have been brought on record on behalf of the respondent no.2 to prove the said fact on record in accordance with law. In addition to this, in view of the material on record and in view of the above­ said averments made on behalf of the petitioners, it is clear that the remaining alleged suspicious circumstances mentioned on behalf of respondent no.2 also do not exist in this case.

24. In the instant case, the perusal of the record reveals that respondent no.2 herein has on the one hand, alleged that the signatures of the testatrix on the Will in question were forged and fabricated and on the other hand it has also been submitted on his behalf that petitioners and respondent no.7 first drafted the Will containing execution date of 24.3.1996 which the testator outrightly refused to execute and thereafter they drafted Will containing execution date 26.03.1996 in such a manner that the last page of both the Will's remained same and only first two PC No. 54/11/08 53/56 54 pages were different and thereafter the petitioners and respondent no.7 fraudulently replaced the original signed first two pages of the said alleged Will containing execution date 24.03.1996 and the alleged Will which was formed by mixture of two Wills was allegedly executed and registered in guise of registering and executing a simple General Power of Attorney. In these circumstances, the respondent no.2 is simultaneously taking two distinct pleas, firstly that the signatures of the testatrix on the Will in question were forged & fabricated and secondly, that the pages of the Will and GPA were mixed up and the signatures of the testatrix thereon were obtained fraudulently . It is pertinent to note that both these pleas taken on behalf of respondent no.2 are contradictory to each other and mutually destructive and as such these pleas are not of much use to the respondent no.2 in the facts and circumstances of this case.

In the instant case, respondent no.2 has relied upon the case law cited as 2000 (83) DLT 469, 2010(7) AD (Delhi)442, AIR 1990 SC 396, AIR 1959 SC 443, AIR 1990 SC 1742, AIR 1977 SC 74, 1991 (1) OLR551, AIR 2001 SC 2802, AIR 1982 Delhi 584, AIR 1977 SC 680 (1) & (1994) 2SCC 29, however the said case law is not applicable in the instant case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed therein and in my considered opinion, the aforesaid case law is not of any help to the respondent no.2 in this case.

25. Hence, in view of the material on record and in view of the evidence adduced on record, it is evident that Will ( Ex. PW­1/2 ) of the deceased PC No. 54/11/08 54/56 55 Smt.Saraswati Devi has been proved on record in accordance with law by the petitioners. It is being alleged on behalf of respondent nos. 2&6 that the above said Will was forged or that the signatures of the testatrix were obtained on the said Will fraudulently, however respondent nos. 2&6 have not been able to prove the said facts on record. On the other hand, in view of the testimonies of PW­2 to PW­5, the petitioners have been able to prove on record that aforesaid Will (Ex. PW­1/2) was executed by Smt. Saraswati Devi and that it was her last, genuine, valid and duly executed Will.

Thus, in view of the above discussion and observations, the issue no.2 is decided in favour of the petitioners and against the respondent nos. 2 to 6.

26. Further, in the present case, the petitioners have prayed for grant of probate in respect of the Will dated 24.3.1996 executed by Smt. Saraswati Devi , however the perusal of the said Will (Ex. PW­1/2) reveals that petitioners have not been named as Executor therein and as such the probate in respect of the Will in question can not be granted in favour of the petitioners in accordance with the provisions of Section­222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the Will. In these circumstances and in view of the provisions of section­232 of Indian Succession Act, the petitioners shall be entitled only to Letter of Administration with the Will annexed, in respect of the property mentioned in the said Will.

Hence, in view of the above, issue no.3 is decided accordingly. PC No. 54/11/08 55/56 56

27. RELIEF In view of the above findings on the aforesaid issues no. 1 to 3, the Letter of Administration with annexed Will dated 24.3.1996 ( Ex. PW­1/2), in respect of property bearing no. II­K/80, Lajpat Nagar, New Delhi­110024 belonging to deceased Smt. Saraswati Devi be issued in favour of the petitioners herein after obtaining requisite Court Fee and Administration bond for a sum of Rs.1,70,06,100/­ with one surety of like amount. Further, the petitioners are directed to file the inventory of immovable property within six months and final statement of account within one year from the date of receipt of formal Letter of Administration.

It is further clarified that question of title, share and ownership of the property mentioned above is not decided by this court.

File be consigned to record room.

(Announced in the open  )                                        (Paramjit Singh)
(court on 06.6.2014)                                                                ADJ­02 (West)
                                                                             Tis Hazari Courts Delhi
                                                                                       06.6.2014




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                                                                                                                  PC No.­54/11/08



06.6.2014
Present:             Ms. Shilpa Gupta, counsel for the petitioners. 

                     Sh. Jatin Dhawan, son/attorney of respondent no.2.

                     None for the remaining respondents. 

Vide separate judgment, announced in the open court, the present petition for the grant of probate, filed on behalf of the petitioners, has been disposed of.

File be consigned to record room.

(Announced in the open  )                                        (Paramjit Singh)
(court on 06.6.2014)                                                                ADJ­02 (West)
                                                                             Tis Hazari Courts Delhi
                                                                                       06.6.2014




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