Delhi District Court
Anand Singh vs Om Prakash on 30 September, 2024
IN THE COURT OF SH. AJEET NARAYAN: CIVIL JUDGE -02
(CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 473/16
In the matter of: -
Sh. Anand Singh,
S/o Late Sh. Hukam Chand @ Hukmi,
R/o VPO Auchandi, Delhi-110039. .... Plaintiff
VERSUS
1. Sh. Om Prakash
S/o Late Sh. Hukam Chand @ Hukmi,
(Since Deceased Through LRs)
a) Smt. Santra (Wife)
b) Sh. Rajender (Son)
c) Sh. Ravinder (Son)
All (a) to (c) are resident of
H. No. 455, School Wali Gali,
Village Auchandi, Delhi-110039.
d) Ms. Reena (Daughter)
e) Ms. Saroj (Daughter)
(d) to (e) are resident of
H. No. 21, Ghasoli, Road Pabnera
Sonepat, Haryana-131039.
2. Sh. Dharampal
S/o Late Sh. Hukam Chand @ Hukmi,
(Since Deceased Through LRs)
a) Smt. Kusum (Wife)
CS No. 473/16 Anand Singh Vs. Om Prakash Page 1 of 34
b) Sh. Naresh (Son)
c) Sh. Mahesh (Son)
3. Sh. Ishwar Singh
S/o Late Sh. Hukam Chand @ Hukmi,
All R/o V.P.O. Auchandi,
Delhi-110039. .... Defendants
Date of Institution: 27.03.2003
Date of reserving the judgment: 10.07.2024.
Date of Judgment: 30.09.2024
Final Judgment: Suit Decreed.
JUDGMENT
(Suit for Declaration and Permanent Injunction)
1. The present suit has been originally filed on 15-09-2006 by the plaintiff, Sh. Anand Singh, against the defendants, (i) Sh. Om Prakash, (ii) Sh. Dharam Pal and (iii) Sh. Ishwar Singh, seeking the declaration that alleged Will dated 25-10-2001 be declared null and void, and seeking relief of injunction thereby restraining the defendants from dispossessing the plaintiff from suit property and creating any third-party interest in suit property.
During the trial, vide order dated 29-04-2013, the plaint was returned by Ld. Civil Judge under Order 7 Rule 10, stating that jurisdiction of civil courts is barred in respect of suit of declaration and permanent injunction in view of Section 185 and Schedule I of Delhi Land Reforms Act, 1954 read with entry at Serial No. 28 of Schedule I of DLR Act. Thereafter, Ld. Appellate court vide its order dated 26-11-2015 in appeal, CS No. 473/16 Anand Singh Vs. Om Prakash Page 2 of 34 has set aside the aforesaid order of trial court, holding that revenue court cannot deal with the invalidity of will and civil court has the jurisdiction to try the present suit and remanded back the case for trial. Hence, the present suit was remanded back and taken up for further trial on 19-12-2015.
During the course of appeal, defendant No. 2, Dharam Pal has expired and his legal heirs were impleaded as defendant and further during the trial, defendant No. 1, Om Prakash also expired and his five LRs have been brought on record vide order dated 20-04-2023.
PLAINTIFF'S VERSION
2. The brief facts of the present case are that the plaintiff and defendant Nos. 1, 2 and 3 are the sons of Late Sh. Hukam Chand @ Hukmi and are in peaceful possession of their respective properties/agricultural land, plots and residential houses individually earlier jointly owned by them when their father said Sh. Hukam Chand was alive, all situated in the revenue estate of Village Auchandi, Delhi-110039, including the residential properties falling under old Lal Dora 1908 and Extended Lal Dora.
2.1 It is further submitted that the present suit property is under Khewat No. 234/216, under Khasra No. 6/18 (6-00), 19 (4-16), 23(4-16), 24/1 (3-07), 110/67 (0-17) total ad-measuring 19 bighas and 16 biswas, all situated in revenue estate of Village Auchandi. It is submitted that the plaintiff is in possession of his share in the agricultural land stated above for a long period without an interference and harvesting the seasonal crops from time to time. Further, the residential property and the plot has been CS No. 473/16 Anand Singh Vs. Om Prakash Page 3 of 34 given to the plaintiff to his share and possession of which he is enjoying peacefully.
2.2 It is further submitted that the aforesaid property which is under adjudication before this Court has been acquired by the plaintiff and defendant Nos. 1, 2 and 3 from their forefather being the ancestral property. Further the plaintiff filed a Civil Suit bearing No. 92/2003 for permanent injunction before the Court of Sh. Sanjay Kumar, the then Ld. Civil Judge, Delhi under the title "Anand Singh Vs. State & Ors." The same has been dismissed on the preliminary issue that the suit is barred in view of Sec. 185 of the DLR Act, 1954.
2.3 It is further submitted that the plaintiff and defendant Nos. 1, 2 & 3 being the joint owners of the suit property, which have been partitioned under the oral family settlement/partition situated in the Lal Dora and extended Lal Dora including agricultural land in the revenue estate of Village Auchandi, Delhi.
2.4 It is further submitted that defendant Nos. 1, 2 & 3 with malafide intention and ulterior motives under the undue influence, coercion, fraudulently and mischievously stage-managed execution of Deed of Will on 25.10.2001 deceitfully by the father of the plaintiff and the defendants, who was illiterate person and got the same registered with the office of the Sub-Registrar concerned in their favour only for the purpose of usurping the share of the plaintiff in the suit property which is even today in peaceful enjoyment of the plaintiff.
CS No. 473/16 Anand Singh Vs. Om Prakash Page 4 of 342.5 It is further submitted that the document namely the alleged Will is itself is full of legal and technical defects having no locus standi without explaining the excluding/depriving of the plaintiff from his share in the suit property. It is submitted that the main purpose of stage-managing the Deed of Will is only to exclude the plaintiff from the suit property.
2.6 It is further submitted that the plaintiff is threatened to be dispossessed from the suit property on 03.08.2006, when the defendants tried to dispossess the plaintiff in the evening from the suit property on the basis of the alleged Will dated 25.10.2001 stating that the plaintiff has no right on the suit property and the suit property exclusively belongs to the defendants. Thus, the cause of action arose on 03.08.2006 in the evening and the same is still continuing and recurring because the only remedy is to seek declaration of the alleged Will as null and void and permanent injunction against the defendants involving the suit property in order to avoid all controversies in the future.
2.7 With these averments, the plaintiff has filed the present suit against the defendants with the following prayers: -
i) In view of the present facts and circumstances of the case, this Court may graciously be pleased to declare the alleged Will dated 25.10.2001 executed in favour of defendant Nos. 1 to 3 involving the suit property, null and void.
ii) Further, this Court may graciously be pleased to pass the order CS No. 473/16 Anand Singh Vs. Om Prakash Page 5 of 34 restraining the defendants, their attorneys, agents, managers, legal heirs, representatives, assignees, etc. etc. from creating the third-party interest by way of selling, mortgaging, transferring etc. etc. the suit land.
iii) Further, this Court may graciously be pleased to pass the order restraining the defendants permanently from dispossessing the plaintiff from the suit property.
DEFENDANT'S VERSION
3. Summons of the suit for settlement of issues were issued and served upon the defendants, in pursuance of which, defendant Nos. 1, 2 & 3 filed their joint written statement by taking preliminary objections that the present suit filed by the plaintiff is neither maintainable nor tenable in the eyes of law reason being the legal paras are deficient of valuation of the suit for the purpose of the court fee and jurisdiction. The plaintiff has made the averments in para-No. 10 in a running and sleeping way, therefore, the present suit is legally cryptic and consequently the same is liable to be dismissed.
3.1 It is further submitted that the suit is barred by principle of res- judicata U/s 11 of CPC. The relief sought for by the plaintiff are almost identical with the earlier suit which was dismissed on the ground of non- maintainability of the suit, therefore, the present suit is suffering from the principle of res-judicata and is liable to be dismissed.
CS No. 473/16 Anand Singh Vs. Om Prakash Page 6 of 343.2 It is further submitted that the plaintiff has misused the process of this Court in the inappropriate manner which amount abuse of the process of the Court. The present suit is for declaration of the Will executed by the father of the plaintiff and the defendants. The same was filed by the father of the parties during his lifetime in the Civil Court, hence the Will cannot be challenged in any manner whatsoever as alleged in the present suit.
3.3 It is further submitted that the present suit also deals with the agricultural land and the declaration thereby cannot be sought in the court of Revenue Court and Civil Court's jurisdiction is barred under U/s 185 and 186 of Delhi Land Reforms Act.
3.4 It is further submitted that the plaintiff has not made clear as to which relief he is seeking for as per the application filed along with the suit which is travelling beyond the pleadings mentioned in the main suit as is apparent from para No. 8 of the application U/o 39 Rule 1 & 2 CPC wherein the application is stated to be filed for seeking permanent and mandatory injunction, it nowhere states as to how mandatory injunction has come into being without its being sought in the main suit, therefore, the application is devoid of any merit. The relief of declaration and permanent injunction and mandatory injunction are altogether different and these reliefs cannot be separately sought for independently without there being averment in the plaint therefore, the application is on different footing with that of main suit and therefore, the same are in conflicting with each other.
CS No. 473/16 Anand Singh Vs. Om Prakash Page 7 of 343.5. It is further submitted that the present suit is liable to be dismissed on account of non-furnishing of any site plan. It is further submitted that plaintiff has not made clear as to how much possession is being claimed in the property mentioned in the plaint and therefore, plaintiff has made a vague pleading in para-No.1 of the plaint. It is stated that plaintiff is not made clear as to which portion he is claiming for. It is further submitted that will in question was executed voluntarily with free will in favour of defendants No. 1, 2 and 3, as copy of the will was filed by the father of defendants in the civil court when he was alive, therefore intention of the deceased testator was clear as it was filed in the court when he was alive himself, therefore there is no question of making the will fraudulently. Rest of the contentions are denied by the defendant. Prayer is made accordingly, to dismiss the suit of the plaintiff with exemplary costs.
4. From the pleadings of the parties, the following preliminary issues were framed by my Ld. Predecessor vide order dated 12.10.2006 and 18.10.2008, but vide order dated 11-10-2018, the following preliminary issues were converted to regular issues:
i) Whether the suit of the plaintiff is not maintainable in view of the dismissal of the earlier suit seeking the same relief of permanent injunction? OPD (framed on 12.10.2006)
ii) Whether the present suit of the plaintiff is barred U/o 2 Rule 2 CPC? OPD (framed on 12.10.2006) CS No. 473/16 Anand Singh Vs. Om Prakash Page 8 of 34
iii) Whether the suit of the plaintiff is barred U/s 185 of DLR Act? OPD (framed on 18.10.2008)
5. The following additional issues were framed by my Ld. Predecessor vide order dated 12.02.2019: -
i) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD
ii) Whether the plaintiff is entitled for the relief of declaration to declare the Will dated 25.10.2001 qua the suit property as null and void, as prayed? OPP
iii) Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendant not to create any third party interest and not to dispossess the plaintiff from the suit property? OPP
iv) Relief.
Now, all the issues are being reproduced here at the same place for the convenience and reference:
i) Whether the suit of the plaintiff is not maintainable in view of the dismissal of the earlier suit seeking the same relief of permanent injunction? OPD
ii) Whether the present suit of the plaintiff is barred U/o 2 Rule 2 CS No. 473/16 Anand Singh Vs. Om Prakash Page 9 of 34 CPC? OPD
iii) Whether the suit of the plaintiff is barred U/s 185 of DLR Act? OPD
iv) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD
v) Whether the plaintiff is entitled for the relief of declaration to declare the Will dated 25.10.2001 qua the suit property as null and void, as prayed? OPP
vi) Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendant not to create any third party interest and not to dispossess the plaintiff from the suit property? OPP
vii) Relief.
PLAINTIFF'S EVIDENCE
6. In support of his case, the plaintiff got examined himself as PW-1 by tendering his evidence by way of affidavit Ex.PW1/A. He relied upon the following documents: -
i) Mark A is the photocopy of Khatauni in respect of the suit property.
ii) Mark B is the photocopy of the certified copy of the Will CS No. 473/16 Anand Singh Vs. Om Prakash Page 10 of 34 dated 25.10.2001 PW-1 was cross-examined at length by ld. Counsel for the defendants.
7. PW-2 is Sh. Mahender Singh, who tendered his evidence by way of affidavit Ex.PW2/A. PW-2 was cross-examined at length by Ld. Counsel for the defendants.
8. PW-3 is Sh. Rakesh Kumar, Manager, TPDDL, CRD Bhargarh, Record Room, Roshanara Road, Delhi-110007 (Emp. Code No. 32892). He deposed that he is a summoned witness. He brought the summoned record i.e. the electricity connection bearing K. No. 512734136/DVB of Delhi Vidyut Board (now TPDDL) in favour of Smt. Kamla W/o Sh. Anand Singh and the Lal Dora Certificate dated 26.02.2000, and the photocopy of the first page of the Ration Card in the name of Smt. Kamla W/o Sh. Anand Singh. The same are collectively exhibited as Ex.PW3/1 (Colly. 5 pages) (OSR).
No opportunity for the cross-examination of the witness in view of Section 139 of Indian Evidence Act.
9. PW-4 is Sh. S.K. Verma, Patwari, from the office of SDM Narela, Village Naya Baans, Delhi (Mob. No.9821930941). He deposed that he is a summoned witness. He brought the summoned record i.e. Khatauni Chakbandi Khewat No. 234/216 under Khasra No.6/18(6-0), 19(4-16), 23(4-16), 24/1(3-7), 110/67(0-17) of Village Auchandi, Delhi, which is collectively exhibited as Ex.PW4/1 (Colly.4 pages) (OSR).
CS No. 473/16 Anand Singh Vs. Om Prakash Page 11 of 34No opportunity for the cross-examination of the witness in view of Section 139 of Indian Evidence Act.
Thereafter, Ld. Counsel for the plaintiff closed his P.E. on 31.01.2024.
DEFENDANT'S EVIDENCE
10. On the other hand, the defendant examined himself as DW-1 by tendering his affidavit of evidence Ex.DW1/A. DW-1 was cross- examined at length by ld. Counsel for the plaintiff.
11. DW-2 is Sh. Akshay Dabas, from the office of Sub Registrar VI-A, Pitampura, Ambedkar Bhawan, Sector-16, Rohini, Delhi. (Mob. No. 8287328612). He deposed that he is a summoned witness. He brought the summoned record. As per the record, the original office copy of the Will dated 25.10.2001 having Regn. No. 37880 in Book No. III, Vol. 1758 at Page No. 21. The certified copy of the same is already on record and the same is now exhibited as Ex.DW2/1. (Court observation: The photographs on the Will are not original.) No opportunity for the cross-examination of the witness in view of Section 139 of Indian Evidence Act.
12. DW-3 is Sh. Jitender Dabas S/o Sh. Jaipal Singh, aged 58 years R/o H. No. 268, Sultanpur Dabas, Delhi-110039. He deposed that he is a summoned witness. He has deposed that the Will dated 25.10.2001, Ex.PW2/1 might bear his signatures as he is not sure due to the passage of CS No. 473/16 Anand Singh Vs. Om Prakash Page 12 of 34 time and poor eye-sight. However, the same bears his aforesaid address. He had accompanied with Sh. Hukam Chand at the time of execution of the aforesaid Will on 25.10.2001. DW-3 was cross-examined at length by ld. Counsel for the plaintiff.
Thereafter, Ld. Counsel for the defendant closed his D.E. on 02.04.2024.
FINDINGS
13. I have heard the arguments advanced by Ld. Counsel for the parties and carefully perused the record. My issue-wise findings are as under.
Both the issues, Issue Nos. (v) and (vi) shall be taken together and decided at the same time as they are inter-connected and same appreciation of evidence is required to decide both the issues: -
Issue Nos. (v) & (vi)
v) Whether the plaintiff is entitled for the relief of declaration to declare the Will dated 25.10.2001 qua the suit property as null and void, as prayed? OPP &
vi) Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendant not to create any third party interest and not to dispossess the plaintiff from the suit property? OPP CS No. 473/16 Anand Singh Vs. Om Prakash Page 13 of 34
14. The burden of proving both the issues is on the plaintiff. It is the case of plaintiff that plaintiff and all 3 defendants are son of Hukmi @ Hukam Chand. Hukam Chand and Rati Ram were brothers and were owners of suit property having 1/2 share each. Further it is submitted that Hukmi had five sons, i.e., plaintiff, Anand Singh, 3 defendants, Sh. Om Prakash, Sh. Dharam Pal, Sh. Ishwar Singh and one Raje Ram. Hukmi had one daughter Sheela also. It is further submitted that Rati Ram, uncle of parties and brother of Hukmi was issueless, therefore Rati Ram adopted Raje Ram, one of the sons of Hukmi and Sheela, daughter of Hukmi. Now it is the case of plaintiff Anand Singh that will in question dated 25-10-2001 allegedly executed by the father of parties Hukmi, only in favour of 3 defendants excluding the plaintiff, is fraudulently created by the defendants under undue influence, coercion, and by playing fraud upon the father of parties as father of parties Sh. Hukmi @ Hukam Chand was an illiterate person and further it was got registered, only for the purpose of usurping the share of plaintiff. It is further submitted that plaintiff being one of legal heirs has been unjustly excluded from the will by the defendants on the basis of fraudulent will and defendants were trying to dispossess the plaintiff from the suit property on the basis of will in question. Therefore, the present suit is filed seeking declaration that alleged will be declared null and void and seeking injunction as prayed above.
Per Contra, it is the case of defendants on merits that Will has been executed voluntarily with free will in favour of defendants and the property of the deceased father was his self-acquired property and he was empowered to deal with the property according to his wish. Although CS No. 473/16 Anand Singh Vs. Om Prakash Page 14 of 34 defendants have not taken this ground in the written statement that not only Raje Ram, but plaintiff Anand Singh also, was adopted by Rati Ram, and that is why he was excluded by the Hukmi in the will, but the suggestion to the same effect has been given to the plaintiff in his cross examination and DW-1 in his evidence affidavit has deposed that no share was given to the plaintiff by the father as the plaintiff was earlier adopted by Sh. Rati Ram, brother of Hukmi and the plaintiff was enjoying the share of Late Sh. Rati Ram and further, it has been argued also on behalf of defendants.
Further other preliminary objections have been taken by the defendants that since a suit qua the suit property was earlier filed by plaintiff in 2003 which was dismissed on the ground that suit is barred by Section 185 of Delhi Land Reforms Act as the subject matter of the suit is agricultural land, therefore, present suit is not maintainable and barred under Order 2 Rule 2 and further suit is undervalued and under stamped.
15. Before adverting to the facts of the present case, law regarding execution of a Will, its proof, and its acceptance by the Court etc., needs to be discussed along with the leading case laws elucidating the legal principles governing the law of Will.
Will is a testamentary instrument by which a person expresses his desire regarding the distribution of his property after his death. By its very nature, will is revocable in nature during the life time of the executant as it has to take effect after the death of the executant. The peculiar nature of such a document has led to solemn provisions in the statutes for making of a Will and for its proof in a Court of law. Section 59 of the Indian CS No. 473/16 Anand Singh Vs. Om Prakash Page 15 of 34 Succession Act 1925 provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion thereof, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. Section 63 of the Indian Succession Act 1925 requires that the testator has to sign or affix his mark on the Will in the presence of two or more attesting witness. However, it is not necessary that the two attesting witnesses should be simultaneously present to witness the execution of the Will. Relevant Sections and provisions of law are reproduced herein:
"Section 3 of Transfer of property Act: Attestation relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such person, and each of who has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;"
"61. Will obtained by fraud, coercion or importunity.: A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void."CS No. 473/16 Anand Singh Vs. Om Prakash Page 16 of 34
"63. Execution of unprivileged Wills.: Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules: -
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witness, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
"68. Proof of execution of document required by law to be attested.: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the CS No. 473/16 Anand Singh Vs. Om Prakash Page 17 of 34 Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
Therefore, as per the mandate of clause (c) of Section 63, a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary.
Further, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act.
16. Hon'ble Supreme Court in Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 at page 373 has laid down propositions of law:
"10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443:
1959 Supp 1 SCR 426]. The Court, speaking through Gajendragadkar, J., laid down in that case the following CS No. 473/16 Anand Singh Vs. Om Prakash Page 18 of 34 propositions:
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and CS No. 473/16 Anand Singh Vs. Om Prakash Page 19 of 34 disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excites the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
17. Hon'ble Supreme Court in Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734: 2023 SCC OnLine SC 1198 at page 736 held that:
"10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, CS No. 473/16 Anand Singh Vs. Om Prakash Page 20 of 34 1959 Supp (1) SCR 426 (3 Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3 Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2 Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3 Judge Bench) and Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277 (3 Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:
i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at CS No. 473/16 Anand Singh Vs. Om Prakash Page 21 of 34 the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it CS No. 473/16 Anand Singh Vs. Om Prakash Page 22 of 34 becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
18. In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances.
Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws it is evident that plaintiff herein has alleged that Will in question dated 25.10.2001 was executed with fraud, undue influence etc., i.e., the execution of the Will is surrounded by suspicious circumstances. The plaintiff has alleged that testator had no reason or occasion to deprive the plaintiff of his share in property. It is alleged that Will did not mention about the plaintiff and no share has been given to the plaintiff and no reason at all has been given in Will for the same. The only reason although, which is given by the defendants is that plaintiff Anand Singh was adopted by his CS No. 473/16 Anand Singh Vs. Om Prakash Page 23 of 34 uncle Rati Ram, that is why his father/testator has excluded him from his Will. But the said fact of adoption is not mentioned in the Will and also said adoption has not been proved by the defendants. The said fact of adoption of the plaintiff by his uncle Rati Ram could have been easily proved by defendants by producing relevant documents, but it has not been proved by defendants. Further, defendants have averred in their written statement that copy of the Will was filed by the father of defendants in the civil court when he was alive, therefore intention of the deceased testator was clear and the Will cannot be fraudulent, but defendants have not brought on record any document or anything to prove that copy of Will was filed by the testator himself in any court of law. Even otherwise, this seems improbable as will is of 25.10.2001 and testator has died on 22.01.2002, and there is nothing on record to suggest that any suit was filed before the death of father of parties. Further it is admitted that Will in question has not been proved till date in any case before any court of law and DW-1/Ishwar Singh has stated in his cross-examination that he has not filed any case against Sh. Anand Singh regarding the Will in question.
Further there are other circumstances surrounding the Will that are suspicious, that father of the plaintiff/testator was illiterate which is evident from the Will itself that he has affixed his thumb impression on the Will. Even DW-1 has stated in his cross examination that at the time of death of his father he was 80-85 years of age and at the time around 25.10.2001, his father was not stepping out of the home or village. Hence it shows that testator was of very old age and was in feeble health, and it is also in dispute that he died few months after alleged execution of the Will.
CS No. 473/16 Anand Singh Vs. Om Prakash Page 24 of 34Further it is clear from the Will that no one from the family of the testator had gone or accompanied him on the date of execution and despite having a big family, only an Advocate and his clerk has attested the Will in question.
Another important fact which created doubt on the surrounding circumstances of the will is that during cross-examination of DW-1, he was confronted/shown with the document Ex. DW-1/PX-1 which is agreement dated 05-10-1997 between four brothers i.e., plaintiff Anand Singh and three defendants that ancestral house shall remain with plaintiff Anand Singh, out-house (Gher) were divided half-half between Om Prakash and Jagpal (son of Raje Ram) and Estates of Rati Ram (brother of Hukmi) shall go to Jagpal and that all four brothers shall not have any share in the estates of Rati Ram. DW-1 has admitted the said settlement, but has stated that same pertains only to ancestral house. The said document shows the contention of defendants that plaintiff Anand Singh was adopted by Rati Ram and has received the share of Rati Ram is false, and a partition of estates has taken place between brothers during the lifetime of their father much the alleged execution of the will, regarding which fact alleged will is silent.
Further, if we peruse the certified copy of alleged Will, Mark B/Ex. DW-2/1, it shows that there is name of Jitender Dabas, S/o- Jaipal Singh details are mentioned at the place of witness No-1 of the Will and there is only a seal/stamp of Advocate S K Rana with Registration No. written at the place of witness No-2 of the Will. Even if we assume that first witness Jitender Dabas has made his signature, but seal of Advocate S K Rana cannot be assumed to be signature or attestation as per provisions of CS No. 473/16 Anand Singh Vs. Om Prakash Page 25 of 34 law required for Will. It seems that the Will is not attested by S K Rana and he is merely the scribe and as per Section 63, it is mandatory to get the Will attested by two or more witnesses, though no particular form of attestation is necessary. Therefore, it gives rise to the suspicious circumstances surrounding the Will.
Now it is settled law that one who alleges fraud, fabrication, undue influence has to prove the same, however, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
Hon'ble Supreme Court of India has held in Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209: 2020 SCC OnLine SC 464 that mere exclusion of the natural heirs or giving of lesser share to them, by itself, will not be considered to be a suspicious circumstance. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. Hence, any one of the factors taken into account by itself and standing alone, cannot operate against the validity of the propounded Will, respondents. The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of all of them upon making of the Will with free agency of the testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in CS No. 473/16 Anand Singh Vs. Om Prakash Page 26 of 34 question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there.
Therefore, in the present case, if there are circumstances giving rise to doubt to the authenticity of Will, the court itself may take the note of the said circumstances, then, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will and thereby onus will shift on the defendants in the present case to prove the Will as per law and the principles discussed above.
Now, defendants have summoned DW-3, Jitender Dabas, one of the attesting witnesses of the alleged Will and he has deposed that the Will dated 25.10.2001 Ex.PW2/1 might bear his signature as he is not sure due to the passage of time and poor eye-sight. He has further deposed that he had accompanied with Sh. Hukam Chand i.e. the Testator of the Will at the time of execution of aforesaid Will. In the cross-examination, DW-3 has deposed that he does not know Sh. Hukam Chand and he has put his signature on the Will at the instance of Sh. S.K. Rana, Advocate at the office of whom DW-3 was working as Clerk. He has further deposed that in his cross-examination that he was not called on the particular day i.e. 25.10.2001 and he has further deposed that whether the writing in English at place of witness No. 1 is his. Therefore, the testimony of DW-3 Sh.
CS No. 473/16 Anand Singh Vs. Om Prakash Page 27 of 34Jitender Dabas, who is allegedly one of the attesting witnesses of the alleged Will is contradictory and unreliable. In the examination in chief, he has stated that the Will might bear his signature and in cross-examination he has stated that he has put his signature on the Will at the instance of Sh. S.K. Rana, Advocate. Further, in the cross-examination itself, he has again stated that he cannot tell whether the writing in English language at place of witness No. 1 is his or not. As per Sec. 63 (c) of the Indian Succession Act, it is the requirement as per law that the Will shall be attested by two or more witnesses and each of whom has seen the Testator sign or affix his mark on the Will and each of the attesting witnesses shall sign the Will in the presence of Testator. If we peruse the testimony of DW-3, DW-3 has nowhere stated that he has seen the Testator i.e. Sh. Hukam Chand signing on the Will or in this case putting his thumb impression on the Will. On the contrary, he has stated that he did not know Sh. Hukam Chand and Sh. Hukam Chand never asked him to sign the aforesaid Will. DW-3 has also not stated that he has any knowledge regarding the signature or thumb impression of the deceased Testator Sh. Hukam Chand. Therefore, in view of the contradictory testimony of DW-3 and in view of lack of clear testimony to the effect that the Will bears his signature and that he has seen the Testator signing the Will or affixing his thumb impression on the Will, defendants have failed to prove that the Will was executed as per Sec.63(c) of Indian Succession Act, 1925. Hence, defendants have failed to prove that the Will in question was duly and validly executed by the deceased Sh. Hukam Chand.
It is settled law that though the Will may be registered one, but CS No. 473/16 Anand Singh Vs. Om Prakash Page 28 of 34 the same by itself would not mean that the statutory requirement of proving the Will need not be complied with. In terms of Sec.63(c) of Indian Succession Act, 1925 and Sec. 68 of Indian Evidence Act, the propounder of the Will must prove its execution by examining one or more attesting witnesses. In the present case, since the testimony of DW-3 was not sufficient to prove the execution of Will, so defendants should have summoned other alleged attesting witness Sh. S.K. Rana, Advocate, but no efforts were made by the defendants to examine the other attesting witness and no explanation has been made by the defendants as to why the other attesting witness was not summoned.
Now, the most glaring deficiency in the case of the defendants is that as per Sec.63(c) of Indian Succession Act, 1925, the Will shall be attested by two or more witnesses i.e. it is the mandatory requirement that there should be two attesting witnesses, but perusal of the Will i.e. Mark B/ Ex.DW2/1 shows that at the place at the bottom of the Will, at the place of witnesses, the name and address of Sh. Jitender S/o Sh. Jai Pal is written at the place of witness No. 1 and at the place of witness No. 2, only the stamp of S.K. Rana, Advocate with registration number is written and there is no signature of Sh. S.K. Rana, Advocate. As per law, i.e. Sec.3 of the Transfer of Property Act, which has defined attestation, that attestation means that person must have signed the instrument in the presence of executant. Therefore, the stamp of Advocate S.K. Rana at the place of witnesses does not suffice for his signature, hence, the mandatory requirement of attesting the Will by two witnesses is not fulfilled. Therefore, the Will is not executed as per law and is not valid. Although, the backside of the Will CS No. 473/16 Anand Singh Vs. Om Prakash Page 29 of 34 does contain the details of registration and thumb impression of Hukam Chand and some signatures (although not clear as to whose signatures) before the concerned Sub-Registrar office, but fulfilling the requirement of registration does not mean that the Will has been validly executed as per law. Therefore, either the second attesting witness Sh. S.K. Rana has not signed the alleged Will or the stamp or seal of the Advocate has been made on the Will only as a scribe and in both scenarios the mandatory requirement of valid execution of Will is not fulfilled.
In view of the aforesaid discussion, the plaintiff has discharged the onus that the alleged Will has been fraudulently executed under the coercion or undue influence and is not validly executed, and the plaintiff is entitled to the relief of declaration that the Will dated 25.10.2001 be declared as null and void.
In view of the aforesaid discussion, Issue Nos. 5 & 6 are decided in favour of the plaintiff and against the defendants.
19. Issue Nos. 1, 2, 3 & 4i) Whether the suit of the plaintiff is not maintainable in view of the dismissal of the earlier suit seeking the same relief of permanent injunction? OPD
ii) Whether the present suit of the plaintiff is barred U/o 2 Rule 2 CPC? OPD
iii) Whether the suit of the plaintiff is barred U/s 185 of DLR Act? OPD CS No. 473/16 Anand Singh Vs. Om Prakash Page 30 of 34
iv) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD All these issues shall be taken together and decided at the same time as they are inter-connected and same appreciation of evidence is required to decide these issues. The onus of proving these issues is on the defendants.
Coming to Issue No. (i) that whether the present suit is not maintainable as earlier suit seeking the same relief was dismissed, the defendants have not led any evidence on this aspect and only have argued that since it is admitted by PW-1 in his cross-examination that he had filed a suit qua the suit property in the year 2003, regarding the said Will in question which was dismissed, then the present suit is not maintainable. As far as defence of res-judicata is concerned, this is highly technical objection, and it cannot be decided in the absence of pleadings of the earlier suit and of the judgment passed in the earlier suit. Merely by saying that the earlier suit was dismissed, the doctrine of res-judicata is not attracted and it cannot be said that the earlier suit was decided on merits or whether the issues in the earlier suit were same as of the present suit. Defendants have not filed or summoned the pleadings of earlier suit in the evidence of this case. Therefore, the defendants have failed to prove Issue No. (i) that the present suit is not maintainable.
Coming to Issue No. (ii) that Whether the present suit of the plaintiff is barred U/o 2 Rule 2 CPC, no evidence has been led on this CS No. 473/16 Anand Singh Vs. Om Prakash Page 31 of 34 aspect also and also no arguments have been made by the defendants as to how the present suit is barred U/o 2 Rule 2 CPC and have also not elucidated that what claim the plaintiff has omitted or relinquished which he ought to have included. Therefore, the defendants have failed to prove Issue No.(ii) that the present suit is barred by Order 2 Rule 2 CPC.
Coming to Issue No. (iii) that whether the suit of the plaintiff is barred U/s 185 of DLR Act, no evidence at all has been led on this aspect and no legal arguments have also been made. Even otherwise, Ld. Appellate Court, while setting aside the order of this Court 29.04.2013, where this Court has held that the suit is barred U/s 185 of DLR Act and has returned the plaint, has set aside the order of this Court and has held that the present suit is maintainable as the question regarding the validity and invalidity of the Will is in exclusive domain of the Civil Court and the Revenue Court cannot deal with this issue. Therefore, the order of the Ld. Appellate Court has attained the finality and the present objection is not sustainable. The defendants have failed to prove Issue No. (iii) also that the suit is barred by U/s 185 of DLR Act.
Coming to Issue No. (iv) that whether the suit has not been properly valued for the purposes of court fees and jurisdiction, no evidence has been led by the defendants on this aspect and no legal arguments have been made on this aspect as to how the suit has not been properly valued for the purposes of court fees and jurisdiction. The present suit was filed for declaration that the alleged Will be declared as null and void and the consequential relief of injunction and for which the suit has been properly valued. The defendants have failed to prove Issue No. (iv) also that the suit CS No. 473/16 Anand Singh Vs. Om Prakash Page 32 of 34 has not been properly valued.
In view of the aforesaid discussions, Issue Nos. (i) to (iv) are decided in favour of the plaintiff and against the defendants.
RELIEF
20. In view of the discussions above, the present suit is decreed in favour of the plaintiff Sh. Anand Singh and against the defendants as per the memo of parties. The plaintiff is entitled for the following reliefs: -
i) The plaintiff is entitled for the relief of declaration that the alleged Will dated 25.10.2001 executed in favour of defendant Nos. 1 to 3 involving the suit property is null and void.
ii) The plaintiff is entitled for the relief of permanent injunction thereby restraining the defendants, their attorneys, agents, managers, legal heirs, representatives, assignees, etc. etc. from creating the third-party interest by way of selling, mortgaging, transferring etc. in the suit land or suit property.
iii) The plaintiff is entitled for the relief of permanent injunction thereby restraining the defendants permanently from dispossessing the plaintiff from the suit property.CS No. 473/16 Anand Singh Vs. Om Prakash Page 33 of 34
Costs of the suit are also awarded to the plaintiff.
Decree-sheet be prepared accordingly.
File be consigned to record room after due compliance.
Digitally signed by AJEET AJEET NARAYAN
NARAYAN Date: 2024.10.01
Announced in the open ( Ajeet Narayan ) +0530
15:49:14
Court today on 30.09.2024. Civil Judge -02 (Central), Tis Hazari Courts, Delhi.
CS No. 473/16 Anand Singh Vs. Om Prakash Page 34 of 34