Delhi District Court
Smt. Bimla Rani Sharma (Since Deceased) vs Smt. Lata Sharma; on 19 July, 2016
IN THE COURT OF MS. DEEPALI SHARMA,
ADDL.DISTRICT JUDGE-14 (CENTRAL):
TIS HAZARI COURTS: DELHI
CS-188/16
In the matter of:
Shri Som Dutt Sharma
since Deceased, Through: his legal heirs
1. Smt. Bimla Rani Sharma (since deceased)
W/o Late Shri Som Dattta Sharma
2. Shri Ashwani Sharma (son);
S/o Late Shri Som Dattta Sharma
Both resident of:
AE-7, Tagore Garden,
New Delhi-110027.
3. Smt. Shashi Prabha Sharma (married Daughter)
W/o Shri Yashpal Sharma,
D/o Late Shri Som Dattta Sharma
R/o DB-109-F, Hari Nagar,
New Delhi-110064. ........ Plaintiffs.
Versus
1- Smt. Lata Sharma;
w/o late Sh. Surinder Sharma
2- Sh. Abhishek Sharma @ Kannu,
3- Shri Abhinav Sharma
Both sons of late Sh. Surinder Sharma
All Residents of AE-7. First Floor,
Tagore Garden,
New Delhi-110027. ........... Defendants.
(Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16
(Page No. 1 of 45)
Date of institution of Suit: 23.04.1996
Date when reserved for Order: 08.06.2016.
Date of pronouncement of judgment: 19.07.2016.
Suit for Possession & Recovery of Mesne Profits.
JUDGMENT:
1. By way of this judgment, I shall decide suit for Possession and Recovery of Mesne Profits filed by late Shri Som Dutt Sharma (deceased Plaintiff) against the Defendants in respect of 1st Floor of property bearing No. AE-7, Tagore Garden, New Delhi (hereinafter referred to as the suit property).
2. Briefly stated the factual matrix of the case is as follows:
The suit was instituted by Shri Som Dutt Sharma, who is stated to be the owner of the suit property. Shri Som Dutt Sharma was the original Plaintiff in the suit. Shri Som Dutt Sharma expired on 21.06.2004. After his demise his Legal Representatives, being his Wife Smt. Bimla Rani Sharma, his son Shri Ashwani Sharma and his daughter Smt. Shashi Prabha Sharma were brought on record as Plaintiffs No.1, 2 & 3 respectively.
3. It is pleaded by late Shri Som Dutt Sharma in the plaint that he is the absolute and exclusive owner of property (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 2 of 45) bearing No. AE-7, Tagore Garden, New Delhi i.e. the suit property. A site plan has also been filed alongwith the plaint.
4. It is averred by the late Shri Som Dutt Sharma in the plaint as originally filed, that he had filed a suit for Declaration, Possession and Damages, being suit No.59/1978 against his mother, brothers and sisters on the ground that the Plaintiff the absolute and exclusive owner of the suit property. The said suit was eventually decreed in favour of the Plaintiff vide Judgment and Decree dated 04.06.1984, passed by Shri B.B. Gupta, the then Ld. Addl. District Judge, Delhi.
5. The said judgment was eventually upheld by the Hon'ble Delhi High Court vide judgment dated 16.11.1994. The Hon'ble Delhi High Court in the said judgment held that the suit property was purchased by the Plaintiff out of his own funds, in his own name and was thus his self acquired property and not a joint Hindu family property.
6. It is further averred that Defendant No.1 is the daughter in-law of late Shri Som Dutt Sharma and Defendants No.2 & 3 are his grand-children. The Defendant No.1 was married to the son namely Shri Surender Sharma of late Shri Som Dutt Sharma in 1979. Shri Surender Sharma expired on 22.08.1987.
7. It is averred that Shri Surender Sharma had applied for a (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 3 of 45) flat with the Delhi Development Authority (DDA) in his own name. However, he committed suicide on 22.08.1987. After his demise, the wife of late Shri Som Dutt Sharma relinquished all her rights, title and interest in the MIG Flat, booked with DDA and the said flat, bearing No.1018, Pocket-XIV, G.17, Paschim Vihar, New Delhi was eventually allotted by DDA in favour of Defendants No.1, 2 & 3. It is averred that late Shri Som Dutt Sharma gave substantial amount to Defendant No.1 for the purchase of the said Flat.
8. It is averred that after the demise of late Shri Surender Sharma, late Shri Som Dutt Sharma permitted the Defendants to come and reside at the first floor of the suit property. It is stated that the late Shri Som Dutt Sharma raised temporary constructions, consisting of two rooms and one toilet with asbestos sheets. It is stated that there was a clear understanding between the parties that after handing over of possession of the said flat by DDA, the Defendants would shift from the suit property to the said flat. However, despite the above, the Defendants did not vacate the suit premises.
9. It is further averred that the Defendants filed CS OS No.2217 of 1992 before the Hon'ble Delhi High Court, titled as Abhishek Sharma & Ors v. Som Dutta Sharma & Ors, for Declaration, claiming right, title and interest in (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 4 of 45) the suit property. The said suit was dismissed in default vide order dated 24.02.1995. It is further averred that it is an admitted legal position that the Plaintiff is the exclusive owner of the suit property and the defendants have no right, title or interest in the suit property.
10. It is, therefore, stated by the Plaintiffs that the Defendants are in illegal occupation of the first floor of the suit premises and despite repeated requests, the Defendants have not vacated the suit premises and accordingly, the instant suit was filed by late Shri Som Dutt Sharma.
11. After the demise of late Shri Som Dutt Sharma, his wife and son & daughter were impleaded as Plaintiffs in the suit as Plaintiffs No.1, 2 & 3 vide order dated 09.11.2005. In the amended plaint dated 06.12.2005, it is averred that late Shri Som Dutt Sharma left a registered Will dated 18.03.1993 bequeathing all his property in favour of Plaintiff No.2 Shri Ashwani Sharma, who is the son of late Shri Som Dutt Sharma. The said Will, registered with the Office of Sub Registrar, Delhi on 18.03.1993 is stated to be document No. 11802 in Additional Book No. III, Volume No. 1914 at pages 48 to 49. It is stated that the said Will was executed by late Shri Som Dutt Sharma out of his own free will, without any coercion, fraud, threat, undue influence etc. It was accordingly averred that Shri (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 5 of 45) Ashwani Sharma became the absolute and exclusive owner of the suit property by virtue of the said Will and is, therefore, entitled to the relief claimed in the suit.
12. In the Written Statement, filed on behalf of the Defendants on 10.04.2006, the Defendants have contended that the suit property is a joint Hindu family property and the defendants have a right to inherit the share of their predecessor in interest, late Shri Surinder Kumar Sharma, husband of Defendant No.1. It was averred by the Defendants that the Defendants have got legal right to be maintained by late Shri Som Dutt Sharma in view of the provisions of the Hindu Adoption and Maintenance Act, 1956. It was denied by the Defendants that they had no right to stay in the suit property. It was denied by the Defendants that late Shri Surinder Kumar Sharma had committed suicide. It is, however, averred that after the demise of late Shri Surinder Kumar Sharma, late Shri Som Dutt Sharma arranged the marriage of Defendant No.1 with the second son Shri Ashwani Kumar Sharma. A ceremony was performed as per Hindu rites and customs and in January, 1990, the said arrangement was dislodged by late Shri Som Dutt Sharma by remarrying his son with another lady. It is denied that the suit property was constructed by late Shri Som Dutt Sharma. It is stated that the Defendants were living on (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 6 of 45) the ground floor of the suit property and later shifted to the first floor in the year, 1990. It is denied that Defendant No.1 started residing in the suit property after death of late Shri Surinder Kumar Sharma. It is denied that the first floor of the suit property was in common use of the Plaintiff and Defendants. It is also denied that there was any understanding between the Plaintiffs and the Defendants that after the allotment of the flat by DDA, the Defendants would shift to the said flat and leave the suit property. It was accordingly averred that the fact that the Defendants are in illegal occupation of the suit property is without any basis.
13. The Defendants have denied that late Shri Som Dutt Sharma had executed a registered Will dated 18.03.1993, bequeathing all his property in favour of his son Shri Ashwani Kumar Sharma, Plaintiff No.2. It is averred by the Defendants that late Shri Som Dutt Sharma was not in sound and disposing mind for the purpose of execution of the Will. It is averred that in the event any Will was executed by him, the same is false and frivolous. The Defendants denied the registration of the Will for want of knowledge and that the Will was executed by late Shri Som Dutt Sharma out of his free will, without any coercion, fraud, threat or undue influence. It is denied that late Shri Som Dutt Sharma executed the Will and that (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 7 of 45) the said Will is duly witnessed by the witnesses. It is stated that the Defendants have no knowledge of the Will and late Shri Som Dutt Sharma did not inform anyone about the execution of the Will. It is averred that the Defendants have a legal right to stay in the suit property and thus the Plaintiff is not entitled to claim any damages/ mesne profits. It is accordingly denied that the Plaintiffs are entitled to any reliefs claim in the suit.
14. In the Replication filed on 18.05.2006, the Plaintiffs have denied the contents of preliminary objections, being misconceived, untenable and vague and have reiterated the contents of the Plaint. It is averred that the Hon'ble Delhi High Court in its judgment in RFA No.304 of 1982 has declared the suit property to be belonging to the Plaintiff to the exclusion of others and the same is not a joint Hindu family property.
15. On merits, the Plaintiff has submitted that the property in question is self acquired property of Shri Som Dutt Sharma and the plaintiff is the absolute and exclusive owner of the suit property.
16. On the basis of pleadings of the parties, following issues were framed on 04.07.2006 :
"(1) Whether the Plaintiffs are entitled for a decree of possession as prayed for ? OPP (2) Whether the Plaintiffs are entitled for the decree (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 8 of 45) of mesne profits ? If yes, at what rate and for what period ? OPP (3) Whether the suit property is a joint Hindu Family and ancestral property as alleged by the defendant in their WS ? If yes, its effects. (4) Relief."
17. In support of its case, Plaintiffs have examined nine witnesses. Shri Ashwani Sharma/Plaintiff No.2, has been examined as PW1; Smt. Bimla Rani Sharma/ Plaintiff No.1, as PW2; Ms. Chander Kanta Babbar, LDC from the Record Room, Tis Hazari Court has been examined as PW3; Shri Jaivir Singh, attesting witness to the Will dated 18.03.1993 has been examined as PW4; Shri Yashpal LDC from the Office of Sub Registrar-II, Janakpuri, New Delhi has deposed as PW5 to prove the registration of the Will dated 18.03.1993; Smt. Sashi Prabha Sharma Plaintiff No.3 has deposed as PW6; Shri Kamesh Shah, LDC, RKD Branch, Hon'ble Delhi High Court has been examined as PW7; Shri Ashok Kumar, LDC, Record Room (Civil), THC, Delhi has appeared as PW8 and lastly Shri Mohan Lal Aggarwal has been examined as PW9.
18. On the other hand, Defendants have examined Shri Abhishek Sharma/ Defendant No.1, as DW1. Shri Ramesh Nagpal, Property Dealer has been examined as DW2. Shri Ved Bansal, Uncle of Defendants No.2 & 3 has been (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 9 of 45) examined as DW3.
19. I have heard the learned Counsels for the parties and have perused the record. The issuewise findings are as under:
ISSUE NO. 3:
"Whether the suit property is a joint Hindu Family and ancestral property as alleged by the defendant in their WS ? If yes, its effects."
20. Issue No. 3 taken up first.
Onus to prove this issue was upon the defendant. However, vide a statement recorded on 27.04.2016, Ld. Counsel for the Defendants affirmed that he does not wish to press Issue No.3. Hence the Issue No. 3 is not required to be adjudicated upon.
It is stated by the Ld. Counsel for the defendants that in the judgment dated 16.11.1994 passed by the Hon'ble Delhi High Court in RFA-304/1982, titled as Krishna Dev Sharma v. Som Dutt Sharma, the suit property was held to be separate property of late Shri Som Dutt Sharma. Accordingly, in view of the same, the suit property is hereby treated as separate property of Late Sh. Som Dutt Sharma. ISSUE NO. 1:
"Whether the Plaintiffs are entitled for a decree of possession as prayed for ? OPP"
(Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 10 of 45)
21. In order to determine the aforesaid issue it is incumbent to determine as to whether the Will dated 18.03.1993 is proved to be validly executed. It is asserted by the Plaintiffs that Plaintiff No. 1 is the owner of the entire suit property by the virtue of the Will dated 18.03.1993 executed by Late Shri Som Dutt Sharma whereby the entire suit property has been bequeathed upon Plaintiff No.1. It is averred that Plaintiffs are therefore entitled to recover the possession of the suit property from the Defendants who are in illegal occupation of the first floor of the suit premises.
22. In order to prove whether that the Will dated 18.03.1993 is validly executed and genuine Will of late Shri Som Dutt Sharma, this Court shall be guided by the law on the subject as has been enunciated in various judicial precedents.
23. In the matter of Narender Nath Nanda v. State, decided on 01.07.2010, bearing Test Case No.13/1994, the Hon'ble Delhi High Court has observed in Paragraphs 7.2 & 7.3 as follows:
"7.2 ....... Section 63 of the Succession Act requires that the testator should execute his Will:
Firstly, in writing, and affix thereon his signature or mark, or have it signed by some other person in his presence and as per his direction. Secondly, the signature or the mark of the testator or of the person so directed by the testator, should be so (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 11 of 45) appended on the Will that it should appear that it is intended to give effect to the writing, as a Will. Lastly, the Will should be attested by two or more persons who ought to have witnessed the testator having signed or affixed his mark on the Will or ought to have received from the testator a personal acknowledgement of his signature or mark, or that of the other person so directed by the testator; on the Will. It is important that each of the witnesses should sign the Will in the presence of the testator. There is, however, no requirement that more than one witness should be present at the same time. The attestation by witnesses is not confined to any particular form.
7.3.Section 68 of the Evidence Act, on the other hand, provides for the manner in which documents which are required to be attested in law, ought to be proved. The said section, in no uncertain terms, specifies that a document, in this case a Will, will not be used as evidence unless one of the attesting witnesses proves its execution; if such an attesting witness is alive, is subject to the process of Court, and is capable of giving evidence. In short a combined reading of the afore-mentioned provisions of the Succession Act and the Evidence Act bring to fore the following in respect of an unprivileged Will:-
(i) a person of sound mind, not being a minor, can dispose of his property by executing a Will;
(ii) the Will should be reduced to writing;
(iii) it should bear the signature or the mark of the testator or of any person who is so directed to sign on the document;
(iv) the signature or the mark of the testator or (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 12 of 45) of any person so directed to sign on the document should be affixed in a manner that it reveals an intention, to execute a document, of the nature of a Will;
(v) the Will should be attested by two or more witnesses who should have seen the testator signing or affixing his mark on the Will or seen such other person, so directed by the testator, appending his signatures on the Will or in the alternative, received from the testator a personal acknowledgment of his having appended his signatures or mark on the Will or the signatures of such other person so directed by the testator to sign the Will;
(vi) the attesting witnesses should have signed the Will in the presence of the testator; and
(vii) lastly, the execution of the Will would stand proved, if at least, one of the attesting witnesses proves its execution by the testator;"
24. In Janki Narayan Bhoir vs Narayan Namdeo Kadam (2003)2SCC 91, the Hon'ble Supreme Court explained the relation between section 63 of the Succession Act, 1925 and Section 68 of the Indian Evidence Act,1872 as follows:
"To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 13 of 45) direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
10.Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 14 of 45) was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause
(c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 15 of 45) other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
25. In H. Venkatachala Iyengar Vs. B. N. Thimmajamma, the Hon'ble Apex Court has observed as follows:
"Section 63 requires that 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 that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will ? Did he understand the nature and effect of the dispositions in the Will ? Did he put his signatures to the Will knowing what it contained ? Stated broadly it is the decision of (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 16 of 45) these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
26. It is thus settled law that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of dispositions and put his signatures to the document of his own free will.
27. In the instant case, accordingly the onus to prove due execution of the Will dated 18.03.1993 is upon Plaintiffs who have propounded the Will.
28. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, the propounder of the will has to prove that the will was duly and validly executed. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 17 of 45) document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. Thus in terms of Section 68 of the Evidence Act, at least one attesting witness has to be called for proving due execution of the Will.
29. The Hon'ble Supreme Court in Venkatachala Iyengar (supra) has also discussed how such evidence qua a Will can be appreciated. It has been observed by the Hon'ble Supreme Court that generally the Will has to be proved by the propounder thereof and the doubt regarding suspicious circumstances, if any, surrounding the Will, must be removed by the propounder of the Will. The Hon'ble Supreme Court further observed as follows:
"It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 18 of 45) two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties."....
30. The Principles laid down in Venkatacha Iyengars case (supra) were followed in a Constitution Bench decision in the case of Shashi Kumar Banerjee v subodh Kumar Banerjee, AIR 1964SC529, wherein the Hon'ble Supreme Court in para 4 has thrown light on what may be the suspicious circumstances and that the propounder of the Will has to remove the doubts with respect to suspicious circumstances by leading clear and satisfactory evidence and observed as follows:
" The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 :
1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 19 of 45) the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to 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 indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations."
31. In Jaswant Kaur v Amrit Kaur, 1977 SCR (1) 925, the Hon'ble Supreme court summed up the principles governing the proving of a will as settled in H. Venkatachala Iyengar v. B. N. Thimmajamma and observed as follows:
(Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 20 of 45) "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 ease 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 63 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 re- ceives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 21 of 45) 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 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 excite 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 circumstance 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 (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 22 of 45) propounder to remove all reasonable doubts in the matter.
32. The Hon'ble Supreme Court also made the following observations regarding the burden of proof with regard to a Will which lies upon propounder of the Will and not upon the one who asserts it to be forged/fabricated.
"The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by his grand-father Sardar Gobinder Singh."
33. In para 9 of the judgment, the Apex Court further discussed that in case there are suspicious circumstances surrounding the execution of the Will, the propounder of the Will has to satisfy the conscience of the court as regards those circumstances and eliminate all doubts regarding the genuineness of the Will.
(Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 23 of 45) "In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the pro- pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."
34. Hence in the instant case it has to be firstly examined if the Will Ex PW4/A has been duly executed as per the mandate of section 63 of Indian Succession Act and proved in accordance with Section 68 of Evidence Act.
35. The onus to prove the Will Ex.PW4/A is duly executed, is upon Plaintiffs, the propounder of the Will. In order to prove the Will, Ld. Counsel for the Plaintiffs has submitted that signatures of late Shri Som Dutt Sharma on the Will Ex PW4/A have been identified by PW1, Shri Ashwani Sharma, PW2 Smt. Bimla Rani Sharma and PW6 Smt. Shashi Prabha Sharma. PW4, Shri Jaivir Singh, Advocate has stated that late Shri Som Dutt Sharma signed the Will in his presence. PW5 Shri Yashpal, LDC from the Office of Sub Registrar-II, Janakpuri, Delhi (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 24 of 45) produced the record in order to prove the Will Ex.PW4/A. It has further been urged by the Ld. Counsel for the Plaintiff that the Will has been duly executed in terms of Section 63 of the Indian Succession Act, 1925 inasmuch as the Testator late Shri Som Dutt Sharma signed the Will and thereafter, upon his asking, the witnesses signed the Will in the presence of the Testator. Thus, according to the Ld. Counsel for the Plaintiff, the Will has been duly executed.
36. In order to prove the Will (Ex.PW4/A), the Plaintiffs have relied upon the testimony of PW4, Jaivir Singh, as the witness to the Will. PW4 has stated that the Will was executed by late Shri Som Dutt Sharma whose photograph is affixed on the Will. Late Shri Som Dutt Sharma signed the Will in his presence. He indentified the signatures of late Shri Som Dutt Sharma. He further deposed that another witness Shri K.R. Chhabra also signed the Will in his presence. He identified the signatures of Shri K.R. Chhabra. PW4 also deposed that late Shri Som Dutt Sharma was of sound disposing state of mind at the time of execution of the Will (Ex.PW4/A) and the Will was registered in his presence. He further deposed that firstly the Executant i.e. late Shri Som Dutt Sharma signed the Will after going through its contents and thereafter, he himself and another witness signed (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 25 of 45) the Will. In his cross-examination, PW4 deposed that he (i.e. PW4) did not know Shri Som Dutt Sharma personally. At the time of signing the Will, late Shri Som Dutt Sharma was about 60 years old by his own personal experience. He deposed that age of late Shri Som Dutt Sharma was also mentioned at the back page of the Will and that late Shri Som Dutt Sharma signed on each page of the Will. He also deposed that he (i.e. PW-4) did not mention his name in the Will. However, he put his seal bearing his name Jaivir Singh, Advocate below his signatures. He also deposed that he was not aware of the contents of the Will as he was not supposed to go through the contents of the Will. It was also deposed by PW4 that at the time of registration of the Will, late Shri Som Dutt Sharma was accompanied by Shri K.R. Chhabra, who also witnessed the Will. He deposed that he took professional fee for rendering his services to late Shri Som Dutt Sharma. He stated that the Will was already drafted when it was presented before him by late Shri Som Dutt Sharma. He deposed that at the time when late Shri Som Dutt Sharma approached him, he was perfectly well but since late Shri Som Dutt Sharma was using spectacles, therefore, he could say that his vision was weak. He also deposed that he had not seen the identity proof of late Shri Som Dutt Sharma before witnessing the Will, (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 26 of 45) however, the photograph of the person who approached him, was pasted on the Will and the said person claimed himself to be Shri Som Dutt Sharma. He deposed that late Shri Som Dutt Sharma was identified by Shri K.R. Chhabra who also witnessed the Will. Thereafter the Will was witnessed by PW4 Shri Jaivir Singh. He also deposed that he did not know Shri K.R. Chhabra personally.
37. It is contended by the Plaintiff that it is borne out from the testimony of PW4 Shri Jaivir Singh that late Shri Som Dutt Sharma, after going through its contents, signed the Will in his presence and thereafter the Will was signed by Shri K.R. Chhabra and he himself. He has also averred that since PW4 has admitted his signatures on the Will, therefore, the Will bears the signatures of PW4 Shri Jaivir Singh.
38. Ld. Counsel for the Plaintiffs has contended that PW5, Shri Yashpal, LDC from the Office of Sub Registrar-II has also proved the due registration of the Will before the Sub Registrar and accordingly, the Will dated 18.03.1993, being Ex.PW4/A has been duly proved by the Plaintiffs.
39. In support of its contention that an advocate can be a competent witness, Ld. Counsel for the Plaintiffs has also relied upon the judgment of Hon'ble Supreme Court in Appeal (Civil) No. 2034 of 2003 titled as Mathew Oomen vs. Suseela Mathew, decided on 03.01.2016, (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 27 of 45) wherein the Hon'ble Supreme Court has held that PW1, who was the scribe as well as the attesting witness of the Will and was admittedly working as a Junior Advocate with late Testator - who was an Advocate, is a competent witness to the Will. He has further relied upon the judgment of the Hon'ble Delhi High Court in Khem Chand & Ors vs. State & Ors, 196 (2010) DLT 556 wherein it has been held by the Hon'ble Delhi High Court that scribe can be an attesting witness to the Will and what is required to be seen in relation to attestation is, whether a person who attested a document had the intention to attest. The Hon'ble Delhi High Court further observed that the best person to depose on the facts that he had the intention to attest, would be the person who attested the document or the person in whose presence the attestation was made. In the instant case the requisite animus is, therefore, alleged to be proved through the testimony of PW4.
40. On the basis of aforesaid, Ld. Counsel for the Plaintiff contends that it is evidenced from the reading of the deposition of PW4 Shri Jaivir Singh that the Will has been duly proved in terms of Section 63 of the Indian Succession Act, 1925 and since one attesting witness to the Will has proved the execution of the Will, consequently, Section 68 of the Indian Evidence Act (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 28 of 45) stands complied with. He has also contended that the Will is a registered document which also affords sanctity to a document.
41. On the other hand Ld counsel for the Defendants has contended that the Will has not been executed in compliance of 63 of the Indian Succession Act, 1925. It is alleged that PW4 has deposed that he was not aware of the contents of the Will as he was not supposed to go through the contents of the Will, shows that he was not a proper witness to the Will since a Witness to a Will is required to be aware of the contents of the Will. In this regard, Defendants have relied upon the judgment of the Hon'ble Supreme Court in Dhannu Lal v. Ganesh Ram, 2015 SAR (Civil) 583 wherein the Hon'ble Supreme Court has held that proof of a Will stands in a higher degree in comparison to other documents. There must be a clear evidence of the attesting witnesses or other witnesses that the contents of the Will were read over to the executant and he, after admitting the same to be correct, puts his signature in presence of the witnesses. It is only after the executant puts his signatures, the attesting witnesses shall put their signatures in presence of the Testator.
42. It has accordingly been contended by the Ld. Counsel for the Defendants that the witness categorically (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 29 of 45) deposed that the Will was read out to the executant and only after making the executant understand the import of its contents, the executant and other witness are required to sign the Will, whereas in the instant case, PW4 has stated that he does not know the contents of the Will and hence, the requirement of law for due execution of the Will, in terms of above judgment, have not been complied with.
43. It has also been urged by the Ld. Counsel for the Defendants that the photograph of late Shri Som Dutt Sharma on the Will has been inserted subsequent to the execution and registration of the Will inasmuch as the same does not bear the stamp of the Registrar and it is pasted on the right hand corner of the Will at the bottom on the second page. It is contended by him that in a registered document, the photograph is pasted on the first page of the document before the recital of the document begins. He has averred that any document, having a photograph, which is presented before the Sub Registrar for registration, a stamp is put on the photograph. He states that neither the photograph is stamped by the Registrar nor the photograph has been attested by late Shri Som Dutt Sharma, with his signatures crossing the photograph.
44. It is relevant to note that it is stated by PW4 Shri Jaivir (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 30 of 45) Singh that he did not know late Shri Som Dutt Sharma personally and he had not seen the identity proof of late Shri Som Dutt Sharma before witnessing the Will. He however stated that the photograph of the person on the Will is of the person who approached him and that he was identified by Sh. K.R. Chabbra, who was the other witness to the Will. He has also deposed that he did not know Shri K.R. Chhabra who had witnessed the Will. Then in such circumstances, it is not clear as to how could PW4, Jaivir Singh have identified the Testator or the other witness to the Will, whom he had never known before without even seeing their identity proofs himself.
45. Ld. Counsel for the Plaintiff has also relied upon the testimony of PW1 wherein it is stated by him that he did not know PW4 and he had not enquired about the whereabouts of PW4 from anyone. He also referred to the testimony of PW2-mother of PW1 and PW6-sister of PW1, wherein they stated that Shri Jaivir Singh is not known to them. It is indeed strange, in view of the statements of PW1, PW2 and PW6, as to how and in what manner, was Shri Jaivir Singh summoned by PW1 when neither PW1, PW2 or PW6 knew Jaivir Singh personally which they have admitted in their testimony, when his details are also not revealed on the Will.
46. A close and a careful examination of the Will (Ex.PW4/A) (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 31 of 45) reveals that PW4, who was a witness to the Will and also an Advocate, signed the Will only in initials whereas the signatures on his testimony on the court record are proper. In the event that PW4 has signed the Will as an attesting witness, the Will would have been signed in a proper manner in the background of the fact that the Will is a solemn document and the witness to the Will has to attest to the sanctity of such a document. It cannot be stated that the testimony before the Court is more solemn than a Will, and, therefore, PW4 despite being an advocate chose to only initial the Will, whereas he put his proper signatures on the testimony before the Court. It thus appears that in the event PW4 had himself witnessed the Will, he did not do so with the animus of an attesting witness and only attested the Will in his capacity as an Advocate and, therefore, the initials also appear at another place below the photograph of late Shri Som Dutt Sharma. No explanation has been forthcoming to explain as to why the initials of PW4 are appended below the photograph also. PW4 appears to have merely attested the Will as an Advocate in lieu of his professional charges and not in his capacity as an attesting witness to the Will. It thus appears that he did not attest the Will with the requisite animus attestendi to attest the Will.
(Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 32 of 45)
47. Be that as it may, it is most significant to note that PW4, Jaivir Singh has signed the Will as witness no.2. As noted above, the Signatures of PW4 on the Will are only in initials, below which , a stamp of Jaivir Singh, Advocate, Delhi has been affixed. No further details of Jaivir Singh, Advocate have been mentioned on the Will. Jaivir Singh, PW4 has also signed in initials on the back of the first page of the Will, where the Registrar has stamped the Will. No details of Jaivir Singh are revealed on that page also. No address, enrolment no., etc of Sh. Jaivir Singh, PW4 are borne out on the face of the Will.
48. Pertinently, the signatures of Jaivir Singh appearing on the Will and the signatures on the deposition of PW4 recorded on 07.08.2007 and 27.02.2008 before the court on the court record are entirely different. The identity of Jaivir Singh cannot be gathered from the Will. In its cross examination, PW4 has deposed that he is the son of one Sh. Harkesh Singh, r/o B-6/139, sector 8, Rohini,Delhi. He deposed that he was a member of Janakpuri Bar Association. His enrolment no. is not reflected therein. It is also demonstrated on record that Jaivir Singh, was not known to the family of late Shri Som Dutt Sharma. The signatures on Will and on the testimony before court are entirely different. In absence of the corroboration of the identity of PW4 from the contents of the Will or his (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 33 of 45) deposition in court and in absence of any other evidence on record to prove his identity, the identity of PW4 is thus not established on record. Accordingly, it has not been proven on record that the person who deposed before the Court as PW4, is the same person whose initials appear on the Will as a witness.
49. In light of law as discused herein-above, the initial onus on the propounder of the Will is to prove the requirement of Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 which postulate the mode and manner of the proof of the Will, in unequivocal terms states that the execution of the Will must be proved at least by one attesting witness and while making the attestation, there must be animus attestendi on the part of the attesting witness, meaning thereby, he must be intend to attest and the Court is entitled to receive evidence on this point.
50. In such circumstances the Will, Ex PW4/A cannot be stated to be proved by PW4 since identity of PW4 is not established on record. The evidence of PW4 thus cannot be considered for the purposes of the mandatory requirements of section 68 of the Evidence Act,1872 that the Will has to be proved by the testimony of at least one attesting witness. The Will is thus not proved by testimony of PW4.
(Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 34 of 45)
51. As regards the second witness to the Will, Shri K.R. Chhabra, there are material contradictions in the statement of PW1 and PW2 as regards his demise. Shri K.R. Chhabra , seems to be known to the family of late Shri Som Dutt Sharma and would have been a reliable witness to the Will. Counsel for the Defendants has contended that PW1 has deposed in para 13 of his Affidavit of Evidence that upon enquiry made by him about witness No.1 to the Will, Shri K.R. Chhabra, PW1 came to know that Shri K.R. Chhabra who was his father's colleague/ friend, died 8-9 years ago and his wife had also passed away. He has further deposed that he came to know that Shri K.R. Chhabra's only son is residing out of India and his house remained locked for the last few years. It is asserted by the Ld. Counsel for the Defendants that this statement of PW1 is contrary to his deposition wherein he has deposed that he knew about the death of Shri K.R. Chhabra since he had accompanied his father and mother to Shri K.R. Chhabra's house at the time of death of Shri K.R. Chhabra and left after leaving them there. Hence, if PW1 knew about the death of Shri K.R. Chhabra, then what was the need to conduct an enquiry in this regard. From the deposition of PW1 it is apparant that he was aware of the demise of Shri K.R. Chhabra however he has deposed to the contrary in his (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 35 of 45) Affidavit of Evidence wherein he states that he conducted an enquiry in this regard. It is contended that the Plaintiffs have failed to produce any Death Certificate to prove the date, month or year of demise of Shri K.R. Chhabra. It is thus stated that the Plaintiffs are evasive about the demise of Shri K.R. Chhabra, the other witness to the will.
52. Ld. Counsel for the Defendants has also relied upon the statement of PW2-Smt. Bimla Rani Sharma, wife of late Shri Som Dutt Sharma, Plaintiff no. 1 who has deposed that she knew Mr. Chhabra 10-15 years prior to the execution of the Will, but did not know his full name but, she knew the family of Mr. Chhabra. She further deposed that she alongwith her husband and son i.e. PW1 went to the cremation ground as well as the residence of Mr. Chhabra after his death. She has also deposed that she did not remember where the cremation took place. Though she has deposed that son i.e. PW1 went to the cremation ground, however, PW1 has stated that he did not go to the cremation ground.
53. It has been accordingly contended by the Ld. Counsel for the Defendants that the witnesses are deposing falsely as regards the death of Shri K.R. Chhabra in order to prove the forged and fabricated Will in as much as the death certificate of Shri K.R. Chhabra has not been (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 36 of 45) brought on record and there are contradictions in the statements of PW1 and PW2. Therefore, from reading of the depositions of PW-1 and PW-2 it appears that the statements of PW1 and PW2 as regards the demise of late Shri K.R. Chhabra the 2nd witness to the Will are evasive and not reliable.
54. In Janki Narayan Bhoir vs Narayan Namdeo Kadam (supra) the Hon'ble Supreme Court has held that where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act. The court has also considered the circumstances where the aid of section 71 of the Evidence Act can be taken and when the execution of the Will may be proved by other evidence.
55. In the instant case the Plaintiffs have contended that the Will has been duly proved in terms of Section 63 of the Indian Succession Act, 1925 since one attesting witness to the Will, PW4 Shri Jaivir Singh, has proved the execution of the Will, consequently, Section 68 of the (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 37 of 45) Indian Evidence Act stands complied with. The Plaintiffs have thus solely relied upon the testimony of , PW4 Shri Jaivir Singh to prove the Will. However, as held above, Ex PW4/A cannot be stated to be proved by PW4 since identity of PW4 is not established on record and thus the evidence of PW4 thus cannot be considered for the purposes of fulfilling the mandatory requirements of section 68 of the Evidence Act,1872. The due execution of the Will as per section 63(c) of the Indian Succession Act, 1925 is thus not proved.
56. Further it has been held by the Hon'ble Supreme Court in its various judgments, as stated hereinabove, that the propounder of the Will also has to satisfy the Court as regards any suspicious circumstance surrounding the execution of the Will. The presence of such suspicious circumstances makes the initial onus of proving the Will very heavy and unless it is satisfactorily discharged, the Courts would be reluctant to treat the document as the last Will of the Testator. Hence, any doubt as regards the suspicious circumstance, must be removed before the Will is treated as proved.
57. The Hon'ble Delhi High Court in the matter of Narender Nath Nanda v. State, decided on 01.07.2010, bearing Test Case No.13/1994 has also observed at para 9 that it is only when the propounder of (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 38 of 45) the will has proved the execution of the Will in accordance with law, which includes proof of attestation, would the court be required to examine, if at all, the alleged suspicious circumstances put forth by the objectors. As is obvious if, the propounder fails to prove the execution of the Will in accordance with law, then the Court would not have to necessarily proceed to the next step in the enquiry, which is, examination of the suspicious circumstances.
58. It is relevant to note that in the instant case, the due execution of Will is not proved in accordance with Section 63 and Section 68. Hence viewed in light of aforesaid judgment the court need not examine the suspicious circumstance raised by the Defendant. In light of the judgment of Narendra Nath Nanda case (supra) it is only if the due execution of the Will is proved that the court is required to examine the suspicious circumstances surrounding the Will. However, Defendants have raised numerous suspicious circumstances to state that the Will is not a duly executed Will of late Shri Som Dutt Sharma, which this court is considering for a complete adjudication of the matter.
59. It is borne out on record that late Shri Som Dutt Sharma passed away in 2004 after about 11 years of execution of the Will dated 18.03.1993. Ld. Counsel for the (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 39 of 45) Defendants has contended that the Will executed on 18.03.1993, was opened after the death of late Shri Som Dutt Sharma in 2004. Accordingly, the Testator was alive for around 11 years of the execution of the Will. However, the factum of its execution and registration was not mentioned in the suit or disclosed earlier despite the fact that the suit was filed by late Shri Som Dutt Sharma in the year, 1996 and he continued to live thereafter for about 7 to 8 years after filing of the suit. This was despite the fact that as per the assertion in the suit that the Plaintiff wanted to dispossess the defendants who had been asserting their right in the suit property and if it was his intention to positively exclude the defendants from the ownership of the suit property, then the factum of the Will ought to have been revealed in the pleadings before this Court itself in as much as the instant suit was filed by Shri Som Dutt Sharma himself, seeking possession of the suit property from the Defendants.
60. The suit was filed in the year, 1996, however, there is no whisper of the Will in the suit filed by late Shri Som Dutt Sharma. It was observed by the Hon'ble Supreme Court in Dhannu Lal (supra) that in such circumstances, though it is not the requirement of law but as per normal human nature, the Testator should have mentioned something about the Will when the Will has in fact been (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 40 of 45) executed by the Testator and such circumstances, which are highly suspicious, have not been removed or cleared by the beneficiary of the Will. In the instant case also, despite there being a dispute as regards the possession of the suit property, filed by the late Shri Som Dutt Sharma against his daughter-in-law and her children i.e. the Defendants, and if late Shri Som Dutt Sharma wanted to positively exclude them from inheriting the suit property, then in normal and natural course of circumstances, the factum of execution of the Will ought to have been disclosed in the pleadings filed in this suit.
61. Pertinently, from the recital of the Will, it is also evident that the Will has excluded other natural heirs of late Shri Som Dutt Sharma, which include his wife and his daughter besides excluding the Defendants. Even though the wife and the daughter of late Shri Som Dutt Sharma have deposed in favour of the plaintiff No. 2, however the fact remains that the Testator at the time of execution of the Will would not have known what would be the state of relations between his heirs in future. However, vide the Will in issue, late Shri Som Dutt Sharma has bequeathed his entire properties, movable as well as immovable and including cash etc in full, only upon Plaintiff No.2, to the exclusion of his wife and daughter, even if he did not wish to bequeath in favour of (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 41 of 45) Defendants. Such a bequest is not supported by natural course of events and is highly suspicious. There is nothing on record to suggest that there was any family discord between late Shri Som Dutt Sharma and his wife and daughter. Even if the wife and daughter were supportive of late Shri Som Dutt Sharma bequeathing his property in favour of plaintiff no. 2, it is strange that late Sh. Som Dutt Sharma bequeathed his entire property, that included his entire movable as well as immovable property and even all cash etc, in the name of Ashwani Sharma ie Plaintiff no. 2 only. The Will merely provides that the wife, ie mother of Plaintiff no.2 shall be properly looked after and maintained by Plaintiff no.2. No right in property or cash has been given to even to his wife by late Sh. Som Dutt Sharma. It is indeed strange and not a natural state of affairs. Late Shri Som Dutt Sharma could not have been so certain about the future that he would have left his wife and daughter at the mercy of his son Ashwani Sharma, Plaintiff no. 2 that he bequeathed everything solely to him. Consequently, the Will Ex PW4/A does not appear to be trust worthy and is unnatural and totally removed from the normal state of affairs.
62. It has also been contended by the Ld. Counsel for the Defendants that it is no where mentioned as to where the (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 42 of 45) Will was typed and on whose instructions, since PW4 has stated in his testimony that the Will was already drafted when it was presented before him by late Shri Som Dutt Sharma. Therefore, it has not been brought on record as to by whom and where was the Will typed and on whose instructions. Though such a circumstance is not fatal but it has to be considered in totality alongwith other circumstances which suggest that the Will Ex PW4/A does not express the last wish and desire of late Shri Som Dutt Sharma.
63. It is also averred by the Ld. Counsel for the Defendants that PW4 is an interested witness since he has deposed in his cross-examination that he had taken professional fees for rendering his service to late Shri Som Dutt Sharma. In this regard, he has pointed out that since the Will was already drafted at the time when it was brought to PW4, therefore, in that eventuality, the PW4 has charged late Shri Som Dutt Sharma only to be a witness to the Will and thus, he cannot be said to be a solemn and worthy witness to the Will. This circumstance however, loses significance in view of the fact that the identity of PW4 itself is not established on record.
64. In view of the aforesaid, the Plaintiffs have not been able to prove that the Will dated 18.03.1993, Ex.PW4/A is duly executed by late Shri Som Dutt Sharma. The Will is, (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 43 of 45) therefore, held to be invalid.
65. The Plaintiffs in the suit have claimed possession in respect of First Floor of the suit property i.e. property bearing No. AE-7, Tagore Garden, New Delhi on the basis of the Will Ex.PW4/A. However, since the same is held to be not a validly executed document/ Will, therefore, the Plaintiffs are not entitled to the possession of the first floor of the suit property as shown in red in the Site Plan annexed with the Plaint. Issue No.1 is thus decided in favour of the Defendants and against the Plaintiffs. ISSUE NO.2:
"Whether the Plaintiffs are entitled for the decree of mesne profits ? If yes, at what rate and for what period ? OPP".
66. In view of the findings in Issue No.1 herein-above, wherein it has been held that the Plaintiffs are not entitled to the possession of First Floor of the suit property i.e. property bearing No. AE-7, Tagore Garden, New Delhi, consequently the Plaintiffs are not entitled for a decree of Mesne Profits as prayed. Issue No.2 is, therefore, decided in favour of the Defendants and against the Plaintiffs.
RELIEF:
67. In view of the discussion herein above, it is held that the Plaintiffs are not entitled to the reliefs as claimed in the (Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 44 of 45) present suit. Hence the present suit is hereby dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in open Court on 19.07.2016.
(DEEPALI SHARMA) ADDL. DISTRICT JUDGE-14 (CENTRAL):
TIS HAZARI COURTS, DELHI.
(Shri Som Dutt Sharma Vs Smt. Lata Sharma & Anr.) CS No.188/16 (Page No. 45 of 45)