Delhi District Court
Smt. Sukhvinder Pal Kaur Narula vs State on 6 August, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 96/10/01
Unique ID Case No. - 02401C0088682001
1. Smt. Sukhvinder Pal Kaur Narula
No. 150, Diyal Mansion, Apt.3A,
Sukhumvit Soi-16, Bangkok- 10110,
Thailand
2. Smt. Surinder Kaur Srichawla
No. 320, Soi Phanichanant,
Sukhumvit-71, Bangkok-10110
Thailand
3. Smt. Simrat Kaur Chotechawla,
No. 39, Soi Prasertdee ( Ekamai- 28),
Wattana Dist. Bangkok- 10110,
Thailand
All at present at New Delhi
C/o Mrs Kuldeep Kaur,
12-A/40, W.E.A, Karol Bagh
New Delhi- 110005
.....Petitioners
Vs.
1 State
2 Shri Jai Singh Narula,
No. 30, Nares Roadm, Bangark Dist.
Bangkok-10110, Thailand
3 Smt. Rajinder Pal Kaur
9/1, S.K. Mansion,
SOI, 49/6, Sukhumvit-49,
Bangkok- 10110, Thailand
4 Smt. Harsharan Kaur,
No. 25/30, Oriental Tower Apt.17C
Soi Ekamai-12,
Wattana Dist. Bangkok-10110
Thailand
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 1/31
5 Smt. Arvinder Kaur Srikuruwal
No. 317, Soi Paradise, Sukhumvit-71
Bangkok-10110, Thailand
......Respondents
Date of institution of the case : 19.10.2001
Date reserved for judgment on : 29.07.2016
Date of pronouncement of judgment : 06.08.2016
JUDGMENT:
1 A petition for the grant of probate of the Will dated 3.11.1989, executed by the deceased Smt. Jasbir Kaur, Widow of late Seth Ajit Singh Narula has been filed by the petitioners.
2 The factual matrix of the present case is that Smt. Jasbir Kaur, widow of Late Seth Ajit Singh Narula,(hereinafter referred to as 'deceased') with fixed place of abode 15-A/2,3,4, W.E.A, Karol Bagh, New Delhi and she being Indian citizen was holding Passport No. H-525480 dated 5th September, 1991. The deceased died on 27th February, 1997, at Bangkok, Thailand. The deceased left behind her legal heirs/relates i.e petitioner no. 1 to 3 and respondent no. 2 to 5 mentioned herein above as mentioned in Annexure A. It is further stated that deceased left behind a will dated 3rd November, 1989, which was duly executed by the deceased with sound disposing mind in the presence of two attesting witnesses. The petitioner no. 1 to 3 are also beneficiaries under the said Will besides the other legal heirs. The assets and liabilities which the deceased left behind and which are to come in the petitioner's hand are stated in Annexure "B" which are as under:
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 2/31
1. Half share of the deceased in Property bearing No. 15-A/2,3,4 W.E.A, Karol Bagh New Delhi -110005 bearing Municipal No. 10424 and 10425
2. On-fourth share in property No. 12-A/1, W.E.A, Karol Bagh New Delhi-110005 bearing Municipal No. 10758
3. One-fourth share in property bearing Municipal No. 10197, W.E.A, Karol Bagh, New Delhi- 110005 Petitioners seek Probate of the Will dated 3.11.1989 left by the deceased Smt. Jasbir Kaur.
3 Upon filing the present petition, notice of the same was issued to all respondents/LRs of the deceased. Citation for general public was published in the daily newspaper "National Hearld". Notice was also served to State through Chief Secretary and to Collector but no valuation report has been received till date.
4 In this petition, respondent no. 2 Sh. Jai Singh Narula filed objection and taking preliminary objection that present probate petition having been filed on 19.10.2001, after the expiry of 3 years period of limitation is barred under law of limitation, therefore, is not sustainable in law. It is further stated that the alleged will on the fact of it, appears to be un-natural and superficial in nature, where the daughters have been preferred than the only son by the deceased. It is stated that alleged will is PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 3/31 a concocted and fabricated document, got forged by the petitioners to achieve their malafide aims and ulterior purposes.
The deceased was not expected to be present in Delhi thus therefore, it stands established that deceased neither signed nor executed any Will on 3.11.1989 at Delhi and thus the petitioner is an abuse of process of law and therefore the same is liable to be dismissed with costs. It is stated that even otherwise the petitioners have got no locus standi to file the prosecute the probate petition on account of bar of Section 222 of Indian Succession Act which inter-alia mandate that the probate shall be granted only in favour of the Executor appointed by the Will.
5 It is stated that in alternative, deceased had executed her last will dated 14.01.1996 at 38, Naresh Road, Siphraya, Sub District, Bangkok, Thailand, which was the last will, She having executed the same in the presence of 2 witnesses, vide which the deceased gave all her properties in India & Thailand to her grand son Mr. Ram Narula. The said Will was drafter by the authorised/licenced Lawyer of the said place and duly witnesses by 2 witnesses in which the answering respondent was appointed as Manager and the said Will was duly certified by Ministry of Foreign Affairs in Thailand which was later on attested by Indian Embassy there, and after completion of all the formalities as per law applicable there, the application moved for mutation of the property in the name of Shri Ram Narula in 1998 , in accordance with the last wishes of the deceased was mutated in the name of Sh. Ram Narula. Thus it is evident that the alleged will, if it is held to be validly executed, as per the requirement of law, the same stood superseded by the latest Will referred to above and thus the present probate petition filed by the petitioner is an PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 4/31 abuse of process of law and therefore need dismissal with costs. On merit all the averments made in the petition denied and respondent seeks rejection/dismissal of the present petition.
6 Petitioner also filed reply to the objections filed on behalf of respondent no. 2 and preliminary objection taken that it is a continuing cause of action to get the will authenticated by the person legally entitled to do so. The period of 3 years limitation does not apply in the present case. The objection is mis-conceived, baseless and illegal and further denied all the objections taken by the respondent No.2.
7 Respondent no. 4 filed written statement wherein admitted all the contents of the petition and given his No Objection regarding grant of Probate in favour of the petitioners.
8 Respondent no. 3 in this case proceeded ex-parte vide order dated 25.11.2003 and respondent no. 5 stated to have expired on 31.07.2002.
9 On the basis of pleading, my Ld. Predecessor vide order dated 07.04.2005 framed the following issues:
1 Whether the deceased Smt. Jasbir Kaur executed a Vaild and enforceable Will dated 3.11.89? OPP 2 Whether the petitioner is entitled to the probate of the aforesaid Will? Opp 3 Whether the petition is barred by limitation as claimed by objector No. 2? OPR
4. Relief
10 In order to prove the case petitioner no. 1 examined himself as PW-1. Petitioners further examined PW-2 Sh. Vijender PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 5/31 Kumar who proved the letter Ex. PW-2/1. The same witness was again appeared as PW-3 and proved the record regarding cancellation of mutation issued by the DDA on 16.08.2001 in respect of property No. 15-A/2,3, 4, 12-A/1 WEA and 10197 as Ex. PW-3/A. 11 Petitioners further examined PW-4 Sh. Arun Kumar Gupta, Special Assistant, who proved the record pertaining to locker No. 92 and 171 being maintained by their branch by Smt. Jasbir Kaur and Smt. Surender Kaur. He proved the certified copy of the record as Ex. PW4/A, B & C. Petitioners also examined PW- 5 Sh. Ram Avtar Verma from the office of Assessment and Collector Department, MCD, Karol Bagh Zone. Petitioner lastly examined Smt. Balbir M.S. Sethi, the attesting witness to the will dated 03.11.1989 through Commission on 15.03.2009. Vide order dated 9.3.2009 a local Commissioner Ms Richa Kapoor, Advocate was appointed who recorded the statement of Smt. Balbir M.S. Sethi on 15.3.2009. Evidence on behalf of petitioners was closed vide order dated 6.7.2009.
12 Respondent no. 2 examined himself as PW-1 and Sh. Harminder Pal Singh, the attesting witness of the Will dated 14.01.1996 as R2W1 and vide separate statement of ld. Counsel for respondent no. 2, evidence on behalf of respondent no. 2 was closed on 01.08.2013.
13 I have heard Sh. Shailesh Shekhar, counsel for petitioner no.1 and Sh. Rajiv Duggal, counsel for respondent no.
2. Both the parties have also filed written arguments, same are also considered. My issue wise findings are as under:
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 6/31 Issue No. 3.
14 First of all I am taking issue No. 3 "Whether the petitioner is barred by limitation as claimed by objector No. 2?
OPR." This issue has been framed on the basis of objections taken by respondent no. 2 that the petition is barred by limitation, however, during the course of final arguments Sh. Rajiv Duggal, counsel for respondent no. 2 does not press this issue. Therefore, this issue is decided, accordingly that the present petition is within limitation in favour of the petitioner.
15 Issue no. 1 & 2 Both the issues are inter-connected, therefore taken simultaneously. Ld. Counsel for petitioner Sh. Sailesh Shaikher submitted that the will in question dated 3.11.89 Ex. P2 was executed at Delhi and attested by two attesting witnesses, namely, Mrs Balbir M.S. Sethi and Sh. Gurcharan Singh. Mrs Balbir M.S. Sethi appeared in witness box as PW-6. The other witness Sh. Gurcharan Singh stayed at USA and working with World Bank as Procurement Officer could not be examined who is son-in-law of Mrs Balbir M.S. Sethi. The Will Ex. P2 has been perpounded by PW-1 Smt. Sukhinder Pal Kaur Narula. He submits that originally respondent no. 2 claim that the will Ex. P2 is forged and fabricated and not executed by testator, however, during the course of evidence a new case has been projected that the testator did not know the contents of the will at the time of execution of the will whereas there is pleadings on that point. The two witnesses examined by respondent no. 2 i.e RW-1 Jai Singh Narula and RW-2 Sh. Harminder Pal Singh. Sh. Harminder PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 7/31 Pal Singh admitted the signatures on the will Ex. P2. The will has been duly proved in accordance with requirement of Section 63 of Indian Succession Act and under Section 68 of Indian Evidence Act.
16 Ld. Counsel for petitioners Sh. Sailesh Shekhar referred to the evidence of PW-1, Smt. Sukhinder Pal Kaur Narula and evidence of PW-6 Mrs Balbir M.S. Sethi, the attesting witness and highlighted the corroboration with regard to execution of the will Ex. P2 by the deceased/testator. The testimony of RW-1 Sh. Jai Singh and RW-2 Harminder Pal Singh also pointed by the ld. Counsel. Ld. Counsel Sh. Sailesh Shekhar further submitted that the will relied by respondent no. 2 dated 14.01.1996 is forged, fabricated, doubtful and suspicious. The writer of the will dated 14.01.1996 has not been examined who is Mr. S. Budchantra , a lawyer in Thailand. He further pointed out that her will dated 14.01.1996 reveals that there is wide gap between the main contents of the documents and end and the signatures and same has not been explained by respondent no. 2 when appeared in witness box. He further submitted that a Probate proceedings on the alleged will dated 14.01.1996 took place at court in Thailand. The certified copies have been filed on record. The petitioner had filed objections against the grant of Probate thereafter respondent withdrew his probate proceedings without liberty to initiate the proceedings again or to file proceedings before the courts in India. Therefore, respondent no. 2 precluded from setting up the will dated 14.01.1996 to get a probate of the same again from the court in India.
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 8/31 17 It is further submitted that no independent Probate proceedings filed by respondent no. 2 nor counter claim of said relief made before this court. This court vide order dated 10.03.2011 allowed the application of respondent with a limited purpose to prove or dis-prove the will dated 3.11.89. It is further submitted that respondent no. 2 has claimed that will is un- natural since the only son has been completely ousted from the will. He pointed out that property bearing No. 15-A/2,3,4 W.E.A. Karol Bagh New Delhi has been bequeathed to all the seven heirs in equal proportion. The rest of two properties bearing No. 12- A/1 W.E.A Karol Bagh and another property No. 19197 W.E.A Karol Bagh, New Delhi the deceased has bequeathed 1/4th share to six daughters in equal proportions. The agricultural land in Village Amritsar District Sirsa was also given to six daughters equally. Therefore, there is no ouster of respondent no. 2. It is submitted that petitioner deserves to be allowed and probate/letter of administration of the will dated 3.11.1989 kindly be granted to the petitioner.
18 Ld. Counsel for the petitioner relied on the judgments which are Kavita Kanar Vs State ( N.C.T. Delhi) & Ors ( 2014) 211 DLT 448 ( Delhi High Court), Janki Devi Vs R Vasanti and 6 others ( 2005) 1 LW 455 ( Madras Division Bench), Raghu Kumar V. Parvathi, ILR 2010 KAR 3652 ( Karnataka High Court), Sarguja Transport Service Vs STAT ( 1987) 1 SCC 5), Upadhyay & Co. Vs state of UP ( 1999) 1 SCC 81, Maharashtra Kamgar Sangharsh Samiti Vs Horizon, the Beach Hotel 2005 SCC Online Bom 906, Santosh Hazari v. Purushottam- AIR 2001 SC 965, Venidas Nemichand Vs Bai Champabai- AIR 1930 Bom 29, PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 9/31 Kunvarjeet Singh Khandpur V. Kirandeep Kaur, ( 2008) 8 SCC 463, Krishna Kumar Sharma Vs Rajesh Kumar Sharma ( Civil Appeal No. 1967 of 2009 dated 27.3.2009) 2009 ( 11) SCC 537, Vasudev Daulatram Sadrangani Vs Sajni Prem Lalwani, AIR 1983 Bom 268 ( Para 16), Wilma Levert Canuao Vs Allan Sebastial D'souza 2014 ( 3) Mh LJ 1- ( Para 18, 19), S. Vatsala Vs K.S. Mohan ( 2016) 1 CTC 257, 2016 SCC Online Mad 53- (para 12), Smt. Jayalakshmi Ammal ( deceased) V. S. Krishnaswami 1990 1 LW 337 ( Madras DB) ( para 25, 26) and Prem Prakash Vs State & Others ( 2005) 81 DRJ 157 ( Del High Court ) Para 63.
19 Sh. Rajiv Duggal, ld. Counsel for respondent no. 2 submitted that the will dated 3.11.89 has not been proved to be duly executed by deceased Smt. Jasbir Kaur. There is no evidence to prove that will was drafted on the instruction of Smt. Jasbir Kaur, deceased and it was read to her in Punjabi and she knew the contents of said will before signing the same. It is further submitted that the attesting witness PW-6 Smt. Balbir M.S. Sethi fail to prove that deceased while signing the alleged will even aware of the fact that she was signing the will. Therefore, it was not duly executed by the deceased as per Section 63 of Indian Succession Act. He further submits that the will Ex. P2 is in English language and deceased did not know the English language.
20 Sh. Rajiv Duggal, further submitted that will dated 3.11.1989 is surrounded by strong suspicious circumstances and petitioner failed to dispel the said suspicious circumstances. He pointed out that while deceased who is the resident of Bangkok PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 10/31 will come to India at the age of 70 to execute a will and the alleged witnesses Smt. Balbir M.S. Sethi and Sh. Gurcharan Singh who were totally stranger and not known to deceased and deceased was not a frequent visitor to India. The deceased had his real sister living in Delhi and had good relations with her strangely the will has been witnessed by two attesting witnesses who were not well known to her, it raises suspicion which is not dispel by the petitioners 21 He further pointed out that signatures of Sh. Gurcharan Singh on Will Ex. P2 when compared with the signature of the alleged notary on Ex. P2 will clearly shows that the signatures of notary and Sh. Gurcharan Singh are of one and the same person and are not only in same handwriting but also in the same ink which is clearly established that there was no witness by the name of Gurcharan Singh. Sh. Rajiv Duggal further submitted that as per Section 222 of the Act in the alleged will Ex. P2 deceased had not appointed any executor, therefore, no probate can be granted to the petitioners. The petitioners have miserably failed to prove the alleged will Ex. P2 as per Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act.
22 Sh. Rajiv Duggal, further submits that the petition is bad for non-joinder of necessary parties as Sh. Ram Narula who is the beneficiary of the will dated 14.01.1996 has not been impleaded as a party. The proceedings abated as Smt. Arvinder Kaur, respondent already died during the pendency of the petition but her legal heirs and husband have not been substituted by the petitioners.
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 11/31 23 Sh. Rajiv Duggal, further submits that respondent no. 2 has placed on record the last will of the deceased dated 14.01.96 whereby Sh. Ram Narula grandson of the deceased testatrix Smt. Jasbir Kaur was the beneficiary. The will is duly executed and proved to be executed at Bangkok. The respondent no. 2 examined the attesting witness Sh. Harminder Singh as R2W1 and proved that the will was executed by the deceased being her last will. There is no suspicion in the genuineness of the will dated 14.01.2016 on ground alleged regarding the gap at the last page of the will dated 14.01.1996 between the signatures of testatrix and the contents. He further submits that will dated 14.01.96 has been duly proved as per law. He submits that the petition is liable to be dismissed.
24 Ld. Counsel for respondent no. 2 Sh. Rajiv Duggal relied on the judgments Kavita Kanwa Vs State ( NCT DELHI) & ORS, reported as 211 ( 2014) Delhi Law Times 448, Delhi High Court, Shri Harish Chander Kawatra Vs State and Others 2009 (5) ILR ( Del) 423 and Ranjan Suri and Anr. Vs State and Anr. AIR 2006 Delhi 148.
25 In order to appreciate the respective contentions of ld. Counsels for the parties, let us peruse the factual evidence led by the parties. PW-1 Smt. Sukhinder Pal Kaur Narula, petitioner appeared in witness box and proved her affidavit Ex. P1. In the affidavit she has reiterated the averments made in the petition. In the cross-examination she deposed that she was aware about the Will even prior to death of her mother but she was not present at the time of execution of the Will. The original will was given to her elder sister Smt. Arvinder Kaur by her PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 12/31 mother. She does not know about the previous Will left by her mother. She admitted that the present petition has been filed after three years of death of her mother. At the time of her death she was present. She further deposed that respondent no. 2 is the only her real brother and deceased mother loved him. Deceased mother could able to read and write but she does not know the qualification. She deposed that M.S. Sethi was his father's advocate and his mother also consult him. But she never took the services. She further deposed that prior to death the deceased mother was hospitalized. She was having old age physical problems. The sister Ms Surender Kaur and Ms. Rajender Pal Kaur used to take deceased mother to hospital. She is not in possession of copy of medical record. Her sister Ms Simrat Kaur used to bear the medical expenses of her mother. She deposed that the properties were already been sold two years back. Her sister Ms Surender Kaur has filed civil suit against respondent no. 2. She further deposed she is not in knowledge of any partition suit filed in the High Court. Deceased mother was not having knowledge of Thai language. She further deposed that she is not sure about the genuineness of the signatures of her mother appearing on the Pass Port Mark B. She further deposed that she does not know Gurcharan Singh.
26 She further deposed that she cannot identify other signatures on the Will Ex. P2 and only able to identify the signatures of her mother deceased. She further deposed that her elder sister Ms Avinder Kaur had given this Will to her after she operated her locker in the bank premises. She had gone through the contents of the Will. She admitted that Smt. Arvinder Kaur now died but alive at the time of filing of the PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 13/31 present petition. She further deposed that she never tried to contact Sh. Gurcharan, whose name mentioned as a witness in the will. She deposed that she can find out the address of Gurcharan Singh from relatives Sh. Gurbachan Singh at U.S.A. She denied that there is no such person as Gurcharan Singh. She denied the suggestion that will contains some technical words which deceased mother could not understand at the time of signing of the Will. She denied that there was no such Notary, Delhi at the time of attestation of the alleged Will. She denied that properties have been genuinely sold on the basis of Will Mark A. She further deposed that she might have filed the copies of the order of Bangkok Court. She further deposed that all the properties were lease hold properties got converted as free hold before sale but she does not know who had paid the conversion charges.
27 PW-2 Sh. Vijender Kumar, Patwari from the DDA office proved the letter bearing No. S& S-20(49)/2001 ASO-1/8 dated 12.07.2001 as Ex. PW-2/1. PW-3 Sh. Vijender Kumar, again appeared and proved the cancellation of mutation issued by the DDA on 16.08.2001 as Ex. PW-3/A in respect of property No. 15- A/2,3,4, 12-A/1 WEA and 10197. PW-4 Sh. Arun Kumar Gupta appeared from OBC, East Patel Nagar, and proved the record pertaining to locker Nos 92 and 171 being maintained by deceased and Smt. Surender Kaur. PW-5 Sh. Ram Avtar Verma brought the assessment record pertaining to property no. 15- A/2,3,4, 12-A/1 WEA and 10197. The above these witnesses were not cross-examined despite opportunity given.
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 14/31 28 PW-6 Smt. Balbir M.S. Sethi, attesting witness examined on local commission because of old age. She prove her affidavit as Ex. PW-6/A. She further proved the Will of deceased Ex. P2. In the cross-examination she deposed that she is post graduate in Punjabi language from Punjab University at Chandigarh. Her husband was Taxation lawyer. She deposed that Will Ex. P2 was drafted by her husband. But does not know from where he got typed. She further deposed that as per recollection she had discussed the contents of the will with her husband. She admitted that Will Ex. P2 was shown to her when the same was without signatures of any party. She does not know whether the Will as shown to daughter and sons of executant prior to execution. She does not know whether children of the deceased discussed the contents of the Will with her late husband. She doe not know whether late Jabir kaur had met her late husband or not before finalization of the contents of Ex. P2. She further deposed that since the Will was executed 20 years ago, therefore she does not remember the place where she got signed. She deposed that her husband had separate office at Connaught Place. She further deposed that at the time of signing of Ex. P2 no other family member of deceased Jasbir Singh was present. She further deposed that all the signatories of the Will had come on car and at the place. She was already present executant arrived.
29 She deposed that she does not specifically remember that whether executant herself read the Will before signing or read over to her. She admitted that property No. C-100 belong to her father in law which is shown as the address of witness Gurcharan Singh resident of USA. She deposed that she met PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 15/31 Gurcharan Singh 4-5 months ago. She deposed that she never met any of the daughters of executant late Smt. Jasbir Kaur. She further deposed that Gurcharan Singh is her son-in-law who is working at present with World Bank in USA. She further deposed that Smt. Jasbir Kaur was her friend 4/5 years prior to execution of the Will Ex. P-2 and she never discussed or talked ill about her son with her. She admitted that she is in possession of numerous proofs in form of documents to demonstrate that her husband was a lawyer as also Notary Public. She denied the suggestion that deceased Jasbir Kaur did not know the contents of the Will Ex. P2 before signing. She denied that late Smt. Jasbir Kaur was not of sound disposing mind at the time of execution of Will Ex. P-
2. She further denied that the signatures of deceased was procured by her, her husband or her son-in-law. She identified the signatures of deceased late Smt. Jasbir Kaur on Ex. P-2 on point mark A & A on Ist and 2nd page.
30 She further deposed that she signed the affidavit after understanding the contents. But she did not dictated the same. She further deposed that on 8.9.2001 she did not seen the Will dated 3.11.1989 at the time of sworning the affidavit Ex. PW-6/A. She further deposed that there is not possible of her son in law coming to India to depose. She denied the suggestion that signatures of the parties on the Will were done in the absence of each other. She denied the suggestion that deceased Jasbir Kaur was not conversion with the English language and she was not make to understand the contents of the Will Ex. P2. She denied the suggestion that Ex. P2 was not prepared as per instructions of Smt. Jasbir Kaur alone. She denied the suggestion that she deliberately refused to identify the signatures on the PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 16/31 passport and the other documents shown to her. She denied that Will Ex. P2 does not bear the signatures of his son in law as attesting witness.
31 Respondent no. 2 appeared in witness box as RW-1 and proved his affidavit Ex R-1. In the cross-examination RW-1 Jai Singh Narula deposed that deceased Jasbir Kaur was having several properties in India but he had no idea about regularly operating bank account and locker in India. He further deposed that practically living in Bangkok in most of the time however she born in Indian and of original an Indian. He deposed that he has no knowledge about the educational qualification but she could understand Punjabi and Thai language but she could not read and write these language.
32 He further deposed that advocate told that three years had expired after the execution of the Will so it has become time barred. He denied the suggestion that he had filed petition in the Thailand court on the basis of this Will dated 14.01.1996 which was later-on withdrawn by him as it was a forged document. He further deposed that on the Will Ex. P2 date 3.11.89 was written on the last page similar handwriting. The will was signed and attested as Notary Public by one Mr. Sethi. The wordings of signatures of attesting witness as Gurcharan Singh is of Notary Public who has also signed as as an attesting witness. He further deposed that her mother had executed the Will then it must have written in Thai language. He denied the suggestion that alleged will is false and fabricated.
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 17/31 33 RW-1 Jai Singh Narula further deposed that deceased Jasbir Kaur was residing with him in Bangkok. She was of sound mind till her death. She used to sign in English language. He admitted that he was not in Delhi on 03.11.1989 but deceased was in India on 3.11.89. He had seen the signatures of deceased on Pass port and identified them as Ex. RW-1/P1. He also seen the Will Ex. P2 and identified the signatures of deceased at Point A on both pages. He denied that DDA has cancelled mutation of properties of the deceased in favour of his son Sh. Ram Narula. He admitted that address given on Ex. PW-3/A does not belong to him the correct address is mentioned in the affidavit. He further deposed that he had applied before Bangkok court for relief on the basis of alleged will dated 14.01.96. But it was informed that there is no such necessity to seek any probate. He denied the suggestion that on the basis of the order of Thai Court he got the property mutated in India. He denied the knowledge of filing of any application by his son before DDA and also denied the knowledge of objections filed by his sister Smt. Harsharan Kaur. He denied the knowledge of operation of any bank account or locker in Delhi by the deceased.
34 R2W1 Sh. Harminder Pal Singh, the attesting witness to the Will of respondent no. 2 dated 14.01.96 also appeared in witness box and proved affidavit Ex. R2W1/1 and original Will dated 14.01.96 Ex. DW-2/A and correct translation Ex. DW-2/B. He identified the signatures of deceased testatrix at point A and X. He deposed that he alongwith testatrix as well as second witness to the Will had signed the above will in each other's presence.
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 18/31 35 In the cross-examination he deposed that deceased Jasbir Kaur died in January or February of 1997 but he does not remember the exact date of her death. At the time she was about 80 years old. Deceased was his Mausi. He deposed that he came to know about the will on the date of execution. Deceased called her on telephone and found that apart from deceased her counsel and one Mr. P. Rao were also present. The will was already written. It was typed in Thai language. The counsel who prepared the Will also signed. He further deposed that he does not remember exactly, however he was asked by deceased or her counsel to sign the will. He deposed that deceased was residing in Bangkok for the last about 60 years from the date of execution of the Will. He is not aware about the properties left behind by deceased in Bangkok or India. Deceased used to reside with respondent no. 2, Sh. Jai Singh Narula. The beneficiary of the Will Ex. DW-2/A is his son Sh. Ram Narula.
36 The witness was put Pass port of the deceased and he identified the photograph and signatures. He was further put to the Will Ex. P2 dated 3.11.89 and identified the signatures of the deceased at Point A. He further deposed that deceased did not inform about the number of Will executed by her on the date of execution of Will Ex. DW-2/A. The deceased was a regular visitor to Delhi. He deposed that Will Ex. DW-2/A has never been recorded in Indian Embassy in Bangkok or any court in Bangkok or Thai Embassy in India. He denied the knowledge of filing of petition by respondent no. 2 on the basis of Will Ex. DW-2/A. He also denied the knowledge of withdrawal of proceedings by respondent no. 2 of Will Ex. DW-2/A. He also denied the personal PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 19/31 knowledge of properties of deceased. He denied the suggestion that Ex. DW-2/A is forged and fabricated by Jai Singh Narula and he signed the same at his instance.
37 He deposed that he has been residing for the last 43 years and he signed the affidavit on 24 th July 2013. He denied the knowledge of Will dated 3.11.89. He denied that he can read and write Thai language. He deposed that deceased was his real aunt (mausi ji). The deceased could not read or write Thai language. The deceased had one son and five daughters. Deceased had good terms and use to regularly visit her. He also shared a good relationship with her children since child hood. He further deposed that be became aware of Will for the first time on 14.01.1996. He knew counsel Sh. Suphadthom Budchantra advocate for the last ten years but he is not his counsel. He further deposed that he had read the contents of the will and explained to deceased in Punjabi language. The will was typed in the office of the counsel. He further deposed that on 14.01.1996 he was present alongwith deceased, Sh. Suphadthom Budchantra Advocate and Sh. Pairaj Rao. He denied the personal knowledge if the will was drafted and typed by advocate Suphadthom Buchantra. He deposed that will was signed by him at the house of deceased some time in the morning at about 11 a.m and stayed for 15 to 20 minutes.
38 He denied the suggestion that deceased did not know the contents of Ex. DW-2/A. He further deposed that he know other attesting witness Mr. Piraj Rao who was working in hotel with respondent no. 2. He deposed that he never appeared in Indian Embassy in Bangkok or Thai Embassy in India in respect of PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 20/31 the said Will Ex. DW-2/A. He denied the suggestion that signatures of deceased were forged or procured at the instance of respondent no. 2. He denied the suggestion that Piaraj Rao had put their signatures on Will Ex. DW-2/A on the instructions of respondent no. 2. He denied the suggestion that only true and correct Will executed by deceased is dated 3.11.89.
39 He deposed that said Will was retained by him after signing at his house and give to respondent no. 2 after the death of deceased but does not remember the date, month and year. Respondent no. 2 know how to read and write in Thai language. He denied the knowledge about the ailing of deceased prior to her death. He deposed that he met her in a hospital in Bangkok for the last time and also attended her funeral. He deposed that he handed over the will to respondent no. 2 he did not express any intention to get the said Will probated from a Probate court. He denied the suggestion that deceased was ailing and was mentally not fit to make the will Ex. DW-2/A. He denied the suggestion that the signatures of testatrix were procured by respondent no. 2. He denied the suggestion that Will Ex. DW-2/A was not executed in his presence.
40 In order to appreciate, analyses and examine the testimony led by the parties let us go through the recent judgment of Hon'ble Supreme Court titled as Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 in which the proposition of law of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act has been culled out and relevant portion of the judgment is mentioned as under:-
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 21/31 "19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, 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 testatrix 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 testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 22/31 direction of the testatrix, or has received from the testatrix 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 testatrix, 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.
20.2 Section 68 & 71 of the 1872 Act:
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:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 23/31 shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 24/31 proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.
22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
41 The testimony of parties witnesses established the following facts:-
1. The deceased Jasbir Kaur was about 70 years and resident of Bangkok holding Indian Pass port is the testatrix of the Will Ex. P2 dated 3.11.89. The will was executed at Delhi in India.
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 25/31
2. The attesting witnesses are PW-6 Smt. Balbir M.S. Sethi and her son-in-law, resident of USA, Sh. Gurcharan Singh. The will was drafted by Husband of PW-6 late Sh. M.S. Sethi who was Notary Public.
3. The Will Ex. P-2 dated 3.11.89 was handed over to PW-1 Smt. Sukhvinder Kaur Narula, petitioner no. 1 by her elder sister Smt. Arvinder Kaur. All the three who are involved in the execution of the will are not known to petitioner no. 1.
4. PW-6 Mrs Balbir M.S. Sethi, the attesting witness is known to the deceased for the last 4-5 years prior to the execution of the Will Ex.
P2.
5. Respondent No. 2 Sh. Jai Singh Narula approached the Bangkok court for seeking probate on the basis of another will of deceased Ex. DW2/A dated 14.01.1996. The will was executed at Bangkok, Thailand and witnessed by RW-2 Sh. Harminder Pal Singh.
42 At the outset let us examine the will Ex. P2 relied by petitioners. The will is notorized having stamps and seal of M.S. Sethi. It appears the signatures of attesting witness on both pages as well as of executant deceased/testator. The handwriting of notary M.S. Sethi and attesting witness Gurcharan PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 26/31 Singh are apparently similar having the same kind of word formation and curves. However, both are with different ink. Sh. Gurcharan Singh is stated to be resident of U.S.A has mentioned the address C-100, New Rajinder Nagar, New Delhi. The name and address of notary who attested is not appearing on the second page. As per testimony of PW-6 Smt. Balbir M.S. Sethi the will Ex. P-2 was drafted by her husband late Sh. M.S. Sethi and it was got typed also by him. She had seen the will Ex. P2 without the signatures of any party. She does not remember the place where it was signed by her. She has not specifically deposed regarding the fact that whether the deceased/testatrix had herself read the contents of the Ex. P2 or read over to her by M.S. Sethi or either of the attesting witness. She also silent on the aspect regarding the friendship for 4-5 years prior to the execution of the Will Ex. P2 with the deceased/testatrix when deceased was resident of Bangkok, Thailand.
43 She further deposed that the contents of the Will were discussed in her absence. She admitted the fact that there was no family members of the deceased was present. She is also failed to recollect whether before signing the deceased had read the contents of the will herself or read over to her.
44 The circumstances which are established on record spell out the un-natural conduct whereby the will have been drafted by a person who is not known to the deceased/testatrix or her family members or the relatives who are residing in Delhi. The attesting witness and the draftsman belongs to only one family. The family is not known to the family of the deceased. These vital facts create suspicious circumstances which are not PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 27/31 dispel that why a not well known person offers drafting of the will and his family members becomes the attesting witnesses.
45 The other aspects are that a person who is ordinarily resident of Bangkok, Thailand without consulting any of the family members or disclosing anything about the execution of the will why suddenly chose to execute a will in India on 3.11.89. Both not well known persons becomes the attesting witnesses to the will. It is also very vital in the present circumstances that the complete parties family resides at Bangkok, Thailand, then why deceased suddenly chooses Delhi, India for execution of the will. It is pertinent to mention here that the petitioners have not elucidate the fact that they are all residence of Bangkok since 1947. It also raises suspicious about the execution of the will by the deceased/testator in Delhi, India. It also raises suspicion about the execution of the will by the deceased/testator in Delhi, India.
46 Further more, it has come on record that PW-1 Sukhvinder Pal Kaur Narula received Will Ex. P-2 from her sister Arvinder Kaur who happen to be respondent no. 5 in the petition. Actually she handed over the will from the locker of deceased. It is not come on record how and who kept the will in the locker. These circumstances also raises suspicion about the execution of the will by the deceased/testator. The testimony of PW-6, the attesting witness Balbir M. S. Sethi has failed to pass the litmus test, hence ingredients of Section 63 of Indian Succession Act are not fulfilled.
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 28/31 47 The locker as per testimony of PW-4 was jointly maintained by deceased Jasbir Kaur and Smt. Surender Kaur which was allowed to be operated by Smt. Arvinder Kaur by the deceased. According to Ex. PW-4/A the entry shows that the deceased Jasbir Kaur operated the locker No. 92 till 08.11.1991 thereafter after 10 years on 23.04.2004 it was operated by Arvinder Kaur, however, as per entry Ex. PW-4/B & C the locker no. 171 operated by deceased Jasbir Kaur lastly on 27.08.1994 and thereafter in the year 1999-2001 and 2004 operated by Surinder Kaur. The locker no. 171 operated by Surinder Kaur in 1999 to 2004 four times. However, there is doubt in which locker the alleged will Ex. P2 was recovered. These facts are not pleaded by the petitioners. The entries further shows that most of the time the locker was operated by nominees and on 23.04.2001 it was operated by Arvinder Kaur,. The documents and the testimony of PW-1 also create suspicion about the possession of the Will Ex. P2.
48 On the basis of the above observation and discussion the execution of the will by deceased/testator Jasbir Kaur is surrounded by grave suspicion circumstances which are not dispel by the petitioners. Hence the execution of the will is not proved to be legal and valid.
49 Although no specific issue has been framed regarding the will relied by respondent no. 2 Jai Singh Narula alleged to be executed at Bangkok on 14.01.96. As per order of this court dated 10.03.11 the respondent no. 2 was allowed only to put up on record the will relied by him. It is pertinent to mention here that the certified copy of the case of Southern Bangkok Civil PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 29/31 Courts dated 3rd July, 2003, mentioned that respondent no. 2 Jai Singh Narula had approached the competent court of jurisdiction for grant of Probate on the will dated 14.01.1996. However, he has withdrawn the petition. As per order no liberty has been granted to initiate any legal action in India. Hence, the respondent no. 2 has exhausted the legal remedy available to him with regard to grant of Probate. Now he cannot re-agitated is legal claim on the basis of will dated 14.01.96. It is pertinent to mention here that respondent no. 2 has not filed any counter- claim to get any relief from the court in India on the said Will. However, one aspect remains whether respondent no. 2 can claim that the will dated 14.01.96 was the last will of the deceased. In other words the will relied by respondent no. 2 has already subject to legal scrutiny and attained finality before the competent court at Bangkok, Thailand.
50 In the peculiar circumstances of the case, it is pertinent to mention here that the respondent no. 2 has concealed the vital fact from the court regarding the institution of proceedings at Bangkok court, I would like to highlight that during the cross-examination a specific suggestion put to him but he denied by stating that he did not file probate petition in the Thailand court on the basis of will dated 14.01.96 and later on withdraw. He specifically, deposed that he did not file any probate petition on the basis of the will dated 14.01.96. Therefore, in these circumstances where witness has concealed the vital true facts from the court and the orders of the competent court at Bangkok, Thailand where the fate has been finalised and deposed on oath false facts cannot be believed and relied. Hence in these circumstances the will Ex. D2W/A dated PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 30/31 14.01.96 relied by respondent no. 2 cannot be allowed to succeed to disprove the will Ex. P2 dated 3.11.89 relied by petitioners.
51 On the basis of above observation and discussion, the issue no. 1 & 2 are decided against the petitioner.
52 Relief In view of my finding on issue no. 1 & 2 the petition filed by the petitioners is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 6th August, 2016 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 96/10/01 Sukhvinder Pal Kaur Narula Vs State 31/31