Delhi District Court
Samudari Devi(Deceased) vs State on 28 February, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
(Old Probate Petition)
PC- 117/13/98
In the Matter of:
Samudari Devi(deceased)
Through her substituted LR
Mahender Pal Singh
s/o late Sh. Ram Murti Pehalwan
r/o 2466, Bazar Sita Ram,
Delhi-110006 & Ors.
.................. Petitioners
VERSUS
1. State
2. Sh. Madan Gopal
r/o 2466, Bazar Sita Ram,
Delhi-110006
3. Smt. Omwati
d/o late Sh. Ram Murti Pehalwan
w/o Sh. Than Singh Bhati
r/o a-108, Sector-55, Noida, U.P.
4. Smt. Krishna Bhati
d/o late Sh. Ram Murti Pehalwan
w/o Sh. Prahlad Singh Bhati
r/o G-20, East of Kailash, New Delhi.
5. Smt. Santosh
d/o late Sh. Ram Murti Pehalwan
w/o Sh. Raj Pal Singh Rana
r/o L-1, 83-A, DDA Flats,
Kalkaji, New Delhi-110019
6. Smt. Padma
PC-106/13/07 Page:-1/30
d/o late Sh. Ram Murti Pehalwan
w/o Sh Shish Pal Singh
r/o 28, Prabhat Nagar, Binoli Road,
Sardhana, District Meerut, U.P..
7. Smt. Dhanesh
d/o late Sh. Ram Murti Pehalwan
w/o Sh. Rajender Singh
r/o 362-B, Gali Kirtanwali,
Ghaziabad, U.P.
8. Smt. Shashi
d/o late Sh. Ram Murti Pehalwan
w/o Sh. Phool Singh
r/o 2466, Bazar Sita Ram,
Delhi-110006
9. Smt. Beena
d/o late Sh. Ram Murti Pehalwan
w/o Sh. Ram Babu
r/o 80, Parampuri, Krishna Nagar,
Mathura, U.P.
10. Smt. Bimla
d/o late Sh. Ram Murti Pehalwan
w/o Sh. Prem Singh
r/o 270-A, Pocket-2, Mayur Vihar,
Phase-I, Delhi.
11. Smt. Kamla
d/o late Sh. Ram Murti Pehalwan
w/o Sh. Keshav Singh
Vill. & P.O. Dhaturi,
District Bulandshahar, U.P..
......Respondents
Date of Institution: 24.3.98
Date of Assignment to this court: 19.8.13(at the stage of filing objections)
Date of Arguments: 28.2.14
Date of Decision: 28.2.14
PC-106/13/07 Page:-2/30
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 276 of the Indian Succession Act for grant of probate in respect of the estate of deceased Sh. Ram Murti Pehalwan in respect of Will dated 28.6.1979. The brief facts of the case as narrated in the petition are that Sh. Ram Murti Pehalwan had died on 3.7.1979 at Delhi and during his lifetime had executed the Will dated 28.6.1979 which is his last Will and testament which was duly executed. It was accordingly prayed that probate be granted to the petitioner in respect of last Will of the deceased dated 28.6.1979.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report but the same was not filed. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " National Herald" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper " National Herald" on 17.7.98.
4. None of the near relation as mentioned in the schedule A annexed with PC-106/13/07 Page:-3/30 the petition appeared or filed written statements.
5. It is pertinent to mention here that originally probate petition was filed on behalf of Smt. Samudari Devi which was allowed in her favour vide judgment of my Ld. Predecessor on 9.2.99, however on 31.5.01 application for revocation of said probate petition was moved on behalf of objector Madan Gopal which revocation petition was allowed vide judgment dated 2.8.13 and probate order dated 9.2.99 was set aside and original probate petition was revived and applicant Sh. Madan Gopal was allowed to file the objections. During the revocation proceedings original petitioner Smt. Sadmudari Devi expired and her son Sh. Mahender Pal Singh was substituted u/o 22 Rule 3 CPC in her place as petitioner vide judgment dated 2.8.13.
6. Objections were filed on behalf of Sh. Madan Gopal wherein it was stated that Sh. Ram Murthi Phelwan was the owner of several properties not only in Delhi but outside Delhi also who was the father of the objector and the husband of original petitioner Smt. Samudari Devi. It was stated that during his lifetime Ram Murthi Phelwan bequeathed his entire properties in favour of his two sons namely Madan Gopal, objector and Mahinder Pal Singh, present petitioner by way of Will dated 25.6.1979 which was Ex. PW-1/4 in PC-106/13/07 Page:-4/30 revocation petition. It was stated that Sh. Ram Murthi Phelwan expired on 3.7.1979. Thereafter properties bearing house no. 2466 and 2058 at Bazar Sita Ram which were subject matter of the Will dated 25.6.1979 were mutated way back in the year 1981-82 in joint names of Sh. Madan Gopal and Mahinder Pal Singh, sons of Ram Murthi Phelwan. As stated MCD record Ex. AW-1/5 to Ex. AW-1/25 and municipal proceedings Ex. AW-1/1 to AW-1/25 in were proved revocation proceedings be also read as part of the objections. It was stated that thereafter on 21.7.1997 after about 17 years of mutation of properties in the names of sons of deceased, their mother late Smt. Samudari Devi tried to get the mutation changed in her own name in the MCD vide application Ex. AW-1/20 as exhibited in revocation proceedings. The said application of Smt. Samudari Devi as stated was dismissed by MCD which was depicted through proceedings of MCD Ex. AW-1/25(as exhibited in revocation proceedings). It was stated that when Madan Gopal came to know about the attempt of late Smt. Samudari Devi and Mahinder Pal Singh to get the mutation changed in the municipal record, he lodged complaint dated 1.8.98(Ex. AW-2/4) and in pursuance thereof FIR bearing no. 3337/98(AW-2/5) got registered and after investigation police had filed chargesheet against Smt. Samudari PC-106/13/07 Page:-5/30 Devi, Mahender Pal Singh and one Sat Pal Sharma( Ex. AW-2/1 to Ex. AW-1/3). Entire evidence and facts of revocation proceedings were reiterated and it was stated that perusal of the evidence in the revocation proceedings shows that the Will dated 25.6.1979 was genuine Will on the basis of which the property was already mutated in the name of Madan Gopal and Mahinder Pal Singh way back in the year 1980-82 whereas Will dated 28.6.1979 was forged Will. It was stated the entire game plan of Mahender Pal Singh was to get the letter of administration in the name of Smt. Samudari Devi on the basis of forged Will dated 28.6.1979 and thereafter to obtain Will from Smt. Samudari Devi in his exclusive name so that he may become exclusive owner of the all the properties. It was stated that the Will dated 28.6.1979 is a forged and fake Will and it does not contain the signatures of late Sh. Ram Murthi Phelwan. It was accordingly prayed that the present probate petition be dismissed.
7. Reply to the objections of the objector were filed wherein contents of the petition were reiterated and those of the objections were denied.
8. Vide order dated 6.9.13 from the pleadings of parties, the following issues were framed:-
1) Whether Will dated 28.6.79 is last and valid Will. Onus upon petitioner PC-106/13/07 Page:-6/30
2) Whether the Will dated 25.6.1979 as executed by late Sh. Ram Murti Pehalwan is last and valid Will of executor? Onus upon objector
3) Relief.
9. In evidence, petitioner produced PW-1 Sh. Satyapal Sharma, PW-2 Mahinder Pal Singh, PW-3 Sh. Sunil Kumar, LDC from Tis Hazari Courts. PW-1 Satya Pal Sharma stated himself to be the attesting witness to the Will dated 28.6.1979 which was Ex. PW-2/1. He stated that late Ram Murti Pehalwan was his ustad and they were friends and were on visiting terms with each other. He stated that Sh. Ram Murti Pehalwan expressed his desire of executing a Will during his lifetime and on 28.6.1979 he called him to his house from where they both alongwith one Mr. Kalicharan had come to Tis Hazari Court where Sh. Ram Murti Pehalwan had given the instructions to one typist who was an expert in drafting the Will. He stated that the Will was got typed and contents of the said Will were read over by the said typist to all of them and after understanding the same late Ram Murti Pehalwan had signed the Will in his presence and also in presence of Mr. Kalicharan. He identified his signatures, signatures of testator and other attesting witness. He stated that at the time of execution of the Will late Sh. Ram Murti Pehalwan was possessing sound disposing mind. PW-2 Mahinder Pal Singh reiterated his case as set out in the petition and relied PC-106/13/07 Page:-7/30 upon the Will dated 28.6.1979. PW-3 Sh. Sunil Kumar, LDC from CA(sessions), Tis Hazari Courts stated that the record of the certified copy of Will is not available and has been weeded out. He admitted that Ex.P-2 had been prepared from his branch and also admitted the endorsement and seals appended on Ex.P-2. He also admitted that Ex.P-2 was prepared from the original Will.
10.In defence, objector Madan Gopal produced himself as DW-1 and reiterated his case as narrated in the objections. He relied upon Will dated 25.6.1979 and other documents as already exhibited by the witnesses produced by him during revocation proceedings i.e. Will dated 25.6.1979 Ex. PW-1/4, MCD record Ex. AW-1/5 to Ex. AW-1/10, mutation papers/orders and municipal proceedings Ex. AW-1/1 to AW-1/25, application of late Smt. Samudari Devi vide which she tried to get the mutation changed in her own name Ex. AW-1/20, proceedings of MCD dismissing said application Ex. AW-1/25, complaint dated 1.8.98 Ex. AW-2/4, FIR bearing no. 337/98 Ex. AW-2/5, chargesheet Ex. AW-2/1 to Ex. AW-1/3, FIR no. 533 registered against Mahinder Pal Ex. RW-1/A-1, sale deed executed by Mahender Pal Singh Ex. RW-1/A-2.
11. I have heard the arguments of Cl. for both the parties as well as perused PC-106/13/07 Page:-8/30 the record. My issuewise findings are as under:-
12. Issue no. 1& 2 :- Before proceeding to decide these issues, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
13. Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
PC-106/13/07 Page:-9/30
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
14.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
PC-106/13/07 Page:-10/30
15. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is PC-106/13/07 Page:-11/30 to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
16. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, PC-106/13/07 Page:-12/30 in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the PC-106/13/07 Page:-13/30 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 deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of 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 S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
17. The decisive aspect is to ascertain as to whether the Will is genuine and PC-106/13/07 Page:-14/30 duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
18. The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will PC-106/13/07 Page:-15/30 is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
19. The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and PC-106/13/07 Page:-16/30 overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project PC-106/13/07 Page:-17/30 back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
20. Now I have to see whether in the present case the above principles have been duly made out or not. Both the Wills dated 28.6.1979 and 25.6.1979 are dealt with simultaneously. Both the Wills in question are unregistered PC-106/13/07 Page:-18/30 documents and even originals of the same have not been produced on the record. However reliance is placed upon Jasjit Singh Rikhy Vs State & Ors. Decided by Hon'ble High Court of Delhi on 23.08.2012 in Test Case No. 40/1982 wherein it was held that "Courts of course have to apply greater scrutiny in cases where the original Will is not filed and probate is sought of copy of Will". Reliance has also been placed upon one judgment 1904 ILR 31 Cal 885 titled "Anwar Hossein Vs Secretary of State for India to contend that "applicant can prove the Will by means of the certified copy put in and secondary evidence in these circumstances is available". In view of the above, I proceed to decide the present case on the basis of copies of both the Wills which are on record.
21.In the present case original petitioner Smt. Samudari Devi propounded the Will dated 28.6.1979 allegedly executed by her husband late Sh. Ram Murti Pehalwan vide which he bequeathed all his immovable properties in her name. On the other hand objector Madan Gopal who is son of original petitioner late Smt. Samudari Devi and late Sh. Ram Murti Pehalwan propounded Will dated 25.6.1979 alleging that the same was executed by Sh. Ram Murti Pehalwan and was his last Will whereby he bequeathed his immovable properties in the name of present petitioner Sh. Mahinder Pal PC-106/13/07 Page:-19/30 Singh and objector Sh. Madan Gopal.
22. The main objection of the objector challenging the Will dated 28.6.1979 was that the said Will is forged and fabricated since his father Sh. Ram Murti Pehalwan had executed a Will dated 25.6.1979 on the basis of which even properties in question stood mutated in the joint names of present petitioner Sh. Mahinder Pal Singh and objector Sh. Madan Gopal. It is also the case of the objector that Will dated 28.6.1979 was forged by his mother and brother Mahinder Pal Singh to usurp the share of the objector as was given in the Will dated 25.6.1979. To prove his said contention the objector relied upon the documents produced by the witness during revocation proceedings AW-1 Sh. Nasir Mirza. The said witness categorically stated that the properties bearing no. 2466, Ward no. 9, Bazar Sita Ram, Delhi and property bearing no. 2058, Ward no. 8, Bazar Sita Ram Delhi are mutated in the names of Madan Gopal and Mahender Pal both sons of Sh. Ram Murti Pehlwan jointly on the basis of Will dated 25.6.1979. The documents were Ex. AW-1/1 to AW-1/25. During cross examination said witness admitted that Ex. AW-1/4 is the photocopy of the copy of the original Will dated 25.6.79 and that the Will dated 25.6.79 is not registered Will. He further admitted that no objections are not taken only when the PC-106/13/07 Page:-20/30 Will is registered, however he further admitted that in this case no objections were not taken despite the fact that the Will was unregistered. Further though voluntarily he stated that local enquiry must have been made and enquiries may be have been made from legal heirs but later on stated that there is no mention of conduct of any such enquiry as aforesaid in the notings. It is clear from the abovesaid deposition of AW-1 Nasir Mirza that though the properties in question were mutated in the joint name of Mahender Pal Singh and Madan Gopal on the basis of Will dated 25.6.79 but neither the original of the said Will was taken on record by the MCD nor any enquiry was held for seeing the genuineness of the said Will. Even no objections were not obtained by the other legal heirs of Sh. Ram Murti Pehalwan which as per the said witness should have been done since the Will dated 25.6.79 is an unregistered Will. Hence stand proved on record that properties in question were mutated in the names of Mahender Pal Singh and Madan Gopal without going into the genuineness of the Will dated 25.6.1979 and even without taking no objections from the other legal heirs. Even otherwise, when Will itself is under challenge then entering of mutation has no relevancy. As far as the case of Will dated 25.6.1979 is concerned copy of which is Ex. AW-1/4 the same is alleged to PC-106/13/07 Page:-21/30 be witnessed by two witnesses Sh. Balwant Singh and Sh. Jagat Singh but none of them have been produced before the court to prove the execution of the said Will which is the basic ingredient for execution of the valid Will. Even the Notary Public who attested the said Will has not been produced. Mere mutation of the properties in names of Mahender Pal Singh and Madan Gopal on the basis of the Will dated 25.6.1979 does not prove the said Will was genuine and the said Will has to satisfy the criteria/ingredients of a valid Will as laid down by the law supra which it has failed to satisfy. Further, as far as the Will dated 28.6.1979 is concerned, objector has raised the objection that the said Will was forged and fabricated by Sh. Mahender Pal Singh in connivance with Smt. Samudari Devi just to usurp the properties of late Sh. Ram Murti Pehalwan. In the present case, Mahender Pal Singh had denied that he approached the MCD for getting the said mutation done and even denied his signatures on documents Ex. AW-1/5 to AW-1/10 which were documents for applying for mutation. However, during his cross examination on 13.7.07 he deposed that Madan Gopal is his younger brother who is about 5-6 years younger to him and in the year 1981-82 he stated his own age was about 20 years meaning thereby that Sh. Madan Gopal was minor when the said PC-106/13/07 Page:-22/30 mutation was alleged to be applied by Mahender Pal Singh and Madan Gopal in the year 1982. On the other hand Madan Gopal during his cross examination conducted on 28.1.14 stated his date of birth as 4.9.1964 and stated that he have Adhar card and driving licence to prove his date of birth. Though he stated that he did not remember whether he had submitted an affidavit in the MCD which shows his date of birth as 13.1.1961 but during his cross examination during revocation proceedings dated 23.3.07 he admitted that Ex. AW-2/R-1 is his affidavit bearing his signatures wherein his date of birth was mentioned as 13.1.1961. When as per petitioner himself Sh. Madan Gopal was minor at the time of said mutation and even as per Madan Gopal is date of birth is 4.9.1964 which also shows that he was minor at the relevant time of mutation. Hence it is clear that age of Madan Mohan was mentioned as 13.1.1961 to hide the fact that he was minor at the relevant time of mutation. If Sh. Madan Mohan was minor then he cannot be said to be competent enough to approach the MCD alone for mutation or to forge the documents Ex. AW-1/1 to AW-1/10 for getting the mutation done. Sh. Mahender Pal Singh admittedly was major at the relevant time of mutation and in above circumstances when Sh. Madan Gopal was minor at the relevant time, it PC-106/13/07 Page:-23/30 cannot be presumed that Sh. Mahender Pal Singh was ignorant about the said mutation or did not apply for the same. Said observation was even made in the chargesheet Ex. AW-2/1 filed by the Inspector, Crime Branch. Even otherwise petitioner Sh. Mahender Pal Singh pleaded that he did not approach the MCD for mutation and did not sign the documents, hence the onus was upon him to prove the same which has not been discharged by him. He could have obtained handwriting experts opinion on the signatures on the said documents but the same was not done. Hence the above contention of Sh. Mahinder Pal Singh stands falsified on record and is accordingly rejected. It is also pertinent to mention here that it is the case of petitioner that his mother Smt. Samudari Devi applied for mutation on 21.7.1997 on the basis of Will dated 28.6.1979 which application of Smt. Samudari Devi was dismissed as per Ex. AW-1/25 by MCD but it remained unexplained on record why Smt. Samudari Devi waited for a long period of 18 years to get the properties in question mutated in her name on the basis of the Will dated 28.6.1979 when the said Will was in her knowledge. Even the present probate petition was filed by Smt. Samudari Devi on 24.3.98. No where it is explained by the petitioner that why the Will dated 28.6.1979 did not saw the light of the day for such long period and rejection of plea of PC-106/13/07 Page:-24/30 ignorance of Mahinder Pal Singh as mentioned above, clearly casts doubt upon the Will dated 28.6.1979. Besides, that it has come on record that after the death of Smt. Samudari Devi Sh. Mahender Pal Singh, petitioner has sold of the property at Ballabh Garh vide sale deed Ex. RW-1/-2 which fact has been admitted by the petitioner in his cross examination dated 13.12.13. Even Sh. Mahender Pal Singh admitted that the said sale deed has been cancelled by the court in the suit filed by the Madan Gopal. In the said sale deed Ex. RW-1/A-2 there is mention of one Will dated 5.5.04 executed by Smt. Samudari Devi in favour of Mahender Pal Singh which document has not been produced by the petitioner in the present case. Further, it has also come in the statement of AW-2 Insp. Hari Ram that during his investigation the accused did not divulge about the pendency of probate proceedings before Ld. District Judge. The said fact was also admitted by Sh. Mahender in his cross examination that he was interrogated in case FIR no. 337/98 and he did not tell the IO about the pendency of probate case filed by Smt. Samudari Devi. Even PW-1 Satya Pal Sharma admitted that he was called by the IO in the said criminal case i.e. FIR no. 337/98 but he did not tell him about the Will dated 28.6.1979. The concealment of pendency of present probate petition in the criminal PC-106/13/07 Page:-25/30 case against Sh. Mahender Pal Singh, Smt. Samudari Devi, Satya Pal Sharma etc. and vice versa is duly made out from the record. Even otherwise before decision of the present case, Smt. Samudari Devi had executed any such Will dated 5.5.04 on the basis of Will dated 28.6.1979 in favour o of Sh. Mahender Pal Singh and further Sh. Mahender Pal Singh acted on the said Will, then the said conduct shows the intentions of Sh. Mahender Pal Singh that he in connivance with his mother Smt. Samudari Devi wanted to become the exclusive owner of the properties of the deceased Ram Murthi Pehalwan debarring other legal heirs of their right is clearly made out.
23. Further, in the Will dated 28.6.1979 two attesting witnesses namely Satyapal Sharma and Sh. Kalicharan signed the same out of which Sh. Satyapal Sharma has been examined in the present case who categorically stated that the said Will was executed by Sh. Ram Murti Pehalwan who was his ustad and they were friends and were on visiting terms with each other. He deposed that on 28.6.1979 late Sh. Ram Murti Pehalwan had called him to his house and from there he alongwith late Sh. Ram Murti Pehalwan and Sh. Kalicharan had come to Tis Hazari where Sh. Ram Murti Pehalwan gave instructions to one typist who typed the Will and after PC-106/13/07 Page:-26/30 the Will got typed the contents of the Will were read over to them by the typist and after understanding the same, the said Will was signed by them. During cross examination he stated that Will Ex. P-1 was regarding one property bearing no. 2466 and no. 2058 and he had come to know regarding the number of these properties when the Will was being prepared. However, the Will dated 28.6.1979 not only talks about the properties at Sita Ram Bazar of the deceased but also finds mention regarding properties at Ballabhgarh, Loni and Bhajanpur as well as one shop in premises 2997, Chowk Chaurasi Ghanta, Bazar Sita Ram regarding which properties this witness failed to depose. Further this witness during cross examination recorded on 3.12.13 denied that he is close to Mahinder Pal Singh or that he was regular visitor to his shop but Sh. Mahinder Pal Singh during his cross examination recorded on the same day admitted that Sh. Satya Pal Sharma is a regular visitor to his shop and sits on his shop with him. The abovesaid not only contradicts the version of the attesting witness Satyapal Sharma but also shows that he deliberately did not want to show his closeness with Mahinder Pal Singh which casts doubt on the veracity of the said witness. It is also admitted case of Sh. Satyapal Sharma and Mahinder Pal Singh that they are co-
PC-106/13/07 Page:-27/30 accused in the criminal case u/s 420/467/471/201/120B IPC regarding forgery of Will dated 28.6.1979. In view of the above it is clear that Sh. Mahinder Pal Singh and Sh. Satyapal Sharma were closely knowing each other and as is already observed the veracity of the said witness is doubtful in view of the above contradictions and said witness cannot be relied upon. Further, it is also pertinent to mention here that the other attesting witness Sh. Kalicharan has not been produced before this court nor any explanation has been put forward by the petitioner regarding his non production before this court. Though in chargesheet Ex. AW-2/1 it is stated that Sh. Kalicharan has expired now which chargesheet was filed in the year 2000 but why the said witness was not produced earlier before the court when petition was filed in the year 1998 remained unanswered. The Inspector Hari Om who was IO in the criminal case FIR no. 337/98 deposed that accordingly to his investigation the Will dated 25.6.1979 as stated by their attesting witnesses was a genuine Will and on the other hand the alleged witnesses of Will dated 28.6.1979 stated that the Will dated 28.6.1979 was a forged Will and was never attested by them, although originals of both the Wills could not be seized by him. However in cross examination he clarified that in those lines he spoke about the PC-106/13/07 Page:-28/30 statement of Sh. O.P. Bajaj who was junior to Sh. C.L. Bhatia(notry) and the statement of Sh. Yogesh Kumar s/o late Sh. Kali Charan. Even in chargesheet Ex. AW-2/1 it was mentioned that during the course of the investigation one Sh. Karanjit Singh, Advocate who was working as Notry Public on same seat of Sh. C.L. Bhatia, Advocate could not identify the signatures of Sh. C.L. Bhatia, Advocate who had attested the said Will. The investigating officer in criminal case found suspicion surrounding the Will dated 28.6.1979 whereas the deposition of Sh. Satyapal Sharma suffers from contradiction as pointed above as well as he seems to be known to Sh. Mahinder Pal Singh who is interested party in the present case, hence the Will dated 28.6.1979 does not fully fulfills the criteria of valid execution of the Will and in view of the above circumstances the said Will is definitely surrounded by the suspicious circumstances.
24.Further though no party has pleaded anything about testator being suffering from any disease or not having good mental condition but both the Wills in question were executed between the gap of 5 to 8 days before the death of testator on 3.7.1979 and existence of such short span between the execution of the said Wills and the death of the testator give rise to suspicious circumstances. Even presumption can also be drawn that PC-106/13/07 Page:-29/30 testator may not be having good health and intact cognitive faculties some days prior to his death. Hence again suspicious circumstance regarding the health of the testator surrounds both the Wills. Accordingly, in view of the above both the Wills dated 25.6.1979 and Will dated 28.6.1979 are rejected and cannot be said to be the last testamentary disposition of the testator Ram Murthy Pehalwan. Both these issues are decided against both the parties.
25.Relief:- In view of the above findings, the petition is dismissed. File be consigned to record room.
Announced in the open court on (AJAY GOEL) 28.2.14 ADJ-12(Central)Delhi. PC-106/13/07 Page:-30/30