Delhi District Court
Mrs Kulbir Sharma vs The State on 16 January, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 71/10/08
New P.C. No. 16032/16
Mrs Kulbir Sharma
W/o Mr. R.K. Sharma
R/o R-13/49, Raj Nagar,
Ghaziabad
.....Petitioner
Vs.
1 The State
2 Mr. Harmail Singh
S/o Late Shri Surjit Singh
R/o D-36, Kalkaji,
New Delhi- 110019
3 Mr. Rajinder Singh
S/o Late Shri Surjit Singh
R/o D-36, Kalkaji,
New Delhi- 110019
4 Mr. Gurvinder Singh
S/o Late Shri Surjit Singh
Address not known, be served at:
C/o Rajinder Singh
D-36, Kalkaji,
New Delhi- 110019
5 Smt. Jasbeer Kaur,
W/o Shri Rajinder Singh
R/o R-14/92, Raj Nagar
Ghaziabad
6 Mr. Hartej Singh
S/o Late Shri Surjit Singh
R/o 228, Lockwood Road, Brampton
L-6Y 4Y4 Ontaria Tcranto Canada
......Respondents
PC No. 71/10/08 1/58
& P.C. No. 76/10/08
Date of institution of the case : 10.04.2008
Date reserved for judgment on : 11.12.2017
Date of pronouncement of judgment : 16.01.2018
Probate Case No.- 76/10/08
New P.C. No. 16049/16
1 Sh. Harmail Singh
S/o Late Sh. Surjit Singh
R/o D-36, Kalkaji,
New Delhi- 110019
2 Sh. Rajinder Singh
S/o Late Sh. Surjit Singh
R/o D-36, Kalkaji,
New Delhi- 110019
...Petitioners
Versus
1 State/General Public
2 Mr. Hartej Singh
S/o Late Shri Surjit Singh
R/o 228, Lockwood Road, Brampton
L-6Y 4Y4 Ontaria Toranto
Canada
3 Mr. Gurvinder Singh
S/o Late Sh. Surjit Singh
Address Not known
4 Smt. Jasbeer Kaur
Sh. Rajinder Singh
R/o R-14/92. Raj Nagar,
Ghaziabad
5 Smt. Kulbir Sharma
W/o R.K. Sharma
R-13/49, Raj Nagar,
Ghaziabad
.....Respondents
PC No. 71/10/08 2/58
& P.C. No. 76/10/08
Date of institution of the case : 06.10.2008
Date reserved for judgment on : 11.12.2017
Date of pronouncement of judgment : 16.01.2018
JUDGMENT:
1 Two cases bearing P.C No. 71/10/08 and P.C. No. 76/10/08 are decided by a common judgment.
2 The case bearing P.C. 71/10/08 titled as Mrs Kulbir Sharma Vs State is the leading case. A petition under Section 276 of Indian Succession Act 1925 for grant of Probate/Letters of Administration in respect of Will dated 18.10.2007 of late Smt. Gurbachan Kaur has been filed by the petitioner Mrs Kulbir Sharma.
3 The factual matrix of the case is that the petitioner is the executor of the Will dated 18.10.2007 left behind by late Smt. Gurbachan Kaur ( hereinafter referred to as 'deceased'). The Will dated 18.10.2007 was duly registered in the office of Sub- Registrar-III, New Delhi vide registration No. 1330 in Additional Book No. III, Volume No. 1472 on pages 5 to 6 dated 18.10.2007. The deceased had six children, i.e petitioner and respondent no. 2 to 6. The deceased was looked after, treated and supported by the petitioner. The deceased was given respect and support by respondent no. 6 as well. The deceased was not at all happy with the behaviour of respondent no. 2 to 5, who maltreated her. The deceased was suffering from cancer and during her illness the petitioner took care of the deceased and provided treatment to her at different hospitals.
PC No. 71/10/08 3/58& P.C. No. 76/10/08 4 It is stated that deceased had bequeathed her property bearing No. D-36, Kalkaji, New Delhi in favour of petitioner and respondent no. 6 in equal shares. The Will was duly executed by the deceased in sound mental health and disposing mind in presence of two witnesses, who signed as Attesting witness in the presence of each other and the deceased all being present at the same time.
5 It is stated that deceased died on 03.03.2008 at Shyam Hospital, Raj Nagar, Ghaziabad. The deceased was the exclusive owner/lessee of the said property, in terms of the Lease Deed dated 11.12.1970 executed in her favour by President of India and duly registered vide Registration No. 1184 in Additional Book No. 1, Volume No. 2587 on pages 92093 on 20.03.1971 in the office of Sub-Registrar, New Delhi. The petitioner has been appointed as Executor of the Will to administer the estate of the deceased in accordance with his Will. Petitioner seeks Probate/Letter of Administration of Will dated 18.10.2007 pertaining to the estate of Late Smt. Gurbachan Kaur 6 Upon filing of 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 "Times of India". Notice was also served to State through Chief Secretary and to Collector, accordingly, Assistant Collector, Kalkaji filed valuation report of property No. D-36, Kalkaji, New Delhi and assessed the market value of the same as Rs. 6,15,2,960/-.
7 In this petition respondent no. 4 not appeared despite service through publication and affixation, therefore he PC No. 71/10/08 4/58 & P.C. No. 76/10/08 was proceeded ex-parte. Respondent no. 6 Sh. Hartej Singh through his attorney Sh. Nishant Sharma filed NOC in favour of the petitioner.
8 Respondent no. 2 Sh. Harmail Singh and respondent no. 3 Sh. Rajinder Singh filed joint objections to the petition and taken preliminary objections that present will dated 18.10.2007 is absolutely bogus, false and either a fabricated document or a forged document. They dispute the said Will being not genuine on the ground that the deceased, their mother, executant of the alleged Will was a sick person suffering from multifarious problems like cancer, tumor etc and was an indoor patient admitted in Dharamshila Hospital & Research Centre, New Delhi from 12.10.2007 to 19.10.2007 and as such the Will dated 18.10.2007 is prima facie a bogus document. It is un-believable that a sick person ( suffering from cancer/tumor) aged about 80 year went to a lawyer and thereafter presented the said Will before the Sub-Registrar, particularly when she was not in good health and even prior to the period of stay at Dharmshila Hospital and she had been indoor patient from 2.9.2007 to 23.09.2007 for a surgery of cancer at Shubham Hospital, Kalkaji, New Delhi. 9 It is stated that deceased used to reside at D-36, Kalkaji, New Delhi and was looked after by the present respondents and their was no apparent reason for her to exclude both of them from the benefit of residence where they had been residing together. The alleged Will dated 18.10.2007 does not say a whisper/reason for the mother to have ousted the present respondents from the benefit of residence/legacy of house property to them at all particularly when a registered Will dated 30.03.1989 exists in favour of respondent nos. 2, 3 4, & 6.
PC No. 71/10/08 5/58& P.C. No. 76/10/08 10 It is stated that Kulbir Sharma, petitioner is permanently residing with her family including three grown up sons at Raj Nagar, Ghaziabad ( U.P.) at distance of almost 50 Kms. and has been busy with her own family affairs whilst respondent no. 2 and 3 and their family members have been the only persons looking after the old, aged and sick mother.
11 It is stated that respondent no. 4 Sh. Gurvinder Singh and 6 Hartej Singh both are residing abroad since 1985 and 1976 respectively and have not even visited India from the previous more than one decade at least to the knowledge of the present respondents. There arises no cogent or plausible reason for deceased to have executed the Will in question which is false, bogus and fabricated document. The signature on the Will are also not genuine as both the respondents have seen their mother singing on different occasions and the present signatures on the Will dated 18.10.2007 are forged/fabricated.
12 It is stated that very language of the said Will doubt as it does not convey in what manner/mode the movable, cash and jewellery of deceased ought to be distributed and the said Will primarily revolves around property no. D-336, Kalkaji, New Delhi. The Will in question does not bear any attestation or endorsement by any doctor, nursing staff or attendant of Dharamshila Hospital where deceased was lodged on the said date. According to respondents their sick and aged mother was not in a fit frame of mind and free disposition to execute the alleged Will on 18.10.2007 particularly when she had gone a operation for cancer in her pelvic region in the month of September, 2007 and was under going chemotherapy and other PC No. 71/10/08 6/58 & P.C. No. 76/10/08 treatment at the hospital during the alleged period of execution of the Will in question.
13 On merit all the contents of the petition are denied and their reiterated their objections and stated that the attesting witnesses are not known to them and are perhaps stalk witnesses and their credibility would be tested during trial, more so when the signatures of deceased itself are denied/dispute. The respondent no. 2 & 3 seek dismissal of the petition.
14 Respondent no. 5 Smt. Jasbir Kaur also filed her separate objection on the same line of objections filed on behalf of respondent no. 2 & 3 taken the similar objections and seeks dismissal of the petition.
15 Petitioner filed separate reply to the objections filed on behalf of the respondent no. 2, 3 and 5 denied all the objections and reiterated the averment made in the petition.
16 The factual matrix of the case bearing No. P.C. 76/10/08 filed by respondent no, 2 & 3 for grant of Probate/Letter of Administration in respect of the Will dated 30.03.1989 of late Smt. Gurbachan Kaur ( deceased).
17 It is stated that petitioner no. 1 is the executor of the registered Will dated 30.03.1989 left behind by the deceased. The Will dated 30.03.1989 was duly registered in the office of Sub-Registrar, New Delhi vide registration No. 6934 in Additional Book No. III, Volume No. 706 on pages 44 to 45 dated 24.12.1992. The deceased had six children, i.e petitioners and PC No. 71/10/08 7/58 & P.C. No. 76/10/08 respondent no. 2 to 5. The deceased was looked after, treated and supported by all her children.
18 It is stated that deceased had bequeathed her property bearing No. D-36, Kalkaji, New Delhi in favour of her husband late Sardar Surjit Singh who pre-deceased her on 17.10.1995 and thereafter the said property devolved upon petitioner no. 1, 2 and respondent no. 2 & 3 in equal proportions i.e four equal shares. The said Will was duly executed by the deceased in sound mental position and was duly attested by two witnesses and even bares the photograph of the executant. The deceased had debarred/left out her married daughters I.e respondent no. 4 and 5 from inheriting any part of the property No. D-36, Kalkaji, New Delhi as she deemed that the daughters had been looked after well enough during the course of their marriage and thereafter, hence they were not entitled to the estate of deceased.
19 It is stated that deceased died on 03.03.2008 and has left behind property No. D-36, Kalkaji, New Delhi and was the exclusive owner/lessee of the said property, in terms of the Lease Deed dated 11.12.1970 executed in her favour by President of India and duly registered vide Registration No. 1184 in Additional Book No. 1, Volume No. 2587 on pages 92093 on 20.03.1971 in the office of Sub-Registrar, New Delhi. The petitioner no. 1 has been appointed as Executor of the Will to administer the estate of the deceased in accordance with his Will dated 30.3.1989.
20 It is stated that another forged/fabricated Will has been filed for probate in P.C. No. 53/2008 which is pending, titled PC No. 71/10/08 8/58 & P.C. No. 76/10/08 Mrs Kulbir Sharma Vs State & Ors filed by respondent no. 5 and is being hotly contested by the petitioners. Petitioners seek Probate/Letter of Administration of Will dated 30.03.1989 pertaining to the estate of Late Smt. Gurbachan Kaur.
21 Upon filing of 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 "Dainik Jagran" dated 05.12.2008. Notice was also served to State through Chief Secretary and to Collector. Accordingly Tehsildar, Kalkaji filed Valuation report in respect of the property in question and assessed the market value of the same as Rs. 60,00,000/-.
22 In this petition respondent no. 3 Sh. Gurvindr Singh and respondent no. 4 Smt. Jasbir Kaur filed reply to the petition and admitted that the Will dated 30.03.1989 was executed by the deceased thereby bequeathing her share in the property as per the Will dated 30.03.1989 and admitted the contents of the petition filed on behalf of Harmail Singh and Rajinder Singh. It is stated that they have no objection if the Probate as prayed as per arrangement in Will dated 30.03.1989 is granted in favour of the petitioners and respondent no. 2 & 3.
23 Respondent no. 5 filed objections and taken preliminary objection that the present petition is misconceived and vexatious. The petitioners are not entitled for any relief from this court . It is stated that Section 276 of Indian Succession Act contemplated that Probate of last Will shall be granted. The last Will executed by deceased was on 18.10.2007 which was duly PC No. 71/10/08 9/58 & P.C. No. 76/10/08 registered as mentioned above. The Probate Petition bearing no. 53/2008 is pending for grant of Probate of the last Will 18.10.2007, therefore the present petition is not maintainable.
24 It is stated that present petition has been filed as a counter blast to Probate Petition No. 53/2008. The sole motive of the petitioner is to delay the disposal of the earlier petition. The petitioners are in possession of the property bequeathed to respondents 2 and 5. The sole motive of the petitioners is to continue to remain in illegal possession of the said property knowing that the same has been bequeathed to respondent no. 2 and 5 by way of Will dated 19.10.2007 25 It is stated that deceased was residing at her property at Kalkaji but the petitioners never cared for her and used to maltreat and harass the deceased. During the last few years, it was the respondent no. 5 who was taking care of the deceased and whenever she fell ill, the respondent no. 5 used to stay with deceased or take her along at her house. The deceased was totally shaken and disturbed with the attitude of the petitioners, respondent no. 3 & 4 and that is why she had excluded them from the benefit of her property.
26 It is stated that petitioners used to rarely visit the deceased during the time when she was suffering and was at last stage of her life. The deceased was got treated by respondent no. 5 in Shubham Hospital, Dharamshila Hospital, Shyam Hospital etc. The entire treatment/expenses was done by the respondent no. 5. On the other hand petitioners had ill-treated the deceased and ignored her. Due to this, the deceased bequeathed the PC No. 71/10/08 10/58 & P.C. No. 76/10/08 property to respondent no. 5 and respondent no. 2 who also gave respect to the deceased.
27 It is stated that respondent no. 5 had strong love, affection and bond with her mother and she alone was at side during her hard face of her life when the deceased was suffering from cancer and petitioners who were living in the house of the deceased, did not provide any treatment to the deceased and used to harass and maltreat her. The respondent no. 3 had left the mother and abandoned her and thereafter, never cared about her. The respondent no. 2, however, used to constantly talk to the deceased and express his concern towards her. The Will dated 18.10.2007 being the last Will of the deceased, super ceded/ cancelled/revoked all previous Wills. Therefore, the Will dated 30.03.1989 was revoked/cancelled, accordingly, the present petition is liable to be dismissed. On merit also all the contents of the petition are denied and reiterated the objection taken by her.
28 Petitioner no. 1 and 2 filed separate reply to the objections filed on behalf of respondent no. 5 and denied all the objections and reiterated the averment mentioned in the petition.
29 Vide order dated 12.08.2009 my ld. Predecessor had framed the following issues in both the above cases:-
Issues in case P.C. No. 71/10/08
1. Whether the Will dated 18.10.2007 executed by Smt. Gurbachan Kaur is her last Will duly executed in her sound disposing mind? OPP PC No. 71/10/08 11/58 & P.C. No. 76/10/08
2. Whether the petitioners are entitled for Probate/Letter of administration as prayer for? OPP
3. Relief Issues in case P.C. No. 76/10/08
1. Whether the Will dated 30.03.1989 executed by Smt. Gurbachan Kaur is her last Will duly executed in her sound disposing mind? OPP
2. Whether the petitioners are entitled for Probate/Letter of administration as prayer for? OPP
3. Relief
30 Vide order dated 11.11.2009 both the above cases bearing Probate case No. 53/2008 ( New Number P.C. 71/10/08 ) titled as Kulbir Sharma Vs State and P.C. No. 127/08 ( New number 76/10/08) titled as Harmail Singh Vs State were clubbed together. It is ordered that one evidence be recorded which shall be read while deciding both the matters. The evidence shall be led firstly in the case P.C. No. 53/08 which shall be treated as main case. Accordingly the parties led evidence of both cases in Kulbir Sharma's case being leading case.
31 Petitioner Kulbir Sharma in order to prove his case examined himself as PW-1 and tendered his evidence by way of affidavit Ex. P-1 and reply on original Will dated 18.10.2007 as Ex. PW-1/1, Death certificate of deceased as Ex. PW-1/2, Discharge Card dated 23.09.2007 of Shubham Hospital as Ex. PW-1/3, Cash memos/Receipts/Bills of different hospitals as Ex. PW-1/4 to Ex. PW-1/24. He also rely upon the other medical PC No. 71/10/08 12/58 & P.C. No. 76/10/08 treatment record like OPD Book, Card, receipt, bills/receipts, Discharge summary etc of Dharamshila Hospital & Research Centre and Shyam Hospital as Ex. PW-1/25 to 79.
32 In the cross-examination he deposed that he is residing in Raj Nagar Ghaziabad since 1983 with his family. She is running a boutique in her house and her husband is a school teacher. She deposed that she stayed at D-36, Kalkaji till 1983. Hartej Singh is residing in Canada for last more than 15 to 20 years. She deposed except his elder brother all his brothers and sisters married in Sikh families. All the marriages were arranged marriages. Her marriage was a love marriage and her parents were knew about it. She deposed that she married on 8.07.1983 and denied the suggestion that she married after elopement. She deposed that except her brothers no other family members opposed her marriage. She cannot produce marriage card as her marriage was performed in a temple as per Saptpadi ceremony. She denied the suggestion that after her marriage her relations with her parental family was snapped and her visiting terms were also closed. She deposed that she used to visit his brother Harmail Singh and Rajinder Singh on the occasion of Rakhi and Bhai Duj as they were residing in India.
33 She in further cross-examination deposed that her parents had not given gifts and jewellery at his marriage. She denied the suggestion that her parents and other sisters had not approved her marriage. He denied the suggestion that she never attended marriage of any brother and sisters as her relations with them had spoiled. She further deposed that his father expired on 17.10.1995. He died due to heart attack as told by PC No. 71/10/08 13/58 & P.C. No. 76/10/08 her mother who was present with her father at the time of death. She did not attend cremation of her father as her mother has asked her not to come as her children were small. She deposed that her elder brother Harmail Singh performed the cremation ceremony. Hartej Singh had come later on after funeral. She denied the suggestion that after the death of her father, respondent no. 2 & 3 started looking after her mother. She denied the suggestion that after her marriage she never visited her parental family.
34 She in further cross-examination deposed that she does not know about any Will executed by her mother on 30.03.1989. She denied the suggestion that after her marriage the health of her parents started deteriorating or that they could not get over the shock of her marriage. She deposed that respondent no. 6 used to sent money to her mother through her and used to call her so she treated that he was emotionally and financially supported the deceased. Respondent no. 6 last time visited India in 1995. He perhaps visited also in the year 1989 and other occasions but she does not remember the date and month of his visit.
35 She further deposed that her sister Jasbir Kaur is her neighbour but she does not know whether she used to meet her brothers or not. She was not meeting her parents. She does not know the address nor the job of respondent no. 4, her younger brother Gurbinder Singh. She deposed that her father expired in the house of respondent no. 4 in Pune. She never visited Pune to meet her brother. Respondent no. 6 offered to take mother abroad but she was not interested to leave her house. She does PC No. 71/10/08 14/58 & P.C. No. 76/10/08 not know what work respondent no. 6 was doing in Iran or what was his source of income. She has no proof of financial assistance proved by respondent no. 6 to parents.
36 She further deposed that she came to know about the cancer disease of her mother when she was admitted in Shubham hospital on 5.09.2007. She was informed by the doctor that cancer was of the last stage. She denied the suggestion that respondent no. 2 & 3 told her about her bad condition and asked her to visit her. She denied the suggestion given to her about the treatment and pain etc. She deposed that she had engaged two attendants for deceased. The condition continued till her demise on 3.3.2008. Stool bag continue to attach with her body till her death. She deposed that she donated blood for her mother but she does not have any proof of donation of her blood. She does not know the blood group of her mother.
37 She deposed that she never consulted any advocate for preparation of the Will. She voluntarily deposed that her mother had given her a telephone number of one Saurabh Munjal and asked her to call him. She called Saurabh Munjal and he came to hospital on 17.10.2007 in between 4 to 6 P.M. and he again came in the hospital on next day. She does not know Saurabh Munjal prior to 17.10.2007. He again came on 18.10.2007 accompanied 3 or 4 other persons also. She denied the suggestion that her mother was unable to talk so asked her to telephone Mr. Munjal. She deposed that she does not know any conversation taken place between her mother and Mr. Saurabh Munjal on 17.10.2007 as she had left the room to bring tea. He stayed in the hospital on 17.10.2007 for about 20-35 minutes. Mr. PC No. 71/10/08 15/58 & P.C. No. 76/10/08 Saurabh Munjal did not talk to her on 17.10.2007. No specific permission of any doctor or Medical Superintendent was taken prior to visit Mr. Saurabh Munjal. No doctor or any nurse was present during those 20-25 minutes in the room.
38 She deposed that on 18.10.2007 Mr. Saurabh Munjal introduced her the persons accompanied him one of which was a government servant/Registrar, one person was having camera. She came out of the room. She does not know what proceedings took place in the room. They stayed for about 30-35 minutes in the room. None else except her mother, Mr. Saurabh Munjal and 3-4 persons were present in the room. No doctor, M.S. or nurse or any attendant was present in the room during that 30-35 minutes. She deposed that her mother could read, write and speak Punjabi and also could understand Hindi and some words of English like telephone numbers. She was not able to write in Hindi nor could read Hindi.
39 In further cross-examination she deposed that when Will Ex. PW-1/1 dated 18.10.;2007 was executed, her mother was hospitalized. At that time respondent no. 2, 3, 5, 6 including her were not present. The Will was executed at Dharamshila hospital, Vasundhara, Delhi. During the tenure of stay of her mother in the hospital respondent no. 5 and respondent no. 6 never came to meet her but respondent no. 6 used to speak her mother daily on phone . She deposed that she used to say alongwith her mother through out the whole day during her hospitalization. She remember the name of Doctors who attended her mother I.e Dr. Ashish, Dr, Niranjan Nair and Dr. Sandeep. She deposed that innumerable times she had taken her mother to her house before PC No. 71/10/08 16/58 & P.C. No. 76/10/08 the illness. She voluntarily deposed that deceased used to stay with her for most part of her last days. Her mother expired at Shyam Hospital, Ghaziabad and she took her to Kalkaji for cremation as it was her house. She denied the suggestion that her mother expired at Delhi. She denied the suggestion and she had influenced her mother and deceived her for getting better treatment and taken her to her residence at Ghaziabad and there she got the will made. She denied the suggestion that the whole game plan of taking her mother to Ghaziabad for grabing the property D-36, Kalkaji in the garb of providing her treatment and curing her illness.
40 In further cross-examination she deposed that at present ( after filing the present case) she is having strained relations with his brothers. She denied the suggestion that she did not visit either her brother or mother after her marriage as they were not happy with her love marriage.
41 She deposed that Will was not executed in his presence. No doctor was present on the spot when the will was executed. No permission was obtained from the concerned doctor or any concerned authority of the hospital for execution of the Will Ex. PW-1/1 or registration of the Will. She cannot produce any record to show that Registrar visited the hospital for the purpose of registration of Will Ex. PW-1/1. On 5.9.2007 her mother was operated upon at Shubham Hospital and thereafter it was detected that she was suffering from cancer. In response to a specific question she replied that the pain killer were used to administer to her mother as per advise of the doctor only but she cannot say if the pain killer were given to her mother daily or not.
PC No. 71/10/08 17/58& P.C. No. 76/10/08 42 In further cross-examination she deposed that the testator has executed the Will in her own will. She was not present in the room when the will was prepared. She has no knowledge if any other person was present in the room when the present will was prepared. She has no knowledge if the will was being prepared. In response to a specific question she deposed that when the will dated 18.10.2007 was executed in her favour by her mother her relation with her mother was good and having cordial relations with the rest of her sisters and brothers. She deposed that rest of sisters and brothers rarely visit her ailing mother at hospital and only herself was looking after her.
43 She admitted that the date of execution of Will at point A on will Ex. PW-1/1 is written with pen and rest of the will is typed. She had not gone to the office of Sub Registrar when the will was register. She does not know who accompanied her mother to the office of Registrar on the day when will was registered. She came to know the existence of Will Ex. PW-1/1 when her mother went to her house after she was discharged from Dharamshila Hospital. She had handed over the Will to her at her house at Kalkaji. She deposed that the property No. D-36, Kalkaji New Delhi qua which her mother executed will in her favour was self acquired property of her mother. She has no knowledge if her grand father or father owned any property.
44 She further deposed that her father was also migrated from Pakistan. Earlier her father was serving in Army, but thereafter he started his tours and travel business. Her father lived with he mother till her death. She cannot tell if the relations of her father alongwith her other brothers and sisters PC No. 71/10/08 18/58 & P.C. No. 76/10/08 were cordial or not. She has no knowledge if her father ever advised her mother to execute a Will. Her mother handed over the Will to her about 7-10 days after discharged from Dharamshila hospital. She died after 3-4 months after she handed over the will to her. She used to pay the medical bills of her mother.
45 In further cross-examination she deposed that she does not know if the consideration amount of the property in question was paid by her mother. She denied the suggestion that her father has paid the certain consideration amount and certain amount was paid from the compensation received by her father on his migration to India during partition as displaced person. She denied the suggestion that the property was purchased by her father in the name of her mother. She does not know if the property in question has ever been hypothecated with Indian Overseas Bank. She cannot say if Mark A is the letter of testator to the Manager, Indian Overseas Bank shows that the property was mortgaged by the testator with said bank.
46 In further cross-examination she deposed that on 18.10.2007 she remained for whole day with her mother at hospital. She admitted that her mother did not leave the hospital on 18.10.2007. She denied the suggestion that Sh. Gurvinder Singh has sent all the amount for treatment of their mother. She does not know Saurab Munjal and Satish Kumar personally but they were know to her mother. She has no knowledge if the typewriter was brought to the hospital for the purpose of typing of the will. During her lifetime her mother lived with her about four months last time during Diwali Festival in 2007. The will was PC No. 71/10/08 19/58 & P.C. No. 76/10/08 already prepared before her mother lived with her for four months. The will was handed over to her by her mother in the last of October 2007. She had handed over original Will to her. The will was not collected by her from the office of Sub Registrar. Her mother has never told her earlier if she has executed any Will. The title documents of the house were also handed over to her by her mother alongwith will.
47 Petitioner Kulbir Sharma further examined Sh. Surjan Singh, LDC from the office of Sub-Registrar who proved the registration of the Will dated 18.10.2007 vide registration No. 1330, Volume No. 1472 on page 5-6 on 18.10.2007.
48 Sh. Saurabh Munjal appeared in the witness box as PW-3 and deposed that he had drafted the Will dated 18.10.2007 executed by Smt. Gurbachan Kaur and he is one of the attesting witness to the said Will which is already exhibited as Ex. PW-1/1 and it bears his signatures at point X & Y and his thumb impression at point Z. He deposed that the said Will Ex. PW-1/1 bears the signatures of deceased/testatrix at point C-1 to C-5 and it also bears the thumb impression at point D-1 to D-5. The testatrix had signed the said Will and also put her thumb impressions thereon in his presence as well as in the presence of Sub Registrar and she had also signed it in the presence of testatrix and Sub-Registrar. The above said Will dated 18.10.2007 was also signed by Sh. Satish Kumar at point E-1 & E- 2 and his thumb impression at point E-3. He deposed that in fact, all three of them i.e. himself, testatrix and Sh. Satish Kumar had signed the Will Ex. PW-1/1 and put their thumb impressions in the presence of each other. The above said Will Ex. PW-1/1 PC No. 71/10/08 20/58 & P.C. No. 76/10/08 was executed by Smt. Gurbachan Kaur at Dharamshila, Vasundhra Enclave, Delhi where she was admitted at that time. He deposed tha he tendered his evidence by way of affidavit Ex. PW-3/A. 49 He further deposed that on 17.10.2007, he received a call from the daughter of testatrix and she informed and she informed him that her mother is admitted at the aforesaid hospital and her mother urgently intended to meet him. Accordingly he reached there and met her mother, I.e testatrix Smt. Gurbachan Kaur who asked him to draft a Will and gave him complete details and accordingly he drafted the Will as per desire/instructions.
50 In the cross-examination he deposed that Ex. PW-1/1 was got prepared by him in Hindi language through a typist namely Sh. Anshu or Sh. Anshul at Tis Hazasri Court Complex on 17.10.2007, however it is not mentioned on it that same has been drafted by him. He denied the suggestion that the testatrix knew Punjabi language only and did not know Hindi language. He deposed that the testatrix spoke to him only once on telephone 2-3 months ago before execution of the Will i.e July or August 2007. He does not remember the telephone number of testatrix. He came into contact of the testatrix through one of his clients namely Sh. Marwah for whom also he had drafted the Will.
51 He deposed that although, he maintain his daily case diary but he could not note down the dates of appointments with the testatrix regarding the drafting, preparation and execution of the Will. He denied the suggestion that testatrix was in PC No. 71/10/08 21/58 & P.C. No. 76/10/08 immense, physical and mental pain as she was suffering from terminal stage of Cancer at the time of execution of the Will.
52 In further cross-examination he deposed that at the time of execution of the Will in question, the Sub Registrar, Sh. Satish Kumar and himself only were present. Nobody else was present in the room. He voluntarily deposed that Sister/nurse was there in the room but at the time of execution of Will, he requested her to go out side the room for 10-15 minutes. The will in question was executed at about 2 P.M. on 18.10.2007. The Will Ex. PW-1/1 does not reflect the place of the execution of the Will i.e Dharamshila hospital. He voluntarily deposed that before execution of the Will, he had moved an application before the Sub-Registrar on behalf of testatrix, being her counsel for execution of the Will on medical grounds and made a request in that application to visit the Dharamshila hospital as testatrix was not in a position to move. After execution of the Will, he had destroyed copy of the said application. He denied the suggestion that he has not moved any such application and did not get any Vakalatnama executed from the testatrix in regard of the aforesaid Will. He voluntarily deposed that since he was completely involved in the procedure of the execution of the Will and was working completely on the instructions of the testatrix, therefore, he did not get any Vakalatnama signed from the testatrix.
53 He admitted that deceased was a cancer patient but he cannot say if she was under the terminal stage of disease or she was suffering from pain. He deposed that he does not remember if testatrix who was a cancer patient was having stool PC No. 71/10/08 22/58 & P.C. No. 76/10/08 bag, urine bag and drips and catheters inserted in her body at the time when he visited there at the time of execution of the Will. He voluntarily deposed that she was fully conscious as she herself had not only offered him water but had also offered water to the Sub-Registrar and she was in a position to move from one place to another within the said room. He denied the suggestion that she was not in a physical position even to move in her bed being a terminal stage of cancer and she had an immense pain or that she was not in a sound and disposing state of mind to execute the Will in question.
54 He deposed that he had not asked testatrix to sign on the Will in any particular language. First of all, testatrix appended her signatures on the Will and she had appended her signatures on the instructions of Sub Registrar and thereafter, he signed and after him, the second witness signed the Will. Thereafter, the Will was presented before the Sub Registrar. The date i.e 18th at point A had been written by testatrix in Ex. PW- 1/1. He did not move any application before the Medical Superintendent of Dharamshila hospital where testatrix Smt. Gurbachan Kaur was admitted as the hospital staff had not asked him for the same. He denied the suggestion that hospital staff had not asked for any permission from Medical Superintendent of the hospital from him to get the will executed from the deceased/testatrix. He denied the suggestion that he had destroyed the permission given by the Medical Superintendent.
55 In further cross-examination he deposed that the instructions for drafting the Will was taken 2-3 months prior to execution. The said draft was explained to the testatrix in the PC No. 71/10/08 23/58 & P.C. No. 76/10/08 hospital on the same day and no change was suggested by the testatrix. It was typed from a typist. The complete print of the same was got from his own printer. Because of some technical computer reasons, there is difference of pint in two pages of the Will. The fees for visiting of the Sub Registrar at hospital were paid by him. The amount was deposited early in the morning. He does not remember if he annexed any medical certificate with the said application. He does not know exact time of visiting of Sub Registrar, however, it was after lunch. The Sub Registrar came from his office situated at Asaf Ali Road by himself but he met him on the ground floor of the hospital. He does not remember if he had seen the documents of ownership of property or not. His fee for preparation of the Will was given by deceased/testatrix on 18.10.2007. He denied the suggestion that all the charges of his fee given by Smt. Kulbir Sharma. In the hospital, Smt. Kulbir Sharma did not meet him. He does not remember who collected the copy of the Will from the office of Sub-Registrar or that he had collected the same or not.
56 He further deposed that Sh. Marwah approached him for drafting of Will but the same was not finalized. Sh. Marwah was also introduced to him by some client but he does not remember the name of the said client. Sh. Marwah had informed him that a call would come from one Smt. Gurbachan Kaur, who wanted to execute her Will. He deposed that it took about half an hour to complete the process of registration of the Will after arrival of the Sub-Registrar in the hospital. After getting the Will signed by all concerned, it was kept by the Sub-Registrar.
PC No. 71/10/08 24/58& P.C. No. 76/10/08 57 He further deposed that contents of the Will were explained to the testatrix by him and the same were again explained to her in the presence of Sub Registrar. The signatures of the testatrix at point C-2 were appended in his presence in the hospital before the Sub Registrar. The typed portion on the back side of the first page of Will was got typed by the Sub-Registrar. He does not remember if the said matter was typed prior to the signatures of the testatrix or thereafter. The photos on the back page of second page of the Will were clicked in the room of the hospital. He does not remember from where the back page of second page was got typed. He also does not remember if the said page was already typed or it was typed thereafter. The photographs were taken with the camera brought by the Sub- Registrar. He denied the suggestion that Will in question is forged and fabricated and he has assisted the beneficiary of the Will in this regard. He denied the suggestion that he know Smt. Kulbir Sharma and at her instance, he has signed on the alleged Will or that he had signed on the Will, it was already typed. He deposed that he noted the names given in the Will on telephone. He admitted that he have met with Smt. Gurbachan Kaur only on 18.10.2007.
58 In further cross-examination on behalf of respondent no. 3 he deposed that no permission was taken from Doctor on duty at the time of execution of Will. He does not remember who carried the receipt issued by Sub Registrar office. The deceased did not tell him the name of hospital when she telephoned for the first time. The attesting witness Sh. Satish Kumar was with him at the hospital. Deceased had told him the name of other attesting witness. The name was told after PC No. 71/10/08 25/58 & P.C. No. 76/10/08 preparation of the Will. Sh. Satish Kumar had written his name at point E1 himself. He deposed that some person accompanied the Sub Registrar but they were not allowed in the room at the time of execution of the Will. Photograph was provided by the deceased. He had instructed her in this regard. Sub Registrar was accompanied with two other officials and carrying Camera and other instrument regarding registration register and some papers. He does not remember whether Sub Registrar was also carrying Laptop. He does not know how the registration details were typed by Sub Registrar. Vide separate statement of petitioner, Ms Kulbir Sharma, evidence on behalf of petitioner was closed on 09.02.2016.
59 Sh. Rajinder Singh, respondent no. 3 in the main leading case appeared as RW-1 who tendered his evidence by way of affidavit Ex. RW-1/A. He rely upon the documents i.e Will of his mother dated 30.03.1989 as Ex. RW-1/1. He identified the signatures of his mother at point A, signatures of witness Sh. Adesh Kumar Khanna at point B and signatures of other witness Sh. G.R. Malik, advocate at point C. He also rely upon the copy of death certificate of deceased as Mark X, leased deed of the property bearing no. D-36, Kalkaji, New Delhi as Mark Y. 60 In the cross-examination he deposed that the Will dated 30.03.1989 Ex. RW-1/1 was neither printed nor executed in his presence. This Will was prepared and executed in presence of my brother Sh. Harmail Singh who resides in D-36 Kalkaji, New Delhi. His brother has told him about execution of the Will in the year 1989. His father had gone for registration of the Will Ex. RW-1/1 and at that time only he had given him copy of the same.
PC No. 71/10/08 26/58& P.C. No. 76/10/08 At the time of registration of the Will, Sh. Adesh Khanna and Sh. G. C. Malik Advocate only went for registration in the office of Sub-registrar at Asaf Ali Road, Delhi. He knows Sh. Adesh Kumar Khanna as he is their neighbour. Sh. G. C. Malik Advocate was engaged by his father. He inquired about six months back about Sh. G. C Malik Advocate and came to know that he has expired but he does not know when he has expired. I had gone to Asaf Ali road about six months back and met a 96 years old man who he supposed was an advocate who told that may be Sh. G. C. Malik Advocate has expired. Then he inquired from other persons and nobody had any clue about him. Sh. Adesh Kumar Khanna has expired more than five years ago. The Will Ex. RW-1/1 was typed in the year 1989 and got registered in the year 1992. The signatures at point A, B & C on Will Ex. RW-1/1 were put in the year 1992 at the time of registration of the Will.
61 In response to a specific question that when did Sh. G. C Malik Advocate put his signature at point D, he deposed that the Will was not executed in my presence. In the year 1989, his mother had only one property i.e. D-36 Kalkaji New Delhi. His mother did not acquire any property with effect from 1989 till 1992. His mother did not acquire any property after 1992. He admitted that my mother never possessed any other movable or immovable property. Again said, she had certain jewellery. The jewellery was owned and possessed by her even during the life time of his father. He is not aware about the whereabouts of the jewellery. Again said she had certain cash during life time of my father. He does not aware what his mother did of the cash. He admitted that his mother did not mention or bequeath jewellery and cash in Will Ex. RW-1/1.
PC No. 71/10/08 27/58& P.C. No. 76/10/08 62 In further cross-examination he deposed that during the life time of his father, all his children were married. His sister Kulbeer Sharma had done love marriage by herself. No member of the family including parents attended the marriage of Kulbeer Sharma. After marriage of Kulbeer Sharma, their family severed all relations with her. Neither the parents nor any other member of the family brothers/ sister visited Kulbeer Sharma at her matrimonial house. Kulbeer Sharma is blessed with three sons. My parents and other members of the family did not visit Kulbeer Sharma when she was blesses with three sons. He voluntarily deposed that his mother gave money to Kulbeer Sharma unofficially. He cannot tell when his mother visited Kulbeer Sharma unofficially and gave money to her. He cannot even say as to after how many years of marriage of Kulbeer Sharma, his mother visited her. He denied the suggestion that my mother did not give money to Kulbeer Sharma.
63 He further deposed that his father expired suddenly in Pune during his visit to his son Gurvinder Singh. In his last rites at Pune, the mother and all brother and sisters went to Pune. No ceremony / kriya took place at Delhi.
64 In further cross-examination he deposed that his mother was suffering from Cancer which was detected in the year 2007. She was initially treated in Shubham Hospital, Kalkaji and operated there and thereafter she was treated in Adharshila, Cancer Hospital , Ashok Nagar, near Noida. She was operated in stomach for cancer. His mother was given Chemotherapy in Aadharshil Cancer Hospital. She was given about 6-7 sittings of chemotherapy. The four brothers jointly got the treatment of their mother. The payment for the treatment was done partly by PC No. 71/10/08 28/58 & P.C. No. 76/10/08 two brothers in India and two brothers living abroad i.e Africa and Canada. He is not in possession of the medical record of his mother. He will try and bring it on the next date if traceable. His mother required blood during her treatment but I do not remember who donated the same to his mother. In Shubham hospital his sister in law namely Sushma, his brother Hermail, his children and himself and his children used to visit his mother.
65 He admitted that his mother was discharged from Shubham Hospital on 23.09.2007 and she was got discharged and brought to home by his brother and his wife. He denied the suggestion that the expenses for the treatment in Shubham Hospital from 2.09.2007 to 23.09.2007 was done by petitioner. He admitted that the original discharged card, receipts pertaining to hospitalization is in possession of the petitioner. He voluntarily deposed that his brother Hartej Singh had sent the money from Canada to the petitioner. He had got the documents regarding the payment money by Hartej Singh to petitioner for treatment of their mother. He denied the suggestion that petitioner was taking care of deceased in the Shubham Hospital or that blood was also arranged by the petitioner. He denied the suggestion that petitioner used to take deceased for the test outside the Shubham Hospital or that she alone was taking care of the deceased. He is not sure whether deceased was got treated in Batra Hospital. It may be in August or September 2007 when his mother taken to Dharamshila Hospital. He denied the suggestion that the petitioner had admitted and taken care of deceased in Dharamshila hospital and also paid the expenses also. He denied the suggestion that his deceased mother was never given chemotherapy and only given radiology.
PC No. 71/10/08 29/58& P.C. No. 76/10/08 66 In further cross-examination he denied the suggestion that on the paper at Dharamshila Hospital only the name of petitioner is mentioned. He admitted that my mother was also treated at Shyam hospital, Ghaziabad and died in the said hospital, Ghaziabad. As the mother wanted to live around petitioner during her last days, she had asked petitioner admit in hospital, Ghaziabad. He denied the suggestion that the expenses at Shyam Hospital were done by the petitioner. He voluntarily deposed that the money was given by all four brothers in cash. He does not aware as to how Kulbir Sharma made payment to hospital , whether by credit card or cash, however, we all brothers given the money in cash and sent by his brothers from abroad. He denied the suggestion that the mental condition of my mother was sound till her death. He voluntarily deposed that she was not in sound state of mind since she was discharged from Shubham hospital. She used to recognize, his children and other family members. She did not speak even a work after she was discharged from Shubham Hospital on 23.09.2007.
67 He further deposed that he was around 18-19 years of age when petitioner got married. He did not attend the marriage of the petitioner. No other member of the family attended the marriage of petitioner. The family member stopped meeting the petitioner after her marriage as she performed the marriage on her own without the consent of the family. They had never met the petitioner after her marriage. His mother may have visited her secretly. He does not remember when petitioner came to the Kalkaji house first time after her marriage. She may have come once to his house after her marriage. He denied the suggestion that petitioner used to pick and drop mother to PC No. 71/10/08 30/58 & P.C. No. 76/10/08 hospital as and when she was admitted in different hospitals. When my mother was discharged from Dharamshila hospital on 19.10.2007 she was not in senses. He denied the suggestion that my mother was discharged in stable condition.
68 In further cross-examination he deposed that on 21.11.2016 during my cross-examination, I had stated that he will bring medical record of his deceased mother but however, he has not brought the same. The medical record which he had, has already been filed. He is an Arts Graduate. He has been working in real estate since year 1993 in my own name. He deals in renting out, sale and purchase of properties. His office is at D-36, Kalkaji. The medical treatment of his mother incurred expenses around Rs.6-7 lacs. I had contributed Rs.60,000/-. I paid in cash. When his mother was admitted in Shivam hospital, situated at DD Block, Kalkaji, in the year 2007 he used to visit her daily. She was admitted at 1 st floor. He does not remember the room number today.
69 He does not know Advocate Sh. G.R. Malik. He never met Sh. G.R.Malik, Advocate. He never wrote him any letter or any other communication. Sh. Adesh Kumar Khanna is his neighbour. He knew him since 1975. He is a doctor by profession. He used to take treatment from him. He was not his business partner. He never wrote him any letter. He must have written medical prescription, whenever I had consulted him for treatment. He do not remember the date, may be in January- February month in the year 2016, he had visited Asaf Ali Road at Sub-Registrar office. He had made a visit because in the Will one of the witness G.R.Malik's address mentioned at Asaf Ali Road.
PC No. 71/10/08 31/58& P.C. No. 76/10/08 70 He denied the suggestion that he is deposing falsely with regard to the address of Sh. G.R. Malik mentioned in the Will Ex.RW1/1. He denied the suggestion that he never visited Asaf Ali Road to meet Sh. G.R. Malik Advocate. He denied the suggestion that Sh. G.R. Malik never drafted the Will Ex.RW1/1 and that is the reason he has deposed falsely that he has expired.
71 The original lease deed of property No. D-36, Kalkaji is with his brother Sh. Hartej Singh. He has not seen the same in the possession of his brother, however, he had told him that he is having the original lease deed in the year 2006. He does not remember the date and month. Last year he had asked again said about 1 ½ years back he had asked his brother Hartej Singh about the original lease deed. He is living in Canada. He does not remember his address. He has been living in Canada since 1990. His father had died in 1995. He denied the suggestion that the original lease deed is with Ms. Kulbeer Sharma.
72 He denied the suggestion that he is not having cordial relations with his wife and children. He deposed that his wife and children are living with him. He denied the suggestion that after my marriage and prior to death of his father in the year 1995, I never resided with his parents and was residing at E-30, Kalkaji separately from my parents. He denied the suggestion that after the death of my father in the year 1995, he quarreled with his mother and forcefully entered into D-36, Kalkaji.
73 In further cross-examination he admitted that his bhabhi late Smt. Sushma W/o. Sh. Harnail Singh was from a non-
PC No. 71/10/08 32/58& P.C. No. 76/10/08 Sikh family. He admitted that his parents had no objection or problem with the said marriage of his brother with a non-sikh girl. His family accepted Smt. Sushma as wife of his brother. He denied the suggestion that my parents did not have any problem with the marriage of Kulbeer Sharma with Raj Kumar Sharma.
74 He further deposed that He does not remember the names of doctor, who treated his mother. He does not remember the name of medicine prescribed to his mother. I did not visit his mother on 17 & 18.10.2007 at hospital. He voluntarily deposed that It was Dharamshila Hospital Near Noida, Vashundhar Kalan. He never visited Dharamshila Hospital when his mother was admitted there. In the year 1989, his father told him that his mother he is going to execute a Will. He denied the suggestion that parents were not having cordial relations with his elder sister Jasbeer Kaur. He admitted that Jasbeer Kaur did not attend the last rites of his mother.
75 He further deposed that he has very good relation with his brother Harnail Singh. He is like his father. He used to share with him the illness of his wife Smt. Sushma and his financial condition. He denied the suggestion that Kulbeer Sharma bear all the expenses of treatment of Smt. Sushma when she was admitted at AIIMS Hospital in the year 2015. He denied the suggestion that he himself and his brother Harnail Singh tortured his mother and they were not having cordial relation with his mother. He denied the suggestion that he is deliberately concealing the appearance of Sh. G.R.Malik, Advocate from the court. He denied the suggestion that he made no other efforts to enquire about the death of Sh. G.R.Malik, Advocate. He denied PC No. 71/10/08 33/58 & P.C. No. 76/10/08 the suggestion that me and Harnail singh forged signatures of their mother and sold the vehicle without her consent. He denied the suggestion that he and Sh. Harnail Singh ill-treated his mother. His mother was having cash and jewelery. She had necklace, Kangan, Ear rings, finger ring and 1-1 ½ lac cash. His brothers used to send money from Canada and South Africa. He does not remember whether she was having any bank account or not. His mother used to receive sometimes money from any known person coming from Canada or South Africa. He denied the suggestion that above stated fact regarding the receiving of money are wrong and false.
76 Respondents further examined Ms Surendra Khanna widow of late Dr. Adesh K Khanna, attesting witness to the Will Ex. RW-2/1 as RW-2 who tendered her evidence by way of affidavit Ex. RW2/1 and rely upon the copy of death certificate of Sh. Adesh K. Khanna, his husband as Ex. DW2/A and copy of her Passport as Ex. DW2/B. In the cross-examination she deposed that her husband started residing at E-188, Kalkaji, Delhi since 1982. They did not knew the deceased closely. She does not know how many children does Smt. Gurbachan Kaur had. Again said she think she had five sons and two daughters. She does not remember names of the children of deceased.
77 She further deposed that her husband was a physician and he only had professional relationship with husband of the deceased and not with the deceased. She admitted that she has not been shown the signatures of her husband on the Ex. RW1/1. She admitted that till date she has not seen the original Will bearing Ex. RW1/1. She admitted that she has no knowledge PC No. 71/10/08 34/58 & P.C. No. 76/10/08 as to when, how and who attested his evidence affidavit bearing Ex. RW2/1. She admitted that Ex. RW-2/1 has not been drafted on her instructions.
78 I have heard Sh. Faheem Shah counsel for Mrs Kulbir Sharma and Sh. Nagesh Kapoor, counsel for respondent no. 2 and Sh. Puneet Mahehwari, counsel for respondent no. 5 and also gone through the record and written arguments filed on behalf of petitioner Harmail Singh. My issue wise findings are as under:
79 Issue no. 1 & 2 In order to decide the above issues, let us peruse the provisions and principles of law laid down by the Apex Court.
18. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.PC No. 71/10/08 35/58
& P.C. No. 76/10/08 Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane"
may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed PC No. 71/10/08 36/58 & P.C. No. 76/10/08 or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(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 signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses PC No. 71/10/08 37/58 & P.C. No. 76/10/08 attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), PC No. 71/10/08 38/58 & P.C. No. 76/10/08 unless its execution by the person by whom it purports to have been executed is specifically denied."
23. The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... 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 signature to the will knowing what it contained?
Stated 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 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 other documents so 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.PC No. 71/10/08 39/58
& P.C. No. 76/10/08
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.PC No. 71/10/08 40/58
& P.C. No. 76/10/08
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, PC No. 71/10/08 41/58 & P.C. No. 76/10/08 even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
( emphasis supplied)
24. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... 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 signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, 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 PC No. 71/10/08 42/58 & P.C. No. 76/10/08 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 circumstacnes 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 indications 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 suspicious 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 susbtantial 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..."
( emphasis supplied)
25. In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar ( supra), the Supreme Court culled out the following propositions:-
PC No. 71/10/08 43/58& P.C. No. 76/10/08 "(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive.
And subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is prsoved 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 PC No. 71/10/08 44/58 & P.C. No. 76/10/08 feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a susbtantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and 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 circusmtances 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 ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by PC No. 71/10/08 45/58 & P.C. No. 76/10/08 reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied)
26. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion PC No. 71/10/08 46/58 & P.C. No. 76/10/08 means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied) PC No. 71/10/08 47/58 & P.C. No. 76/10/08
27. Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
28. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its PC No. 71/10/08 48/58 & P.C. No. 76/10/08 execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied) 80 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"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 PC No. 71/10/08 49/58 & P.C. No. 76/10/08 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 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:PC No. 71/10/08 50/58
& P.C. No. 76/10/08
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 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.
PC No. 71/10/08 51/58& P.C. No. 76/10/08 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 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.
PC No. 71/10/08 52/58& P.C. No. 76/10/08 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."
Findings on issue in P.C No. 71/10/08 titled as Kulbir Sharma Vs States & Others.
81 The vital witness of the petitioner in case Smt. Kulbir Sharma is PW-3 Sh. Saurabh Munjal, attested witness. The testimony of Sh. Saurabh Munjal has been discussed herein above. Shri Saurabh Munjal is the drafter of the Will Ex. PW-1/1 dated 18.10.2007 of deceased testatrix, Smt. Gurbachan Kaur and he also become the attesting witness. The very crucial facts in the execution and registration of the present will is that it was executed and registered in the Dharamshila Hospital, Vasundhra when deceased testatrix was admitted for treatment of cancer. According to PW-3 Sh. Saurabh Munjal, the Sub-Registrar himself came to the hospital and the will was executed in his presence. He admitted that in the Will Ex. PW-1/1, there is no specific mention of place of execution of the Will. As per procedure, PW-3 Saurabh Munjal himself have moved an application to the Sub- Registrar for request for registration at the hospital on medical ground. No such record produced from the Sub-Registrar office. No copy of application produced rather he said that he has PC No. 71/10/08 53/58 & P.C. No. 76/10/08 destroy the said application. It is an important piece of document. In the present circumstances, the destruction of the said application raises suspicion about the proper procedure adopted and presence of Sub-Registrar.
82 It is pertinent to mention here that no oral or documentary evidence produce on record with regard to information to the hospital and permission taken by the concerned authorities of the hospital with regard to carrying out registration of the Will. The petitioner has not produced the Sub- Registrar to corroborate the fact that application was filed by PW- 3 Sh. Saurabh Munjal for visiting the Dharamshila Hospital on 18.10.2007. No proper record and register produced about the visit of Sub- Registrar at Dharamshila Hospital.
83 For the argument sake if we go by the testimony of PW-3 Sh. Saurabh Munjal and perused the will, the will nowhere mention regarding the visit of Sub-Registrar at Dharamshila Hospital, Vasundhra. The Will Ex. PW-1/1 does not mention these important facts rather at the back side of the will showing the details of registration reflects that it was executed and presented by deceased testatrix at Sub-Registrar -III, New Delhi. She was identified by two attesting witnesses Sh. Saurabh Munjan and Sh. Satish Kumar at Sub-Registrar office. All the proceedings written at the back of the Will Ex. PW-1/1 shows that deceased testatrix had gone to Sub-Registrar office where the Will was executed and registered and not at Dharamshila hospital, Vasundhra.
84 It is pertinent to mention here that the Will's second page bears the photographs of deceased testatrix Smt. PC No. 71/10/08 54/58 & P.C. No. 76/10/08 Gurbachan Kaur and both witnesses, however, PW-3 Sh. Saurabh Munjal failed to establish how the photographer came at the hospital and took the photographs of deceased/testatrix and both witnesses. No such record of presence of photographer produced and proved on record. It raises suspicious circumstances about the fact which is contrary to the description of the Will Ex. PW-1/1 with regard to the proceedings of the Sub-Registrar. These facts established that there are suspicious circumstances about the execution and registration of the will at Dhramshila hospital, Vasundhra because the Will Ex. PW-1/1 established that the deceased testator and attesting witnesses had gone to the Sub- Registrar office. It is not believable and possible because she was under treatment at Dharamshila for cancer on 18.10.2007. These suspicious circumstances are not dispel by the petitioner.
85 The another vital and significant features of the Will is that it is typed in Hindi and deceased testatrix knew Gurmukhi language. It is pointed out that both the two pages of the Will are of different font size. PW-3 Sh. Saurabh Munjal tried to give the explanation with regard to discrepancy of the font size of both pages of the will which is not believable. It cannot be ruled out that both the pages are typed at different time with different pages. Another significant point which raises suspicious circumstances is that the date 18th has been written with pen. When the matter has been typed then date must have been typed.
86 The most suspicious circumstances that when Sub- Registrar, photographer, typing machine and officials was there but PW-3 Sh. Saurabh Mujal is silent on this vital point that the PC No. 71/10/08 55/58 & P.C. No. 76/10/08 temporary office has been working in the hospital at the time of registration of the Will. In my considered opinion, it is not possible that Sub-Registrar alongwith typist, rubber stamps of office and photographs came at the hospital and executed the Will. In the absence of any oral and documentary evidence to execution of Registration at hospital. In my considered opinion, the Will Ex. PW-1/1 dated 18.10.2007 suffers from suspicious circumstances. The testimony of PW-3 Sh. Saurabh Munjal is un- natural, improbable and unbelievable being the witness of execution and registration of the Will Ex. PW-1/1 at Dharamshila hospital. It is further important and vital fact that in the Will Ex. PW-1/1, there is no mention of revocation of earlier will relied by Harmail Singh dated 30.03.1989.
87 On the basis of above discussion and observation, I am of the considered opinion that the Will Ex. PW-1/1 dated 18.10.2007 was not the last legal and valid executed and registered will of deceased testatrix Gurbachan Kaur, therefore, issue no. 1 & 2 are decided against the petitioner Kulbir Sharma and in favour of the respondents.
Findings on issue no. 1 & 2 in P.C No. 76/10/08 titled as Harmail Singh.
88 In this case Harmail Singh & others relied on the will of deceased testatrix Gurbachan Kaur dated 30.03.1989. Sh. Rajinder Singh, petitioner in this case and respondent no. 3 in the connected case appeared as RW-1 and RW-2 Ms Surendra Khanna wife of one of the attesting witness Sh. Adesh K Khanna. In the case Harmail & Other vs State they have to establish in PC No. 71/10/08 56/58 & P.C. No. 76/10/08 order to prove the genuineness and validity of the Will Ex. RW- 1/1 as per Section 63 of Indian Succession Act read with Section 68 of Indian Evidence Act.
89 There are two attesting witnesses to the Will Ex. RW- 1/1 dated 30.03.1989 one Sh. Adesh K Khanna and other is Sh G.R. Malik, advocate, however, RW-2 Smt. Surendra Khanna wife of deceased attesting witness Sh. Adesh K Khanna appeared in the witness box as RW-2 and proved the death certificate of Sh. Adesh K Khanna as Ex. DW2/A and copy of his passport as Ex. DW-2/B. 90 In the cross-examination she deposed that her husband was the physician and had professional relations with husband of the deceased testatrix and not with the deceased testatrix. She admitted that she has not shown the signatures of attesting witness Sh. Adesh K Khanna, her husband on Ex. RW- 1/1 and she has not seen the original Will. She has no knowledge about the Will Ex. RW-/1 when her affidavit Ex.RW-2/1 was prepared. She admitted that her affidavit Ex. RW-2/1 also not prepared on her instructions. RW-2 Ms Surendra Khanna failed to support the case of the petitioners and she even not identify the signatures of her husband, the attesting witness Sh. Adesh K Khanna. In these special circumstances of the case on the basis of testimony of RW-2 Ms Surendra Khanna, the petitioners Harmail etc. failed to establish that Will Ex. RW1/1 dated 30.03.1989 was executed by Smt. Gurbachan Kaur as last and duly executed will. Therefore, issue no. 1 & 2 are decided against petitioners Harmail Singh & others and in favour of respondents.
PC No. 71/10/08 57/58& P.C. No. 76/10/08 91 Relief In view of finding on issue no. 1 & 2 in P.C. No. 71/10/08 titled Mrs Kulbir Sharma Vs State & Others, and in view of finding on issue no. 1 & 2 in P.C No. 76/10/08 titled Harmail Singh etc Vs State & Ors, both the petitions are dismissed. No order as to cost. A copy of judgment shall be kept in connected case bearing P.C. 76/10/08. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 16th January,2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 71/10/08 58/58
& P.C. No. 76/10/08