Delhi District Court
Roshan Lal Vig & Ors vs . State & Ors +0530 on 23 December, 2019
Digitally
signed by
Nikhil
Nikhil Chopra
Chopra Date:
2019.12.30
16:33:31
Roshan Lal Vig & Ors vs. State & Ors +0530
IN THE COURT OF SH. NIKHIL CHOPRA, ADDL. DISTRICT
JUDGE, SAKET COURTS, SOUTH DISTRICT, NEW DELHI
In the matter of
PC No.5919/2016
Filing No.3665/2011
CNR No. DLST010001992011
1. Sh. Roshan Lal Vig
2. Sh. Ashok Kumar Vig
3. Praveen Kumar Vig
All S/o Late Sh. Bodh Raj Vig
R/o K49 AB, Kalkaji,
New Delhi110019.
................Petitioners
Versus
1. State
2. Smt. Bimla Rani
W/o Sh. Suraj Prakash Marwaha
D/o Late Sh. Bodh Raj Vig
R/o 4243, Rattan Nagar,
Near Tripri, Patiala, Punjab
3. Smt. Nirmal Rani
W/o sh. Sudesh Kumar Jaggi
D/o Late Sh. Bodh Raj Vig
R/o Ward No.10, Mohalla Arain,
Khanna, Punjab
4. Smt. Neelam Kumari
W/o Sh. Kidar Nath Gulati
D/o Late Sh. Bodh Raj Vig
PC No. 5919/2016 Page No. 1 of 45
Roshan Lal Vig & Ors vs. State & Ors
R/o 512C Sector 19,
Rohini, New Delhi
5. Smt. Usha Rani
w/o Sh. Deepak Kohli
D/o Late Sh. Bodh Raj Vig
R/o 94C, UU, Vaishaka Enclave,
Pitampura, New Delhi
.............Respondents
Date of Institution : 19.02.2011
Date of reserving the judgment: 23.12.2019
Date of pronouncement : 23.12.2019
Decision : Allowed
PETITION UNDER SECTION 372 OF THE INDIAN SUCCESSION
ACT, FOR GRANT OF PROBATE/LETTER OF ADMINISTRATION
IN RESPECT OF THE ESTATE OF LATE SMT. RAM PIARI VIG
WIFE OF LATE SH. BODH RAJ VIG, PURSUANT TO THE WILL
DATED 25.01.2001.
JUDGMENT
1. The petitioners seek probate/ letters of administration in respect of Will dated 25.01.2001, executed by Smt. Ram Piari Vig with regard to her estate.
2. It is averred that Smt. Ram Piari Vig, testatrix died on 18.03.2004. The husband of the Smt. Ram Piari Vig, testatrix namely sh. Bodh Raj Vig has already predeceased her on 31.03.1980. It is also averred that the husband of the PC No. 5919/2016 Page No. 2 of 45 Roshan Lal Vig & Ors vs. State & Ors Testatrix during his life time executed a Will in favour of Smt. Ram Piari Vig and wished that the dwelling house i.e. property No.K49 AB, Kalkaji, New Delhi be divided among his three sons petitioners Nos. 13 in equal proportions and another immovable property i.e. shop bearing No.62, Khanna Market, Lodhi Colony, New Delhi, to be enjoyed by Sh. Praveen Kumar Vigpetitioner no.3 who has been earning his livelihood from the said shop and doing the business of General Merchant from the said shop since 1978.
3. It is averred that Smt. Ram Piari Vig in continuation of the last wish of her late husband Sh. Bodh Raj Vig, executed a Will dated 25.01.2001, in the presence of witnesses bequeathing the immovable properties in favour of the petitioners No.1 3 to the exclusion of other legal heirs/daughters of the deceased i.e. respondent nos. 25. It is also averred that Smt. Ram Piari Vig, was possessing immovable properties i.e. property bearing No. K49, AB Kalkaji, New Delhi110019, and Shop No.62 Khanna Market, Lodhi Colony, New Delhi. The probate of the Will in question is being sought with regard to the estate of Smt. Ram Piari Vig, testatrix.
4. It is averred that during the lifetime of Smt. Ram Piari Vig, the petitioners and their family members were taking care PC No. 5919/2016 Page No. 3 of 45 Roshan Lal Vig & Ors vs. State & Ors of the deceased and has been residing with the deceased/Testatrix in the property bearing No. K49, AB Kalkaji, New Delhi110019 and at the time of the demise of the deceased and are still in possession of the same.
5. It is averred that the daughters of the Testatrix are married and are living in their matrimonial homes and the Testatrix and her husband had spent huge amount on their marriages, and were thus suitably taken care of by the parents.
6. It is averred that in the year 1991 the dwelling house bearing No. K49, AB Kalkaji, New Delhi110019, fell short of accommodation because of the paucity of accommodation of the petitioners and their families, the petitioners no.13 mutually agreed to reconstruct/renovate the whole of property bearing No. K49, AB Kalkaji, New Delhi110019, and as such the whole property were reconstructed through the funds of the petitioners and the petitioners shared the cost of reconstruction of the property and since then the petitioners are enjoying the respective portions along with their families. It is also averred that the daughters of the Testatrix are well settled in their lives, the testatrix in the said circumstances executed Will dated 25.01.2001 and at the time of execution of the said Will she was of sound mind and the Testatrix had bequeathed the entire property bearing No. K49, AB Kalkaji, PC No. 5919/2016 Page No. 4 of 45 Roshan Lal Vig & Ors vs. State & Ors New Delhi110019 to the petitioners as follows:
a) Roshan Lal Vig property bearing No. K49, AB Kalkaji, New Delhi110019 (½ portion Ground Floor & Second Floor portion of property along with Terrace Rights of 2nd Floor portion)
b) Ashok Kumar Vig property bearing No. K49, AB Kalkaji, New Delhi110019 (½ portion Ground Floor & Second Floor portion of property along with Terrace Rights of 2nd Floor portion) C) Praveen Kumar Vig Entire First portion of property bearing No. K49, AB Kalkaji, New Delhi 110019 (½ portion Ground Floor & Second Floor portion of property along with Terrace Rights of 2 nd Floor portion)
7. It is also averred that the Testatrix further through her last Will dated 25.01.2001, bequeathed the Shop No.62, Khanna Market, in favour of Sh. Praveen Kumar Vig petitioner no.3, to the exclusion of all other legal heirs and the said property is under occupation of him since 1978. It is further averred that respondent nos. 24 being the daughters of the Testatrix have already given their affidavits in support of the Will of their mother Smt. Ram Piari Vig in favour of the PC No. 5919/2016 Page No. 5 of 45 Roshan Lal Vig & Ors vs. State & Ors petitioners and have no objection to the Will left being by their mother. It was further averred that no other application for grant of probate/letter of administration of the above said Will in respect of the estate/properties left by the deceased testatrix has been filed. It was further averred that this court has territorial jurisdiction to try and entertain the present petition as the deceased testator was a permanent resident of Delhi and died in Delhi within the jurisdiction of this Court. Hence, petitioners filed the present petition for grant of probate/letters of administration in their favour with regard to the assets of the deceased testatrix.
8. Despite publication of citation in the newspaper "The Statesman" dated 10.03.2011, proclamation in Saket Court Complex as well as in the office of District Magistrate, none appeared from the general public/State to join the proceedings.
9. On service of notice, respondent No.2 to 4 appeared before the court and filed their no objection to the present petition. Respondent No.5 also filed his Written Statement wherein he opposed the prayer of the petitioners for grant of probate/ letters of administration in their favour.
PC No. 5919/2016 Page No. 6 of 45Roshan Lal Vig & Ors vs. State & Ors REPLY/WRITTEN STATEMENT
10. Respondent No.5 in her reply/ written statement raised the preliminary objections that petitioners did not approach the Court with clean hands and has concealed the material facts; that the testatrix neither executed the Will nor bequeathed her property to the petitioners; that the Will dated 25.01.2001 is a forged and fabricated document; that the petitioners did not disclose any cause of action; and that the petition was filed with malafide intention to harass & humiliate the respondents. On merits, respondent No.5 denied that the testatrix was residing with her sons by submitting that Smt. Ram Piari was residing separately and most of the time she took help from petitioner No.3; that the petitioners did not file the Will executed by their father Sh. Bodh Raj whereby he made the wish that the house be divided among his 3 sons; and that the Will was not signed by the witnesses on the day of its execution and even the signatures of the testatrix were forged.
11. Respondent No.5 denied that the house was reconstructed out of the funds of the petitioners by submitting that they did not have any right over the same. She further submitted that the testatrix was not well and was not able to PC No. 5919/2016 Page No. 7 of 45 Roshan Lal Vig & Ors vs. State & Ors sign, being an old lady and that in order to grab the property, the petitioners fabricated the Will and filed the present petition after the lapse of 7 years from the date of death of the testatrix. All other averments of the petition were denied by respondent No.5.
REJOINDER
12. Petitioners vide their rejoinder reiterated the averments made in the petition and denied the allegations made in the reply/written statement.
ISSUES
13. From the pleadings of the parties, vide order dated 21.07.2012, following issues were framed by Learned Predecessor, for just adjudication:
1. Whether Will dated 25.01.2001 is validly executed by late Sh. Ram Piari in favour of the petitioners? OPP
2. Whether petitioners are entitled for grant of probate in respect of Will dated 25.01.2001? OPP PC No. 5919/2016 Page No. 8 of 45 Roshan Lal Vig & Ors vs. State & Ors
3. Whether the objections filed on behalf of respondents are valid and maintainable? OPR
4. Relief EVIDENCE ADDUCED On behalf of the petitioners
14. Petitioners in order to prove their case, examined petitioner No.1 as PW1; Sh. Ram Kumar Soin as PW2; Smt. Sudha Saini as PW3; and Sh. Om Prakash as PW4.
15. PW1 i.e. petitioner No.1 tendered his evidence by way of affidavit PW1/A and relied on the following documents:
1. Original Death certificate of Smt. Ram Piari as Ex.PW1/1;
2. Photocopy of death certificate of Sh. Bodhi Raj Vig as MarkA;
3. Photocopy of registration of sales tax with regard to shop bearing No.62, Khanna Market, Lodhi Colony, New Delhi as MarkB;
4. Photocopy of mutation letter dated 28.10.1980 with regard to property bearing No.K49, Kalkaji, New Delhi as Ex.PW1/4 PC No. 5919/2016 Page No. 9 of 45 Roshan Lal Vig & Ors vs. State & Ors (OSR); and
5. Original Will dated 25.01.2001 as MarkC.
16. PW1 deposed on the lines of the petition. During his cross examination, he admitted that the property No.K49, Kalkaji, New Delhi is in the name of his deceased mother but the shop No.62, Khanna Market, Lodhi Road, New Delhi is still in the name of his deceased father Sh. Bodh Raj Vig. He submitted that the mutation in respect of the Kalkaji house was carried out after the demise of his father in the year 1980, on the basis of the no objections of the LRs; that he was not aware whether the photocopies of the affidavits which were submitted before the authorities were in his possession or not but admitted that he had filed the photocopy of the affidavit of Smt. Usha i.e. respondent No.5; and that on the basis of the Will dated 28.03.1980, all the LRs of the deceased had given no objections before the authorities and the mutation was carried out. He denied that it was not the same Will which was filed before the authorities for the purpose of mutation and volunteered that it was the same Will. He admitted that vide Will dated 28.03.1980, his mother got lifetime interest in the property in question; and that there was no provision in the PC No. 5919/2016 Page No. 10 of 45 Roshan Lal Vig & Ors vs. State & Ors Will that after the death of his mother, he along with other two brothers would be entitled for the suit property in question. He submitted that the Will dated 28.03.1980 was not probated as all the LRs had submitted their no objections in favour of their mother and the property was mutated by denying that respondent No.5 did not submit her no objection to the Will dated 28.03.1980. He submitted that contents of document Ex.PW1/4 pertaining to not giving any right to his mother for sale of the property, was a matter of record.
17. He further submitted that he did not recall as to whether he had applied for the mutation of the shop at Khanna Market by admitting that the same is still in the name of his father and that his mother has mentioned about the shop in the Will dated 25.01.2001 on the basis of provisions made in the Will of his father; that he was not aware whether his father had executed a Will prior to the will dated 28.03.1980 and admitted that he was aware of the contents of the Will dated 28.03.1980 executed by his father; that the Will mentioned on page 4 of the Will, marked as MarkX, was not within his knowledge; and that he did not try to know about the Will dated 08.06.1970. He denied that he deliberately filed the Will dated 28.03.1980 with the replication after taking the objections by the objector or that Will dated 28.03.1980 was a PC No. 5919/2016 Page No. 11 of 45 Roshan Lal Vig & Ors vs. State & Ors forged and fabricated document. He denied that in the affidavit of respondent No.5 - Ex.PW1/R1, he deliberately did not mention the date of Will as the same was not available with him at that time and was procured later on or that he did not have knowledge about the execution of any Will by his father whereby he had bequeathed the property in favour of all his legal heirs by admitting that vide Will dated 28.03.1980 his mother was given lifetime interest. He denied that since his mother had lifetime interest, she could not execute any Will and the property could not be mutated by MCD in her favour.
He admitted that his mother had applied for mutation of both properties i.e. house as well as shop on the basis of Will dated 28.03.1980. He submitted that he helped his mother in mutation process since she was not well educated and that she was able to walk before her death and was not suffering from any disease except high blood pressure and denied that his mother used to walk by bending in front and her hands used to vibrate while writing. He submitted that he did not know as to when he came to know about the Will executed by his mother. To the specific question regarding knowledge of the Will, he submitted that he was aware of the execution of the Will before the death of his mother but he did not remember the date or month but it was in the year 2001. He denied that PC No. 5919/2016 Page No. 12 of 45 Roshan Lal Vig & Ors vs. State & Ors he did not disclose about the Will to others since the same was obtained under pressure. He submitted that the Will was prepared by a counsel Sh. S. S. Arora and he talked to him about the preparation of the same; that he knew Sh. Prem Kumar Soni and Sh. Anil Kumar, who were his neighbours; that he was not present at the time of signing of the Will; and that his mother disclosed about the attesting witnesses. He denied that the Will did not bear the signatures of Smt. Ram Piari; and that the signatures were of different period & time or they were not of contemporary date.
18. PW2 Sh. Prem Kumar Soin, one of the attesting witness to the Will, proved the Will as Ex.PW2/1. He deposed that on 25.01.2001, the testatrix requested him to be a witness to the Will she intended to execute to bequeath her properties in favour of her sons in continuation of the wish and Will of her husband Late Sh. Bodh Raj; that Smt. Ram Piari Vig had already got the Will typed; that the other attesting witness Sh. Anil Kumar, a family friend, was already sitting there; that the testatrix explained the Will to him as well as other attesting witness and stated that she had made the Will out of her free mind and without any force, coercion or undue influence; that at the time of signing of the Will, Smt. Ram Piari Vig was in sound disposing mind and having good health; that the PC No. 5919/2016 Page No. 13 of 45 Roshan Lal Vig & Ors vs. State & Ors testatrix signed the Will in the presence of the attesting witnesses; and that he and the other attesting witness signed the Will in the presence of Smt. Ram Piari Vig.
19. In his cross examination, he submitted that he knew the testatrix since 1957 as she was his neighbour; that he came to the court on the request of petitioner No.1 and his counsel; that he was asked by Smt. Ram Piari Vig to come at the residence on 25.01.2001 but volunteered that he was requested by her, one day prior to 25.01.2001, in respect of signing the Will; that since Sh. Bodhraj had written Will in favour of Smt. Ram Piari Vig, and accordingly, Ram Piari Vig wrote the Will in respect of the said property; that he had not seen the Will of Sh. Bodhraj; and that Smt. Ram Piari Vig told him about the Will of Sh. Bodhraj in her favour. He denied that in the Will of Sh. Bodhraj, Smt. Ram Piari Vig was given lifetime interest in the property. He further submitted that before his signing the Will, Smt. Ram Piari Vig explained to him the contents of the Will and he also read the same; that he was not aware as to who drafted the Will; that he was not aware whether Smt. Ram Piari Vig got typed the Will herself; that the testatrix was able to move and she used to go outside home and volunteered that she used to go to temple; that he was not aware whether the testatrix was under treatment for PC No. 5919/2016 Page No. 14 of 45 Roshan Lal Vig & Ors vs. State & Ors vibrating hands but volunteered that she was alright; that at the time of signing the Will, petitioner No.1 was not present; that the other attesting witness Sh. Anil Kumar was called by the testatrix, who was sitting when he reached the residence of Smt. Ram Piari; that he did not know the other attesting witness Anil Kumar; that he never discussed the Will with petitioner No.1 till today; that there was no fourth person present; that he did not inquire from Sh. Roshan Lal as to how he came to know about the Will since he did not disclose him; that petitioner NO.1 would have learned about the Will from his home being his internal affair; that he met Smt. Ram Piari Vig after 25.01.2001; and that the testatrix did not disclose or discuss with him whether she disclosed about her Will to petitioner No.1.
20. He further submitted that the testatrix signed on each page of the Will, however, again said that one signature on left margin of page, one signature on right margin of page and one signature on bottom of page were signed by her; that the Will was on 2 pages; that he could identify the signatures of the testatrix and identified the signature of Smt. Ram Piari on letter Ex.PW2/R1; that there was no difference in the signature appearing on the Will Ex.PW2/1 and other record Ex.PW2/R1 to Ex.PW2/R3; that the testatrix might have been PC No. 5919/2016 Page No. 15 of 45 Roshan Lal Vig & Ors vs. State & Ors explained the contents of the Will by the person who had drafted it; that petitioners used to live with the testatrix, but in different portions; and that he was no aware whether Smt. Ram Piari Vig was having any source of income. He denied that the Will did not bear the signature of Smt. Ram Piari Vig; that he did not sign the Will in the presence of Smt. Ram Piari or in the year 2001. To the Court question, he replied that the Will was not written in his presence.
21. PW3 Smt. Sudha Saini, UDC in L&DO, Nirman Bhawan, New Delhi was the summoned, who brought the records of property bearing No.K49AB, Kalkaji, New Delhi and shop No.62, Khanna Market, Lodhi Road, New Delhi. She proved the copy of complete set of conveyance deed and lease deed, both dated 10.09.1962 as Ex.PW3/A & Ex.PW3/B. She deposed that Smt. Ram Piari Vig had applied for substitution of above mentioned property in favour name vide letter dated 26.06.1980 along with affidavits, death certificate of Bodh Raj Vig, photocopy of Will dated 28.03.1980 and building plan and proved the same as Ex.PW3/D (OSR) and on the basis of the same the property was substituted in the name of Smt. Ram Piari Vig. During her cross examination, she submitted that at the time of mutation, who have filed no objections were not to be called in the office; that not even the person PC No. 5919/2016 Page No. 16 of 45 Roshan Lal Vig & Ors vs. State & Ors who had applied for mutation, is called in the office and in case of some suspicion only clarification is required; that after seeing the record, she could tell that original Will was not asked to be produced, by the department; that the reason for denying the inspection/ photocopies of record pertaining to the file in question is that one of the legal heirs i.e. Roshan lal Vig, Sh. Ashok Kumar Vig and Sh. Praveen Kumar Vig filed objections to it; that the office had verified from the record that the abovementioned three persons as well as the application Ms. Usha Kohli were the legal heirs of Late Smt. Ram Piari Vig. PW3 proved the same as Ex.PW3/D1.
22. PW4 Sh. Om Prakash, Sr. Assistant, EstateII Department, NDMC, Palika Kendra, New Delhi was also the summoned witness who brought the record i.e. application dated 15.04.1980 & 18.07.1980 for substitution filed by Smt. Ram Piari Vig and prove the same as Ex.PW4/1 and Ex.PW4/2, respectively. He deposed that 3 letters dated 01.10.1981, 13.05.1983 and 19.01.1985 were issued by Ministry of Supply and Rehabilitation to Smt. Ram Piari Vig against these there was no correspondence to the said department on behalf of Smt. Ram Piari and proved the same as Ex.PW4/3 to Ex.PW4/5, respectively. During cross examination, he submitted that the said property was PC No. 5919/2016 Page No. 17 of 45 Roshan Lal Vig & Ors vs. State & Ors originally in the name of Bodh Raj and still continues in his name. He admitted that no Will was filed by Smt. Ram Piari in support of her letter dated 15.04.1980; that correspondence by the department as per letters Ex.PW4/3 to Ex.PW4/5, Smt. Ram Piari did not take steps or correspondence with the department in regard to transfer the property in her name; that as per record the sons of Smt. Ram Piari have also not applied for transfer of the property or for mutation in their name. He submitted that death of Smt. Ram Piari was was not informed.
No other witness was examined on behalf of petitioner.
On behalf of respondent No.5
23. Respondent No.5 has examined herself as R5W1 by way of affidavit Ex.R5W1/A and proved the reply dated 02.05.2011 to her RTI application from MCD as MarkX. She also relied on the documents already exhibited as Ex.PW2/R1, Ex.PW2/R2 and Ex.PW2/R3 (Colly.). She deposed on the lines of her objections.
24. During her cross examination, she submitted that prior to her marriage, she had no knowledge about the execution of Will by her father and came to know about the same after receiving the summons of the Court; that she did not file any PC No. 5919/2016 Page No. 18 of 45 Roshan Lal Vig & Ors vs. State & Ors affidavit anywhere; that after the death of her father, her brother got her signature on blank papers; that she did not remember whether she signed on Ex.PW1/R1 or not but she signed on blank papers; that at the time of her marriage, the property No.K49, Kalkaji, New Delhi was built only upto ground floor; that she visited her mother when she was ill; that soon before the death of her mother, the property was reconstructed; that she met her mother in 2003 in a temple near to their house at Kalkaji; that in the year 2003 the condition of my mother was vulnerable and she was moving with stick and her hands were shaking; that she visited her mother in National Heart Institute East of Kailash; that her sister never communicated to her regarding their objection to the present case; that her brothers communicated her for division of property situated at K49, Kalkaji, New Delhi; and that she did not file any case when she came to know about the Will of her father.
No other witness was examined on behalf of respondent No.5.
25. I have heard Learned Counsel for the parties and also gone through the relevant records as well as the written PC No. 5919/2016 Page No. 19 of 45 Roshan Lal Vig & Ors vs. State & Ors submissions filed by the parties.
26. The main contention of the petitioner are : (1) That Smt. Ram Piari Vig had executed Will dated 25.01.2001, and had expired on 18.03.2004, and by means of the said Will the property bearing no. K49, AB, Kalkaji, New Delhi has to be divided amongst three sons and the shop bearing no. 62, Khanna Market, Lodhi Colony, New Delhi had fallen in share of petitioner no. 3 Sh. Praveen Kumar Vig.
(2) The Testatrix Smt. Ram Pyari Vig had got her name substituted in the property bearing no. K 49, AB, Kalkaji, New Delhi and all the legal heirs of Late Sh. Bodh Raj Vig had given no objection, to the concerned Authorities for mutation and as such the Will in favour of the testatrix had not been disputed.
(3) The Testatrix, on the basis of the Will dated 31.03.1980 left by Late (Sh.) Bodh Raj Vig had executed her Will on 25.01.2001, while she possessed sound mind and healthy physical condition.
(4) PW2 Sh. Prem Kumar Soin has not only proved the Will but also withstood in the detailed crossexamination and nothing could be elicited which could render the Will as suspicious and questionable. The witness has categorically stated that testatrix Smt. Ram Pyari Vig possessed a sound deposing mind at the time of execution of the said Will and the testator had herself explained the contents of the Will to the witness. (5) The petitioners have discharged their initial PC No. 5919/2016 Page No. 20 of 45 Roshan Lal Vig & Ors vs. State & Ors onus, and it was for the respondents to prove that there is any suspicious circumstances and that there is no evidence on behalf of the respondents to show that the testatrix was not in a sound mind or was not maintaining good physical health or that Will is forged and fabricated as claimed by the respondent no. 5.
(6) The respondent no. 5 has not been able to prove any suspicious circumstances that the respondent no. 5 has already admitted the Will dated 31.03.1980 left by Sh. Bodh Raj Vig husband of the testator and in fact she had also executed an affidavit admitting the authenticity of the said Will, while during the process of mutation of the property in name of Smt. Ram Pyari Vig. Smt. Ram Pyari Vig derived rights from her husband and that she had, rightfully, bequeathed the property in favour of the petitioner.
(7) There is no evidence that the testator did not have any testamentary capacity, and the petitioner has already complied with the requirements of law in so far as the grant of probate is concerned.
(8) The objections/ contentions of the defendant no. 5 as a testator being merely a life interest owner can not be accepted.
(9) The question of her life interest holder can not be dealt with by this court as the same, essentially is a question of title which is beyond the jurisdiction of the probate court.
27. Ld. Counsel for the petitioner also relied upon in Praveen PC No. 5919/2016 Page No. 21 of 45 Roshan Lal Vig & Ors vs. State & Ors Kapila vs. Naveen SOI & Anr, FAO(OS) 62/2019 decided on 03.04.2019 whereby the Hon'ble High Court observed as under: "At the outset, we may observe that the learned counsel for the respondent/caveator has pointed out that the appellant has already instituted a separate suit founded upon the registered partition deed date 12.09.2011 to stake his claim in respect of the property in question. Counsel for the respondents further points out that the subject matter of the Will is not only the property in respect whereof the appellant claims exclusive right on the basis of the partition deed dated 12.09.2011 but there are other properties also which form the subject matter of the Will and the estate of the testator.
We do not find any merit in the submission of the learned counsel for the appellant. The scope of the probate proceedings is limited to examining the Will that the petitioner may set up as the last and final Will of the testator. The grant of probate or letters of administration does not have the effect of recognizing or declaring the title of the testator in respect of the estate bequeathed and, consequently of the legatee if there are competing claims in respect of the said estate.
The learned Single Judge while rejecting the aforesaid objections of the appellant has taken note of the decision in Kanwarjit Singh Dhillon (supra), wherein the Supreme Court has held that it is not competent for the Probate court to determine whether the testator had, or had not, the authority to dispose of PC No. 5919/2016 Page No. 22 of 45 Roshan Lal Vig & Ors vs. State & Ors the suti properties, which he purported to have bequeathed by his will. The probate court is also not competent to determine the question of title to the suit properties nor will it got into the question whether the suit properties bequeathed by the will were joint ancestral properties or acquired properties of the testator.
The aforesaid being the position, the learned Single Judge has left it open to the parties to agitate their rights in respect of the property which forms the subject matter of the Will, in appropriate proceedings which, as noticed above, have already been instituted.
We do not find any merit in this appeal and the same is dismissed alongwith the pending application."
28. Ld. Counsel for the petitioner also relied upon Kanwarjit Singh Dhilllon versus Hardayal Singh Dhillon and Others, (2007) 11 SCC 357 wherein the Hon'ble Supreme Court observed as under:
12. In Chiranjilal Shrilal Goenka v. Jasjit Singh this Court while upholding the above view and following the earlier decisions of this Court as well as of other High Courts in India observed in para 15 at SCC p. 151 which runs as under:
"15. In Ishwardeo Narain Singh v. Kamta Devi this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution PC No. 5919/2016 Page No. 23 of 45 Roshan Lal Vig & Ors vs. State & Ors the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a selfcontained code insofar as the question of making any application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the Probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself."
That being the position and in view of the nature of allegations made in the plaint, we do not find any reason as to how the High Court as well as the civil court could come to a conclusion that after the probate of the will executed by late S. Kirpal Singh was granted, the suit for declaration for title and injunction on the above allegations PC No. 5919/2016 Page No. 24 of 45 Roshan Lal Vig & Ors vs. State & Ors could not be said to be maintainable in law. The High Court also while holding that the suit was not maintainable, in view of the probate granted of the will of late S. Kirpal Singh had relied on a decision of this Court, as noted hereinearlier, in Rukmani Devi. We are not in a position to agree with the High Court that this decision could at all be applicable in the facts and circumstances of the present case. A plain reading of this decision would not show that after the grant of probate by a competent court, the suit for title and permanent injunction cannot be said to be maintainable in law, What this Court held in that decision is that once a probate is granted by a competent court, it would become conclusive of the validity of the will itself, but, that cannot be decisive whether the Probate Court would also decide the title of the testator in the suit properties which, in our view, can only be decided by the civil court on evidence. It is true that the probate of the will granted by the competent Probate Court would be admitted into evidence that may be taken into consideration by the civil court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not."
29. The main contentions of the Learned counsel for respondent are as follows: (1) The Will in question is a forged and fabricated document in as much as of signing the PC No. 5919/2016 Page No. 25 of 45 Roshan Lal Vig & Ors vs. State & Ors document is surrounded by several suspicious circumstances as it has not been clarified in whose possession the Will had remained and how it reached the petitioner.
(2) Even otherwise, the petitioner no. 1 was instrumental in the preparation of the Will as he categorically admitted in his crossexamination it was him who had arranged for the lawyer for preparation of the document strongly indicative of the influence even if the will is assumed to have been signed by Smt. Ram Pyari.
(3) The testator was not conversant with English and it was signed in Gurmukhi whereas the Will is in English and further that there is no recital (4) The signatures appearing on the Will and the signatures on the application for mutation and indemnity bond vary drastically. The signatures on the affidavit of Ram Pyari Vig, which also pertains to year 2002 are drastically different from the Will which is purported to be of the year 2001.
(5) The scribe Sh. S. S. Arora, Advocate, who is claimed to have drafted the Will, had not been neither examined, as a witness and as such the Will remains surrounded by suspicious circumstances.
30. Learned counsel for respondent No.5 relied on the following judgments:
(1) Peshori Lal vs. State of Delhi & Ors, 2001 SCC OnLine Del 1220; and PC No. 5919/2016 Page No. 26 of 45 Roshan Lal Vig & Ors vs. State & Ors (2) Sadhu Singh vs. Gurdwara Sahib Narike & Ors (2006) 8 Supreme Court Cases 75.
31. In Peshori Lal versus State of Delhi & Ors., (2002) 96 DLT 491 of Hon'ble High Court of Delhi wherein it has been observed that :
23. One cannot be oblivious of the fact that the property in question belonged to Lakhmi Devi and not to her husband Boota Mal. Had Lakhmi Devi any intention to bequeath this property in favour of Boota Mal exclusively by placing him on the pedestal of absolute owner, there was no purpose for incorporating Clause 6 whereby she clearly demonstrated the intention that after the death of her husband, her two sons will share the properties equally and that too with the exclusion of other L.R.s.
..........
28. In view of the foregoing reasons, I find that Probate Case No. 33/79 is to be granted with letter of administration whereas Probate Case No. 58/79 is to be dismissed as Boota Mal had neither any authority nor any locus to bequeath the property in question. By disrespecting the last wish or intention of his wife, he has rather created bad blood among his two sons who were bequeathed equal share in the property by their mother. It is in their interest that they should live in peace PC No. 5919/2016 Page No. 27 of 45 Roshan Lal Vig & Ors vs. State & Ors and hearken to the last words of their mother.
32. Ld. counsel for the respondent no. 5 has also relied upon Sandhu Singh vs. Gurdwara Sahid Narike and Others, (2006) 8 Supreme Court Cases 75 wherein the Court had dealt with the question of life estate and it is observed that life estate/ life interest can not be engaged into an absolute estate under Section 14(1) while contending that Smt. Ram Pyari Vig did not have any authority or competence to execute the will in respect of property at Kalkaji.
FINDINGS
33. Time now to deal with the issues.
ISSUE NO.1 & 31. Whether Will dated 25.01.2001 is validly executed by late Sh. Ram Piari in favour of the petitioners? OPP
3. Whether the objections filed on behalf of respondents are valid and maintainable? OPR PC No. 5919/2016 Page No. 28 of 45 Roshan Lal Vig & Ors vs. State & Ors
34. The issue as to the competence of the testator to execute a Will in respect of the property at Kalkaji is taken up first. Both the sides have relied upon the judgments of the Hon'ble High Court of Delhi as well as the Hon'ble Supreme Court. Learned counsel for respondent No.5 has also contended that the petitioner, while during his cross examination has admitted that the testator is having life interest alone and as such nothing remains to be determined in so far as the competence of the testator to have executed a Will bequeathing property at Kalkaji is concerned. It his contention that in view of the admission, coupled with the relevant clauses in the Will left by Sh. Bhoj Raj Vig, nothing is hardly left to be determined, and as such the Will of Smt. Ram Piari Vig is not liable to be probated on this ground as well.
35. I have gone through the judgments cited by both the sides and considering the judgment of the Hon'ble Supreme Court in Kanwarjit Singh Dhilllon versus Hardayal Singh Dhillon and Others and further considering the judgment of Delhi High Court in Praveen Kapila vs. Navin Soi & Anr., which are later in time then the judgments cited by the Learned counsel for respondent No.5, this Court is of the view that since the subsequent view is to prevail upon the earlier view, PC No. 5919/2016 Page No. 29 of 45 Roshan Lal Vig & Ors vs. State & Ors this court would not be competent to dwell or dilate upon the issue as to whether Smt. Ram Piari Vig was competent to bequeath the property at Kalkaji in view of her limited rights / life interest. As such, the said question remains open and the parties would be, accordingly, at liberty to agitate the same before the civil court, if they so desires.
36. Time now to deal with the other objections/ contentions.
37. It is the vehement contention of the Learned counsel for respondent No.5 that the Will is forged and fabricated and further that regardless the absence of any expert opinion, the Court could devolve upon and formulate one of its own.
38. The counter narrative of the petitioner side is that once the execution and the attestation have been proved, initial onus stands discharged by the petitioner, and there is no material cross examination, nor there is any evidence led by the objector side which could have remotely indicated that the Will has not been validly executed. In so far as the execution is concerned, the WillEx.PW2/1 is stated to have been drafted by one Sh. S. S. Arora, Advocate. Petitioner No.1, who has been examined as PW1 in the present proceedings, during his cross examination has stated that it was him, who had talked to Sh. S. S. Arora, Advocate, for the preparation of the Will. He also deposed that Sh. S. S. Arora had prepared the Will. He PC No. 5919/2016 Page No. 30 of 45 Roshan Lal Vig & Ors vs. State & Ors also deposed that Sh. Prem Kumar Soni, the attesting witness, who has been examined as PW2 in the current proceedings was his neighbour and the other attesting witness Sh. Anil Kumar is also his neighbour near his shop.
39. This, in the opinion of court is one amongst the other suspicious circumstances surrounding the execution of the will.
40. Besides it has also been impressed upon the Court that the signatures over the Will Ex.PW2/1 do not tally with the admitted signatures of Smt. Ram Piari Vig, as are recorded in application for mutation, indemnity bond and affidavit.
41. In order to find out whether the Will has been validly executed or not, the court's conscience also needs to be satisfied. In Jasmeet Kaur Vs Amrit Kaur AIR 1977 SC 74 , the Hon'ble High Court has observed as under:
"10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B. N. Thirnmajamma and Ors (1959) Su. 1 S. C. R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following proposition:
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 PC No. 5919/2016 Page No. 31 of 45 Roshan Lal Vig & Ors vs. State & Ors 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 unit, as required by Section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to be circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator and the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will PC No. 5919/2016 Page No. 32 of 45 Roshan Lal Vig & Ors vs. State & Ors was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicious of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
42. In Geeta Roy vs. State & Anr. 2014 (142) DRJ 502, the PC No. 5919/2016 Page No. 33 of 45 Roshan Lal Vig & Ors vs. State & Ors Hon'ble High Court of Delhi has observed as under:
"12. Learned senior counsel for the appellant, then argued that the probate court has wrongly held that there are inconsistencies in the statement of the witnesses, and which have been considered by the probate court to hold that suspicious circumstances exist, however, the probate court could not have done so because suspicious circumstances according to learned senior counsel for the appellant should have been at the time of making of the Will and not at the time of deposition of the witnesses. I have very frankly failed to understand this argument because the deposition of the witnesses are obviously on a subsequent date of their depositions, but they refer to the facts and events as on the date of making of the Will. The probate court has also referred to the inconsistencies in the statements not only to show that unnatural circumstances existed at the time of making of the Will, but also that the deposition of the witnesses of the appellantpetitioner show that they lack credibility because of very vital contradictions made. Therefore, I do not find anything unusual or illegal for the probate court to draw conclusions of existence of suspicious circumstances on account of contradictions in the depositions of the witnesses. One such important contradiction I have already stated above is that PW1/ petitioner / appellant did not state that Sh. Sudeep Cecil, Adv. was present when the Will was executed in the house of Mr. Rathore, but realizing the error the lacunae was sought to be PC No. 5919/2016 Page No. 34 of 45 Roshan Lal Vig & Ors vs. State & Ors filled in by making of such a statement by PW 2/Dr. Ms. Juthika Roy, I also cannot agree with the arguments urged on behalf of the appellant that the witnesses of the petitioner/ appellant had to be crossexamined to show that Sh. Sudeep Cecil, Adv. was in fact not present on 11.1.2007, as in my opinion, this cross examination was not necessary because it was perfectly open to the objector/ respondent no. 2 to take benefit of contradiction in the statement of the witnesses as also inferences to be drawn from the contradictory statements in as much as, crossexamination is really required on a very vital point and failing which the courts in fact of a particular case take lack of crossexamination as an admission of a fact. As already stated in the facts of the present case, there was no need of crossexaminations on the aspect of presence of Sh. Sudeep Cecil, advocate for the court to come to a conclusion that role of Sh. Sudeep Cecil, Adv. was crucial and that not only he was not brought into the witness box, but contradictions were found to exist with regard to his role, including of taking the final print out by such an Advocate in the residence of one of the attesting witnesses. There were hence unnatural circumstances surrounding the propounded Will as rightly held by the probate court."
43. Kavita Kanwar vs. State (NCT Delhi) Ors, 211(2014) DLT 448 wherein it has been observed by Hon'ble High Court of Delhi as follows: PC No. 5919/2016 Page No. 35 of 45 Roshan Lal Vig & Ors vs. State & Ors "26. In view of above legal position, the contention of learned Counsel for appellant that if handwriting and signatures of testatrix are not challenged in crossexamination and it has come in the evidence that the testatrix was of sound disposing mind, the validity of Will stands proved, has no force. As per settled law discussed above the propounder has to satisfy the conscience of the Court as regards due execution of the Will by the testator and for that the Court can probe deeper into the matter to satisfy its conscience that the testator / testatrix had duly executed the Will after understanding its contents.
33. Even from the evidence of attesting witnesses i.e. PW2 and PW3 it cannot be said that testatrix had put her signatures on the Will Ex.PW1/H after understanding its contents or that while signing she was aware of its contents.
34. It is not the case of the appellant that the testatrix had given instruction to some Advocate or had consulted him and got the Will Ex.PW1/H prepared from an advocate. The bequest in the Will Ex.PW1/H is contained in type written portion and language used shows that the same is drafted by a lawyer. The testatrix was not computer literate and had no legal knowledge. No evidence is led as to who drafted and typed the Will Ex.PW1/H. The nonexplanation of above amount to a suspicious circumstances as PC No. 5919/2016 Page No. 36 of 45 Roshan Lal Vig & Ors vs. State & Ors has been held by Supreme Court in Smt. Jaswant Kaur v. Amrit Kaur & Ors, 1977 (1) SCC 369.
44. Mere examination of one of the attesting witnesses to the Will, may or may not satisfy the conscience of the Court, as such satisfaction varies from case to case, depending upon the circumstances involved.
45. The Will in question has been consistently challenged as fabricated and although the Will was sent for examination, it has transpired that forensic examination could not be done for want to further set of admitted signature. The same, nevertheless, would not prevent this Court to examine the signatures. The court, regardless any absence of the cross examination or any other evidence from the objector side, can still look for the existence of any suspicious circumstances as well as as to whether such suspicious circumstances have been adequately dealt with and dispelled by the petitioner side by credible evidence. One can profitably resort to C.S. Aggarwal vs. State, 259 (2019) Delhi Law Times 113 wherein the Hon'ble High Court while dealing with the question of forgery of Will, observed as under:
"52. Section 114 of the Indian Evidence Act is a PC No. 5919/2016 Page No. 37 of 45 Roshan Lal Vig & Ors vs. State & Ors useful device to aid the Court in its quest for truth by using common sense as a judicial tool. Section 114 recognizes the general power of the Court to raise inference as to the existence of non existence of unknown facts on proof or admission of other facts.
53. Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex and room must be left for play in the joints. It is not possible to formulate a series of exact proposition and conflue human behaviour within straitjackets.
54. No rule of evidence can guide the Judge on the fundamental question whether evidence as to a relevant fact should be believed or not. Secondly, assuming that the Judge believes very few cases, guide him on the question what inference he should draw from it as to assist a Judge in the very smallest degree in determining the master question of the whole subject whether and how far he ought to believe what the witnesses say? The rules of evidence do not guide what inference the Judge ought to draw from the facts in which, after considering the statements made to him, he believes. In every judicial proceedings whatever these two questions Is this true, and, if it is true what then? ought to be constantly present in the mind of the Judge, and the rules of evidence do not throw the smallest portion of light upon them."PC No. 5919/2016 Page No. 38 of 45
Roshan Lal Vig & Ors vs. State & Ors
46. In Joseph Antony Lazarus (Dead) By Lrs vs. A. J. Francis, 2006 (III) SLT 463, the Hon'ble Supreme Court of India has observed that the nonexamination of the Advocate, who had prepared the Will, in appropriate circumstances, is a suspicious circumstance in itself.
47. Before proceedings further, the suspicious circumstances as are noticeable from the records, involved in the present case, needs to be highlighted and dealt with.
(i) Sh. S. S. Arora, Advocate, who has supposedly prepared the Will has not been examined. Ex.PW2/1 shows that he has not even signed the Will. Coupled with the admission of PW1 that it was him who had asked Sh. S. S. Arora to prepare the Will, not only indicate the involvement of beneficiary but also indicate the absence of any instructions from the testator, as to the preparation of the Will. There is, accordingly, a clear and striking void in so far as the preparation of the Will is concerned. Nonsigning of the Will by Sh. S. S. Arora, Advocate and non examination of Sh. S. S. Arora, as a witness, brings this void to the center stage. There is no evidence on record that Smt. Ram Piari Vig had instructed Sh. S. S. Arora to prepare the Will, in the manner it is prepared.
(ii) The involvement of petitioner No.1, although, denied by the attesting witness, to be present at the time of execution of the Will, still PC No. 5919/2016 Page No. 39 of 45 Roshan Lal Vig & Ors vs. State & Ors had remained unexplained. PW1 did not ever claim or deposed that Smt. Ram Piari Vig had asked him to approach Sh. S. S. Arora, Advocate, for the preparation of the Will.
(iii) The Will was prepared in English language, and the testator is, admittedly, either illiterate or at least not conversant with English language, regard being given to the testimonies of PW1 and PW2. It is highly improbable that the testator had read it over to the attesting witnesses, as is deposed by PW2 in his affidavit as well as cross examination. The testator, who is admittedly quite aged by the time the execution of Will has taken place, could not have explained the entire Will in the absence of any evidence to the effect that the same was actually prepared at her instance or stood explained to her in vernacular at any prior point of time i.e. prior to the execution of the Will on 25.01.2001. The nonexamination of Sh. S. S. Arora, Advocate, appears to be creating another void, which is not explained in the present proceedings.
(iv) As to the attesting witnesses, PW1 has categorically stated that Sh. Prem Kumar Soni is his neighbour and Sh. Anil Kumar is also his neighbour, near his shop. Although, Sh. Prem Kumar Soni has deposed and stated that he knows the testator personally and that he was called by the testator himself, the same does not appear to be true. The other attesting witness Anil Kumar has not been examined and the admission of the petitioner No.1 that Sh. Anil Kumar is his neighbour near his shop, is PC No. 5919/2016 Page No. 40 of 45 Roshan Lal Vig & Ors vs. State & Ors also suggestive of the fact that it was petitioner No.1, who had arranged for the signatures of Anil Kumar as an attesting witness. There is no evidence to the effect that Smt. Ram Piari Vig had called Sh. Anil Kumar for any attestation on the Will in question. Nonexamination of Sh. Anil Kumar also leaves a void which has not been explained.
(v) Coming to the signatures of the testator. The Will runs into 3 pages and there are 8 signatures of the testator, four on page No.1, three on page No.2 and one on the last page. The only set of signatures, admitted, for the purpose of comparison are the signatures of the testator over the application in the mutation application (acknowledged on 08.03.2002), indemnity bond and affidavit both dated 09.03.2002.
There appears to be striking disconnect and dissimilarity in the signatures on the Will as well as admitted signatures on the application for mutation, indemnity bond and affidavit pertaining to the year 2002, which are also proved on record as Ex.PW2/R1, Ex.PW2/R2 and Ex.PW2/R3. Although, it transpires that there is a time lapse/ gap of more than a year between the execution of said documents and the execution of the Will, however, there is a palpable and noticeable contrast between the two sets of signatures. The signatures on Ex.PW2/R1 to Ex.PW2/R3, the originals of which are also available on record, exhibit tremors and shakiness of a very high degree, strongly suggestive of the fact that the PC No. 5919/2016 Page No. 41 of 45 Roshan Lal Vig & Ors vs. State & Ors person who authored the signatures, on account of his/ her age or medical condition, has not been able to formulate the signatures in a regular form. As is clearly observable from the set of signatures, the author of the signatures was not capable of writing the syllables in their ideal forms.
The documents Ex.PW2/R1 to Ex.PW2/R3 are signed on 08.03.2002 / 09.03.2002 and there is noticeable degree of variations, which can be attributed to be natural variation in the signatures by the same person. It might be relevant to record here that there are natural variations in the size of the signatures, size and shape of independent syllable, although the shakiness throughout the signatures is persistent.
Further, when the signatures over the Will are collated and examined inter se themselves, as well as in comparison with the signatures on the admitted documents, there appears to be a difference of a very high quotient. The signatures on the Will in question - Ex.PW2/1, as would be very clear from the said document, are characterized by exactitude in the size, unnatural consistency and regularity in integration, which is not far to seek, and by the very the absence of tremors and shakiness as are exhibited in admitted signatures over Ex.PW2/R1 to Ex.PW2/R3.
The signatures on the will pertain to early 2001 and one may, rationally, attribute the difference to the gap of time, as it is natural for PC No. 5919/2016 Page No. 42 of 45 Roshan Lal Vig & Ors vs. State & Ors a person that the signatures might not only differ, and suffer from tremors and shakiness, having regard to the age and special factors like medical conditions. However, the gap of time between these two sets of documents is not such, that such a degree of differences and degree of variations, can be explained. Court, quite consciously, has examined the two sets of signatures from this perspective as well, and is of the opinion that the signatures upon the Will appears to be authored by someone with a contemplative mind, and appears to be done in an unreasonably slow speed, with an intention to avoid differences in the signatures. It also appears that the tremors and shakiness are sought to be deliberately and artificially introduced in the signatures over the Will Ex.PW2/1. The signatures over the Will are categorized by an absence of natural flow and variations, which itself is sufficient for the document to incur disqualification.
The unnatural consistency that defines the signatures, clearly lead to a conclusion that the Will has not been signed by the Testator. There appears direct disconnect between the signatures which are admittedly of Smt. Ram Piari Vig and the one which appear on the Will in question.
48. There are other reasons to disbelieve the signatures to be true. The formation of the initial letter of the signatures on PC No. 5919/2016 Page No. 43 of 45 Roshan Lal Vig & Ors vs. State & Ors the Will itself shows that at certain point the same is angular and at the other linear. The same, is absolutely missing in the documents bearing admitted signatures. This is not the isolated case of the opening syllable but also the other syllables of signatures on Ex.PW2/1.
49. Further, more than necessary signatures have been appended to the Will which in itself is suggestive of over authentication of the Will.
50. There is no evidence on record suggesting that the testator, while signing the Will at the age of 78 years i.e. on 25.01.2001 had such physical and mental condition, and there was any dramatic/ drastic loss of such physical and mental agility within a year that the signatures on the admitted documents, suffer such shakiness and tremors.
51. Considering these suspicious circumstances and the fact that the same have not been either adequately dealt with by the petitioners nor are the suspicious circumstances completely or fully dispelled with, the Will does not inspire any confidence. There appears to be significant falsehood in so far as the preparation of the Will is concerned and in the final analysis, the Will is found to be a fabricated document. In view of the above, issue No.1 & 3 are decided against the petitioner.
PC No. 5919/2016 Page No. 44 of 45Roshan Lal Vig & Ors vs. State & Ors ISSUE NO.2 & RELIEF
52. The petitioners have not been able to dispel the suspicious circumstances surrounding the execution of the Will, as already observed under issue No.1 & 3, and the same factors in very heavily against the petitioners. The Will, as such, is found to be not a valid document.
53. In view of the above discussion, the petitioners are not entitled to grant of probate/ letters of administration and accordingly, the petition is dismissed.
54. The original Will shall remain part of the judicial file, in terms of section 294 of the Indian Succession Act, 1925 and it will not be returned to the petitioner. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (NIKHIL CHOPRA)
COURT ON 23.12.2019 ADDL. DISTRICT JUDGE02
SOUTH, SAKET COURTS, NEW DELHI
PC No. 5919/2016 Page No. 45 of 45