Delhi District Court
Samrath Singh vs State on 22 August, 2024
IN THE COURT OF SHRI RAJESH MALIK, DISTRICT
JUDGE -06: CENTRAL DISTRICT, TIS HAZARI COURTS,
DELHI
PC No. 42440/16
IN THE MATTER OF:-
1. Mr. Samrath Singh
S/o Late Sardar Raghbir Singh
R/o House No.4, Road No. 32
East Punjabi Bagh, New Delhi-110026
2. Sh. Meharban Singh
S/o Late Sardar Raghbir Singh
R/o House No. 4, Road No. 32
East Punjabi Bagh, New Delhi - 110026
...........PETITIONERS
VERSUS
1. The State
2(A) Smt. Mohinder Kaur
W/o Sh. H.S. Kalsi
R/o H-469, New Rajinder Nagar,
New Delhi
2(B) Smt. Prapreet Kaur
W/o Sh. Gulab Singh
R/o G-34, Block-G, Hari Nagar,
New Delhi
2(C) Sh. Ratnakar Singh
S/o Late Sh. Narbir Singh
R/o H-469, New Rajinder Nagar,
New Delhi
PC 42440/2016
Samrath Singh & Anr. vs State & Ors. Page No. 1/25
2(D) Smt. Daizy Alias Smt. Satvinder Kaur
W/o Unknown
R/o Hotel Parker
Fazal Road, Phase-1
Patna, Bihar
3. Smt. Harpreet Kaur
W/o Jaswinder Singh Vora
R/o 1, Bank Colony, Patiala
Punjab
4. Smt. Amarjeet Kaur
W/o Sardar Mahinder Singh Kohli
R/o 14/3, Gandhi Colony
Muzzafar Nagar, U.P.
.........RESPONDENTS
Other Details :
Date of Institution : 02.04.2008
Date of Reserving Judgment : 07.08.2024
Date of Judgment : 22.08.2024
PETITION UNDER SECTION 278 OF THE INDIAN
SUCCESSION ACT
JUDGMENT
Will and Codicil of the Testator Raghbir Singh:-
1. The testator Raghbir Singh died on 29.05.2007. His wife pre-deceased him. He left behind his three sons and two daughters. His two sons namely Samrath Singh and Meharban PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 2/25 Singh are the petitioners in the present case. His other son namely Narbir Singh (through LRs) and his two daughters namely Harpreet Kaur and Amarjeet Kaur are the respondents in the present case. The testator did not give any of his movable or immovable property to his son namely Narbir Singh and his daughters Harpreet Kaur and Amarjeet Kaur by the alleged will and codicil dated 23.06.1995 and 10.04.2007 respectively.
2. The petitioners aver that Raghbir Singh was their late father. On 23.06.1995, he executed the will by his own accord without any pressure, fear, undue influence and in a sound disposing mind, thereby bequeathing his movable and immovable properties in favour of the petitioners. In his will dated 23.06.1995, he partially excluded one of his son Narbir Singh. In the said will, he completely excluded his two daughters from his immovable and movable properties. He bequeathed 2 nd floor with roof rights in the property No. 32/4, Punjabi Bagh, New Delhi-
110026 to his son Narbir Singh and specifically wrote that his son Narbir Singh would have no right, title or interest in any of the movable or immovable property of the testator as his son Narbir Singh did not have good terms with him, but despite that, he was giving him the 2nd floor of the property out of his love and affection. The said will was got registered before the Sub- Registrar.
3. In the codicil dated 10.04.2007, he mentioned that his wife died and his son Narbir Singh had added trouble to him by filing frivolous cases against him. He mentioned that Narbir PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 3/25 Singh had not given the possession of the back portion of the ground floor of his house despite his requests and legal notices. By way of codicil, he was constrained to debar Narbir Singh and his son from his share in both movable and immovable property. He mentioned that earlier, he gave the 2nd floor to Narbir Singh out of love and affection. Now, the second floor with roof rights shall devolve in equal share to his son Samrath Singh and Meharban Singh absolutely. The said codicil was also registered before the Sub-Registrar.
Respondents put their reliance on another will of the testator dated 13.04.2007:-
4. The respondents no.2 to 4 (LR's of Narbir Singh and daughters of the testator) relied upon another alleged will dated 13.04.2007, whereby all the movable and immovable assets of the testator Late Raghbir Singh were to be devolved upon his sons and daughters in equal shares including the petitioners after necessary donations at the Gurudwara as specified in the said will.
5. The respondents averred that the impugned earlier will dated 23.06.1995 in favour of the petitioners was not executed with free will and accord; that the will was never executed by late Raghbir Singh and the same was forged and fabricated by the petitioners in collusion with each other; that the codicil dated 10.04.2007 is a forged and fabricated document; that the last and final will of the testator dated 13.04.2007 is his actual will; that the R-2 (Late Narbir Singh) and his family PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 4/25 members used to look after the testator and his wife; that the attestation of the alleged will and the alleged codicil are not bonafide and have been manipulated by the petitioners.
ISSUES:-
6. After completion of the pleadings, following issues were framed:-
i) Whether the deceased Raghbir Singh had validly executed the will dated 23.06.1995 while in sound disposing mind? OPP
ii) Whether the deceased Raghbir Singh has validly executed the will dated 13.04.2007 while in sound disposing mind? OPP
iii) Relief.
Petitioner Evidence:-
7. Petitioners examined 05 witnesses. PW-1 and PW-5 are the attesting witness of the will dated 23.06.1995 and codicil dated 10.04.2007 respectively. The PW-1 was the advocate. He was practicing at the Sub-Registrar office. He exhibited the will dated 23.06.1995 as Ex. PW-2/1. He deposed that the testator came to the Sub Registrar Office for getting his will registered. He deposed that the testator signed the will and put his left thumb impressions on the will in his presence at point A to F, F1 and F2. He deposed that testator had come with his wife Smt. Joginder Kaur, who had also signed the will as the witness at Point-M and put her left thumb impressions at the point N and X. Thereafter, he signed as the witness No.2 at the point P in the presence of the testator and his wife. Thereafter, they appeared before the Sub Registrar and got the will registered.
PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 5/258. In his cross-examination, the PW-1 stated that he voluntarily attested as the second witness as the testator had come to him for registration of the will. He stated that the testator was accompanied by his wife and his son Meharban Singh. He stated that Raghbir Singh was approximately 80 years and the Sub Registrar asked him as to whether he had executed the will without any pressure. The witness (PW-1) further gave his details such as his court seat number and his years of practicing as an advocate. He stated that his charges as the attesting witness were included in the registration fees of Rs.1000/- taken by him from the testator. After registration, he handed over the receipt of the registration fees to the testator. He denied the suggestion that Meharban Singh and Samrath Singh (petitioners) were earlier known to him. He denied the suggestion that he attested the impugned will at the instance of Meharban Singh and Samrath Singh. He denied the suggestion that when he signed the already signed will. He deposed that he himself took the thumb impressions of the testator on the said will. He stated that when the impugned will was shown to him, it was completely typed.
9. PW-2 brought the record of the will from the sub- registrar office. As per the record, the will dated 23.06.1995 was got registered on 19.07.1995 vide registration no. 29592. He deposed that codicil dated 10.04.2007 was got registered on the same date i.e. 10.04.2007.
10. The PW-3 is the petitioner no.2 (Meharban Singh). He reiterated the facts as mentioned in the petition. He tendered PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 6/25 his evidence affidavit as Ex. PW-2/A. In his cross-examination, he deposed that he is in the business of transport. He stated that his father was not suffering from any disease. He denied the suggestion that his father was chronic diabetic and suffering from heart disease. He denied the suggestion that the testator had suffered a paralytic attack. He stated that the testator was in their care and custody and used to remain under their nigrani (care) throughout the day. He denied the suggestion that the last will of his father was dated 13.04.2007.
11. PW-4 is the handwriting expert. He exhibited his evidence affidavit as Ex. PW-4/A1. He exhibited his opinion on the thumb impression of the testator on the will and the codicil as Ex. PW-4/A. His opinion regarding the signatures of testator on the will dated 23.06.1995 is Ex. PW-4/B. His opinion regarding the will dated 13.04.2007 propounded by the respondents is Ex. PW-4/E. According to his opinion, the testator signed and put his thumb impression on the impugned will Ex. PW-2/1 (in favour of the petitioner) and impugned codicil i.e. Ex. PW-3/2 (in favour of the petitioner), whereas he has not signed the impugned will (in favour of the respondents) dated 13.04.2007 propounded by the respondents. The compact disc of his examination report is Ex. PW-4/F. He took the admitted signatures of the testator from the gift deed dated 08.03.2006 and the passport of the testator.
In his cross-examination, he states that he has a diploma from Institute of Criminology and Science, Govt. of India, Ministry of Home Affairs, New Delhi. He denied the PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 7/25 suggestion that he gave the report at the instance of the petitioners.
12. The PW-5 is the witness of codicil i.e. Ex. PW-3/2. He identified his signatures at the Point S and U and his thumb impression at the Point V. In his evidence affidavit, the PW-5 deposed that he was the family friend and neighbour of the testator, and he witnessed the codicil dated 10.04.2007 executed by the testator. He deposed that the testator signed the codicil i.e. Ex. PW-3/2 in his presence and the same was also registered in his presence in the office of Sub Registrar. The testator signed the codicil at point A to G and put his thumb impression at Point J to O in his presence. The testator also put his thumb impression on the codicil. He further deposed that he was one of the witness of the codicil and had signed the same at the point S and U and had put his left hand thumb impressions at the point V and W in presence of the testator. He deposed that the other witness to the codicil was Balbeer Singh, who had signed the codicil dated 10.04.2007 at Point X to Z and put his thumb impressions in presence of the testator.
13. PW-5, in his cross-examination, stated that the testator was not his friend, but his shop was adjacent to the shop of testator. He deposed that the testator was running the transport business and his son Meharban Singh and Samrath Singh i.e. petitioners were doing the business with him. He stated that he did not know the name of the elder brother of Samrath Singh. He stated that he did not aware that Narbir Singh, the eldest son of PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 8/25 the testator, was doing the business with him prior to 1995-96. He deposed that he had never seen Narbir Singh running the transport business with testator even after 1995-96. He stated that he is a post graduate in MBA and is very close to Meharban Singh who is his friend. He is aware that prior to codicil, a will was executed by testator in the year 1995. He deposed that the codicil was made at the instance of the testator. The codicil was prepared 2-3 months prior to his death. He deposed that the testator came alongwith the petitioner at the Sub Registrar Office. The witness i.e. PW-5 went to the registrar office with his father. He deposed that the testator signed first on the codicil and then he signed the same. He signed as the witness no.2. The testator was aged about 90 years at the time of codicil. He denied the suggestion that the testator did not sign in his presence and the codicil had already been signed. He deposed that the hands of the testator were not trembling while signing. He deposed that he does not know whether the testator was patient of Parkinson disease. He stated that the testator asked his son Meharban Singh to speak to his father and him for becoming a witness to the codicil. Upon asking by Meharban Singh, they became the witnesses. He admitted that the testator used to be accompanied by Meharban Singh and Samrath Singh. He stated that it is correct that Sardar Meharban Singh and Samrath Singh used to take care of all the dealings, meetings and activities of Raghbir Singh in the office. He denied the suggestion that Meharban Singh and Samrath Singh had never used to look after testator and the testator was always looked after by Narbir Singh and his family members. The witness also gave the elaborative details of PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 9/25 the routine of testator at his shop.
Respondents Evidence:-
14. The respondents examined Smt. Amarjeet Kaur and Smt. Harpreet Kaur as R-4WA and R-3W1/A respectively. Both the witnesses exhibited the following documents:-
i) Will of testator dated 13.04.2007 as Ex. PW-3W1/1;
ii) Objections dated 08.02.2018 to the report dated 17.12.2011;
and postal receipts as Ex. R4W1/2 and Ex. R4W1/3/4 respectively.
15. Both the witnesses in their affidavits deposed that Raghbur Singh left behind a duly executed and attested will dated 13.04.2007 and his movable and immovable property shall be devolved according to the said will. According to the will dated 13.04.2007, the movable and immovable property of testator are to be devolved upon all his legal heirs in equal share. They further deposed that the will dated 13.04.2007 was the last and final will of the testator and by executing the said will, all other previous wills and codicils stood revoked. They further deposed that they have filed objections to the report of the handwriting expert dated 17.12.2011. Both the witnesses were cross- examined. The witnesses denied the suggestion that the testator executed the registered will dated 23.06.1995 and the registered codicil dated 10.04.2007.
Findings on both the Issues:-
16. Issue No.1 : Whether the deceased Raghbir Singh PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 10/25 had validly executed the will dated 23.06.1995 while in sound disposing mind? OPP & Issue No.2: Whether the deceased Raghbir Singh has validly executed the will dated 13.04.2007 while in sound disposing mind? OPP
17. The Indian Successions Act 1925 provides the mode of execution of unprivileged will. For better understanding, it is reproduced here as under :-
Law on execution of Will:
"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 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 direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has been 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 directions 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 PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 11/25 necessary."
18. The mode of proof of unprivileged will has been provided under Section 68 of the Indian Evidence Act 1872. For better understanding of this section, the same is reproduced here as under:
"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 provisions of the Indian registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied)."
Case Law on Execution of Will and its proof thereof:-
19. In the matter of Savithri v. Karthyayani Amma, (2007) 11 SCC 621 : 2007 SCC OnLine SC 1257 at page 629 "The legal requirements in terms of the said provisions are now well settled. A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 12/25 he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine."
20. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC 433 : (2006) 14 Scale 186], the Hon'ble Supreme Court held:
"32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of which proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signatures out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 13/25 influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85] and Sridevi v. Jayaraja Shetty [(2005) 2 SCC 784] .) Subject to above, proof of a will does not ordinarily differ from that of proving any other document."
Law on suspicious circumstances:-
21. Further in the matter of H. Venkatachala Iyengar [AIR 1959 SC 443] , the Hon'ble Supreme court held that the following circumstances were held to be relevant for determination of the existence of the suspicious circumstances:
(Mrudula Jyoti Rao case [(2006) 13 SCC 433 : (2006) 14 Scale 186] , SCC pp. 447-48, para 34) "34. ... (i) when a doubt is created in regard to the condition of mind of the testator despite his signatures on the will;
(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit."
Exclusion of LR's is not a suspicious circumstance:-
22. In Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande [(2003) 8 SCC 537] the Hon'ble Supreme court held:
"8. A will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. 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 means doubt, conjecture or mistrust. But the fact that natural heirs have PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 14/25 either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring."
23. In Gurdial Kaur v. Kartar Kaur [(1998) 4 SCC 384] wherein it was held:
"4. The law is well settled that the conscience of the court must be satisfied that the will in question was not only executed and attested in the manner required under the Succession Act, 1925 but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel the suspicious circumstance. As in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs."
Arguments of Respondents:-
24. The respondents have tried to challenge the credibility of the attesting witness i.e. PW-1 by submitting that PW-1 was not acting as the attesting witness. He acted as a scribe. It is argued that the attesting witness namely M.C. Bajaj deposed falsely before the court and he did not see the testator signing the will as Meharban Singh, during his cross-examination conducted on 22.02.2017, stated that his father had accompanied his mother to the Tis Hazari Court for preparation and execution PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 15/25 of the will. It is argued that the lawyers at Tis Hazari Court did not only prepare the alleged will, but also got it executed i.e. signed by the testator.
25. It is submitted that the attesting witness Mr. M.C. Bajaj was infact the scribe of the will. He signed the will in the capacity of the scribe and this can be inferred from his stereo type deposition in the court. It can also be inferred from the nature of attestation of documents, wherein he specifically affixed his advocate's stamp. It clearly reflects that he was only the scribe of the document. It is further submitted that the wife of the testator was one of the attesting witness. She was also the beneficiary in the will. It is submitted that it is a well settled preposition of law that a beneficiary of will can not be the witness, therefore the impugned will is non-est in the eyes of law. It is further submitted that Meharban Singh was accompanying the testator during the preparation, execution and attestation of the will at Tis Hazari Court and the Sub Registrar Office and his presence at the every stage of the preparation of will shows that he exercised his undue influence due to fiduciary relationship with the testator. It also creates serious doubt on the sound disposing mind of the testator.
26. Ld. counsel for the respondents has relied upon the judgment of Hon'ble Supreme Court in the matter of Kavita Kanwar vs Ms. Pamela Mehta & Ors. and argued that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. It is PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 16/25 submitted that when the propounders themselves take a prominent role in the execution of will which confers on them the substantial benefits, then it creates serious doubt on the authenticity and validity of the Will. The respondents have relied upon the judgment in the matter of N. Kamalam (dead) & ors. vs Ayyasamy & Ors MANU/SC/0422/2001 and submitted that in the said judgment the Hon'ble Supreme Court held that the effect of scribing the signatures on the part of the scribe can not be identified to be of the same status as that of the attesting witnesses. It is argued that Mr. M.C. Bajaj signed the impugned will as a scribe not as the attesting witness; that there is a thick cloud of suspicious circumstances hovering over the impugned will and therefore, the will can not be relied upon; that the testator was uneducated and was aged about 80 years and therefore, the petitioner dominated his will to get the will executed in their favour; and that registration of the will is inconsequential without proving the same in accordance with section 63 of the Indian Succession Act. It is argued that PW-1 M.C. Bajaj deposed in a mechanical manner and his testimony creates a serious doubt that due to his mechanical deposition.
27. It is further submitted that the PW-3 Meharban Singh in his cross-examination has categorically stated that the testator remained in their care and custody and they used to remain under their Nigrani through out the day. Ld. counsel for the respondents have relied upon the testimony of the PW-3 in his cross-examination that his father's daily routine was that he used to get up early in the morning, take bath and used to accompany PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 17/25 them and Samrath Singh to the office after having breakfast. He used to stay with them the whole day.
28. This factual aspect is being relied upon by the respondents to argue that the testator was totally under the control and influence of the petitioners who have managed to fabricate and manipulate the said will to receive substantial benefits under it to the exclusion of other children. It is submitted that the report of handwriting expert can not be relied upon as the opinion of the handwriting expert has been given at the instance of the petitioners. It is submitted that the handwriting expert took the signatures of testator from the passport which was the cancelled document, and signatures on the passport were not legible. Ld. Counsels argued that the deposition of the PW-5, who has allegedly signed the codicil as the witness, does not support the case of the petitioner as the PW-5 in his cross-examination stated that he did not read the codicil before signing it and he did not know the contents of the codicil. The witness also deposed that the testator went to the Registrar Office with Meharban Singh, and it clearly shows undue influence of the petitioners due to fiduciary relationship. It is further submitted that petitioner Samrath Singh did not appear in the witness box and therefore, an adverse inference can be raised against the petitioner Samrath Singh.
Court's Observations:-
29. In the present case, by way of will the testator has changed his line of succession. So obviously, there would be PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 18/25 grievance of the LR's who did not get anything from the will. Their grievance may be genuine or it may be of a disgruntled son or daughter for not getting anything from his or her father. It is worth mentioning that will is always executed for the exclusion of the natural heirs. Exclusion of other children of the testator by itself is not a suspicious circumstances. The owner can dispose of his self acquired property in the manner he likes. Here reliance is placed upon the judgment of the Hon'ble Supreme Court in the matter of Ravindra Nath Mukherjee vs Panchnan Banerjee 1995 (4) SCC 459 wherein it has been held as under:-
"As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heir would be debarred in every case of will; of course it may be that in some cases they are fully debarred and in others, only partial."
30. Having taken the fact that exclusion of respondents is by itself not a suspicious circumstances, this court proceeds to discuss the testimony of M.C. Bajaj, who was the attesting witness of the will dated 23.06.1995 i.e. Ex. PW-2/1.
31. As per his testimony, he is an advocate practicing at Kashmere Gate Sub Registrar Office. The testator approached him to get his will registered. As per his testimony, the testator signed and put his thumb impressions on the will in his presence. He deposed that his wife namely Joginder Kaur also signed the will as the witness in his presence and thereafter, he signed the will as the witness no.2 in presence of the testator. Then, they PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 19/25 appeared before the Sub-Registrar to get the will registered. As noted above, the requirement of Section 63 of the Indian Succession Act is the signatures of the testator and attestation by two or more witnesses each of whom has seen the testator signing or affixing his mark to the will and each of the witness shall sign the will in presence of the testator. The testimony of PW-1 satisfies both the conditions inasmuch as the PW-1 deposed that the testator signed in his presence and he put his signatures in presence of the testator.
32. Coming to the next point of credibility and reliability of testimony of PW-1, it can be seen that many questions were put to him in his cross-examination regarding his practice at the Sub Registrar office and his place of seating etc. He gave the detailed answers such as his seat number and his office timing.
33. M.C. Bajaj deposed that he was doing his practice at the Sub Registrar Office. The respondents have not brought any fact contrary to this fact, meaning thereby, these facts stand proved. Undisputedly, the will was got registered. So far as advocate stamp under his signature is concerned, it is observed that he was in the active practice. Advocate's stamp is a symbol of his identity. After signatures, if an advocate stamp is affixed, it do not change his character to the scribe of the will. There is nothing on record to assume that the advocate can only be the scribe of the will and he can not be the attesting witness of the will. Further, the testimony of M.C. Bajaj shows that the testator was of sound mind and the testator told him that he had come to get his will registered.
PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 20/2534. The testimony of Meharban Singh, which has been relied upon by the R-3 in her written submissions shows that Meharban Singh in his cross-examination stated that his father daily routine was that he used to get up in the morning; take his bath and used to accompany him and Samrath Singh after having breakfast and used to stay with them the whole day. It clearly delineates that the testator was in good physical and mental health. This fact finds corroboration from the testimony of the PW-1 M.C.Bajaj, who deposed that testator alongwith his wife had came to Sub Registrar office and told him that he wanted to get his will registered.
35. Further, there is nothing on record to assume or presume that the testator was suffering from any physical or mental illness on account of his old age which overcome his intellectual faculties to decide the disposition of his property after his death. In his codicil dated 10.04.2007 when he was about 90 years of age, the testator completely debarred his son Narbir Singh and his grandson Ratnakar Singh for having any share in his movable and immovable property. He assigned the specific reasons for debarring them as Narbir Singh and his son Ratnakar Singh had threatened him on number of occasions with dire consequences and therefore he was constrained to debar Narbir Singh and Ratnakar Singh from his movable and immovable properties. Here, at this stage this court refers to the testimony of PW-5. The PW-5 was the witness to the codicil and his shop was near the shop of testator. He deposed in his cross-examination that he did not see Narbir Singh running the transport business PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 21/25 with the testator after 1995-96. The respondents have failed to show that Narbir Singh had good terms with the testator. The respondents could have examined a witness or could have shown some photographs to depict the fact that Narbir Singh had good relation with the testator. If one of the son has sour relations with his father, then one of the ramification of the same may be his ouster from the self-acquired property of his father by way of will. So far as reading of the codicil or will by the attesting witnesses is concerned, it is observed that the only requirement for the attesting witness is that the witness to the will has seen the testator signing the will. There is no requirement that the witness should have read the will/codicil before signing the same.
36. The PW-5 in his cross-examination stated that the testator was a peace loving person and used to dress white kurta, blue turban and a blue belt around his waist. He deposed that testator used to come around 11 AM and used to sit in the cabin at 01:30-2:00 PM, he would have his lunch and then around 3:00 PM, he used to come out with his frying pan to make his own tea. He used to leave after 4:30 PM. This factual deposition in the cross-examination clearly reflects that the testator was an independent person.
37. Old age by itself is not a ground that the children would exercise undue influence by virtue of fiduciary relationship. Infact, in the relationship of old parents and young children, there is no presumption or assumption that young children would dominate the will of their old parents. The things would be different if the testator was enfeebled or debilitated by PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 22/25 disease or old age. But this is not a case here. The respondents have failed to bring on record any fact to show that the testator was enfeeble or debilitate due to old age.
38. We have many examples, the oldest living persons living even up to the age of 117 to 120 with complete lucid mind, remembering everything with clarity. Old age may effect mobility to an extent or hearing or visual problem to an extent, but it no ways its effect the mental ability of a person to decide the fate of his self acquired property to the best interest of his family unless otherwise is proved.
39. In the present case, the respondents have miserably failed to show that the testator was suffering from any illness which had made him subject to the dominance of the petitioners who exercised their dominance and undue influence upon the testator. Accompanying the aged father to assist him to get the will registered does not mean that the son assisting his father has been playing prominent part in the execution of the will. If mere assistance is assumed to be taking prominent part in the execution of the will, then no son or daughter would assist his or her father. In fact, it is the mental state of the testator which plays prominent part in execution of the will. Burden to prove that the testator was suffering from mental infirmity due to old age lies upon the respondents, which they have failed to discharge.
PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 23/25No Attesting Witness of the Will dated 13.04.2007:-
40. Further the respondents relied upon the will, wherein the property has been bequeathed to all the legal heirs in equal shares. But this court can not look into the said will as the same has not been proved by calling any attesting witness. This unregistered will has not been proved in accordance with law. If the attesting witnesses were not available, then efforts should have been made to call some one who could identify the signatures of attesting witnesses. It is apparent that no efforts were made to prove the will dated 13.04.2007 in accordance with law. When a will is pitted against the another will, then efforts should be made to prove the will by calling the attesting witnesses, however, the second will dated 13.04.2007 relied upon by the respondents has not been proved. Thus, the will dated 13.04.2007 can not be relied upon. As a result, it does not confer any rights to the beneficiaries of the said will.
CONCLUSION:-
41. Therefore, having seen the testimonies of attesting witnesses namely PW-1 and PW-5, it is observed here that the petitioners have been able to prove the will and codicil i.e. Ex.
PW-2/1 and Ex. PW-3/2 respectively and therefore, both the issues are decided in favour of the petitioners and against the respondents.
42. Accordingly, let a probate certificate alongwith letter of administration be issued in favour of the petitioners namely Samrath Singh and Meharban Singh in respect of House No. PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 24/25 32/4, Punjabi Bagh, Delhi in equal shares. 10% share each (out of 20% share) in the Samrat Carrier, 8% share each (out of 16% share) in property No. AG-26 (area admeasuring 440 Sq. meters) in Sanjay Gandhi Transport Nagar, Delhi and half share each in any other movable properties. The petitioners are directed to file an inventory within 06 months from the date of grant of Letter of Administration, containing a true estimate of the property.
43. Before parting with the present matter, it is clarified here that this judgment cannot be put to any use unless formal probate alongwith Letter of Administration is issued on filing of court fees and administration bond cum surety bond.
44. File be consigned to Record Room as per rules.
Digitally signed by RAJESHRAJESH MALIK Date:
MALIK 2024.08.22 17:33:20 +0530 Announced in open Court Dated: 22nd August 2024 (RAJESH MALIK) District Judge-06 (Central), Tis Hazari Courts, Delhi PC 42440/2016 Samrath Singh & Anr. vs State & Ors. Page No. 25/25