Delhi District Court
Smt. Minakshi Nathaniel vs (1) Hansal Rose @ Dickey on 28 April, 2015
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
Civil Suit No. 45/14 & Probate Petition No. 01/14
CS No. 45/14
Case I.D. Number : 02402C0079032010
IN THE MATTER OF :
Smt. Minakshi Nathaniel
W/o Sh. Sanjay Nathaniel
D/o Late Sh. Samual Dass
R/o Flat No. 10, PocketD,
Dilshad Garden, Delhi95 .......Plaintiff
V E R S U S
(1) Hansal Rose @ Dickey
S/o Late Sh. H. J. Singh
At Present R/o 629,
PocketD, Dilshad Garden,
Delhi95.
(2) Sakshi Dass
D/o Sh. Hansal Rose
At Present R/o 629, PocketD,
Dilshad Garden, Delhi95. ..... Defendants
Date of Institution of suit :22.03.2010
Received in this Court :22.01.2014
CS No. 45/14 & P. No. 01/14 page 1 of 32
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
Arguments heard on :17.04.2015
Date of Judgment/Order : 28.04.2015
Decision : Suit decreed
P. No. 01/14
Case I.D. Number : 02402C0186682010
IN THE MATTER OF :
(1) Hansal Rose @ Dicky
S/o Late Sh. H. J. Singh
(2) Sakshi Dass
Granddaughter of Late Samuel Dass
Both residents of H. No. D629, Ground Floor,
Dilshad Garden, Delhi110095 .......Petitioners
V E R S U S
(1) The State ( Govt. of N. C. T. of Delhi)
(2) Meenakshi Nethaniel
W/o Mr. Sanjay Nethaniel
R/o - C1, Staff Quarters, G. T. B. Hospital
Delhi110095.
(3) Umedi Dass
W/o Late Samuel Dass
R/o H. No. D629, Ground Floor,
Dilshad Garden, Delhi110095 ....... Respondents
Date of Institution of the petition: 09.07.2010
Received in this Court :30.01.2014
Arguments heard on :17.04.2015
Date of Judgment/Order :28.04.2015
Decision :Petition dismissed
CS No. 45/14 & P. No. 01/14 page 2 of 32
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
J U D G M E N T
1. By this common judgment, following two cases are disposed off: (I) CS No. 45/14 titled Smt. Minakshi Nethaniel Vs. Umedi Dass & Ors. , filed by the plaintiff against the defendants praying for decree of possession, declaration and permanent injunction, and (II) P01/14 titled Hansal Rose & Ors Vs. State & Ors. i.e. Petition U/S 276 of the Indian Succession Act ( Probate Petition) for grant of probate with the Will dated 15.04.08
2. Suit No. 45/14 for possession of property bearing No. 629, Pocket D, Dilshad Garden, Delhi95 ( hereinafter called the suit property) and declaration of ownership is filed by Smt. Minakshi Nethaniel against Hansal Rose and Sakshi Dass. The plaintiff has further prayed for restraining the defendants, agents, attorneys, associates, representatives etc. from creating any third party interest in the suit property. The probate Petition 01/14 has been filed by Sh. Hansal Rose @ Dicky and Sakshi Dass against Smt. Minakshi Dass praying for probate of the Will dated 15.04.2008 stated to be executed by Sh. Samuel Dass in favour of the petitioners duly registered with subregistrar, Shahadara, Delhi on 15.04.08 vide registration No. 651, Additional Book No. 3, Volume No. 34, Page 114 Delhi in presence of witnesses. Sh. Samuel Dass is the father of Smt. Minakshi Dass i.e. plaintiff in suit No. 45/14 and respondent No. 2 in CS No. 45/14 & P. No. 01/14 page 3 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. P01/14. The suit for possession, declaration and permanent injunction bearing No. 45/14 was filed initially and thereafter the petition No. P1/14 for probate was filed by the defendants in suit No. 45/14. Suit No. 45/14 and Probate Petition 01/14 were clubbed together and vide order dated 17.01.2012 it was held that evidence recorded in Civil Suit will be read as evidence in probate petition. Both the matters are accordingly examined and decided together as the parties, documents and the evidence recorded in both the cases are common.
Brief facts for filing of the cases
3. Plaintiff Smt. Minakshi is the only daughter/LR of Late Sh. Samuel Dass who expired on 21.01.2010 and Late Smt. Umedi Dass who expired on 28.10.13. The father of the plaintiff purchased the suit property in 1998. Late Sh. Samuel Dass executed on Will regarding the suit property in the name of the plaintiff after death of Samuel Dass one relative of the plaintiff/nephew of her mother namely Hansal Rose/defendant No. 1 misguided her mother Smt. Umedi Dass and tried to dispose off the suit property illegally. Hansal Rose in collusion Sakshi Dass tried to grab the suit property and they forged and fabricated the Will dated 15.04.2010 in respect of the suit property. The defendants also prepared false and frivolous Adoption Deed dated 03.01.92 attested by Notary Public on 16.03.92. The Will dated 15.04.2008 and Adoption Deed 03.01.92 are liable CS No. 45/14 & P. No. 01/14 page 4 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. to be declared null and void. Sakshi Dass is nor the daughter of the plaintiff and Sh. Samuel Dass and Umedi Dass has no other LR except the plaintiff; the Will dated 15.04.08 is forged and fabricated. As the defendant No. 1 tried to dispose off the suit property and threatened to third party interest therein, the plaintiff has filed this suit against the defendants Hansal Rose and Sakshi Dass.
Initially this suit was filed for partition, possession, declaration and permanent injunction and Smt. Umedi Dass was also a party in this suit. After Smt. Umedi Dass expired, the plaintiff has claimed 100% share after amending the plaint along with other reliefs prayed earlier in the suit.
The defendant No. 1 and 2 filed their Written Statement and denied contentions of the plaintiff in the plaint. The defendants claimed that the suit of the plaintiff is not maintainable; suit is filed without any cause of action. The defendants denied that the plaintiff is the LR of Smt. Umedi Dass along with her right, title and interest in the suit property. As contended, the Samuel Dass and Umedi Dass debarred their daughter namely Minakshi/plaintiff and executed Will in favour of the defendants dated 15.04.08. The defendants further denied execution of any Will in favour of the plaintiff as contended along with other material contentions mentioned in the plaint and prayed to dismiss th suit with costs. The defendant No. 1 and 2 further prayed to allow the probate petition No. 01.14 CS No. 45/14 & P. No. 01/14 page 5 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. contending that plaintiff has no right, title or interest in the suit property.
4. Vide order dated 15.04.2014 the following issues were framed for final adjudication of the matter in suit No. 45/14 & P01/14 : ISSUES IN SUIT NO. 45/14: (I) Whether the plaintiff is entitled to get complete 100% share along with possession of the suit property as prayed ? OPP (II) Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP (III) Whether the plaintiff is entitled to decree of declaration as prayed for ? OPP (IV) Whether this suit of plaintiff is not maintainable ? OPD (V) Relief.
ISSUES IN CASE No. P01/14 : (I) Whether the petitioner are entitled to Probate of Will dated 15.04.08 stated to be executed by Late Sh. Samuel Dass in their favour ? OPP (II) Whether the petitioner are entitled to grant of letters of administration in respect of property bearing No. D629, Ground Floor, CategoryII, BlockB, Dilshad Garden, Delhi95 as per the Will dated 15.04.2008 ? OPP (III) Relief
5. The plaintiff has prayed for possession, declaration and permanent CS No. 45/14 & P. No. 01/14 page 6 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. injunction of the suit property on the ground that Late Sh. Samuel Dass has died intestate whereas defendants claimed that Late Sh. Samuel Dass executed a registered Will dated 15.04.2008 bequeathing the suit property in equal proportion to Sh. Hansal Rose and Ms. Sakshi Dass. The primary question required to be considered in both the matter is as to whether Late Samuel Dass executed any valid Will in favour of the defendants. Accordingly as noted, vide order dated 17.01.2012 both the cases were clubbed together and it was held that evidence recorded in the Civil Suit will be read as evidence also in the probate petition.
6. Plaintiff Smt. Minakshi filed her affidavit by way evidence Ex. PW1/1 and examined herself as PW1 in support of her contentions. The witness has reiterated the averments as mentioned in the plaint and also deposed regarding the relevant documents. As the plaintiff did not wish to examine any other witness the PE was closed.
7. Deceased Smt. Umedi Das was examined as DW1 by way of her affidavit Ex. DW1/A who deposed that Samuel Dass purchased the suit property on 30.11.98. She further deposed that she had no male issue out of her wedlock with Samuel Dass and plaintiff is her daughter; plaintiff was debarred and relations were severed through public notice dated 25.07.06 in "Rastriya Sahara". Deponent further deposed that Sh. Samuel Dass disposed off of the suit property by way of registered Will dated 15.04.08 CS No. 45/14 & P. No. 01/14 page 7 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. in favour of Hansal Rose and Sakshi Dass in the presence of witness namely Gautam Kapoor and Subhash Rawat; defendant No. 2 and 3 are the owners of the suit property by virtue of registered Will dated 15.04.08. The witness further deposed that Smt. Sakshi Dass is the daughter of the plaintiff. The witness has deposed regarding the purchase documents of the suit property by Samuel Dass i.e. Ex. DW1/A to Ex. DW1/I as detailed in the affidavit, registered Will dated 15.04.08 executed by Samuel Dass Ex. DW1/J, Death certificate of Samuel Dass Ex. DW1/K, Ration card Ex. DW1/L, Complaint dated 29.07.06 Ex. DW1/M, Public Notice dated 25.07.06 Ex. DW1/N and her Voter Identity Card Ex. DW1/O. Smt. Sakshi Dass also filed her affidavit by way of evidence Ex. DW3/A and examined as DW3 who deposed nothing except as Smt. Umedi Dass. The witness claimed herself the daughter of the plaintiff.
Sh. Subhash Rawat who examined as DW4 who deposed that Samuel Dass executed a Will dated 15.04.08 which Ex. DW4/1 and identified his signature on the Will as attesting witness.
Smt. Janki, LDC from the subregistrar office IVA, Shahadara, Nand Nagri, Delhi proved the registration of the Will Ex. DW4/1 registered as documents No. 651, additional book No. 3, Volume No. 34, Page No. 114 dated 15.08.08 executed by Samuel Dass.
Other defendant Hansal Rose also filed his affidavit by way evidence CS No. 45/14 & P. No. 01/14 page 8 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. Ex. DW5/A and was examined as DW5 who also deposed like DW1 and DW3.
Ct. Mukesh Kumar from PS Seema Puri was summoned to produce the complaints dated 29.07.06 and 01.08.06 of Samuel Dass.
The defendant further examined the record keeper from Walia Nursing Home, Vikas Marg, Delhi as DW7 who produced the medical record regarding treatment of plaintiff, her admission and treatment seat vide Ex. DW7/1 and DW7/2. The witness deposed that on 17.01.90 plaintiff was admitted for delivery of a child and on 28.01.90 she delivered at child at 02:05 PM, she was discharged from the hospital on 29.01.90 and name of the husband of the plaintiff is mentioned as Mr. Rajnish. The DE was thereafter closed.
8. I have heard the Ld. Counsel for the parties and gone through the written submissions filed on their behalf. The Ld. Counsel for the plaintiff relied upon the following judgments in support of contentions: (I) AIR 2001, Rajasthan 338 (II) AIR 2003 NOC 270 ( Andh. Praa) (2003) (III) AIR 2007 Supreme Court 614 (IV) AIR 2005 Punjab & Haryana 79 (V) AIR 1977 Punjab & Haryana 123 (VI) AIR 1962 Supreme Court 567 (V 49 C 86) CS No. 45/14 & P. No. 01/14 page 9 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
(VII) AIR 1965 Himachal Pradesh 62 ( V 52 C 22) (VIII) AIR 2003 Supreme Court 761 (IX) AIR 2005 Delhi 125 (X) AIR (35) 1948 Privy Council 200 (XI) AIR 2003 Bombay 457 (XII) AIR 2008 Supreme Court 300 (XIII) AIR 2008 Supreme Court 2485 The Ld. Counsel for the defendants along with written submissions has relied upon the below mentioned judgments in support of contentions : (I) RSA No. 1009/2012 P & H High Court (II) CA No. 5384/95 SC (III) RSA No. 1108 &1109/12 P & H High Court (IV) AIR 1996 SCA 12/83, 12/95 Raj (V) RSA No. 182/95 D 21 & 22.11.1998 HP (VI) RSA No. 3182 /87 D 23.02.1996 P & H High Court (VII) AIR 2000 High Court of Delhi (VIII) AIR 1988 High Court of Delhi (IX) AIR 1984 Allahabad (X) AIR 1964 SC (XI) AIR 1985 Orissa (XII) AIR 1985 Calcutta CS No. 45/14 & P. No. 01/14 page 10 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. (XIII) AIR 1985 SC (XIV) AIR 1983 P & H High Court (XV) AIR 1991 Orissa.
I have considered the submissions alongwith the relevant provisions of law. My findings on the above said issues are as follows: ISSUES IN CASE No. P01/14 : (I) Whether the petitioner are entitled to Probate of Will dated 15.04.08 stated to be executed by Late Sh. Samuel Dass in their favour ? OPP (II) Whether the petitioner are entitled to grant of letters of administration in respect of property bearing No. D629, Ground Floor, CategoryII, BlockB, Dilshad Garden, Delhi95 as per the Will dated 15.04.2008 ? OPP ISSUES IN SUIT NO. 45/14: (IV) Whether this suit of plaintiff is not maintainable ? OPD The onus to prove all these issues remained on the defendants. As all these issues are inter related, these issues are examined and decided together.
9. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case CS No. 45/14 & P. No. 01/14 page 11 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability"
would serve the purpose for obtaining a decree".
10. Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the CS No. 45/14 & P. No. 01/14 page 12 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
11. Both the cases pertained to the same property. The ownership of Sh. Samuel Dass is not denied. The parties led their evidence as per the averments in the pleadings. As noted, Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden CS No. 45/14 & P. No. 01/14 page 13 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. It is observed that there is no admission in the written statement regarding the case of the plaintiff/Minakshi nor there is admission by Smt. Minakshi in the probate petition filed by the defendants. Their claim is denied by each other. In view of the legal position of the Evidence, it is for the defendants to prove that Late Sh. Samuel Dass executed the Will dated 15.04.2008 whereby he bequeathed the suit property in favour of defendant No. 1 and 2 and the plaintiff has no right, title or interest in the same. Further, It is also for the defendants to prove that the plaintiff is not entitled for the relief of possession, declaration and permanent injunction as prayed in the suit or the suit of the plaintiff is not maintainable in view of the execution of the Will dated 15.04.08 by Late Sh. Samuel Dass. The onus to prove the case was upon the plaintiff regarding her entitlement for the relief prayed in the suit.
12. The brief and relevant facts for filing of this suit and the defence of the defendants have been mentioned at the outset. Admittedly, Late Sh. Samuel Dass was the owner of the suit property. It is also admitted that Smt. Minakshi/plaintiff is the only LR of Late Sh. Samuel Dass and Late CS No. 45/14 & P. No. 01/14 page 14 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. Smt. Umedi Dass. After the death of of Smt. Umedi Dass, the plaintiff has claimed the relief of possession in lieu of her 50% her share as claimed earlier being the only LR and denied the execution of any Will by Late Sh. Samuel Dass in favour of the defendants. It is claimed by the plaintiff that Late Sh. Samuel Dass died intestated and no Will was executed by him in favour of the defendants, the Will dated 15.04.08 relied by the defendants are forged and fabricated. The defendants the other hand denied the claims of the plaintiff on the basis of Will dated 15.04.08 executed by Late Sh. Samuel Dass in their favour. It appears that the outcome of this suit is dependent only upon the above said Will dated 15.04.08 stated to be executed by Late Sh. Samuel Dass. On the basis of pleadings and arguments of counsel for the parties, the only question which falls for determination is regarding the Will dated 15.04.2008 relied by the defendants ( though the execution of the same has been denied by the plaintiff).
13. Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of documents which is required by law to be attested. The relevant provisions are reproduced below for reference: Section 63 of Indian Succession Act1925 Execution of CS No. 45/14 & P. No. 01/14 page 15 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
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 or the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature or such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 68 of the Indian Evidence Act, 1872 Proof of execution of document required by law to be CS No. 45/14 & P. No. 01/14 page 16 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
attested If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
( Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.)
14. The aforesaid provisions 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 Indian 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.
CS No. 45/14 & P. No. 01/14 page 17 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
15. For proving the Will, the propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there my be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator of the feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate CS No. 45/14 & P. No. 01/14 page 18 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. Reliance is placed on H. Venkatachala Lyengar V. B. N. Thimmajamma, (959) Supp. 1 SCR 246 and Rani Purnima Devi v. Kumar Khagendra Narayan Dev, (1962) 3 SCR 195.
16. 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 Indian Succession Act, 1925 but it should also be found that the said Will was the product of free volition of the executants who had voluntarily executed the same after noting and accepting the contents of the Will. Execution of Will is a solemn act of the executants who must own up the recitals in the instrument and there must be clear, evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of contract of alienation embodied in the document.
17. It is well settled that when genuineness of the will in question, apart from execution and attestation, it is also the duty of the person seeking declaration of the validity of the will to dispel suspicious circumstances CS No. 45/14 & P. No. 01/14 page 19 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. existing, if any. ( Babu Singh & Ors. V. Ram Sahai @ Ram Singh, AIR 2008 SC 2485). As held in IV (1998) SLT 263, the propounder of the Will has to show that the Will was the product of free volition of executant who had voluntarily executed the same after knowing and understanding the contents of the Will.
18. 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 signature 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 discharge. 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 influence is raised, the burden would be on caveator. Reference is made Benga Behera and Anr. V. Braja Kisore Nanda and Ors., VI ( 2007) SLT 252= III (2007) CLT 65 (SC)= MANU/SC/7673/2007, Madhukar D. Shende V. Tarabai Shedage, I (2002) SLT 137 = I (2002) CLT 81 (SC)= MANU /SC/0016/2002: and Sridevi and Ors. v. Jayaraja Shetty and Ors., II (2005) SLT 38 = I (2005) CLT 162 (SC) CS No. 45/14 & P. No. 01/14 page 20 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. = (2005) 8 SCC 784.
19. The parties led their evidence on the lines as mentioned in the pleadings. It is reiterated that plaintiff examined herself as the only witness in support of the contentions and denied the execution of Will dated 15.04.08 by Late Sh. Samuel Dass categorically and specifically. The burden to prove the execution of the said Will dated 15.04.08 remained upon the defendants. The defendants examined total six witnesses as noted above. Smt. Umedi Dass/DW1 admitted that the plaintiff is the only legal heir of Sh. Samuel Dass who is undisputed owner of the suit property . The thrust of the defendants remained that the plaintiff was disowned by Late Sh. Samuel Dass due to her misbehaviour and bad character and publication in this respect was also made by him. No such publication of disowning is made. The claim of the defendants that plaintiff has no contact with Sh. Samuel Dass or Smt. Umedi Dass due to her bad character and neglected them also appears to be false in view of the testimony of DW1. Despite all odds as claimed by the defendants, the plaintiff remained with Smt. Umedi Dass till the year 200304 when she remarried lastly. The DW1 deposed regarding the execution of Will dated 15.04.08 by Late Sh. Hansal Rose in favour of the defendants and also regarding complaint made by him regarding missing of the plaintiff but it is observed that neither such complaint is proved nor the DW1 is witness of the Will nor was present at CS No. 45/14 & P. No. 01/14 page 21 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. the time of its execution. The claim of the defendants that Ms. Sakshi Dass is the daughter of the plaintiff and other defendant Hansal Rose is the son of Sh. Umedi Dass and Sh. Samuel Dass is also falsified and the testimony in this respect merely in the nature of hearsay evidence. The defendants categorically failed to prove that Ms. Sakhsi Dass is the daughter of the plaintiff and as Sh. Samuel Dass and Smt. Umedi Dass severed all their relations with the plaintiff, there was reason to disown her and not making her beneficiary of the Will. Merely oral averments and bald contentions of the defendants are not sufficient to support their claim.
From the testimony of DW1 Smt. Umedi Dass, it is proved that the plaintiff is the only legal heir and also resided with Smt. Umedi Dass till her marriage. As regards the claim of her bad character and disowning the same is not proved by the defendants at all. DW1 admitted that Hansal Rose/ one of the beneficiaries of the Will was not born to her. Interestingly despite the claim of the plaintiff being bad character, she was residing with Sh. Umedi Dass regularly and also completed her education. The claim of the defendants regarding marriage of Minakshi with one Rajnish and birth of Ms. Sakhsi Dass/one of the beneficiaries of the Will is not proved at all as none has witness any such marriage nor anyone knew any such person namely Rajnish. The name of Rajnish appears to be virtual and hearsay only from the records. The adoption deed dated 03.01.92 relied by the CS No. 45/14 & P. No. 01/14 page 22 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. defendants regarding adoption of Ms. Sakshi Dass by Late Sh. Samuel Dass is also not proved which might be one of the reasons for excluding the plaintiff from the benefits of the Will. DW1 admitted that the Will was not prepared in her presence. The same is the affect of testimony of other DWs i.e. Sakshi Dass, Subhash Rawat and Hansal Rose examined respectively as DW3, DW4 and DW5. The testimony of the witnesses were totally shattered during their crossexamination regarding all the relevant contentions i.e. character of the plaintiff, her disowning by Sh. Samuel Dass, Publication, execution of any Adoption Deed as well as Will dated 15.04.08. The testimony of the DWs therefore cannot be relied. The witnesses even failed to explain regarding correction of the Will which itself cast shadow on the defence of the defendants. The testimony of the DW5 is also not relevant to prove the execution of the Will as he was not present. Moreover, the testimony of the DW5 is merely in the nature of hearsay evidence.
20. Plaintiff No. 1/PW1 filed her affidavit by way evidence in support of her case who deposed regarding the facts as mentioned in the plaint and also proved the relevant documents. The PW1 has reiterated her deposition during crossexamination too. The PW1 categorically deposed that no will was executed by Late Sh. Hansal Rose and the plaintiff has only right, title and interest in the suit property. She deposed further that the Will dated CS No. 45/14 & P. No. 01/14 page 23 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. 15.04.08 relied by the defendants is forged and fabricated. It appears that the testimony of the PW1 remained uncontroverted and unimpeached. In fact the testimony of the PW1 regarding non execution, authenticity and the Will being forged and fabricated as deposed by the witness remained un controverted and the testimony of the witness could not be impeached during crossexamination at all on this aspect. The testimony of the defendants regarding execution of the Will is also not helpful. Admittedly, the defendants or the witness never seen Late Sh. Samuel Dass singing any documents and therefore their testimony is not of much help to prove this question.
The testimony of the DWs in nut shell appears to be merely in the nature of hearsay evidence. The defendants No. 1 and 2 are the beneficiary of the Will and therefore their testimony is not sufficient to prove the same. Moreover, the defendants failed to prove any reason for excluding the plaintiff by Late Sh. Hansal Rose getting the benefits of the Will being the only LR and the claim of the defendants being LRs of Hansal Rose is itself false as per the records.
21. It appears that the Will dated 15.04.08 relied by the defendants is not proved in accordance with the provisions of law and Indian Evidence Act. The defendants accordingly failed to prove that Late Sh. Samuel Dass executed the Will dated 15.04.08 and bequeathed the suit property to the CS No. 45/14 & P. No. 01/14 page 24 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. defendant No. 1 and 2. Indisputedly, a Will is to be attested by two witnesses in terms Section 68 of the Indian Evidence Act. Section 68 mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of the will must be proved but actual execution must be attested by at least two witnesses. DW4 was examined as witness to the Will by the defendants who is the neighbor and known to Sh. Samuel Dass; the witness admitted that Sh. Samuel Dass was about 75 years old at the time of execution of Will and used spectacles. The only attesting witness of the Will failed to describe and explain the reason regarding correction of the Will and alteration of the dates. I have gone through the said Will dated 15.04.2008 relied by the defendants in support of their claim. As observed, the initial date of the Will typed is 20.07.06 which is cut and handwritten corrected dated is 16.04.08. Interestingly the Will is registered on 15.04.2008 i.e. before its execution on 16.04.2008 even if admitted to be proved which is not possible, the question is raised as to how the Will was registered one day prior to its execution on 16.04.2008. There is no explanation from the side of the defendants in this respect and the same itself cast shadow and creates suspicion regarding the execution of the Will. Further, the contents of the Will is also incorrect and false regarding the facts as the same mentioned Sh. Hansal Rose as son and Smt. Sakshi Dass as grand daughter CS No. 45/14 & P. No. 01/14 page 25 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. though the records proved contrary to the same. The Will dated 15.04.08 relied by the defendants cannot be relied and acted upon and the suspicious circumstances regarding the Will could not be explained by the defendants at all.
It is noted that in this case the defendants not merely failed in proving the execution of the Will, they also failed in proving the attestation of the same. Moreover, there is no evidence on record to explain the suspicious circumstances of excluding the plaintiff from bequeathed of the suit property. The suspicious circumstances as discussed above remained unexplained. The Will accordingly relied by the defendants cannot be held to be proved in view of Section 68 of the Indian Evidence Act. The ratio of the judgment reported as 211 (2014) DLT 448 is squarely applicable in the facts and circumstances of this case. Keeping in view the aforementioned circumstances and discussions, I am of the considered view that defendants have failed to prove their case/defence on the basis of preponderance of probabilities and failed to discharge the onus. The ratio of judgment reported as 1982 (1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The plaintiff failed to produce any oral or documentary evidence to prove the contentions. Undisputedly, the burden lies on the defendants to CS No. 45/14 & P. No. 01/14 page 26 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. establish such facts but they failed to discharge the onus and prove these issues. The suit of the plaintiff is maintainable and defendants are not not entitled for the relief as prayed in Probate Petition No. 01/14. The aforesaid issues are accordingly decided against the defendants and in favour of the plaintiff.
ISSUES IN SUIT NO. 45/14: (I) Whether the plaintiff is entitled to get complete 100% share along with possession of the suit property as prayed ? OPP (II) Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP (III) Whether the plaintiff is entitled to decree of declaration as prayed for ? OPP The onus to prove these issues was on the plaintiff. As discussed above, the defendants failed to prove the execution of the Will dated 15.04.2008 by Late Sh. Samuel Dass in their favour. The rest of the material contentions being admitted in view of the testimony of the DWs and materials on record, it is categorically proved that the plaintiff is the only LR of Late Sh. Samuel Dass and Late Smt. Umedi Dass and have right, title and interest in the suit property. The defendants failed to prove their rights in the suit property. The plaintiff is accordingly entitled relief of the possession of the suit property as prayed in the suit. Issue No. I is CS No. 45/14 & P. No. 01/14 page 27 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. decided in favour of the plaintiff and against the defendants. As the defendants failed to prove the execution of the Will by Late Sh. Samuel Dass dated 15.04.2008 in their favour and it is proved that the plaintiff is the owner of the suit property, the plaintiff is further entitled to the relief of declaration of ownership of the suit property as prayed for. Issue No. III is disposed off accordingly in favour of the plaintiff and against the defendants.
22. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the CS No. 45/14 & P. No. 01/14 page 28 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
23. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
24. The plaintiff has prayed for restraining the defendants, associates, agents, attorneys etc. from transferring, alienating or creating any third party interest in the suit property. As mentioned, the defendants failed to prove any right, title or interest in the suit property. As the defendants have no right, title or interest in the suit property, the plaintiff is entitled for grant of injunction as prayed in the suit. The defendants, their agents, assigns, associates are restrained from creating any third party interest or parting with possession of the suit property. Issue No. II is decided in CS No. 45/14 & P. No. 01/14 page 29 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. favour of the plaintiff and against the defendants.
25. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's CS No. 45/14 & P. No. 01/14 page 30 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
26. In view of the aforesaid discussions and referred law, this Court is of the considered view that the defendants failed to prove the execution of the Will in view of Section 68 of the Indian Evidence Act. The plaintiff on the other hand succeeded in proving that Late Sh. Samuel Dass died intestate and the plaintiff are is accordingly entitled to the decree of possession, declaration and permanent injunction as prayed in the suit. The defendants cannot be considered having right, title or interest in the suit property better than the plaintiff and the Will relied by the defendants is neither helpful nor sufficient to deny the claim of the plaintiff. There is no merit or substance in the defence raised by the defendants. The suit bearing No. 45/14 of the plaintiff is therefore entitled to be decreed. The Probate Petiton bearing No. 01/14 filed by the defendants herein is liable to be dismissed and is accordingly dismissed.
Relief: For the reasons recorded above, the plaintiff is found to be entitled to CS No. 45/14 & P. No. 01/14 page 31 of 32 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. the following reliefs:
(a) The plaintiff is held to be owner of the suit property i.e bearing No. 629, PocketD, Dilshad Garden, Delhi95 as shown in red colour in the site plan Ex. PW 1/ A and is also entitled for possession as prayed in the suit.
(b) Decree of permanent injunction is passed in favour of the plaintiff and against the defendants. The defendants, associates, attorneys, representatives, agents etc. are restrained from selling, transferring, alienating or creating third party interest or parting with possession of the suit property bearing No. 629, PocketD, Dilshad Garden, Delhi 95.
(c ) The probate Petition 01/14 filed by the defendants is dismissed.
(d) The plaintiff is also entitled for the cost of the suit.
12. Copy of this judgment be placed in case file / Probate Petition No. 01/14 as well as Civil Suit No. 45/14. Decree sheet be drawn accordingly.
File be consigned to record room after necessary compliance. Announced in open Court on this 28th day of April, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi CS No. 45/14 & P. No. 01/14 page 32 of 32