Delhi District Court
Tribhuvan Kant Sharma vs The State on 30 May, 2017
IN THE COURT OF MS. SUJATA KOHLI, ADDITIONAL DISTRICT
JUDGE, PILOT COURT,CENTRAL, TIS HAZARI, DELHI
PC No.11/17
Tribhuvan Kant Sharma
S/o late Sh. Shridatt Sharma,
R/o H. No.2388, 2nd Floor,
Hudson Line, Kingway Camp,
GTB Nagar, Delhi110009. .........Petitioner
Versus
1. The State
2. Smt. Urmil Sharma
W/o Lt Sh. Umakant Sharma,
R/o 46 A, Suncity PhaseI,
Pilibhit Road, Bareli,
Uttar Pradesh. ..........Respondents
Date of filing of petition : 14.02.2017
Date of reserving judgment : 29.05.2017
Date of judgment : 30.05.2017
Petition for Grant of Probate Under Section 276 of The Indian
Succession Act, 1925.
JUDGMENT
PC No.11/17 page No.1 of 33
1. The petitioner has filed the present petition for grant of probate in his favour on the basis of Will dated 02.09.1956, executed by his deceased father Sh. Shridatt Sharma s/o late Shri Ganga Sahay Sharma.
2. Testator stated to have died on 27.03.1957. His permanent resident allegedly was House No.1763, Cheera Khana, Nai Sarak, Delhi 110006.
3. Testator was having two sons i.e. (i) late Sh. Umakant Sharma and (ii) Sh. Tribhuvan Kant Sharma, the petitioner. Sh. Umakant Sharma is stated to have died issue less leaving behind her widow Smt.Urmial Devi i.e. respondent/objector no.2.
4. Testator had executed a Will dated 02.09.1957 in favour of the petitioner in respect of the following property: House No. (Old) 150, re-numbered as House No.188 recently, Constructed on a plot of land admeasuring 50 square yards (approx.), situated in Mohalla - Rangrezaan now known as Mohalla - "Radha Krishan", inside Fhatto Bavli Gate, Town and Teshil: Khurja, District -
Bulandshahr, Uttar Pradesh, abutting on six-
foot lane (approx).
PC No.11/17 page No.2 of 33
5. Deceased Sh. Shridatt Sharma is stated to have executed the said last Will dated 02.09.1957, of his own free will and consent, without any pressure, coercion or undue influence, and in sound disposing mind in the presence of the witnesses.
6. Notice of the petition was issued to the relations of the deceased and also to the State. Besides, citation was also published in both the languages i.e. English and Hindi, in the requisite newspapers, in accordance with law.
7. Respondent No.2 Smt. Urmila Devi filed her No Objection/Written Statement, wherein she stated that she has no objection if the probate is granted in favour of the petitioner, and in this regard her separate statement was also recorded in the court.
8. Petitioner examined himself as PW1 on his affidavit Ex.PW1/A and relied upon the following documents : Ex.PW1/1 : Death certificate of Sh. Shridatt Sharma Ex.PW1/2 : List of legal heirs Ex.PW1/3 : Death certificate of Dr. Umakant Sharma PC No.11/17 page No.3 of 33 Ex.PW1/4 : Death certificate of Smt. Atarkali Devi Ex.PW1/5 : Schedule of Property Ex.CX1 : Photocopy of Driving Licence (OSR) Ex.CX2: Photocoy of health card (OSR) Ex.CX3: Photocopy of passbook of PNB (OSR)
9. Attesting witness Sh. Chander Singh entered into witness box as PW2 and he tendered his affidavit in evidence as Ex.CX1. However, he stated that signature in English writing on his affidavit are not his. Though he admitted signatures in Hindi as being his own. As such his said affidavit was struck off to the extend that it could not read in evidence but it was continued to be read for the purpose of enquiring into the aspect as to how the second signatures in English had crept on the affidavit and by whom and also to examine the role of the oath commissioner.
10.For the purpose of evidence as led on merit, PW2 was directed to be orally examined. He proved the Will in question as Ex.PW2/A. He PC No.11/17 page No.4 of 33 identified his own signatures on the Will Ex.PW2/A as at point A1, signatures of second witness at point B and signature of testator at point A and A2.
11.To sort out the aforesaid controversy regarding affidavit of PW2 Sh. Chander Singh, this court also recorded the statement of Sh. M.P. Sharma, Ld counsel for the petitioner as well as Sh. Balraj Advocate/Oath Commissioner.
12.Arguments heard.
Territorial Jurisdiction
13.At the threshold when this case was received by way of assignment, on the face of it, upon seeing the material on record, this Court had raised objection regarding territorial jurisdiction of the Delegate probate court in the Central District, in view of the fact that the deceased testator appeared to have lastly resided, prior to his death, at Tehsil Khurja, District Bullandshehar, Uttar Pradesh, as was revealed from his death certificate from where it was issued.
PC No.11/17 page No.5 of 33
14.However, Ld counsel for the petitioner and the petitioner insisted verbally that the deceased had very well being lastly residing at Delhi, and they would be able to establish this fact by way of evidence.
15.Accepting this submission, the objection was reserved to be dealt with at the later stage depending on the kind of evidence to be led by the petitioner at the subsequent stage.
16. At the initial stage, there was no other document apart from the death certificate of the testator, which was filed, but even till the stage of evidence and its conclusion, and inspite of many opportunities, no other document was brought on record by the petitioner to establish that the testator/deceased had his last fixed abode at Delhi, much less Central Delhi.
Ultimately the Court has to proceed in accordance with law on the basis of whatever material is there on the judicial record.
17.Most conspicuously, inspite of the fact that, this objection was very well brought to the notice of the petitioner at the very initial stage itself, and infact even at the final stage of the case, by putting queries and extending fresh opportunity for production of any documentary PC No.11/17 page No.6 of 33 evidence to show that, the deceased lastly resided at Central District; not even a single document could be produced by the petitioner, either during evidence or even thereafter, when the Court was ready to extend further opportunity.
18.At the stage of final argument, all that was done was to rely upon the oral testimony of attesting witness PW2 Sh. Chander Singh only, who while talking about his having witnessed the execution of the alleged Will, he claimed that the deceased testator had been residing at the address of Nai Sarak, Delhi.
19.For one thing, the fact of residence of the testator should have been proved by way of specific documentary evidence and not by mere oral evidence. However, even considering the oral testimony of PW2 Sh. Chander Singh, for the sake of arguments, even this witness did not come forward with any specific statement to support the stand taken by the petitioner that, the deceased testator continued to reside at the address No.1763, Cheera Khana, Nai Sarak, Delhi right uptill his death.
20.Infact, on the contrary, this witness replied to specific query in this regard, put to him during examination by court that, he could not say PC No.11/17 page No.7 of 33 where the testator was residing after execution of the Will, as he was never in touch with the testator after the date of the Will. He could not even say whether he was alive or dead, nor he had any idea about his whereabouts prior to this death.
21.As such it is very clear that, even the oral testimony of PW2 was of no help to the petitioner on the point of establishing that the deceased lastly resided within the jurisdiction of Delhi, much less Central Delhi.
22.Further, even from the examination of the petitioner/PW1 himself, as to about when and how, from whom and where the Will had been found i.e. after as many as 60 long years of its alleged execution, apart from the point of the petition being hopelessly barred by time (which shall be discussed under the relevant points specifically), all that the petitioner stated in reply was that his Bhabhi i.e. widow of his deceased brother Dr.Uma Kant Sharma had handed over to him the said Will, some 56 months back from today i.e. date of his testimony i.e. in March, 2017. He further stated that his elder brother Dr. Uma Kant Sharma was residing with his family at Bareily, Uttar Pradesh, and that his father PC No.11/17 page No.8 of 33 ( i.e. deceased testator) used to read Bhagwat Mahapuran, and he had carried it with him when he went to Bareily.
23.To a further query, said witness i.e. petitioner/PW1 again replied that his father the testator had come to meet him at Khurja, Bulladsahar, Uttar Pradesh and there he died. The petitioner further admitted that he had no document in his possession to show that his father had a fixed abode at Delhi, much less Central Delhi.
24.Even accepting this statement on its face value, a person who is reading Mahapuran or any other religious scripture, and that scripture is also admitted to be found at Bullandshehar, Uttar Pradesh, where for so many years it wass lying, the only inference then, that can be drawn is that, the deceased testator was very well residing on a permanent basis at Khurja, Bullandshehar, Uttar Pradesh or at Barily Uttar Pradesh, but certainly not at Delhi, i.e. lastly prior to his death at Khurja, Bullandshehar, Uttar Pradesh.
25.Even though this aspect was much highlighted by the Court, the petitioner/PW1 did not take this as an opportunity to give any further details as to how and when the deceased had left Delhi to go to PC No.11/17 page No.9 of 33 Bullandshehar or Bareily, and where he had been residing there; infact there is a complete silence on this aspect altogether.
26.Sole document brought by the petitioner reflects to the contrary. The oral testimony of the petitioner himself also speaks to the contrary that, the deceased testator was quite settled and living a peaceful religious life at Bareily, Uttar Pradesh; similarly, the oral testimony of PW2 also did not support the claim of the petitioner that, the deceased testator had been lastly resided at Delhi.
27.During the course of final arguments, Ld counsel for petitioner tried to contend that, a person may be residing at a given place on regular basis, and he may go to some place, where he may die from an accident or any other reason, and that would not change his last residence from the actual place, where he was regularly residing, and in the present case it was contended that the deceased testator was regularly residing in the normal course at Delhi, and just by chance, he had gone to Bullandsehar, where he died and that this would not change his last residence at Delhi.
PC No.11/17 page No.10 of 33
28.Even taking this contention all by itself, and viewed along with the record in this case, particularly the pleadings, nowhere in the entire petition it has been pleaded by petitioner that, the deceased had gone to Bullandshehar, and where suddenly he had died. Though in para 7, the petitioner has stated that testator was having his permanent abode in Delhi within the jurisdiction of this Court, even then he did not utter a word to state that, immediately before his death, he had gone to Bullandshehar, just by a coincidence or sheer chance.
29.This was even when the court at the initial stage of the case itself, was ready and willing to give opportunity to the petitioner, and further even at the final stage after the evidence was concluded, the court was ready and willing to give more opportunity to the petitioner to make suitable amendments in the petition, and even to bring any further evidence, if available.
30.Facts which have not been pleaded, cannot be proved otherwise, and much less pressed into, at the final argument stage.
31.As such in the present case, neither it occurs anywhere in the pleadings that, the deceased testator had gone to Bullandsehar, just by chance and PC No.11/17 page No.11 of 33 where he had a sudden death. In the evidence also, there has not been even a single document, except a death certificate Ex.PW1/1 issued by concerned authority at Bullandshehar, which on the face of it already showed at the initial stage itself that, the deceased testator would have been residing at Bullandshehar.
32.This conclusion is also drawn from the face of the document relied upon by the petitioner himself, and ignoring the fact that infact, it was only a secondary piece of evidence, and was only bearing certificate from municipal board at Khurja, Bullandshehar, UP. Though this document was exhibited, it was made clear, that it was subject to mode of proof, but the petitioner never bothered to call for any record from the office of municipal board at Khujra, Bullandshehar, UP even to prove the said death certificate itself.
33.Reference is had to the testimony of PW1/petitioner himself, wherein in his presence the court had made specific observations regarding the question, that may arise regarding the territorial jurisdiction over this case, but inspite of this fact being brought to the notice of the petitioner and counsel, no efforts were made to bring even one single document PC No.11/17 page No.12 of 33 before the court to show that, the deceased testator had permanent abode in Delhi.
34.The LRs of a deceased person, who resided at a given place on permanent basis and of sufficient age would have, not one, not two, but hundreds of documents to prove his residence at the given place, and LRs would not be in dearth of any document whatsoever, as has been in the present case.
35.Though, no doubt this case was not contested by any one inspite of notice issued in newspapers, etc, however, a probate court does have a bounden duty to go into the correctness of every petition, which comes before it, and before that, also to go into the basic legal objections that may be there, and which go to the root of the maintainability of a petition itself before the concerned Court. The object of the probate court is not, just to pass an order in favour of the petitioner, but to ensure that, the last intention of the deceased testator should be carried out/implemented.
36.Matter of territorial jurisdiction is not mere a formality. Furnishing a wrong territorial jurisdiction and bringing the petition for probate inb a PC No.11/17 page No.13 of 33 different State altogether may strongly prejudice several other Lrs or family members of the deceased who all may be settled in the other State where the deceased actually resided and where they would even be deprived of any benefit of any publication in a newspaper or otherwise. As in the present case, the entire family members of the deceased and the deceased, all seems to be hailing from different parts of UP and seem to be well settled there, there may be other family members also at UP itself but the petitioner deliberately seems to have preferred to bring the petition before the courts at Delhi, and which may seriously prejudice the rights of the other and may go unrepresented.
37. For an easy reference Section 270 of the Indian Evidence Act is being reproduced as under: When probate or administration may granted by District Judge. - Probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the PC No.11/17 page No.14 of 33 same that the testator or intestate, as the case may be, at the time of his deceased had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge.
38. For an easy reference Section 271 of the Indian Evidence Act is being reproduced as under: Disposal of application made to Judge of District in which deceased had no fixed abode. - When the application is made to the judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction.
39. For an easy reference Section 272 of the Indian Evidence Act is being reproduced as under: Probate and letters of administration may be granted by Delegate. - Probate and letters of administration may, upon application for that purpose to any District Delegate, be granted by him in any case in which there is no contention, if it appears by petition, PC No.11/17 page No.15 of 33 verified as hereinafter provided, that the testator or intestate, as the case may be, at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
40. For an easy reference Section 273 of the Indian Evidence Act is being reproduced as under: Conclusion of probate or letters of administration. - Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:
Provided that probates and letters of administration granted -
(a)by a High Court, or
(b)by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, shall unless PC No.11/17 page No.16 of 33 otherwise directed by the grant, have like effect throughout.
41.It transpired upon reading of all these four sections in continuity that, in case a court which is delegated with the function of a probate court by Ld. District & Sessions Judge or Hon'ble High Court, as the case may be, as happens to be the status of the present court, which is a Delegated court, it is mandatory that the deceased testator should have been lastly resided/having fixed abode within the jurisdiction of this court i.e. Delhi and particularly Central Delhi.
42.Further, in case of Ld. District & Sessions Judge himself, he also may be seized of a petition wherein though deceased was not residing within the territorial jurisdiction of his court, but property bequeathed is in district within his jurisdiction, and in that case also, he would have discretion that, where he is of the opinion that, it should be disposed of more justly and conveniently in another district, or where the application is for Letters of Administration, to grant them absolutely, or limited to the property within his own jurisdiction. PC No.11/17 page No.17 of 33
43.Distinction between Section 270 and 271 of the Indian Succession Act on one hand and Section 272 on the other hand is mainly that while first two sections pertain to jurisdiction of Ld. District & Sessions Judge himself, Section 272 deals with the jurisdiction of any District Delegate, as in the present case.
44.Furthermore, even apart from this, in the present case, what is most significant is that, even the property bequeathed to the petitioner also is stated to have been located at Bullandshehar, Uttar Pradesh as clearly visible on the face of the Will Ex.PW2/A in para 2 and 4 i.e. Town and Tehsil Khurja, District Bulandshahar, Uttar Pradesh.
45.As regards other property mentioned at Kingsway Camp, Delhi in para 3 of the Will, firstly it was still to be purchased by the deceased testator, and for which he only stated to have paid the earnest money, and it was only dependent upon the deal being finalized for purchase of the said property at Kingsway Camp, Delhi, and even thereafter, the said property was to be bequeathed, not to the petitioner, but to his brother Uma Kant Sharma, who was minor at that time, aged 16 years. PC No.11/17 page No.18 of 33
46.Even petitioner himself stated in para 7 of his petition that, apart from everything, the deceased had a landed property in the area of Kingway Camp, Delhi, but the same had already been disposed of a few months prior to his death.
47.In para 8 of the petition, the petitioner further clarifies that, it is property at Bullandshehar which has been bequeathed in his favour and which has been described in Schedule A, and for probate of which he has filed the present petition.
48. Schedule A is perused, and the same is silent altogether about any property at Kingsway Camp, Delhi, whether disposed of or whether intended to be purchased or whatsoever. Said schedule only mentions a property i.e. House No. (Old) 150, renumbered as House No.188 recently, Constructed on a plot of land admeasuring 50 square yards (approx.), situated in Mohalla - Rangrezaan now known as Mohalla "Radha Krishan", inside Fhatto Bavli Gate, Town and Teshil: Khurja, District - Bulandshahr, Uttar Pradesh.
PC No.11/17 page No.19 of 33
49.It is rather surprising as to how the petitioner has opted to come before Delhi Court. This becomes even more prominent in view of the fact that, all close relatives/legal heirs including widow of Dr. Uma Kant Sharma i.e. sister in law of the petitioner, and daughter in law of the deceased testator is also stated to be permanent resident of 46A, Suncity PhaseI, Pilibhit Road, Barreily, Uttar Pradesh.
50.It is surprising that most of the close family members/relatives are shown to be residing and well settled at different parts of Uttar Pradesh, whether at Barreily or Bullandshahar; how and why the petitioner would have come before Delhi courts in itself raises much suspicion, and this may have been to avoid publication of notice in the newspapers in the concerned State i.e. Uttar Pradesh.
51. However, without going into this further, it is observed that, publication of notices particularly in the probate case is not just a formality to be carried out. The object is that it should really be brought to the notice of the persons of the district where the property is situated, and also the deceased testator had lastly resided. PC No.11/17 page No.20 of 33
52.It was also one of the arguments raised on behalf of the petitioner at the final stage that, since the Will itself mentions that, the deceased testator was residing at Cheera Khana, Nai Sarak, Delhi, that itself would have been sufficient evidence to establish this fact. However, this argument is quite misconceived and equivalent to a situation like trying to put cart before horse. It is genuineness and validity of the Will which itself is in question, and which has yet to be decided by the probate court, and simply by an isolated statement in the Will, it cannot lead to any inference or conclusion that even after executing the Will, the testator continued to live at the given address of Nai Sarak, Delhi, and that he had not shifted to any other place.
53.The death certificate filed by the petitioner, which is showing that, it was issued from authority concerned at Bullandshehar, Uttar Pradesh, that itself rebutted the presumption that, the deceased would have continued to reside at Delhi.
54.On the other hand as per municipal rules and byelaws, the death certificate is issued by the authority where the deceased lastly resided, PC No.11/17 page No.21 of 33 and where he died, and not at any other place or place where he may have resided in past, even if at the time of execution of the Will.
55.As such, the petitioner has miserably failed to establish, inspite of more than sufficient opportunities, that the deceased testator had a fixed abode lastly prior to his death at Delhi. He has miserably failed to establish that, the deceased testator had any property at Delhi, intended to be bequeathed to the petitioner. The sole property bequeathed to the petitioner is also located at Bullandshehar, Uttar Pradesh, and this is on the basis of documents of the petitioner himself. By any stretch of imagination, the jurisdiction could not be extended over by the petitioner to the Delhi Courts, as he has attempted to do, and for the reasons best known to him. As such, it is held that, District Delegate Court at Central Delhi would have no jurisdiction to entertain this petition.
56.Since petitioner refused to accept this situation at the initial stage, and sought opportunity to prove otherwise, and accordingly he was also given opportunity to lead evidence, this matter also stood entertained by the Court on all aspects, and as such, the findings shall also be given PC No.11/17 page No.22 of 33 accordingly on all other aspects as well, the next aspect being limitation.
Limitation
57.The Will is shown to have been executed on 02.09.1956. As per para 1 of the petition, the deceased testator stated to have died on 27.03.1957 i.e. one year thereafter. Death Certificate PW1/1, though it was subject to mode of proof, was accepted for the time being and it shows that the date of death was 27.03.1957. Petitioner has not pleaded anywhere any good reason for the petitioner for coming to seek probate of the Will all these 60 long years, after the death of the deceased testator.
58. For an easy reference Article 137 of the Limitation Act is being reproduced as under:
Description of application Period of limitation Time from which period beings to run Any other application for which Three years When the right to apply no period of limitation is accrues. provided elsewhere in this division.PC No.11/17 page No.23 of 33
59.Article 137 of the Limitation Act would be squarely applicable to the given situation, as per which, a petition for probate also, should be filed within three years from the date when the cause of action arises i.e. death of the testator, and one cannot sit over the Will for as long as a period of 60 long years, and then suddenly come forward to seek probate, that too, in a State where, neither deceased lastly resided, nor even the property in question was located.
60. Hon'ble Mr. Justice Valmiki J. Mehta, of our own Hon'ble High Court in the case of Mukesh v. State & Ors in FAO No.466/2016 has been of the considered view that Article 137 of the Limitation Act would very well apply to the petition for probate or letters of administration, and accordingly the limitation would be only of three years. His Lordship after relying upon the judgment of Hon'ble Supreme Court in the case of Kunvarjeet Singh Khanpur v. Kirandeep Kaur & Ors, (2008) 8 SCC 463, was pleased to hold the view that it is clear that the probate petition or petition for letters of PC No.11/17 page No.24 of 33 administration has to be filed within three years of arising of cause of action.
61.As such, the present petition having been filed after 60 long years of the death of the testator, would clearly not be maintainable.
62.Since the petition had already been entertained at the submission of the petitioner, and the matter had been allowed to go to the stage of evidence, the court is also bound to dispose of this petition on merit i.e. claim of the petitioner regarding validity and genuineness of the Will in question.
63.The Will which is supposed to be witnessed by atleast two attesting witnesses, and may be proved by evidence of one of such attesting witnesses, the petitioner has examined Sh. Chander Singh as PW2 to establish the execution and validity of the Will in question. However, the mandatory requirement for proving the document, required to be attested by law has been laid down in section 68 of the Indian Evidence Act, as per which the testator should have signed in the presence of the attesting witnesses, and attesting witnesses should also have signed in the presence of testator and in the presence of each other. However, as PC No.11/17 page No.25 of 33 against this, PW2 himself has replied to the court query that, testator and other attesting witnesses had already signed on the Will, when he had reached the spot, and he signed, only later on. He further clarified and reasserted that, the other two i.e. testator and the other attesting witness had not signed in his presence, and that lawyer had already obtained their signatures on the Will.
64.Therefore, mandatory requirement of the manner in which a Will has to be executed and proved has also not been established by the attesting witness.
65.Further, this witness could not establish his own identity, and particularly his own place of abode. He did bring Voter Identity Card, but same was observed to be bearing the words "Duplicate Card".
66.Upon being questioned, the witness said that he had lost the original some 10 years ago, and that he had lodged report, whereafter he was issued duplicate card. Neither such report was proved, nor the witness could produce any other better document that, he had himself been residing at Nai Sarak, Delhi at the relevant time, as claimed by him. PC No.11/17 page No.26 of 33
67. For an easy reference Section 68 of the Indian Evidence Act is being reproduced as under:
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).
68.Further not only the attestation of the Will in the manner as prescribed under law has not been proved, but even death of the testator itself has not been proved in accordance with law. The original death certificate was not produced, but only a certified copy or computer generated copy thereof under the stamp of Executive Magistrate of the authority of Bullandshehar, Uttar Pradesh was filed. Record of birth and death was also not produced before the Court and nor was there any document PC No.11/17 page No.27 of 33 supported by any certificate u/s 65 B of the Indian Evidence Act, even though it was a computer generated document.
69.Therefore, not only on the point of territorial jurisdiction and limitation, it is held that the petition has been filed beyond the territorial jurisdiction of the courts at Delhi, much less Central District; the petition is hopelessly barred by time, and lastly also the attesting witness PW2 has not been able to prove the due execution of the Will as laid down in respect of mode of proof of execution of the Will.
70.Needless to say that the petition was not maintainable, in view of the legal objection, but also apart from that, the Will in question has not been proved to have been duly executed by the testator. The petition deserves to be dismissed.
71.However, before parting with this judgment, it is also necessary to refer to over all conduct of petitioner, his counsel and the oath commissioner, who have brought an affidavit of PW2 with signatures in English which were denied by the deponent/PW2 himself who immediately stated that, he signs only in Hindi, and not in English. PC No.11/17 page No.28 of 33
72. Affidavit was bearing signatures in English as well as Hindi. Ld counsel for the petitioner tried to contend that he had only meant to write down the name of deponent to facilitate signatures of deponent at the correct place and words written in English were actually not meant to be signatures of the deponent, but only his name. He further stated in affidavit in response to a show cause notice which was issued to him, that he had forgotten to put brackets in the beginning and end. Indeed there were no brackets at the beginning or at the end of the cursory writing on Ex.PW1/A which was wrongly looking like signatures of the deponent.
73.Even more surprising was the fact that though this affidavit was directed to be put in a sealed envelop immediately, and Ahlmad complied with the order, upon being reopened, the affidavit was already having brackets at the beginning and end of the cursory writing. Perhaps there was an attempt to rectify the so call defect.
74.In this context, notice was issued to oath commissioner concerned who appeared, however, had no valid and satisfactory explanation. His Register of relevant period was also taken on record and considered. PC No.11/17 page No.29 of 33 Said register was observed to be maintained datewise, but not for any particular period. It was stated that, registers are changed when pages get filled up. Surprisingly, this register which was covering relevant the period, when the affidavit was alleged to have been attested, but after entries of each date, there was a significant gap/ space left blank before the entries of the next dates, i.e. between the entires of two dates, and without striking of such blank space, perhaps to accommodate more affidavit entries at the subsequent dates, with the back date. There was no other explanation forthcoming from the Oath Commissioner in this regard inspite of repeated queries.
75.Instructions given to the Oath Commissioners in respect of the manner in which records are to be maintained were produced, but same did not deal with a situation, where such like space is left by the Oath Commissioner between the entries of one date and another, and without striking off the same. What could be more of a coincidence is that, the signature of PW2 Sh. Chander Singh was found at the exact space which was the last entry for the said date in question. PC No.11/17 page No.30 of 33
76.Sh. M.P. Sharma, Ld counsel for the petitioner was also given opportunity to explain this. Going by the affidavit of Sh.M.P. Sharma, Ld counsel for the petitioner and statement of Sh. Balraj, Oath Commissioner, keeping in view the contradictions therein, particularly about brackets not being there around cursory writing, and same found at the later stage, which is quite strange situation, and similarly, the statement of oath commissioner, also could not satisfy the court about the material discrepancies.
77.Though the attesting witness PW2 admitted his signatures in Hindi on the said document, said affidavit of PW2 being found quite defective, bearing two signatures of deponent, one of which already denied, the court had struck off the said affidavit for the purpose of evidence on merit, but had retained it only as record of the proceedings.
78.However, since both i.e. Ld counsel for the petitioner and also oath commissioner seems to have been apologetic, and tendered their unqualified apology, and even otherwise no specific motive could have been attached to the said witness or to the petitioner for having done two signatures of which one was denied, and the since PW2 otherwise PC No.11/17 page No.31 of 33 deposed orally, under his signatures in Hindi, all that could be inferred is that perhaps in some anticipation, even English signatures might have been done on behalf of witness just in case witness would have refused to come. Once he came, his signature already in English seems to have been ignored until detected by the court.
79. Be this as it may, the matter stands closed with warning to both i.e. Sh. M.P. Sharma, Ld counsel for the petitioner and Sh. Balraj, Oath Commissioner, not to indulge in this kind of practice further, with further specific direction to oath commissioner not to leave any blank space between entries of one date from the other date, and minimum space necessary be indicated by drawing lines, and any blank space between lines in register be struck off immediately, so as to avoid any misuse of the said space by making entries of back dated documents. No further action is deemed expedient, in the interest of justice, against said Advocate Sh. M.P. Sharma and oath commissioner Sh. Balraj.
80.In view of above discussion, probate petition stands dismissed on the point of limitation, territorial jurisdiction as well as on merit. PC No.11/17 page No.32 of 33 No order as to costs.
However, a copy of this judgment be placed before Ld. District & Sessions Judge (HQs) with request for issuance of general guidelines for Oath Commissioners for maintaining register of entries properly and for careful attestation of affidavits. File be consigned to record room.
Announced in the open court on the 31.05.2017 (SUJATA KOHLI) Additional District Judge, Pilot Court/Central District Tis Hazari Courts, Delhi.
PC No.11/17 page No.33 of 33