Delhi District Court
Ms Chander Kanta vs State on 1 September, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL. DISTRICT
JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Old Probate Case No.- 91/10/02
New Probate Case No. 15874/16
1. Ms Chander Kanta
Daughter of late Shri Chaman Lal,
R/o Flat No. 258, Desh Bandhu Apartment
Kalkaji, New Delhi
..........Petitioner
Vs.
1. State
2. Smt. Shant Bala
Wd/o late Shri Balbir Singh Gupta
Resident of C-7, Amar Colony,
Lajpat Nagar,
New Delhi- 110019
3. Mr. Ashish Gupta
S/o late Shri Balbir Singh Gupta
Resident of C-7 Amar Colony,
Lajpat Nagar,
New Delhi-110019
4. Ms Manshi Gupta
D/o late Shri Balbir Singh Gupta
Resident of C-7, Amar Colony,
Lajpat Nagar,
New Delhi- 110019
5. Smt. Kalawati
Wd/o Late Shri Laxman Dass,
Resident of C-7, Amar Colony,
Lajpat Nagar,
New Delhi-110019
......Respondents
Date of institution of the case : 23.10.2002
Date reserved for judgment on : 27.08.2016
Date of pronouncement of judgment : 01.09.2016
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JUDGMENT:
1 Petition under Section 276 of Indian Succession Act for grant of Probate of Will dated 18.01.2000 filed by the petitioner.
2 In brief the facts are that late Shri Balbir Singh S/o late Shri Laxman Dass ( hereinafter referred to as "deceased") R/o C-7, Amar Colony, Lajpat Nagar, New Delhi ( hereinafter referred to as the "property in question") was the owner of the property in question. The deceased died on 18.01.2002 in a road accident at Barelli. The ordinary place of resident of deceased was C-7, Amar Colony, Lajpat Nagar, New Delhi i.e suit property. At the time of death, deceased was posted as R.P.O. with Ministry of External Affairs, Regional Passport Office and was posted at Barelli Passport office. The deceased was the absolute and sole owner of property in question and also left behind movable properties and service benefits.
3 It is stated that that petitioner was residing with the deceased as his wife after the divorce of the petitioner from her earlier husband and even on the date of accident the petitioner was with the deceased. It is further stated that respondent no. 2 is the wife of deceased, respondent no. 3 and respondent 4 are the son and daughter and respondent no. 5 is the mother.
4 The deceased during his life time has executed a last will and testament dated 18.01.2000 with his free consent and mind and without any pressure, coercion and threats from any corner in the presence of two independent witnesses. By virtue of the said will deceased bequeathed ½ share of the immovable 2/22 property in question in favour of the petitioner and 1/4 th share of his service benefits and rest of the amount, share and the properties have been given to respondent no. 2.
5 It is stated that petitioner had sent a notice dated 31.07.2002 to the respondent informing them about the Will left by the deceased and also wrote a letter to Regional Passport Office for receiving 1/4th share of petitioner. Notice was duly served upon respondent no. 2, 3 & 4 and Regional passport Office. Thereafter again a reminder was sent on 05.09.2002. A letter on 3.10.2002 received having the receipt of letter dated 31.07.2002 whereby the Pass Port office declined to make payment of 1/4th share of the deceased to the petitioner. On the other hand respondent no. 2 to 4 have not come forward for partition of the property by meets and bounds and also not replied the above said letter.
6 The petitioner left with no other alternative but to file the present petition for grant of Probate with the annexed will of deceased. Petitioner seeks the Probate of the annexed Will of the deceased dated 18.01.2000.
7 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents and citation to general public got published in daily newspaper "Hindustan Times"
dated 14.02.2002. Respondents No. 2, 3 & 4 have filed their written objections.
8 The valuation report in respect of immovable property bearing no. C-7, Amar Colony, Lajpat Nagar, New Delhi 3/22 was called from the concerned Collector and the said valuation report has been filed on behalf of SDM, Defence Colony, Delhi. The value of the aforesaid property has been assessed to the tune of Rs. 15,04,203/- (Rupees Fifteen lacs Four Thousand Two hundred three Only).
9 Written statement filed on behalf of respondent no. 2, 3 & 4. The preliminary objection taken that petition is not maintainable according to provision of Section 281 of Indian Succession Act. The respondent no. 2, 3 & 4 mentioned the detailed background. It is stated that in the year 1976, respondent no. 2, Ms Shant Bala got married to one Balbir Singh, accordingly to Hindu Rites and ceremonies. At that time Balbir Singh was employed as a LDC in the office of Regional Passport Office, Delhi and drawing a salary of Rs. 340/- per month. Two issues were born out of this wedlock, namely, Ashish and Manshi in the year 1977 and 1982 respectively. The Balbir Singh soon took recourse to corrupt practices in the discharge of his official duties and started earning illegitimate money. It is further stated that soon evil led to evil and Balbir Singh fell in wrong company and took liquor and then womanizing. That is how he came to contact with the petitioner Chander Kanta a woman of easy virtue. The Petitioner comes from a family living in abject poverty and her family comprising eleven brothers and sisters apart from parents. The family used to meet their ends partly by begging and partly by selling paper envelopes collected from garbage bins.
10 It is stated that in order to alleviate poverty the petitioner adopted the course of easy virtue and came in contract 4/22 with Balbir Singh in the year 1994. Soon the friendship grew into proximity and into intimacy and lastly into co-habitation. Balbir Singh started living with petitioner in her house in Kalkaji on regular basis. This arrangement suited the petitioner as she began to cater and minister to the base needs of Balbir Singh and in the bargain she secured her pound of flesh by extracting from Balbir Singh the money he was earning by illegitimate means.
11 It is further stated that a point came where Balbir Singh realised that the relationship between him and the petitioner was not one of love and sacrifice but a very mean relationship where the petitioner was blackmailing him for the purpose of extracting etc. money and ultimately led to the trouble. Balbir Singh while posted at Passport office, Chandigarh booked in a criminal case by CBI vide FIR No. 40/94 CHG dated 25.08.1994. He arrested and suspended. The Balbir Singh to extricate himself from the clutches of the petitioner but did not succeed. There was regular fight between Balbir Singh and his family on the one hand and Balbir Singh and the petitioner on the other hand. Unable to bear the burden he had suffered a major heart attack while posted at Jaipur in the year 1999. He was treated both at Jaipur and at the Escorts Hospital at Delhi and survived. Ultimately Balbir Singh died in a road accident on 18.01.2002. It is stated that petitioner sensing financial instability and now permanent loss of regular source of income launched herself a project to take away the assets and properties of Balbir Singh. The petitioners procured by means which amounts to offences under Sections 468/471 read with Section 120-B IPC.
5/2212 On merit it is stated that Balbir Singh was the absolute and sole owner of immovable properties no. C-7, Amar Colony, Lajpat Nagar which was constructed by respondent no. 2 Smt. Shant Bala out of the recourses available to her with her own earnings and savings. Balbir Singh left behind no movable property. He is entitled to the benefits as government servant and lawful heirs are entitled i.e the respondent no. 2, wife and two children Ashish Gupta and Manshi Gupta.
13 It is stated that the Will in question has been made on the basis of corrupt litigation against the deceased which amount offences under Section 468/471/IPC read with Section 120-B IP. It is stated that the petition is liable to be dismissed with exemplary cost.
14 Petitioner filed reply/replication to the written statement of respondent no. 2, 3 & 4 and reiterated the avements mentioned in the petition.
15 Respondent no. 5 not appeared in this case and no reply or objections has been filed on her behalf.
16 On the basis of the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 12.12.2005:-
1. Whether late Sh. Balbir Singh has executed a valid and enforcible Will dated 18.1.2000 claimed by the petition? OPP
2. Whether the petitioner is entitled for grant of probate in respect of Will ? OPP 6/22
3. Whether the petition is not maintainable for non compliance of Section 281 of Indian Succession Act? OPD
4. Whether the petition is liable to be dismissed for the objections raised by the objectors? OPR
5. Relief 17 Petitioner examined herself as PW-1, PW-2 Sh. I.J. Singh, attesting witness and PW-3 Sh. Khem Singh , LDC from the office of Regional Passport office. Vide separate statement of Sh.
Bharat Bhushan Gupta, Advocate, the evidence on behalf of petitioner was closed on 05.03.2007.
18 Respondent examined Sh. C.D. Kataria as RW-1, Ms Mansi Gupta as RW-2, Sh. Sukhdev Singh as RW-3, Sh. Pradeep Gupta, RW-4 and Smt. Shant Bala and affidavit of Smt. Kulwanti Devi also filed but she was not examined in the court and vide order dated 24.11.2011 evidence on behalf of respondent no. 2 to 4 was closed.
19 I have heard Sh. B.B. Gupta, ld. counsel for the petitioner and Sh. U.K. Shandilya ld. counsel for the respondent no. 2 to 4 and perused the record. My findings on issues as under:-
20 Issue No. 1, 2 & 4The issue no. 1, 2 & 4 are taken simultaneously as interconnected. However, the onus of issue no. 1 & 2 is on the petitioner and onus of issue no. 4 is on respondent no. 2 to 4. Ld. 7/22 Counsel for the petitioner Sh. B.B. Gupta submits that deceased Balbir Singh, who died on 18.01.2002 in a road accident at Barelli left behind respondent no. 2 Smt. Shant Bala, wife, respondent no. 3 Sh. Ashish Gupta, son, respondent no. 4 Ms Manshi Gupta, daughter and respondent no. 5 Smt. Kalawati, mother. The deceased Balbir Singh was the owner of property bearing No. C- 7, Amar Colony, Lajpat Nagar and also left behind movable properties and service benefits etc. He further submitted that petitioner was residing with deceased Balbir Singh as his wife after her divorce from the earlier husband. Even on the date of accident she was with the deceased who met unfortunate serious accident at Barelli. He submitted that the deceased Balbir Singh had executed his last will Ex. PW-1/2 dated 18.01.2000 whereby bequeathed 1/2 share in the property bearing no. C-7, Amar Colony, Lajpat Nagar in favour of the petitioner and 1/4th share of the amount of service benefits and rest of the amount share and benefits have been given to respondent no. 2.
21 He further submitted that prior to filing of petition a notice dated 31.07.2002 and the reminder dated 5.9.2002 were duly informed to respondent no. 2 and the regional pass port office, thereafter, present petition for probate filed by the petitioner. He further submitted that petitioner in order to prove the last will of deceased Balbir Singh appeared herself in the witness box and proved her affidavit Ex. P1. She further proved the death certificate of deceased Ex. PW-1/1 and the will Ex. PW-
1/2. He submitted that in the cross-examination she elaborated the fact and circumstances how she came to know deceased Balbir Singh and performed marriage ceremony with him at Mansa Devi temple, Chandigarh. He further submitted that the 8/22 will is legal and genuine and is the last will of the deceased. The Will Ex. PW-1/2 is also proved on the basis of testimony of PW-2 Sh. I. J. Singh, who is a highly rank retired officer as Deputy Inspector General of CRPF, a friend of deceased and one of the attesting witness.
22 He submitted that PW-2 proved his affidavit Ex. PW- 2/A. He further submits that PW-2, Sh. I.J. Singh specifically explained how he was called to become attesting witness by the deceased Balbir Singh on 18.01.2000 and signed the will Ex. PW- 1/2 at New Delhi. He further submits that PW-2 further elaborated that deceased Balbir Singh understood and read over the will and thereafter put his signatures. PW-2, Sh. I.J. Singh also identify the signatures of deceased Balbir Singh and signature of another attesting witness Sh. Jagmohan Gupta. He submits that in the cross-examination he elaborated the facts that how he knew the deceased Balbir Singh. PW-2 further explained that on 31.12.1999 deceased Balbir Singh had called him that is why he came to Delhi 18.01.2000.
23 Ld. Counsel for the petitioner specifically pointed out the testimony of RW-2 Ms Manshi Gupta where in her cross- examination she admitted that his father had not executed any will except which is placed on record. He submitted that the petitioner on the basis of testimony of PW-1 & PW-2 established that deceased Balbir Singh executed his last will Ex. PW-1/2 and proved as per Section 63 (c) of Indian Succession Act and Section 68 of Indian Evidence Act.
24 On the other hand ld. Counsel Sh. U.K. Shandilya for respondent no. 2 to 4 submitted that PW-1 Smt. Chander Kanta 9/22 deposed completely false facts which attracts the provision of Indian Penal Code. He submitted that right from the beginning to end of the case of the petitioner's case is based on fraud and bundle of false facts. He submitted that in the petition, it is stated that she was living with deceased Balbir Singh as his wife after the divorce. However, in the cross-examination she deposed that she met deceased Balbir Singh in January 1993 and he was brought by some friend Mr. Bedi. She performed marriage in 1994 at Mansadevi temple, Chandigarh. He pointed out that she admitted that she married in 1980 with earlier husband till 1993 and thereafter started living with deceased Balbir Singh. However, she admitted that a decree of divorce was passed in 1998. The petitioner has deposed false facts regarding the fact that she started living with deceased Balbir Singh after her divorce on the contrary she was living much prior to the divorce. Petitioner deposed all false facts before the court. So there is a complete falsehood of the petitioner proved on record.
25 He further pointed out the conduct of the petitioner when deceased Balbir Singh was ill and suffering from heart attack and highlighted the incident between petitioner and family members of deceased at Delhi residence. He further submits that as per version of petitioner, she was led by police officials to the resident of deceased. He submitted that it is unbelievable that the petitioner first visited the police officials then they took the deceased house as it never happened in natural course. He further submitted that the testimony of PW-1 further proved the fact that both the attesting witness Sh. I.J. Singh and Sh. Jagmohan Gupta were well known to her as she admitted that they were the visitors to her since 1990. Therefore, both the 10/22 attesting witnesses are closed friends of petitioner not of deceased Balbir Singh.
26 He further submitted that the alleged will Ex. PW-1/2 has been prepared by petitioner with the collusion of Sh. I.J. Singh and Sh. Jagmohan Gupta who are her closed friends after the death of deceased Balbir Singh. He also pointed out towards the virtue of petitioner who was having so many friends in her life. He further submitted that alleged will Ex. PW-1/2 is a forged and fabricated and prepared after the death of deceased Balbir Singh. He further submitted that the testimony of RW-1 Sh. C.D. Kataria, Advocate who was the counsel for the deceased Balbir Singh in the CBI case registered against him, when he was posted at Chandigarh. He categorically established that petitioner had visited for preparation of a false will in the first week of May 2002 and she brought some blank papers with the signatures of deceased Balbir Singh. Petitioner asked him to prepare a false will but he refused. He further submitted that the testimony of PW-5 Shanta Bala further established that RW-1 Sh. C.D. Kataria disclosed this fact to Shanta Bala in the year 2007.
27 He further submitted that the will is prepared on a letter head of deceased Balbir Singh and there is cutting on address mentioned there. He further submitted that the petition as well as petitioner in witness box are silent how the will came into the possession of petitioner. Therefore, the Will Ex. PW-1/2 is a forged and fabricated document which was prepared by petitioner after the death of deceased Balbir Singh in collusion with her two friends Sh. I.J. Singh and Sh. Jagmohan Gupta.
11/22
28 Ld. Counsel for respondent no. 2 to 4 also relied on
judgment titled as Smt. Jaswant Kaur Vs Smt Amrit Kaur
and Ors, (1971) 1 Supreme Court Cases 369, H.
Venkatachala Iyengar Vs B.N. Thimmajamma & Ors AIR 1959 Supteme Court 443, Janki Narayan Bhoir Vs Narayan Namdeo Kadam ( 2003) 2 Supreme Court Cases 91. He has categorically read out principle laid down in judgment of H. Venkatachala Iyengar ( Supra) and stressed upon the "principle of satisfaction of conscious of the court". He further submits that alleged will Ex. PW-1/2 is surrounded by suspicious circumstances and fraud which petitioner failed to dispel. He finally submitted that the petition is liable to be dismissed.
29 In order to appreciate the respective submissions of both the counsels, let examine and scrutinize the testimonies of PW-1 Ms Chanderkanta and PW-2 Sh. I.J. Singh because the burden of proving the will is on petitioner.
30 The petitioner in the petition as well as in the witness box maintained the stand that she has been living with deceased Balbir Singh after her divorce and her affidavit Ex. P1 is also on the same line. In the cross-examination she deposed that in the year 1993 petitioner met for the first time with deceased Balbir Singh through a friend Mr. Bedi. In the year 1994 at Mansa Devi temple, Chandigarh she performed the marriage ceremony. In 1997 she came to know that deceased Balbir Singh was already married and having two children. Then just after few lines she changed to the year 1999. It means that she was not sure when exactly she came to know about the fact that deceased Balbir Singh was already married or she knew since beginning. The 12/22 cross-examination further mention that she married in the year 1980 but does not remember the date of divorce. The divorce was in the year 1998 but she started living with deceased since 1994. The depositions are contradictory to each other because she started living with deceased Balbir Singh much prior to her divorce in the year 1998. She specifically deposed that her earlier marriage was dissolved in 1998. The testimony of PW-1 during the cross-examination demolished her stand that after divorce she started living as wife with the deceased Balbir Singh. She deposed completely false statement before the court on this important aspect of her life. She is also unbelievable to the knowledge that she came about deceased Balbir Singh was married only in 1997 or 1999.
31 The testimony of PW-1 further established that the relation between the petitioner and the respondent no. 2 to 4 were strained in the year 1997. During the illness of the deceased she narrated one incident of visit at Amar Colony. However, her version is totally unbelievable because she deposed that police officials told about the residence of deceased Balbir Singh. It shows that instead of visiting the house she first went to the Police Station and then police took her to resident of deceased, Balbir Singh which is completely un-believable. Therefore, her testimony is found to be full of falsehood on these aspects.
32 Now coming to the important aspect of Will Ex. PW- 1/2. PW-1 in her affidavit Ex. P1 deposed that deceased on 18.01.2000 without any pressure or threat from any corner in the presence of Sh. I.J. Singh and Sh. Jagmohan Singh executed last 13/22 will. She had also seen both the attesting witnesses signing and writing and identified their signatures as well. It is possible only when the petitioner was present or played active rule in execution of the will, otherwise she is perpounder of the the will then how she knew, when and how the will was executed by the deceased in the presence of Sh. I.J. Singh and Sh. Jagmohan Gupta. It established that both the attesting witnesses Sh. I.J. Singh and Sh. Jagmohan were known to her about 12 years prior to the date of execution of the Will Ex. PW-1/2 rather then deceased, Balbir Singh. It is strange and become suspicious circumstances in the cross-examination when she admitted that Sh. I.J. Singh and Sh. Jagmohan Gupta were visiting to her house since 1990.
33 The legal preposition is that perpounder of the will cannot proved the Will unless played active role. The Will has to be proved and exhibited by the attesting witnesses. However, in present case petitioner exhibited the Will Ex. PW-1/2 which is not as per law. The Will must have been exhibited and proved by the attesting witnesses to the Will but not by the perpounder of the Will. Thus the conclusion drawn is that the testimony of PW-1, petitioner is unbelievable and having threads of false facts. It is also established and proved that petitioner played active role in the execution of the Will Ex. PW-1/2 and both the attesting witnesses Sh. I.J. Singh and Sh. Jagmohan Gupta were actually friends of petitioners and well known to her.
34 Now coming to the testimony of PW-2 Sh. I.J. Singh, attesting witness who is retired as DIG, CRPF in the year 1997. In his cross-examination he deposed that in January 1992 he came 14/22 to know deceased Balbir Singh through common friend but he did not disclose the name of common friend. He used to visit deceased Balbir Singh at Amar Colony house also. He admitted that he came to know relationship between petitioner and deceased Balbir Singh in 1994 and also about the marriage between them at Mansa Devi temple, Chandigarh. He also deposed that on 31.12.99 deceased had telephoned him at Goa then he came Delhi on 18.01.2000. He admitted that Will Ex. PW-1/2 was not typed in his presence. He further admitted that petitioner always accompanied with deceased Balbir Singh to the court when he was facing the trial at Chandigarh in CBI case. He admitted that he does not know who drafted the Will. But it was read over to him by the deceased. He denied the suggestion that the Will Ex. PW-1/2 was prepared after death of Balbir Singh on blank signed by the petitioner.
35 The combined reading of testimony of PW-1 & PW-2 established that petitioner and PW-2 Sh. I.J. Singh were well known to each other since 1990. His wife died in 1989. He was visitor to petitioner since 1990. He knew the relationship between the petitioner and deceased, therefore, in these peculiar circumstance the testimony of PW-2 Sh. I.J. Singh is also does not inspire confidence and it is full of suspicious circumstances in regard the execution of the Will Ex. PW-1/2.
36 Let us examine the Will Ex. PW-1/2 which is on record in original. Interestedly, the Will Ex. PW-1/2 is typed on letter head of deceased Balbir Singh. The perusal of PW-1/2 further established that the Will was executed by the deceased Balbir Singh in Delhi. However, letter head having the cutting on the 15/22 address which is readable as of "Chandigarh" which suggest that the letter head is pertaining to the period of posting at Chandigarh of the deceased Balbir Singh and was arrested in CBI case. The first page of the will is neither signed by deceased Balbir Singh nor by attesting witness Sh. I.J. Singh and Jagmohan Gupta. The another suspicious feature is that testator signed below the typed " Testator" usually signature always put above of the designated typed space. Therefore, it raises grave suspicion that it was not executed during the life time of the deceased, Balbir Singh although it bears his signatures.
37 The vital important fact is that petitioner and her petition is silent on the aspect how the will came into the possession of petitioner when it was signed at the house of deceased, Balbir Singh at Delhi. The petitioner failed to explain the possession of the original Will with her which raises grave suspicious circumstances. Hence the testimonies of PW-1 Ms Chander Kanta, PW-2 Sh. I.J. Singh and the features highlighted herein above of the Will Ex. PW-1/2 create suspicious circumstances which are not dispel by the petitioner in regard to legal and valid execution of the Will Ex. PW-1/2 by the deceased Balbir Singh during his life time.
38 Now coming to the issue no. 4. The respondent no. 2 to 4 taken the fundamental objection that the will Ex. PW-1/2 has been forged and fabricated by the petitioner after the death of deceased Balbir Singh with the collusion of two known friends of petitioner, namely, Sh. I.J. Singh and Sh. Jagmohan Gupta. The respondent no. 2 to 4 examined in total five witnesses namely, Sh. C.D. Kataria as RW-1, Ms Manshi Gupta as RW-2, Sh. Sukhdev 16/22 Singh as RW-3, Sh. Pradeep Gupta, RW-4 and Smt. Shant Bala as RW-5. However, the star witnesses are RW-1 Sh. C.D. Kataria, who was the advocate of deceased Sh. Balbir Singh during the trial of CBI case under Prevention of Corruption Act at Chandigarh. RW-1 Sh. C.D. Kataria proved his affidavit Ex. R-1. He explained the circumstances after the registration of case how deceased Balbir Singh engaged him in case FIR/RC No. 40/94 Chandigarh, titled as CBI Vs N. Guru & Ors under Section 420, 468, 471 read with Section 120-B, read with Section 13 (1)(d) and 13(2) of Prevention of Corruption Act, 1988, further read with Section 12.1(b) of the Passports Act 1967. The deceased Balbir Singh engaged him as his counsel on 09.12.97. Vakalatnama also proved on record. After the death of deceased Balbir Singh he had filed an application for dropping of proceedings.
39 He deposed that petitioner came to his chamber in the first week of May 2002 and brought two-three blank papers which were letter head of the deceased Balbir Singh on which the signatures were appended at the foot and petitioner asked to prepare a Will but he refused. Again on a day in the mid of May 2002, petitioner again approached him with typed will on letter head of deceased, Sh. Balbir Singh and asked for signature as attesting witness but he refused. RW-1 Sh. C.D Kataria further stated that in the affidavit that respondent no. 2 Smt. Shanta Bala in the first week of March, 2007 came to her alongwith her brother at Chandigarh and showed the photocopy of the Will and other documents.
40 In the cross-examination he deposed that for the first time he met Balbir Singh in the year 1994 when he was 17/22 Superintendent Regional Passport Office, Ministry of External Affairs at the office of one travel agent Sh. Bakshi. He proved the Vakalatnama signed by deceased Sh. Balbir Singh Ex. RW-1/1 regarding CBI case. He further deposed that he knew the petitioner who used to come with deceased Balbir Singh during the trial of CBI case which continue up to 15.04.2004. The mother, son and daughter of deceased never came to him. He deposed that he had seen Chander Kanta, petitioner with deceased, Sh. Balbir Singh on four-five occasions. During trial he had dealt with no other litigation i.e civil, revenue or criminal of deceased Balbir Singh. In the cross-examination he reiterated that petitioner came to him in the first week of 2002 and never before that after the death of deceased. He further deposed that death certificate of deceased Balbir Singh was sent by respondent no. 2 Ms Shanta Bala, his wife.
41 He further deposed that he did not inform Shanta Bala about the visit of petitioner in May 2002 and he also noted down in his diary on 06.05.2002 regarding the visit of petitioner. He again reiterated that he had seen three blank papers brought by petitioner bearing the signatures of deceased Balbir Singh and there were only signatures but no date was mentioned on the papers. But he had not taken those papers in his hand. He deposed that he cannot say that the two papers Ex. PW-1/2 are from those three papers brought by petitioner to him at Chandigarh. He further deposed that he did not inform to the respondent No. 2 Shanta Bala about the visit with three signed papers as that time he was not having the contact number. He further deposed that Shanta Bala, respondent no. 2 came to her office in March 1997 with his brother and he obtained the 18/22 certified copies of Ex. RW-1/1 to 6 on the request of respondent no. 2 Shanta Bala.
42 Respondent no. 2 Smt. Shanta Bala appeared in witness box as RW-5 and proved her affidavit Ex. R-5. Ld. Counsel for petitioner Sh. B.B. Gupta, cross-examined her for months together started from September till November 2011 a very lengthy cross-examination, however, I would like to highlight only the relevant deposition because she has been cross- examined on each and every family issue which is not relevant in the present Probate petition. The cross-examination highlights that respondent no. 5 Shanta Bala knew about the friendship and relationship between petitioner and deceased Balbir Singh her husband. She is also aware of the illegitimate earnings of her husband and registration of CBI case. She also explained how the family supported the deceased Balbir Singh when he had suffered heart attack in the year 2000. In the cross-examination, specific questions were put regarding Will Ex. PW-1/2 then RW-5 Shanta Bala specifically deposed that her husband did not execute any will during his life time. She further deposed that after the death of her husband, she went to Chandigarh to meet Advocate Mr. C.D. Kataria then he disclosed that petitioner came to him in May, 2002 and asked to prepare will of the deceased. She further deposed that Mr. Kataria also told her that after first visit again petitioner visited after 15 days and asked him to become attesting witness. She elaborated specific month March 2007, when she met Mr. Kataria, Advocate. She specifically deposed that she met with Mr. Kataira, Advocate only once after 2007. She deposed regarding the fact that she has no knowledge about I.J. Singh , DIG was friend of her husband Balbir 19/22 Singh and also Sh. Jagmohan Gupta. She also not recollect by her memory about the notice sent by petitioner Ex. PW-1/3. She admitted that she has not filed any civil or criminal case as on receipt of notice Ex. PW-1/3 as she did not receive any notice. She denied the suggestion that her husband executed the Will Ex. PW-1/2.
43 After going through the testimony of RW-1 Sh. C.D. Kataria and RW-5 Shanta Bala, respondent no. 2, it is proved on record that after the death of deceased Balbir Singh, petitioner visited RW-1 Sh. C.D. Kataria, who was the lawyer engaged by the deceased, Balbir Singh for his trial of CBI case in May 2002 at two occasions. The petitioner and deceased Balbir Singh used to attend the CBI case at Chandigarh and met the RW-1 advocate four and five times together. The testimony of RW-1 Sh. C.D. Kataria, advocate, with regard to two visits of petitioners with blank papers bearing the signatures of deceased Balbir Singh is corroborated by each other. Despite lengthy cross-examination of both the witnesses, both remained cogent, coherent and supported the truthful version of each other. In my considered opinion, it is established and proved on record that the petitioner was in possession of blank papers i.e letter head of the deceased Balbir Singh as petitioner was living with him as wife. There is every likelihood of possession of letter heads/documents of deceased as she used to accompany him during the trial of CBI case and meeting his advocate, Sh. C.D. Kataria.
44 It is further established and proved on record that petitioner had met RW-1, to make a will on blank letter head signed by the deceased, Balbir Singh and asked for the 20/22 assistance of RW-1 Sh. C.D. Kataria, Advocate who refused but later on she must have successed. These circumstances clearly established that during the life time deceased Balbir Singh never executed any will, the Will Ex. PW-1/2 has been prepared by petitioner after his death with the collusion of her two friends namely, Sh. I.J. Singh, retired DIG and one Jagmohan Gupta who were well known to her since 1990. On the basis of above observation and discussion the respondent no. 2 to 4 established that the Will Ex. PW-1/2 was prepared by petitioner after the death of deceased Balbir Singh.
Issue No. 345 The respondent no. 2 to 4 also taken the objection that petition is not duly verified as per Section 281 Indian Succession Act. However, as on today the petition is verified in the handwriting of attesting witness Sh. Jagmohan Gupta. However, as per order sheets dated 23.04.2003 an application filed on behalf of respondent no. 2 to 4 under Section 281 Indian Succession Act. The reply to the application was filed on 3.11.2003. As per order dated 25.11.2003 during the course of arguments on the said application under Section 281 of Indian Succession Act the attention was drawn of the court that verification under Section 281 of Indian Succession Act has been done in hand allegedly by one of the attesting witness of the will. Thereafter as per order dated 28.01.2004 an application under Section 340 Cr.P.C filed by respondent no. 2 to 4. On 15.4.2005 specific two issues were made on the application under Section 340 Cr.P.C. The respondents were given opportunities to lead evidence but as per order dated 21.11.2005 the evidence was closed and no evidence was produced by respondents on 21/22 application under Section 340 Cr.P.C. Therefore, the trial in main petition proceeded after framing issues on 12.12.2003. In these peculiar circumstances, respondent no. 2 to 4 have not established on record that the petitioner carried the addition in the petition after filing regarding the verification by one attesting witness Sh. Jagmohan Gupta.
46 On the basis of above observations and discussion issue no. 1, & 2 are decided against the petitioner and issue no. 4 is decided in favour of respondent no. 2 to 4 and issued no. 3 is decided in favour of the petitioner and against respondent no. 2 to 4.
47 Relief In view of findings on issue no. 1, 2 & 4 the petition is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 01.09.2016 ADJ-02 (West)
Tis Hazari Courts
Delhi
22/22