Delhi District Court
Raghunandan Prasad Sharma (Deceased) vs ) State on 20 August, 2008
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IN THE COURT OF SMT. BIMLA MAKIN : ADJ : DELHI
PARTIES IN PC. NO. 139/06
IN THE MATTER OF :
Raghunandan Prasad Sharma (Deceased)
Represented by his legal heirs :
i) Smt. Dropdi Devi,
Widow of Sh. Raghunandan Prasad Sharma,
R/o A-47, Nizamuddin East, New Delhi.
ii) Vinod Kumar Sharma @ Vino Kumar Sharma,
S/o late Raghunandan Prasad Sharma,
R/o 3982, Sixty Fifth Place Apartment No. 4-I,
Wood Side, New York-11377, USA.
iii) Ashok Kumar Sharma,
S/o late Raghunandan Prasad Sharma,
R/o 3982, Sixty Fifth Place Apartment No. 4-I,
Wood Side, New York-11377, USA.
iv) Kiron Bhardwaj,
D/o Late Raghunandan Prasad Sharma,
R/o 3982, Sixty Fifth Place Apartment No. 4-I,
Wood Side, New York-11377, USA.
...................... Petitioners.
VERSUS
1) State.
2) Mahesh Chander Sharma (Deceased)
Represented by his legal heirs :
i) Smt. Kailash Devi,
Widow of late Mahesh Chander Sharma,
R/o A-47A, Nizamuddin East, New Delhi.
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ii) Vinay Kumar Sharma,
S/o late Mahesh Chander Sharma,
R/o I-2, IInd Floor, Jangpura Extension, New Delhi.
iii) Anil Kumar Sharma,
S/o late Mahesh Chander Sharma,
R/o 5311, BLVO East, Apartment-7, West
New York, New Jersey-NJ-07093 (USA).
iv) Ajit Kumar Sharma,
S/o late Mahesh Chander Sharma,
R/o 5311, BLVO East, Apartment-7, West
New York, New Jersey-NJ-07093 (USA).
v) Anita,
D/o Late Mahesh Chander Sharma,
R/o 80, Banarsi Dass Estate, Mall Road, Delhi.
vi) Saroj Sharma,
C/o Ganesh Dutt,
D/o Late Mahesh Chander Sharma,
R/o House No.175, Hari Nagar, Ashram, New Delhi.
3. Smt. Kaushalya Devi, W/o Sh. Brikh Bhan
(Deceased) Represented by her legal heirs :
i) K.G. Bhardwaj (Husband)
R/o 205-C, Pkt. DG-II,
Vikas Puri, New Delhi.
ii) Anil Kumar Bhardwaj (Son)
R/o 205-C, Pkt. DG-II,
Vikas Puri, New Delhi.
iii) Sunita Sharma (Married Daughter)
W/o Sh. Satish Sharma,
R/o C-4-C-400, Janak Puri, New Delhi.
4. Smt. Shakuntla Devi, W/o Sh. K.G. Bhardwaj
(Deceased), Represented by her legal heirs :
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i) Smt. Raj, daughter-in-law
W/o Sh. Raj (deceased son of Smt. Shakuntla Devi)
R/o Mohalla Tabri Mandi,
Brahamanan Rohtak, (Haryana).
...................... Respondents.
Date of Inst. 31.1.1996
PARTIES IN PC. NO. 140/06
IN THE MATTER OF :
Bhagwan Swaroop Sharma,
S/o Late Keshav Ram Sharma,
R/o 965, Sector 14, Faridabad,
Haryana.
........................ Petitioner.
VERSUS
State.
......................... Respondent.
Date of Inst. 3.10.1997
JUDGMENT
By this judgment I shall dispose of two petitions bearing number 139/06 titled 'Dropdi Devi Vs State' and 140/06 titled 'Bhagwan Swaroop Sharma Vs State'. As both the petitions are related to the same property and are between the same parties, both the petitions were consolidated vide order dated 24.5.2007. The petition bearing number 139/06 titled 'Dropdi Devi Vs State' was filed 4 on 31.1.1996 and the petition bearing number 140/06 titled 'Bhagwan Swaroop Sharma Vs State' was filed on 3.10.1997. Hence the petition bearing number 139/06 titled 'Dropdi Devi Vs State' was treated as the leading case.
Brief facts leading to the petitions are that late Keshav Ram Sharma, son of late Pandit Jai Gopal Sharma was the owner of property number A-47, Nizammudin East. He died on 14.10.1993 and was survived by four sons and two daughters. In petition bearing number 139/06 titled 'Dropdi Devi Vs State', Raghunandan Prasad claimed that before his death father executed the will in his favour on 5.9.1993 bequeathing his house in his favour, on the other hand in petition bearing number 140/06 titled 'Bhagwan Swaroop Sharma Vs State', petitioner claimed that a will was executed by their father on 26.2.1982 which was registered in the office of the sub-registrar on 20.3.1982 whereby the property number A-47, Nizammudin East was bequeathed in favour of all the four sons. In fact the property was partitioned by meets and bounds and all the sons were bequeathed that portion of the property which they were already occupying and the site plan of the portion bequeathed to each son was also annexed with the duly registered will. The petition bearing number 140/06 titled 'Bhagwan Swaroop Sharma Vs 5 State' was filed seeking letter of administration of the will dated 26.2.1982.
Notice of both the petitions was issued to the respondents. In the petition bearing number 139/06 titled 'Dropdi Devi Vs State' citation for general public was got published in daily newspaper 'National Herald' dated 15.4.1996 and in petition bearing number 140/06 titled 'Bhagwan Swaroop Sharma Vs State' citation for general public was got published in daily newspaper 'National Herald' dated 7.4.1998 and copies of both the citations were also displayed on the court notice board.
In both the petitions objections have been filed and the main objection raised by the respondents in petition bearing number 139/06 titled 'Dropdi Devi Vs State' is that no will was executed by their father on 5.9.1993. He was not in a fit state of mind to execute any will on 5.9.1993. He died on 14.10.1993 just after few days of the execution of the alleged will. As he had already executed a will on 26.2.1982 there was no occasion for him to revoke that will after eleven years and to execute a fresh will in favour of Raghunandan Prasad on 5.9.1993. It was also disputed that the will produced by Raghunandan Prasad was in the handwriting of their father. He was suffering from several ailments for two months before 6 his death and was also admitted in the hospital. Only Raghunandan Prasad filed the objections in petition bearing number 140/06 titled 'Bhagwan Swaroop Sharma Vs State' and his case was that the will dated 26.2.1982 was revoked by the father by executing the will on 5.9.1993.
On the pleadings of the parties, following issues were framed on 4.1.2007 :
Issues in petition bearing number 139/06 titled 'Dropdi Devi Vs State'
1. Whether the will dated 5.9.1993 as propounded by the petitioner was validly executed by the deceased Keshav Ram Sharma in his sound disposing mind and same is his last will and testament?
OPP
2. Relief.
Issues in petition bearing number 140/06 titled 'Bhagwan Swaroop Sharma Vs State'
1. Whether the will dated 26.2.1982 as propounded by the petitioner was validly executed by the deceased Keshav Ram Sharma in his sound disposing mind and same is his last will and testament? OPP
2. Relief.
During the pendency of the proceedings Raghunandan Prasad 7 died and his legal heirs were substituted. Three witnesses were examined on behalf of Dropdi Devi and others. PW.1 Suresh Kumar Sharma is one of the attesting witness of the will dated 5.9.1993. PW.2 Dropdi Devi is the petitioner (wife of Raghunandan Prasad) and PW.3 Vinod Kumar Sharma is the son of Raghunandan Prasad Sharma. As against this Bhagwan Swaroop Sharma examined himself as RW.1. RW.2. Kimti Lal Sharma is the son of Bhagwan Swaroop Sharma. RW.3. Dr. Sanjiv Zutshi deposed that the testator was under his treatment for few days before his death. RW.4. Vinay Kumar Sharma is one of the legal heir of the testator. RW.5. Ravinder Kumar, LDC from the office of the sub-registrar, Asaf Ali Road produced the record of the registration of the will dated 26.2.1982.
I have perused the evidence lead by the parties, heard the arguments and carefully gone through the documents placed on record. I have given my thoughtful consideration to the facts as well as the evidence. My findings on the issues are as follows :
Will Dated 5.9.1993 The case of the petitioner Raghunandan Prasad Sharma was that his father executed his last will on 5.9.1993 and 8 thereby revoked his previous will dated 26.2.1982 and the entire immovable property number A-47, Nizammudin East was bequeathed in his favour. The onus is on the propounder of the will to prove it by leading positive evidence.
Section 68 of the Indian Evidence act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the Court and capable of giving evidence, he must be called to prove execution. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act.
Section 63 of the Indian Succession Act gives meaning of attestation as under :
Section 63 : Execution of unprivileged wills -
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged), or a mariner at sea, shall execute his will according to the following rules :
a. The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.9
b. The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
c. The will shall be attested by two or more witnesses, each of whom has 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 of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
It is clear from the definition that the attesting witness must state that each of the two witnesses had seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 63 includes attestation as required by law.
In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above.10
Registration of the will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act.
The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same.
The petitioner examined PW.1. Suresh Kumar Sharma to prove the execution of the will. He filed his affidavit Ex.PW1/A and identified the signature of Keshav Ram Sharma at point A, his own signature at point B and the signature of Megh Raj Singh, the second attesting witness of the will at point C. The will is Ex.PW1/1. It is well known that the onus probandi to prove a will lies in every case primarily on the party propounding the will. It is for the propounder to show and satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable 11 testator. Ordinarily the burden of proving the due execution of the will is discharged if the propounder leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested. If there are any suspicious circumstances attending the execution of the will the burden is on the petitioner to explain the circumstances. The burden is all the heavier when the testator is a man advanced in years and in extremely feeble state of health and the disposition evidenced by the will runs counter to the disposition admitted to have been made by the testator by previous wills executed by him. In cross examination this witness deposed that he was called by Keshav Ram telephonically on the date of the execution of the will. After calling him, in his presence as well as in the presence of Megh Raj the testator wrote his will and then he signed it. He orally told him that he was bequeathing his property in favour of his eldest son. Wife of Keshav Ram was also present at the time of writing of the will. Thereafter the suggestions were given to the witness that he did not sign the will. Only his name was written by the writer of the will. Megh Raj was the friend of this witness and he brought him alongwith him. Dropdi Devi is his bua and he disclosed it to Dropdi Devi on the next day about the execution of the will. Further he admitted that Dolly (daughter of Bhagwan Swaroop) 12 was residing with her grand parents till the day of the execution of the will. He denied the suggestions that the will was written by somebody else and not by Keshav Ram and the writer of the will wrote his name as well as the name of Megh Raj in his own handwriting and it was not signed by them. Neither the will was read over to them by Keshav Ram nor they themselves read the will before signing it. They were orally told that the property was being bequeathed in favour of Raghunandan Prasad. He specifically denied the suggestion that he did not meet his bua on the day of the execution of the will.
PW.2. Dropdi Devi filed her affidavit Ex.PW2/A. The relevant portion of her affidavit is that she was married to Raghunanda Prasad in the year 1947. At the time of her marriage late Keshav Ram Sharma was residing in the official accommodation. Thereafter they shifted to A-47, Nizamuddin East and the testator alongwith all his sons started residing there. First of all Bhagwan Swaroop Sharma who was a railway employee shifted to government accommodation alongwith his family. Thereafter he never resided in this house and other sons as well as Keshav Ram Sharma continued living in the same house having their separate kitchens. In the year 1991-92 Suresh and his family shifted from this house. Only she was 13 taking care of Keshav Ram and his wife. In the year 1993 she alongwith her son Vinod Sharma went to USA and stayed there for sometime. As there was no one to look after Keshav Ram and his wife so she was brought back to India immediately by her husband. This witness was cross examined in great detail. So far as the execution of the will is concerned, her statement is relevant to ascertain the circumstances under which this will was executed by the testator just a few days before his death. In cross examination she deposed that the will of 1993 was executed in her presence. It was executed by Keshav Ram about five-six months prior to his death. He told her that he was being harassed by all the sons and he wanted to give his house exclusively to one son Raghunandan Prasad Sharma. He sat alone in his room, wrote the will and handed it over to his son. Further she deposed that she was very innocent lady and she did not know what was written in the will. The will was kept by her husband and when her son came to India the will was shown to him by her husband and her husband even instructed the son not to disclose the will to anybody otherwise he was apprehensive of maltreatment at the hands of his other brothers. No outsider, no guest, no relative came to their house on the day when the will was written by her father-in-law and handed it over to his son 14 (Raghunandan Prasad). Her husband was the eldest son of late Keshav Ram Sharma. His other sons used to quarrel with him. Her father-in-law and mother-in-law used to cook separately for a very long period but for about ten years before their death they started dining with her. She admitted that her father-in-law was having cordial relations with all his sons till his death.
PW.3. Vinod Kumar Sharma filed his affidavit Ex.PW3/A wherein he deposed that Keshav Ram Sharma used to write letters to him. He was acquainted with his handwriting and signature. He had written many letters to him and on seeing the will dated 5.9.1993 he identified the handwriting of Keshav Ram Sharma and his signature at point A. He also placed on record several letters Ex.PW3/1 to Ex.PW3/9 which were written to him by Keshav Ram. Further he deposed that his grandfather disinherited Suresh Chand Sharma by virtue of his registered will dated 30.8.1979 on account of his objectionable behavior. He placed on record the will dated 30.8.1979 which is Ex.PW3/11. He further deposed that Keshav Ram also executed the wills in 1977, 1978 and 1982 and all the original wills were in possession of his father and after the death of his father those wills came to his possession. His uncles Suresh and Mahesh were heavy drinkers. They stopped taking care of his 15 grandparents. Only his parents used to take care of his grandparents. In cross examination he deposed that since 1983 he was residing out of India. He was married in New York and was a citizen of New York. He used to visit India every year for a period of three-five weeks only. All the family members of his grandfather were residing in house number A-47, Nizammudin East. Initially they were having common kitchen but after sometime all the kitchens were separated. All the four sons of Keshav Ram were maintaining separate kitchens and grandparents were having their separate kitchen. However Bhagwan Swaroop shifted to his official accommodation after his employment with the railways. The grandfather was having very cordial relations with his father but with his other sons sometimes he used to have cordial relations and sometimes strained also. In 1993 his grandmother was alive. The witness admitted that in the will dated 26.2.1982 a specific provision was made for maintenance of his grandmother but in the will of the year 1993 there was no reference to his grandmother at all though she was alive. Considering the cross examination of this witness and the fact that the testator executed four wills during his lifetime prior to the will of 1993 a court question was put to the witness that his grandfather kept on changing his wills frequently then what was 16 the reason for his sticking to one will for a period of more than eleven and a half years and changing it just thirty-nine days before his death. The answer given by the witness was that he had the discussion to change it at any time. His mother first visited him in New York in February or March 1993 and stayed with him for a period of one month. During her absence son of Mahesh looked after his grandparents and his mother visited him two-three times in the year 1993 before the death of his grandfather.
Vinod Kumar was not aware that when this will was handed over to his father by his grandfather. In 1994 he came to know about the execution of this will when he visited India after the death of his grandfather. The will was shown to him by his father. When his grandfather died in 1993 his parents were residing in A-47, Nizammudin East. Vinay Kumar, son of Mahesh Chand was running his business from one portion of the property. Rohit, son of Suresh Sharma was staying in one portion and Bhagwan Swaroop's portion was lying locked. After the death of his father, his mother was staying with him in New York and her portion was also lying locked. All his other siblings were also settled in New York. Thereafter he denied the suggestions that the will of 1982 was the last will executed by his grandfather, he handed over the physical 17 possession of each portion to his sons and they were in possession of their respective shares as per the will of 1982. Even this witness was aware of the execution of the will of 1982. The witness also admitted that his own father died in 1997 and till filing of this petition his father did not disclose it to any of his brother that there existed a will executed by Keshav Ram on 5.9.1993 bequeathing the property only in favour of Raghunandan Prasad. He also admitted that a collaboration agreement was entered into between Bhagwan Swaroop and Suresh and in this regard they telephoned him in 1995 with a proposal to reconstruct the house and when he was telephoned in 1995 he neither stopped them from raising any construction or entering into collaboration agreement claiming that his family was the owner of the whole house nor he disclosed the will to Bhagwan Swaroop and Suresh Chand. He also admitted that no legal action was taken by his father restraining his uncles from carrying on their collaboration agreement except filing of the probate petition. Now the only question is whether considering the statements of all the three witnesses the will dated 5.9.1993 stands proved? There are number of suspicious circumstances leading to the execution of this will which raise doubt about its genuineness and those suspicious circumstances have not been explained by the 18 petitioners to the satisfaction of the court. First of all the only attesting witness of the will examined by the petitioners, Suresh Kumar deposed that on the date of execution of the will he was telephoned by Keshav Ram. He alongwith Megh Raj went to the house of the testator. In the presence of both the attesting witnesses as well as in the presence of Dropdi Devi the will was written by the testator and thereafter they both signed the will and after half an hour they left the house. Dropdi Devi deposed that the will was written by his father-in-law while sitting all alone in his room in her presence and thereafter the will was handed over to her husband who kept it in his custody. No outsider came to their house on that day. So inspite of Suresh Chand's deposing that the will was written in his presence as well as in the presence of the second attesting witness, his statement cannot be relied upon in view of the statement of Dropdi Devi. She specifically deposed that she is an innocent lady. She did not know what was written in the will but it was written by her father- in-law in her presence and then it was handed over to her husband who kept it. According to her it was not shown to any attesting witness and nobody was aware of the execution of the will except she and her husband. So the signatures of the attesting witnesses, if any, were obtained on this will by her husband. One of the attesting 19 witness of the will is the real nephew of Dropdi Devi and the second witness is his friend. Even after the death of the testator the will was not shown to any other legal heir till the filing of this probate petition and no good reason is assigned that why it was not brought to the notice of other legal heirs of the testator immediately after his death or at a later stage when they were entering into collaboration agreement with the third party. Other legal heirs were the most effected party and not bringing his will to their notice is such a suspicious circumstance which gives rise to a doubt that the will was not in existence at the time of the death of the testator that is why it was not brought to the notice of any other legal heir. Bhagwan Swaroop and Suresh Chand even telephonically talked to PW.3. Vinod Kumar about the collaboration agreement and even he also did not bring it to their notice that his family was the exclusive owner of the property and they should not enter into any collaboration agreement. The fait of the matter is that some part of the building was even demolished by the legal heirs for the purpose of raising new construction. This petition was filed after about four years of the death of the testator and for four years this will was kept as a secret. Even the petitioners knew that under the previous will executed by the testator on 26.2.1982 the property was bequeathed in favour of 20 all the legal heirs and they were taking themselves to be the co- owners of the property and under these circumstances not informing them that petitioners are the exclusive owners of the entire property, gives rise to the suspicion about the genuineness of the will. On receiving notice of this petition, for the first time other legal heirs came to know about the existence of this will. After receiving notice of this petition Bhagwan Swaroop filed the petition on the basis of the will dated 26.2.1982 because till then they considered themselves to be the owners of the portions which were handed over to them under the will of 1982 and were managing their portions independently.
Another fact which raises doubt about the genuineness of this will is that on the day of the execution of this will wife of the testator was alive but no provision was made for her under this will. In all the earlier wills arrangements were made by the testator for his wife. In this regard PW.3. Vinod Kumar deposed that though in the will of 1982 the provision was made for maintenance of his grandmother but in the will of 1993 there was no reference to his grandmother at all and the reason was that after passing of few more years his grandfather was fully convinced that so far as his parents were alive they shall take full care of his wife even without making any provision in the will. This explanation does not appeal to any 21 logic. His father was married in the year 1947. After living with his mother for thirty-five years the deceased made provision for the maintenance of his wife in the will executed in 1982. So a few more years does not change the attitude of a person. If he thought it necessary for making provision for his wife in 1982 there was no reason for not making any provision for her in 1993 specially under the circumstances when he knew that he was no more keeping good health because he died just after thirty-nine days. Hence making of no provision for the wife by the testator is also a suspicious circumstance raising doubt about the genuineness of the will.
Last but not the least, the will propounded by Raghunandan Prasad is an unregistered will whereas the earlier wills were duly registered. The testator was an educated person. He knew the importance of registration of a will. Though registration of a will is not the requirement of a valid will and there is no difference between a registered and an unregistered will so far as its genuineness and authenticity is concerned but a registered will stands on a better footing than an unregistered will in as much as in the case of a registered will it is taken that it was the act of a testator in his sound disposing mind and about the unregistered will it is not taken that it was the act of the testator in his sound disposing mind. 22 The registration of a document is a strong circumstance that proper parties had appeared before the registering officer and the attesting authority had attested and registered the document after ascertaining the identities of the persons appearing before him or her. It was held by the Division Bench of the Lahore Court in Piara Vs Fattu, AIR 1929 Lahore 711 that :
"The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty is to attend to the parties during the registration and see that the proper persons are present, are competent to act and are identified to his satisfaction and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order."
Apart from the will dated 26.2.1982 which is a registered will another will of the testator dated 30.8.1979 is placed on record. This will is also a duly registered document. The will dated 30.8.1979 was the third will executed by the testator. In para 1 of this will he wrote that :
"By this will, I, Kesho Ram Sharma son of late Pt. Jai Gobind, at present residing in A-47, Nizamuddin East, New Delhi-110013, do hereby revoke and cancel my two previous wills and testaments herein before made and registered with the Sub-Registrar, New Delhi, under Register No. 968 in Additional Book No. 3, Volume No. 104 at Pages 94 to 97 dated 31st August 1977 and Register No. 1183, Book No. 3, Volume No. 118 at Pages 23 169 to 172 dated 30th June, 1978 respectively."
Meaning thereby that in total four wills were executed by the testator before the will dated 5.9.1993 and all those four wills were the registered documents. Only the will propounded by Raghunandan Prasad is an unregistered will. Under these circumstances it raises very strong suspicion about the genuineness of this document because an educated person executing four wills knowing the importance of registration was getting all his wills duly registered. If he was in sound disposing mind and was executing the will without any pressure or coercion why it was not got registered when he lived for a period of thirty-nine days even after the execution of this will. Though registration of a will is not compulsory however its registration goes a long way to show its genuineness and raises a presumption of its validity. In this case no reason has been given as to why the will dated 5.9.1993 was not got registered. Mere assertion of the propounders that the will bears signatures of the testator or that at the time of execution of the will the testator was in a sound disposing state of mind will not discharge the burden of the propounders. They have to remove all the suspicious circumstances before the alleged will can be accepted as the last will of the testator. 24 The will in the present case is not a simple document which requires only the normal proof of such document by examining one of the attesting witness. In this case the will is the fifth such document alleged to have been executed by the testator. All other wills of the testator were detailed, duly registered and gave reasons for bequeathing the property in favour of the sons but neither this is a registered will nor any reason is given for bequeathing the property solely in favour of the eldest son. This will is surrounded by suspicious circumstances and in such cases the onus of proving its execution stands on different footing. The suspicious circumstances under which this will was executed raise doubt about its genuineness and those suspicions have not been removed by the petitioners. Hence mere assertion of the propounder that the will bears the signature of the testator or that he was in sound disposing mind at the time of execution of the will makes the initial onus heavier. In all the previous wills the details of the family members, why he was bequeathing the property in favour of his sons and why he was disinheriting his daughters were given. In one of the will he disinherited one son and he gave the detailed reasons of disinheriting him but why in the will dated 5.9.1993 he disinherited all his legal heirs except one without assigning any reason. What was 25 the change in circumstances during the period of these eleven years which necessiated disinheriting all other sons except one. When he disinherited Suresh, he made a provision that his portion shall be used by his daughters on their visits to the parental house but the will dated 5.9.1993 is totally silent. He simply wrote that :
"In supercession of my last will dated 26.2.1982 registered under no. 621/3 dated 20.3.1982 in connection with my house no. A-
47, Nizamuddin East, New Delhi-13, I Kesho Ram Sharma S/o Lt. Pandit Jai Gobind hereby authorise my eldest son Raghunandan Prasad to get my house no. A-
47, Nizamuddin East, New Delhi-13 transferred in his name only, after my demise, as this house was allotted in the name of Sh.
Risal Singh Sharma, S/o Sh. Mam Chand, guardian and uncle in law of my daughter in law Smt. Dropdi Devi, wife of Raghunandan Prasad ................
This house was transferred in my name with all hard efforts by Smt. Dropdi Devi and my eldest son Raghunandan Prasad........."
The perusal of the contents of this will shows that this house was purchased by him from a relative of Smt. Dropdi Devi with the efforts of Smt. Dropdi Devi and her husband and in consideration of those efforts he was bequeathing this property in favour of Raghunandan Prasad. He purchased this property for a valuable consideration and raised the construction himself then where was the occasion to 26 transfer it in the name of Raghunandan Prasad solely for the reason that it was purchased from a relative of Smt. Dropdi Devi through her efforts. No other reason is assigned for bequeathing the property in their favour only. The testator has not even written that they were looking after him, taking care of him and other sons were not caring for him or that he was not happy with other legal heirs. The language of the will also suggests that it was not the last wish of the testator to bequeath the property in favour of one son only. In this case the petitioner has failed to remove all the suspicions attending the circumstances leading to the execution of this will.
From the above facts and circumstances the conscience of the court is not satisfied that the will dated 5.9.1993 was executed by Keshav Ram Sharma in his sound disposing mind. The evidence produced by the petitioners is not sufficient to dispel aforesaid surrounding circumstances which creates doubt in the mind of the court. In these facts and circumstances the petitioners who are the propounders of the will have failed to discharge the heavy onus upon them explaining the suspicious circumstances surrounding the execution of the will and establishing that the will in question was the last will of the testator.27
Will Dated 26.2.1982 A will can be proved only by examining one of the attesting witness if he is in a position to identify the signature of the testator as well as of the second attesting witness of the will. There is no other mode of proving the execution of the will except examining one of the attesting witness of the will if he is alive or in case of his death examining somebody who can identify the signature of the attesting witnesses of the will as well as of the testator because the mandatory requirement of law is that the will is executed by the testator in the presence of the two attesting witnesses. Unless and until one of the attesting witness is examined and he identifies and proves the signature of the testator as well as of the second attesting witness, the will cannot be deemed to have been legally proved. No judgment on the basis of the admission of the parties can be passed in a probate case because it is a judgment in rem. In this case Bhagwan Swaroop filed the petition claiming the probate/letter of administration of the will dated 26.2.1982 which was executed by his father in his sound disposing mind. The only evidence lead by him in this regard is his own affidavit Ex.RW1/A. In para no. 2 of his affidavit he deposed that his father Late Keshav Ram Sharma left behind his last will dated 26.2.1982 which was 28 registered on 20.3.1982 in the office of the Sub-Registrar III bearing volume no. 3, book no. 209, entry no. 621 on page no. 628. The said will was executed in the presence of the witnesses as given in the will. The will is Ex.PW1/1. In his affidavit neither he has identified the signature of his own father on the will nor the signatures of the attesting witnesses to the will. He has not even disclosed the names of the attesting witnesses of the will. His cross examination is not relevant for deciding the issue about the legality of the will propounded by him.
RW.2. Kimti Lal Sharma, son of Bhagwan Swaroop Sharma filed his affidavit Ex.RW2/A. His affidavit is nothing but a repetition of the affidavit of his father. Not even a whisper about the execution of the will on 26.2.1982 is made in his examination-in-chief or in his cross examination except that the will was executed by his grandfather in the presence of two attesting witnesses. RW.3. Dr. Sanjiv Zutshi filed his affidavit Ex.RW3/A. His statement is also not relevant for deciding the controversy. Vinay Kumar Sharma, son of late Mahesh, another grandson of the testator filed his affidavit Ex.RW4/A. He also simply stated that his grandfather executed the will on 26.2.1982 which was registered on 20.3.1982 in the office of the Sub-Registrar. In para no. 4 he deposed that he can identify the 29 signature and handwriting of his grandfather and the will dated 5.9.1993 was not in the handwriting of his grandfather. Neither it bore his signature. But he also did not identify the signature of his grandfather on the will dated 26.2.1982. RW.5. Ravinder Kumar, LDC from the office of the Sub-Registrar, Asaf Ali Road was summoned to prove the will. His statement is important, who deposed that the will executed by Keshav Ram was presented for registration on 19.3.1982 and the same was registered on 20.3.1982 vide registration number 621 in book number 3, volume number 209 on pages 6 to 8. The original will was in three pages but he brought only two pages as the last page of the will bearing page number 8 was missing. When this witness was summoned on that day neither the original will nor its certified copy was on record. He was again summoned and on seeing the original will from the court record he deposed that only first page and back side of the first page was available on his record. Hence he could not depose whether page number 2 and 3 of the will were the same which were registered in the office of the Sub-Registrar or not. Further he deposed that he was not aware about the next two pages of the will as he was posted in that office for three months only. So from the entire evidence lead by the petitioner Bhagwan Swaroop not even a single witness 30 including the petitioner Bhagwan Swaroop himself identified the signature of the testator Keshav Ram or the signature of any of the attesting witness of the will dated 26.2.1982. Even though this will is admitted by all the parties to the litigation but the letter of administration cannot be granted in favour of Bhagwan Swaroop on the basis of this will because he has failed to prove the execution of this will as per law. None of the witness has proved that this will was executed by Keshav Ram in the presence of two attesting witnesses who saw him affixing his signature on the will and who also affixed their signatures in the presence of the testator. In view of the evidence lead by Bhagwan Swaroop I hold that the will dated 26.2.1982 was not executed by the testator Keshav Ram Sharma in his sound disposing mind in the presence of two attesting witnesses as per law.
RELIEF In view of above discussion both the petitions bearing number 139/06 titled 'Dropdi Devi Vs State' and 140/06 titled 'Bhagwan Swaroop Sharma Vs State' are hereby dismissed. File be consigned to record room.
Dictated & Announced (Bimla Makin) Dated : 20.8.2008 ADJ/Delhi