Delhi District Court
Sh. Rahul Aggarwal vs State on 22 May, 2019
IN THE COURT OF SH. NARINDER KUMAR,
ADDITIONAL DISTRICT JUDGE-2 (NORTH-WEST),
ROHINI COURTS, DELHI.
Probate case No. : 50341/2016.
Date of Institution : 15.04.2010.
Date of decision : 22.05.2019.
Sh. Rahul Aggarwal
S/o Sh. Vishnu Kumar
R/o 157, Kapil Vihar, Pitam Pura,
Delhi-110034.
(Grand son of deceased
Sh. Kanwar Sain Aggarwal ........... Petitioner
VERSUS
1. STATE
(Govt. oF NCT of Delhi)
2. Smt. Ramkali Agarwal
W/o Late Sh. Kanwar Sain Agarwal
R/o 157, Kapil Vihar, Pitam Pura, Delhi.
(Wife of deceased Sh. Kanwar Sain Aggarwal)
3. Sh. Vishnu Agarwal
S/o Late Sh. Kanwar Sain Agarwal
R/o 157, Kapil Vihar, Pitam Pura, Delhi.
(Son of deceased Sh. Kanwar Sain Aggarwal)
4. Smt. Sudesh Kumari Mittal
W/o Late Sh. Shri Krishan Mittal
D/o Late Sh. Kanwar Sain Aggarwal
R/o D-13/47, Sector-8, Rohini, Delhi.
(Daughter of deceased Sh. Kanwar Sain Aggarwal)
5. Smt. Deepika Jain
Page No.1
W/o Sh. Puneet Jain
R/o 132, First Floor,
Opposite Durga Mandir Street,
J Extension, Laxmi Nagar, Delhi.
(Grand daughter of deceased
Sh. Kanwar Sain Aggarwal) .......... Respondents
JUDGMENT
Present petition under section 276 of Indian Succession Act is for grant of probate in respect of Will dated 18.12.1998 said to have been executed by Sh. Kanwar Sain Agarwal.
Sh. Kanwar Sain Agarwal, a Hindu, used to reside in Pitam Pura, Delhi. He left this world on 02.06.1999. He was owner of built up property bearing residential H. No.157, Kapil Vihar, Pitam Pura, Delhi.
As per Will, petitioner, the grandson of Sh. Kanwar Sain Aggarwal, claims himself to be the sole beneficiary in respect of aforesaid residential house, even though, the executant was survived by following legal heirs :
PARTICULAR OF LEGAL HEIRS RELATIONSHIP WITH DECEASED Smt. Ram Kali Agarwal W/o Late Sh. Wife Kanwar Sain Agarwal, R/o 157, Kapil Vihar, Pitam Pura, Delhi.
Sh. Vishnu Agarwal S/o Late Sh. Son Kanwar Sain Agarwal, R/o 157, Kapil Page No.2 Vihar, Pitam Pura, Delhi.
Smt. Sudesh Kumari Mittal W/o Late Daughter Shri Sri Krishan Mittal D/o Late Sh. Kanwar Sain Agarwal, R/o D-13/47, Sector-8, Rohini, Delhi.
Smt. Deepika Jain W/o Sh. Puneet Grand daughter. Jain, R/o 132, First Floor, Opp. Durga Mandir Street, J-Extension, Laxmi Nagar, Delhi.
3. On institution of this case, citation was published in the newspaper "The Statesman" for information to general public but none from the public filed any objections to this petition.
Notice of the petition was issued to the State through Collector. In pursuance of the notice, the State-through the office of SDM, filed valuation report in respect of the property on 08.12.2010 and value of the property was assessed at Rs. 1,19,82,590/-.
No written statement or objection came to be filed on behalf of Ms. Deepika Jain i.e. respondent no. 5. However, on 30.11.2010, respondent no. 5 appeared in the court and made statement to the effect that she had no objection to the allowing of this petition in favour of the petitioner.
4. Sh. Vishnu Aggarwal (respondent no. 3) son of executant filed written statement contesting the claim of the petitioner Page No.3 and opposing grant of probate to him.
Petitioner filed rejoinder reiterating averments put forth in the petition and controverting pleas put forth in the written statement of Sh. Vishnu Aggarwal.
5. Smt. Sudesh Kumari Mittal, (respondent no. 4) daughter of executant filed objection contesting the claim of the petitioner and opposing grant of probate to him.
Petitioner filed rejoinder reiterating averments put forth in the petition and controverting pleas put forth in the objection of Smt. Sudesh Kumari Mittal.
6. On 14.01.2011, Smt. Ram Kali widow of Sh. Kanwar Sain Agarwal appeared in the court and made statement to the following effect :
"I have been arrayed as respondent no. 2 in the present petition as my husband has executed a Will in favour of my grandson/petitioner in respect of property bearing no. 157, Kapil Vihar, Pitampura, Delhi. As per this Will nothing has given to my son but as per my wish my son Sh. Vishnu Agarwal must be having a life Page No.4 interest in the forth floor of the above said property and the petitioner be do not allow to dispossess my son during his lifetime. My grand son is looking after me very well and he may be directed to allow me to reside in the one room of the first floor and provide me boarding and lodging. I have no objection, if the present petition is allowed in favour of petitioner. "
However, subsequently, she filed objection dated 06.04.2011 contesting the claim of the petitioner and opposing grant of probate to him.
Petitioner filed reply to the objection.
Points for Consideration
7. From pleadings of the parties, following issues were framed on 13.04.2011 :
1. Whether Late Sh. Kanwar Sain Agarwal had executed the Will dated 18.12.1998 and the same is duly attested as per law? OPP.
2. Whether deceased was mentally and physically in a sound state of mind at the time of execution of the abovesaid Will? OPP.
3. Relief, if any.
Page No.5
Evidence of petitioner
8. Petitioner has stepped in the witness box as PW-2. PW-1 is Sh. Ravinder Chikara from the office of Sub-Registrar Pitampura, Delhi. PW-3 Sh. Ravinder Parkash Gupta, is one of the sons of Sh. Om Parkash Gupta (stated to be an attesting witness of the Will). PW-4 Sh. Ved Parkash Gupta is other son of the said attesting witness.
No evidence has been led by any of the respondents/objectors.
9. Arguments heard. File perused.
Discussion Issue no. 1 & 2. (Whether Late Sh. Kanwar Sain Agarwal had executed the Will dated 18.12.1998 and the same is duly attested as per law? OPP AND Whether deceased was mentally and physically in a sound state of mind at the time of execution of the abovesaid Will? OPP.) Both these issues are interconnected and as such being taken up together.
10. As noticed above, petitioner claim himself to be the grandson of Sh. Kanwar Sain Agarwal, the executant. According to the petitioner, his grand father left this world on Page No.6 02.06.1999. Copy of the death certificate of Sh. Kanwar Sain Agarwal is Ex.PW-2/1.
Respondents have not disputed relationship of the petitioner with Sh. Kanwar Sain Agarwal as that of grandson and grandfather. Factum of death of Sh. Kanwar Sain Agarwal on 02.06.1999 is also not in dispute. Petitioner has proved on record death certificate Ex.PW-2/1 in support of the factum of death of executant on 02.06.1999, at 137, Kapil Vihar, Pitampura, Delhi.
11. According to the petitioner, Sh. Kanwar Sain Agarwal was owner of the aforesaid house no. 157 and that he executed Will dated 18.12.1998, as per contents of which he is the sole beneficiary in respect of this house.
In their written statement, Sh. Vishnu Aggarwal, respondent and Smt. Ram Kali, denied execution of any such Will by Sh. Kanwar Sain Aggarwal and specifically alleged that the said Will is false, forged and fabricated.
12. Law requires that there must be atleast two witnesses to the execution of a Will. Herein, case of the petitioner is that Sh. Om Parkash, the attesting witness has left this world, and that Page No.7 name and particular of the other attesting witness- who was allegedly an Advocate-are not known.
In order to prove execution of Will, petitioner has examined PW-1 Sh. Ravinder Chikara, UDC, from the office of Sub-Registrar-VIA.
According to PW-1, on comparing the original Will, with the one available in the record brought by him, the same are identical ; that the Will bears signatures and thumb impressions of the witnesses ; that name of one attesting witness is clearly written on the Will as Sh. Om Parkash (witness no. 1) ; that name of witness no. 2 is not clearly legible ; and that the said Will was registered with their office on 18.12.1998.
It is also available in his cross-examination that there are two signatures of the testator on the Will Ex.PW-1/A, but there is only one signature of the testator in the Will available in the record brought by him. There is no explanation for this difference in the two documents i.e. the one said to have been got registered with the Sub Registrar and the other issued by the same office.
Page No.8
13. Petitioner has examined PW-3 Sh. Ravinder Parkash Gupta (son of the attesting witness Sh. Om Parkash) to depose that the Will was signed by the testator in his presence and that his father and an Advocate also affixed their signatures in his presence. He has also deposed to have gone to the office of Sub-Registrar, in the company of his father-attesting witness Sh.Om Parkash.
In this way, PW-3 has been examined not only to prove signature of Sh. Om Parkash, attesting witness but also to prove that the testator signed the Will in his presence i.e. of PW3. Testimony of PW-3 is relevant for the first mentioned fact i.e. the signature of his father, attesting witness, who has left this world, but it is not relevant to prove execution of the Will, in view of the the second fact, the reason being that he himself is not an attesting witness to the Will.
14. PW-4 Sh. Ved Parkash Gupta, another son of Sh. Om Parkash (attesting witness) has testified that the testator had simply informed him that he was to execute one Will. It is not in his statement that the said Will was actually executed by testator in his presence. Even otherwise he is not an attesting Page No.9 witness to the Will. Therefore, his statement is of no avail to the petitioner on the point of execution of the Will.
15. The original Will is Ex.PW-1/A. It may be mentioned here that Ex.PW-1/A, compared by the witness with the record brought by him, is the original Will and not a copy.
Also available on record is certified copy of the Will said to have been issued by the office of Sub-Registrar on 26.09.2000, to the present petitioner on his application. Same has been marked today as Ex. CX for the purpose of identification of this document. Court finds much difference in the original Will and in the certified copy of the Will issued by the office of Sub-Registrar to the petitioner on 26.09.2000 and placed on record by the petitioner himself. Whether there was one or two attesting witnesses to the Will?
On comparison of the Will Ex.PW-1/A with the certified copy referred to above, court finds that under the heading "witnesses", the original Will bears name only of one witness, namely, Sh. Om Parkash S/o Sh. Ram Jeevan, against serial no. 1.
Page No.10
Had the Will been attested by two witnesses, the name, particular and signature of the second attesting witness must have appeared at serial no. 2. However, neither the name nor particular nor signature of second witness appear against serial no. 2 of the witnesses. This fact creates doubts in the version of the petitioner that two witnesses had attested the Will.
As already noticed, under the heading of "witnesses" neither the name nor parentage and address of any other attesting witness finds mentioned. In their absence, it cannot be said that the other attesting witness was some advocate. Had the other witness being an advocate, his name and particulars must have been specifically mentioned under this heading. Same are missing. There is no explanation in this regard. This fact also create doubt about attesting of Will by two witnesses.
Whether any attesting witness signed the Will?
A comparison of the signatures of Sh. Om Parkash, attesting witness at serial no. 1 in Ex.PW1/A with the signatures available in certified copy of the Will Ex.CX, referred to above, would reveal that the same do not tally at all. Page No.11
16. Even otherwise, as noticed above, if the Will was attested by one witness at Serial No.1, the second attesting witness was expected to sign against serial No.2 I.e. below the name and particular of attesting witness Sh. Om Parkash. But it is not so in this case. Near the signatures of Sh. Om Parkash, it seems that there are some initials of someone else. Nobody knows who put these initials by the side of the initials of witness at serial No.1. This fact also creates doubts in the version of the petitioner, if this Will was executed on 18.12.1998 and that too by Sh. Kanwar Sain Aggarwal or attested by any witness, what to say of two attesting witnesses.
Whether the Will was signed by the testator?
17. Will Ex.PW-1/A bears signatures, purported to be signature of the testator at two places, on the right hand side of this document, towards the bottom, and above the photograph. However, as per certified copy of Will Ex.CX, referred to above, signatures purported of the testator, have been put only "once" and not "twice".
PW-1-official from the office of Sub-Registrar, when cross- examined initially stated that there is no difference between Page No.12 the original Will Ex.PW-1/A and the one available in the record brought by him. However, when he was further questioned in this regard, he admitted that the Will available in his record bears a line on the photo of the testator, whereas there is no such line on the Will Ex.PW-1/A. In view of testimony of PW-1 summoned from the office of Sub-Registrar, absence of line in the photograph on Ex.PW- 1/A and its presence in the certified copy of the Will, further creates doubts about the execution of the Will. If the Will was executed on 18.12.1998?
18. Furthermore, in the very first sentence of the Will date of its execution has been written in ink, in a blank space. This very date also appears in the certified copy issued by the office of Sub-Registrar Ex.CX. But a careful perusal of the handwriting and style used in writing of the digits "8", "2", "9" of said date 18.12.98, would reveal that the same cannot be said to have been written by one and the same person, who wrote this date in the original Will Ex.PW1/A. Consequently, Court finds that certified copy Ex.CX issued by the office of Sub Registrar is not true copy of Ex.PW-1/A. Page No.13 Whether any words were inserted by the testator in the Will?
19. Furthermore, in the fifth paragraph of the Will, words "any two person in" found to have been written in ink. As per the Will, the testator was against sale of the property by the beneficiary, but he is said to have made a provision in this regard, by declaring that the beneficiary could sell the property, after the demise of the testator, "with the consent of three persons" named therein.
But by adding the aforesaid four words, the sentence is intended to be read as if the testator permitted the beneficiary to sell the property with the consent of "only two out of the three".
Firstly, there is nothing on record to suggest as to who inserted these four words in the Will and at what point of time.
Secondly, a comparison of Ex.PW-1/A with the certified copy issued by the office of Sub-Registrar Ex.CX would reveal that these four words have been inserted in the original by putting "downwards arrow" in between, but in the certified copy Ex.CX there is no "downwards arrow" in between. In Page No.14 Ex.CX, only one "comma" appears to have been inserted after the word "of" to indicate insertion of these four words. Evidencery value of no-objection by the respondents?
20. So far as no-objection by two of the respondents, as noticed above, it is well settled that simply because a beneficiary or legatee has given consent for revoking or granting the probate or letters of administration, consent may not afford a good ground to be acted upon.
Having regard to the above discussion, no objection statements made by Ms. Deepika Jain and Smt. Ram Kali on 30.11.2010 and 14.01.2011 respectively do not come to the aid of the petitioner, and as such same cannot be acted upon. Conclusion.
21. In view of the above discussion, court is of the considered view that Will Ex.PW-1/A cannot be said to have been executed by the testator and that same is a forged and fabricated document. Certified copy of the Will Ex.CX issued by office of Sub-Registrar on 26.09.2000 to the petitioner is not the true and correct copy of the original Will Ex.PW-1/A. When it is so, it remains unexplained as to from where Ex.CX has been Page No.15 prepared by the office of Sub-Registrar. So, the certified copy of the Will i.e. Ex.CX is also a forged and fabricated document.
So, "Issue No.1" is decided against the petitioner. Onus to prove Issue no. 2 was also on the petitioner. Petitioner has not placed on record any medical record in this regard. Even otherwise, in view of the above discussion, when the Will is surrounded by suspicious circumstances and same has been held not to have been executed by the testator, this fact regarding mental condition of the testator relegates to the background.
Both these issues are disposed of accordingly. Issue no. 3 (Relief)
22. As a result of findings under Issues no. 1 & 2 above, this petition deserves to be dismissed.
Accordingly, the petition is hereby dismissed holding that the petitioner is not entitled to grant of probate as prayed for. Enquiry in connection with forgery, use of forged document as genuine, and perjury?
23. Before parting with the judgment, this court feels that it would be failing in its duties, if false claims, like present one, are not dealt with in a manner proper and effective for Page No.16 maintenance of majesty of Courts, as otherwise, the Courts would lose their efficacy to the litigant public and party shall feel encouraged to make false averments in the pleadings and to produce forged documents before the court.
Here, in this case, as noticed above, documents have been deliberately fabricated and used as genuine by the petitioner, in connivance with other and prima-facie it is so made out from the record.
Therefore, court finds it expedient in the interest of justice, to conduct preliminary inquiry in to the offences committed by the petitioner and others, yet to be unearthed, in relation to the Will and the proceedings.
Material / evidence, which is not before the court, needs to be collected and made available to this court. Other persons involved also need to be identified. In Pushpa Devi Jatia vs. M. L. Wadhavan, AIR 1987 SC 1156 and decision in C. S. Aggarwal Vs. State, Test CAS no.8/1995 by our own Hon'ble High Court on 29.03.2019, Hon'ble Court has observed that in such like situation, court can direct State agency to investigate and file a report with such other evidence which is collected on investigation.
Page No.17
Therefore, in this case, court also desires investigation by Delhi Police with respect to the forgery of the Will, to find out all other persons involved in forgery of the Will and forgery in the official record of the office of Sub-Registrar-VI, Pitampura, Delhi, to find out as to from where certified copy Ex.CX came to be issued to the petitioner, in the manner discussed above. I order accordingly for conducting investigation in to the matter by Delhi Police on the aspect pointed out in the judgment above. For the purpose of investigation, police may register appropriate case and then proceed to investigate.
In view of decision in C. S. Aggarwal's case (supra), it is made clear that on completion of investigation, report prepared by the Police Officer shall not be filed before the Magistrate (per section 173 (2) Cr.P.C) nor will the persons be forwarded to the Magistrate, but the Report shall be filed before this Court to enable it to continue with the Preliminary Inquiry as contemplated by Section 340 Cr.P.C. Police shall also place before this Court copies of the charge-sheet and reports of the experts on the documents.
Page No.18
The police may file any interim Report, if they deem it necessary.
Upon receipt of the report from the Police, in order to conclude the enquiry, this Court shall consider further course of action i.e. as to against which person(s) complaint is required to be filed under Section 195 Cr.PC read with Section 340 Cr.PC.
Digitally signed by NARINDER KUMAR NARINDER Date: KUMAR 2019.05.24 16:57:02 Announced in the Open Court +0530 on 22.05.2019. (Narinder Kumar) Additional District Judge02 (NorthWest), Rohini, Delhi. Page No.19