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12. In defendants' evidence, Mr. Jagmohan Bajaj was examined as D1W1/A who tendered his evidence affidavit as Ex. D1W1/A and relied upon the documents Mark A and Ex. DW1/2. During his cross examination D1W1 deposed that Mr. Roshan Lal Bajaj might have left the Will, however, he again stated that he executed the Will. That prior to filing of the present suit the plaintiff talked to him but not filed any suit. He further stated that plaintiff was not aware of the Will. He stated that Ex. DW1/2 is the last Will of Sh. Roshan Lal Bajaj. D1W1 deposed that his father was the owner of the suit property and plaintiff is his real sister residing at USA. He deposed Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 19 of 39 that he and defendant no. 2 also residing at USA. That his mother was residing at the suit property alongwith his father during his lifetime. He deposed that his father was having cordial relations with his all children. At the time of death of his father he was residing at USA. That his father was not suffering from paralysis at the time of execution of the Will and his father was having certain problems in his legs. But he did not know the exact disease from which his father was suffering. He further stated that his father was able to move around in the year 1989 but not much. He deposed that he had not visited India in 1989 but visited India after the death of his father. He stated that he was not having knowledge that his father was heavily sedated and was not in his senses in the month of May 1989. D1W1 stated that he was not aware if any wills dated 21.11.1981, 18.03.1987, or 27.03.1987 were executed by his father. The defendant no. 2 was in USA on 25.05.1989. HE denied that the Will Ex. DW1/2 did not contain the signatures or thumb impression of his father. He stated that his father stood as bank Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 20 of 39 guarantor to the loan taken by his brother late Mr. Rupak Bajaj. He stated that he was not aware about the financial condition of plaintiff in the year 1989. He stated that he is not aware if dowry was given to the plaintiff at the time of her marriage. He deposed that when he visited India on 29.05.1989, his mother and middle brother told that his father had executed a will and at the time of death of his father, the will was in possession of his brother Rupak Bajaj and mother. He was in possession of the Will since June, 1989. He further deposed that he neither disclosed the fact of the Will to the plaintiff and defendant no. 2 nor filed the copy of the same with L &DO. He deposed that his mother died intestate and the property still exists in the name of his father in the government records.

13. Mr. Deepak Bajaj was examined as D2W1 who relied upon the evidence affidavit as Ex. D2W1/A and relied upon GPA as Ex. DW- 2/1 and Will as Ex. DW-2/2 (already exhibited as Ex. DW-1/2). During his cross examination D2W1 deposed that the attorney Ex. DW-2/1 was executed by him at USA. He deposed that at the time of Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 21 of 39 death of his father he was not in India. He further deposed that his father was not suffering from any paralytic attack but he is suffering from leg problems. He further deposed that his father was not able to walk even upto bathroom and used to seek help of the servant. He denied that due to heavy medication his father remained sedated during the month of May, 1989. He further denied that due to paralysis his father was not able to walk, move and write. He stated that he was not having knowledge of execution of wills dated 21.11.1981, 18.03.1987 or 27.03.1987 by his father. HE denied that Ex. DW1/2 neither contains the signatures or thumb impression of his father. He denied that the financial condition of the plaintiff in the month of May, 1989 was not good. He denied the suggestion that no dowry was given to the plaintiff at the time of marriage and further stated that his mother had given everything to the plaintiff at that time. He further deposed that he did not know if he had received legal notice mark A. He further deposed that he was not having knowledge if the will Ex. DW-1/2 has been used in any government office.

OPP

4. Whether the Will dated 26.05.1989 is the last and final Will of late Sh. Roshan Lal Bajaj? OPD

20. The whole case of the plaintiff revolves around the fact whether the will exhibit DW 1/2 propounded by the defendants is genuine or forged. The whole case of the plaintiff is that the will exhibit DW 1/2 Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 28 of 39 is a forged and fabricated will and even if the court presumes or believes that the same is not a forged and fabricated document, then at best the said will cannot be relied upon being executed under suspicious circumstances. Plaintiff has challenged the will on various grounds. 1st of all, the plaintiff submits that the said will under challenge exhibit DW 1/ 2 is a forged and fabricated document propounded by the defendant to defeat the legitimate claims of the plaintiff. It is the case of the plaintiff that her father died intestate without executing or leaving behind any will. But the defendants claim that the will exhibit DW 1/ 2 dated 25 May 1989 is a genuine and valid document. Now the law relating to the will and the execution and proof in court is that the will has to be proved by attesting witnesses of the will as is contained in section 68 of the Indian evidence act. In the present case it is alleged by the defendants that the said will is attested by two witnesses namely Smt. Champa Talwar and Shri Kamal Singh. But as per the record, none of these alleged witnesses have been produced and examined by the defendants Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 29 of 39 to give evidence in terms of section 63 of the Indian succession act. In the absence of testimonies of these 2 attesting witnesses, the will cannot be said to have been proved by the defendants on the parameters of the Indian evidence act. Moreover, the defendants have produced two witnesses who are alleged to be legal heirs of Smt. Champa Talwar. Section 69 of the Indian evidence act says that where no attesting witnesses can be found,a will could be proved by proving the signatures of 1 of the attesting witnesses and that of the testator. But honourable Supreme Court of India in the case of Babu Singh and others versus Ram sahai (manu/SC/2456/2008) in para number 1314 and 16 has held that section 69 of the Indian evidence act would come into play when the attesting witness is either dead or out of jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Moreover, the fact of death of an attesting witness has to be specifically pleaded and proved before the court. Court cannot make any presumption regarding the death of an attesting witness. Honourable Chennai High Court in the matter of K Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 30 of 39 Jayarathnam versus K.G.Frederick has held the same. In the present case, the fact of death of either SMT Champa Talwar or Shri Kamal Singh has neither been pleaded Nor proved. Presuming that SMT Champa Talwar is dead, the defendant introduced the testimonies of persons claiming to be her children. Honourable Mumbai High Court's in the case of USHA Shrikant Rege versus Gauri Gajanan ( Manu/MH/1616/2014) in para number 26 has held that death of an attesting witness could only be proved by producing the death certificate. Summons were taken out for the service of Shri Kamal Singh on two dates. On both the occasions, report was received back that there is no person by this name. Honourable Mumbai High Court in the matter of Narayan Ganpat Bhosale versus Nalini Narayan Chavan has held that mere taking out of summons will not be enough to attract section 69 of the Indian evidence act unless all the methodology provided in the code of civil procedure is exhausted. Therefore in view of all the above mentioned, it can be said that the circumstances triggering section 69 of the Indian evidence act have Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 31 of 39 not been made out and therefore in the absence of production of the attesting witnesses, will exhibit DW-1/ 2 does not stand proved. Moreover the testimony of the witnesses produced and examined to prove the said will has to be discarded. Shri Vinay Talwar is not sure whether the signature on the impugned will belongs to his mother. Moreover, he did not testify anything regarding the signature of the testator. The other witness brought in to prove the said will i.e. Smt Neelam Mehndiratta identifies the signatures of the mother and that of the testator and claimed to be present at the time of execution of the alleged will, but her cross examination does not inspire confidence of the court as her memory fades selectively with regard to the subsequent flow of events on the alleged date of execution of the impugned will. Moreover there are thumb impressions on the alleged will but Smt. Neelam has not referred to any such thumb impressions on the alleged will. Moreover, Smt. Neelam Mehndiratta says that she knew the family of the testator for the last 60 years but in the following part of the cross examination, she pleads ignorance about Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 32 of 39 important dates and events of the family of the testator. Moreover, the fact that she was a close friend of defendant no. 3 raises doubt on her testimony as as she falls loosely in the category of interested witness suitably in place to favour defendant no. 3 who is one of the propounders of the alleged Will. It is also strange that Smt. Neelam Mehndiratta claims to know about the date of the execution of the Will but she does not remember the date of death of Sh. Rohan Lal Bajaj, the testator who died just two days after the execution of the alleged will. Therefore, her testimony also does not inspire confidence. Moreover, it is well settled law that mere registration of will itself is not sufficient to remove the circumstances of suspicion surrounding the execution of the will. Moreover, the fact that the existence of the will was kept silent from 1989 to 2010 for almost a period of 21 years also throws suspicion on the said will. More so, when the plaintiff has been ousted from the benefit of the alleged will without there being any proper and justifiable reason for the same. D1W1 Sh. Jagmohan Baja admitted having received the alleged Will in the year 1989 but Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 33 of 39 did not feel the need to share the same with the plaintiff and defendant no. 2 who are his own brother and sisters. This fact also appears to be unbelievable. Moreover, the alleged registered will was not filed with any of the legal authorities and the suit property still continues to be in the name of the testator and not mutated in the name of the defendant till the date of filing of the present case also appears to be very strange. Moreover, D1W1, Mr. Jagmohan Bajaj who is the brother of the plaintiff has admitted in his statement dated 17.04.2015 that he had sent an email dated 19.01.2010 to the plaintiff and in the said email, defendant no. 1 and D1W1 has acknowledged 1/4th share of the plaintiff in the suit property. Moreover, in para no. 1 of the alleged will, the testator states that he is suffering from paralysis but witness Mr. Deepak Bajaj in page one of his cross examination and witness Smt. Neelam Mehndiratta in reply to question no. 39 deny that the testator was suffering from paralysis. It is also relevant to point out that DW2 categorically stated that testator was unable to walk without the help of the servant. He further stated that the servants used to carry Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 34 of 39 his father to bathroom but Smt. Neelam Mehndiratta in her testimony deposed that the testator visited her house to invite her mother for attestation of the will. Witness Smt. Madhu Bajaj in her evidence affidavit deposed that the testator had difficulty in his legs at the time of execution of the will. Testator died within two days i.e. almost than 48 hours after the alleged execution of the will under challenge. Moreover, Will Ex. DW1/2 mentions the details of the scribe who also signed the same but none of the witness speak about his presence. Admittedly, the testator was incapable of walking and died within two days of execution of the will. Therefore, it becomes necessary to produce the scribe to indicate that the will contained the desire of the testator. It assumes all the more importance in view of the fact that one of the beneficiaries of the will was supposedly present at the time of its execution. Moreover, the defendants are confused about the date of the alleged execution of the will. In some places the date of the will has been mentioned as 25.05.1989 and in some other places the date of the will has been referred to as 26.05.1989. Even the court while Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 35 of 39 framing the issues has mentioned the date of the Will as 26.05.1989. Even this fact of the court framing the issues regarding the will dated 26.05.1989 has never been challenged by any of the defendants. It is on record that the so called will states that the testator Sh. Roshan Lal Bajaj was paralysed. Therefore, the testator executing this controversial will to the exclusion of the plaintiff only one or two days before his death in the condition of paralysis and decreased mobility becomes very suspicious and doubtful. Mental state of the testator was not sound him being paralysed. He was not in a fit state of mind to execute the alleged will. He was under a heavy medication and none of the defendants has produced any medical certificate to prove the mental state of the testator at the time of execution of the so called will. Even if for the sake of arguments, it is believed that the will was infact executed by the testator, he could not have been in a sound state of mind to execute the said will. Admittedly, one of the beneficiaries of the said will Mr. Rupak Bajaj, deceased husband of the defendant no. 3 and father of the defendant no. 4 and 5 was under a heavy debt Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 36 of 39 as he had obtained a loan from the bank. This factum of heavy loan upon the head of late Sh. Rupak Bajaj and the execution of this alleged will under such suspicious circumstances to the exclusion of the plaintiff are very suspicious circumstances. Therefore, in view of my above mentioned discussion, this court has come to the conclusion that defendants who are propounders of the alleged will Ex. DW1/2 have not proved the will on the preponderance of probabilities to the satisfaction of the court, that the alleged will was infact executed by the supposed testator late Sh. Roshan Lal Bajaj. There are many suspicious circumstances surrounding the alleged will. The defendants have not been able to prove the will as per the law prevalent and in view of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. None of the attesting witness have been examined to prove the authenticity of the will. There is no reasonable and satisfactory explanation as to why the two attesting witnesses were not produced and examined. There is no record of the death of the alleged witnesses and sufficient efforts have not been exhausted by Cs No. 20257/16 Madhu Bhandari Vs Jagmohan Bajaj Page no. 37 of 39 the defendants to procure the production of the attesting witnesses thereby failing the criteria of the Section 68 of the Indian Evidence Act and that of Section 69 of the Indian Evidence Act. Therefore, in opinion of the court, the alleged will Ex. DW1/2 cannot be relied upon as authentic and genuine and has o be discarded. In view of the discussions of the court that the will could not be proved by the defendants and has to be discarded by the court, plaintiff becomes entitled to 1/4th share in the suit property and is entitled to a preliminary decree for the same. In view of this fact, plaintiff is also entitled to permanent injunction against all the defendants with respect to the suit property till final adjudication of the rights and claim of the plaintiff to the exclusion of the plaintiff.