* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Test Case No.40/1982
% 23rd August, 2012
SH. JASJIT SINGH RIKHY ...... Petitioner
Through: Mr. Mukul Talwar with
Mr. Sradhananda Mohapatra,
Mr. Rajesh Kumar & Mr. Sunil Kumar, Advs.
VERSUS
STATE & ORS. ...... Respondents
Through: Mr. I.S. Alag with Mr. I.S.Lamba, Advs.
for Relative No.2.
Mr. Sumit Bansal with Mr. Ateev Mathur &
Ms. Sumi Anand, Advs. for LR‟s of
Relative No.4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes.
VALMIKI J. MEHTA, J (ORAL)
1. This Probate Petition seeks probate of the Will dated 21.8.1973 of late Sh. Narinjan Dass Rikhy. The beneficiary under this Will is Jagdeep Singh Rikhy son of Sh.Jasjit Singh Rikhy. Sh.Jasjit Singh Rikhy is the son of late Sh. Narinjan Dass Rikhy, i.e. the beneficiary under the Will was the grandson of late Sh.Narinjan Dass Rikhy. The petition was originally filed by Sh.Jasjit Singh Rikhy as Sh. Jagdeep Singh Rikhy - the beneficiary, was a Test Case No.40/1982 Page 1 of 24 minor at the time when the petition was filed. Sh.Jagdeep Singh Rikhy thereafter became major during the pendency of the case and he therefore was substituted in place of his father Sh. Jasjit Singh Rikhy.
2. The disputes between the parties as regards the Will have arisen because the Will bequeaths the immovable property namely Plot No.15, Street No.5, Shanti Niketan, Tula Rao Marg, New Delhi, admeasuring about 1000 sq.yds. to the petitioner only. As per the Will one son and one daughter namely Sh. Manjit Singh Rikhy and Smt. Harjit Kaur (the two objectors) have been disinherited totally and one widowed daughter-Mrs. Kuljit Raghbir Singh was given a limited right to reside in her lifetime in the rear portion of the property which was to be built upon. Besides, the aforesaid one son and two daughters being disinherited, there is a third pre-deceased daughter, and whose legal heirs gave no objection with respect to the present probate petition, and which legal heirs also did not receive anything under the Will.
3. Sh.Narinjan Dass Rikhy died at New Delhi on 5.3.1974. The Will executed by him is dated 21.8.1973. The petitioner having set up this Will must prove this Will in order to succeed in this probate petition.
4. Before I proceed ahead, I must turn to an extremely important aspect in the present case and which is that there is no original Will which has been filed in the present case. As per the petitioner, the original Will dated Test Case No.40/1982 Page 2 of 24 21.8.1973 was given by his father Sh. Jasjit Singh Rikhy to the brother of late Sh.Narinjan Dass Rikhy, one Dr. H.S.Rikhy. During the proceedings in the present case on notices being issued to Dr. H.S. Rikhy to produce the Will, he wrote a letter to this Court that he does not have the original Will dated 21.8.1973. Details in this regard, I would deal with a bit later, but for the present, it is necessary to refer to Sections 70 and 237 of the Indian Succession Act, 1925 inasmuch as those Sections provide as to the manner of revocation of a Will and also as to how probate can be granted when the original Will is not found. Sections 70 and 237 read as under:-
"70. Revocation of unprivileged Will of codicil. - No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person on his presence and by his direction with the intention of revoking the same.
237. Probate of copy or draft of lost Will. - When a Will has been lost or mislaid since the testator‟s death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced."
5. A reading of Section 70 shows that a Will can be revoked in different methods. One method is to declare by writing an intention to revoke the Will. The second is by destroying the same such as by burning or tearing. Test Case No.40/1982 Page 3 of 24 Section 237 provides that if a Will is lost or mislaid since the testator‟s death or the destruction is by a wrong or an accident which is not an act of the testator, and a copy of the Will has been preserved, then in such circumstances probate can be granted of the properly authenticated copy of the Will.
6. In this case the only issue which has been framed was as to whether the deceased Narinjan Dass Rikhy had executed the Will in question. This was the issue no. 1 framed on 31.5.1984 and which reads as under:-
"1. Whether the deceased executed the disputed Will? If so whether it was executed in accordance with law?"
7. In para 3 of the probate petition there is a specific averment of the original Will dated 21.8.1973 being with Dr.H.S.Rikhy, the younger brother of the testator. A request was made to the Court to direct Dr.H.S.Rikhy to produce the Will in Court.
8. By an order dated 17.8.1983, a learned single Judge of this Court directed that the original Will be summoned from Dr.H.S.Rikhy. Since Dr.H.S.Rikhy was not served for 21.9.1983, fresh notice was issued to Dr.H.S.Rikhy for 28.11.1983. For this date, Dr. H.S.Rikhy was found to have written a letter to the Registrar of this Court stating that he does not have the Will. Since this short letter dated 19.10.1983 written by Dr.H.S. Rikhy to the Test Case No.40/1982 Page 4 of 24 Registrar is relevant, and which letter is lying in the miscellaneous file of this Court at page 52, the said letter is reproduced in toto as under :-
"19-10-83 The Registrar High Court, New Delhi.
Regarding Probate case No.40(LA)82 Shri Narinjan Dass Rikhy.
Sir, In response to your letter Dated 10th October, 83, regarding the above case, I have to inform you, that I don‟t have the Will of Late Shri Narinjan Dass Rikhy. I therefore regret that I am unable to file the same.
Yours Faithfully
D/19.10.83 (DR. H.S. RIKHY)
F-8, Lodi Market,
Lodi Colony
New Delhi-3"
9. A reference to the aforesaid letter dated 19.10.1983 shows that Dr. H.S. Rikhy says that he does not have the Will of late Sh.Narinjan Dass Rikhy. It is curious that this letter is silent as to whether Dr.H.S.Rikhy ever had the Will at any point of time, and if he had the Will at one point of time, when its possession ceased to be with him. I find that the language of this letter is a convenient language which avoids to meet a very crucial point as to Test Case No.40/1982 Page 5 of 24 whether Dr. H.S.Rikhy ever had with him the original Will of late Sh.
Narinjan Dass Rikhy.
10. Taken with the language of the letter dated 19.10.1983, and that none of the parties have disputed that this is a letter written by Dr. H.S.Rikhy to the Registrar of this Court, there is evidence which is led on behalf of the petitioner himself as PW7 wherein the petitioner states that his father Sh.Jasjit Singh Rikhy in his lifetime had shown him the original Will of late Sh.Narinjan Dass Rikhy and that Dr. H.S. Rikhy had confirmed to the father of the petitioner i.e. Jasjit Singh Rikhy that the Will was in the possession of Dr. H.S.Rikhy. PW7/petitioner has also deposed that when Dr. H.S.Rikhy was asked to produce the original Will he had assured the father of the petitioner that the same would be produced in the Court. It may also be noted that on the refusal of Dr.H.S.Rikhy to produce the Will, he was sought to be examined on commission, but the commission could not be executed as Dr. H.S.Rikhy passed away in the meanwhile.
11. A most crucial aspect in this case is that out of the two objectors i.e. one son-Sh.Manjit Singh Rikhy and the daughter-Mrs.Harjit Kaur, none of them have led any evidence whatsoever. In spite of the repeated opportunities, when evidence was not led on behalf of the objectors, their right to lead evidence was closed. Therefore, the position is that there is affirmative Test Case No.40/1982 Page 6 of 24 evidence on behalf of the petitioner who led evidence of as many as seven witnesses, there is not a single witness who has deposed in support of the objectors. This aspect will be very crucial for arriving at a decision of the issue in the present case.
12. On the basis of the aforesaid facts which have emerged i.e. the petitioner stating in the petition that the Will was with Dr. H.S.Rikhy, Dr. H.S.Rikhy writing the letter dated 19.10.1983 reproduced above stating that he does not have the Will Ex.PW7/1, PW7 deposing that the Will was with Dr.H.S.Rikhy and who had affirmed that the Will was in his possession in the presence of the petitioner and the fact that there is absolutely no evidence led on behalf of the objectors, satisfies the requirement of Section 237 of the Indian Succession Act, 1925 for grant of the probate of the authenticated copy of the Will dated 21.8.1973 which has been filed and proved in this case as Ex.PW7/1.
13. I have thought long and hard on this aspect. Courts of course have to apply greater scrutiny in cases where the original Will is not filed and probate is sought of the copy of the Will (which of course is permissible under Section 237), yet, the aforesaid aspects noted by me, persuade me to come to the conclusion that the original Will dated 21.8.1973 of Late Sh.Narinjan Dass Rikhy was not revoked or destroyed deliberately. This I say so because all the Test Case No.40/1982 Page 7 of 24 conclusions given by me above, taken especially with the fact that once there is evidence led on behalf of the petitioner, the opposite side was at least duty bound to step into the witness box and support their case and stand the test of the cross-examination, however, the objectors have led no evidence, and this being a civil case required to be decided as per preponderance of the probabilities, I hold that in terms of the preponderance and balance of probabilities, the Will which has been filed and proved in this case as Ex.PW7/1 is a correct/true copy of the Will dated 21.8.1973 of late Sh.Narinjan Dass Rikhy and original of which was never revoked by Sh.Narinjan Dass Rikh in his lifetime. I am also considerably persuaded on account of the deliberate vague language in the letter dated 19.10.1983 written by Dr. H.S.Rikhy wherein it has only been stated that „he does not have the Will of late Sh.Narinjan Dass Rikhy‟, but he failed to categorically state that he never had possession at any point of time of the Will dated 21.8.1973 of late Sh.Narinjan Dass Rikhy. I therefore decide accordingly that Ex.PW7/1 is a true/correct copy of the original Will dated 21.8.1973 of late Sh. Narinjan Dass Rikhy and probate of the same can be granted on the same being proved to have been validly executed and attested.
14. Let us now examine as to whether the petitioner has succeeded in proving the due execution and attestation of the Will dated 21.8.1973 of late Test Case No.40/1982 Page 8 of 24 Sh. Narinjan Dass Rikhy. Included in the aforesaid aspects would be as to whether there are suspicious circumstances so as to disbelieve the Will in question.
15. The aspect of execution and attestation need not hold me much inasmuch as one attesting witness Sh. Kishan Singh appeared in the witness box as PW2 and who has specifically deposed that the Will dated 21.8.1973 was duly executed by late Sh.Narinjan Dass Rikhy and attested by the two attesting witnesses in the presence of the testator who was of sound disposing mind. Sh. Kishan Singh, it may be noted, can be said to be a neutral witness because he is the wife‟s brother of the testator i.e. Sh.Kishan Singh is the real brother-in-law of late Sh. Narinjan Dass Rikhy and therefore equidistant and equirelated without any bias for or against any one of the legal heirs of late Sh. Narinjan Dass Rikhy. In fact Sh. Kishan Singh had worked in a Government office as a junior to late Sh.Narinjan Dass Rikhy and Sh.Kishan Singh has deposed that he is aware of the signatures of late Sh.Narinjan Dass Rikhy as during the course of performance of official duties he had on many occasions come across the documents which were signed by late Sh.Narinjan Dass Rikhy. There are certain aspects of perceived contradictions in the deposition of this witness, and the deposition of certain other witnesses, and such issue of contradictions being the major argument urged on behalf of the objectors, the Test Case No.40/1982 Page 9 of 24 same I will deal with when I will take up and deal with the arguments which are urged on behalf of the objectors. While on the aspect of execution and attestation of the Will there is also an extremely important and material witness. This extremely important and material witness is a retired Judge of this Court namely Justice Jagjit Singh, who has appeared in the witness box and deposed as PW1. He has deposed that during the function of marriage of his son in his house, Sh.Narinjan Dass Rikhy had come and late Sh. Narinjan Dass Rikhy had at that point of time showed to him the Will executed by him and which he had cursorily gone through. Justice Jagjit Singh (retd.) has also deposed that late Sh.Narinjan Dass Rikhy was accompanied by his younger brother Sh.H.R.Rikhy who is the other attesting witness to the Will. Sh.H.R.Rikhy had also confirmed with regard to the execution and attestation of the Will. The marriage function of Justice Jagjit Singh‟s (retd.) son was just about two weeks prior to the death of Sh.Narinjan Dass Rikhy and thus it showed that till two weeks before the death of Sh.Narinjan Dass Rikhy there existed the original Will and whose due execution was affirmed before Justice Jagjit Singh (retd.) and who had seen this original Will.
16. Therefore, there is clearly affirmative evidence with regard to the execution of the Will by the testator in the presence of the two attesting witnesses and of the two attesting witnesses having signed in the presence of Test Case No.40/1982 Page 10 of 24 the testator. In my opinion, the Will therefore stands duly proved notwithstanding the fact that the other attesting witness was not brought into the witness box, and in fact he could not be brought into the witness box because before the evidence could be led of this witness, this witness had already expired. In fact this witness had expired prior to the filing of the petition, a position admitted by all the parties. As already stated above whereas there is sufficient evidence to prove the due execution and attestation of the Will, there is absolutely no evidence led on behalf of the objectors and therefore on the balance of probabilities, I come to the conclusion that the Will Ex.PW7/1 stands duly proved.
17. At this stage, let me now take up the main arguments which were urged on behalf of the objectors to dispute the factum of due execution and non-existence of the original Will i.e. that the original Will has not been proved to have been existing after the death of Sh. Narinjan Dass Rikhy. These arguments have been urged to show that material contradictions have been made by the witnesses of the petitioner totally destroying their credibility and hence of their testimonies and hence it is argued that Will in question has not been proved. The main arguments which have been urged on behalf of the objectors are as under:-
Test Case No.40/1982 Page 11 of 24
i) The petitioner in the probate petition only stated that the original Will was with Dr. H.S.Rikhy, but they fail to state as to how the original Will was with Dr.H.S.Rikhy. It is argued that this lacuna of inadequate and incomplete statement in the petition is sought to be made up by the evidence and which evidence has to be ignored. It is argued that Dr.H.S.Rikhy himself denied that the Will was with him and thus the whole case falls.
ii) The attesting witness Sh.Kishan Singh who appeared as PW2 stated that the Will was made at Anand Niketan, however, the Will itself shows that the Will was not executed at Anand Niketan but when the deceased testator was resident of Northern Extension Area i.e. at Ganga Ram Hospital Marg, New Delhi. It is argued that this is a vital contradiction which shows that the Will as propounded by the petitioner was a forged and fabricated document.
iii) It is argued that the signatures appearing of late Sh.Narinjan Dass Rikhy in the Will Ex.PW7/1, are ex facie and wholly different from those on the letter dated 15.9.1973, Ex.PW7/2, and which should be taken with the fact that the contents of this letter dated Ex.PW7/2 shows that late Sh. Narinjan Dass Rikhy only wanted the petitioner-Sh. Jagdeep Singh Rikhy to be made as a co-owner of the plot in question.Test Case No.40/1982 Page 12 of 24
iv) It is further argued that Sh. Som Nath Kapoor, PW6 who appeared on behalf of the petitioner stated that the Will in question was put in a trunk and which trunk alongwith certain other furniture was left with Sh.Som Nath Kapoor when the family of the father of the petitioner alongwith late Sh. Narinjan Dass Rikhy shifted from the Northern Extension Area to a rented premises in the Anand Niketan, and since witness Sh.Kishan Das Singh stated that the shifting was about one to five years before 1973, the testimony of not only Sh.Som Nath Kapoor but Sh.Kishan Singh had to be disbelieved because Sh. Kishan Singh stated that the Will was executed at Anand Niketan and Sh.Som Nath Kapoor had talked of furniture being shifted and a trunk containing the Will (i.e. existence of the Will) even before the Will was executed at Anand Niketan as per the statement of Sh.Kishan Singh.
v) The statement of Justice Jagjit Singh (retd.) should be disbelieved because as per the deposition of Sh.Pitam Singh, PW4, the Will is said to have been drafted by Justice Jagjit Singh (retd.), whereas, on the date when the Will dated 21.8.1973 was made, Justice Jagjit Singh (retd.) was a Judge of this Court and therefore he could not have drafted the Will in question. While on this argument, it is also urged that the testimony of Justice Jagjit Singh (retd.) that he saw the Will about fifteen days prior to Test Case No.40/1982 Page 13 of 24 the death of Sh. Narinjan Dass Rikhy because late Sh. Narinjan Dass Rikhy had brought the Will to the function of the son of Justice Jagjit Singh (retd.), is negated by the testimony of Sh.Som Nath Kapoor that the Will being put and existing in the trunk given with the furniture at the time of shifting period which was prior to the execution of the Will.
vi) The final argument which has been urged on behalf of the objectors is that since the other legal heirs have been disinherited, the Will is unnatural and therefore the Will is not a valid Will of late Sh.Narinjan Dass Rikhy.
Let me take up each of the arguments and deal with the same as per the record of the present case and the arguments as urged by the parties.
18. The first point which is argued is with respect to the case having to fall as Dr. H.S. Rikhy himself has denied that he ever had with him the original Will. I am unable to accept this argument for various reasons. The first important reason is the language of the letter of Dr. H.S.Rikhy sent to this Court dated 19.10.1983. I have already dwelt upon this aspect and observed that the letter is somehow inexplicably silent, and I may go to the extent of saying that it is deliberately ambiguous as to whether Dr.H.S.Rikhy ever had in his possession the original Will dated 21.8.1973. The second aspect for me to hold that the original Will of late Sh. Narinjan Dass Rikhy was not Test Case No.40/1982 Page 14 of 24 destroyed by him during the lifetime or revoked by him is because just barely fifteen days prior to the death of late Sh.Narinjan Dass Rikhy the original Will was shown to Justice Jagjit Singh (retd.), and who has deposed on this aspect. The presence of one attesting witness, i.e. the younger brother of late Sh.Narinjan Dass Rikhy namely Sh.H.R. Rikhy, as already stated above, finds mention in the testimony of Justice Jagjit Singh (retd.) that he was also at that time present and he had affirmed to the due execution of the Will. Once again all these aspects are to be taken with the fact that if the objectors had any conviction in their case they should have surely led evidence, at least themselves stood in the witness box and stand up to the test of the cross- examination as has been done on behalf of the petitioner and seven of his witnesses, however, no evidence at all has been led on behalf of the objectors. On the balance of probabilities, therefore, I have to hold that the Will was not revoked by late Sh.Narinjan Dass Rikhy in his lifetime and Dr. H.S.Rikhy had deliberately avoided to produce the original Will in his possession and which was given to him by the father of the petitioner. A petition has to contain the material fact and not the details of the evidence and which is to be led during trial. There is thus no defect in the petition as the objectors want me to believe. How the Will was with Dr.H.S.Rikhy is an issue of fact to be proved in evidence.
Test Case No.40/1982 Page 15 of 24
In fact whatever doubt there can be with regard to existence of the original Will even after the death of late Sh. Narinjan Dass Rikhy is removed by the statement of Smt. Kanta Jaishreeram who appeared on behalf of the petitioner and deposed as PW3. Smt. Kanta Jaishreeram has deposed that she was a Metropolitan Magistrate in the Child Welfare Board and she knew late Sh. Narinjan Dass Rikhy. She has deposed that she had attested the Will Ex.PW7/1 i.e. photocopy of Will in question after seeing the original and comparing the copy with the original. I find no reason to disbelieve the testimony of this witness, and who has not been shown to be in any manner biased against the objectors. It has also come in the evidence on behalf of the petitioner as PW7 and Sh.Som Nath Kapoor, PW6 that the father of the petitioner namely Sh.Jasjit Singh Rikhy was required to give the original Will to his uncle i.e. the brother of late Sh.Narinjan Dass Rikhy and therefore he kept an attested copy of the Will with himself. I therefore reject this argument urged on behalf of the objectors that merely because Dr.H.S.Rikhy has said that he does not have the original Will, the probate petition must necessarily fail or that there is an unsurmountable defect in the pleading qua who gave the Will to Dr.H.S.Rikhy.
19. The next argument which has been urged on behalf of the objectors is with regard to the diversity in the signatures of late Sh.Narinjan Test Case No.40/1982 Page 16 of 24 Dass Rikhy appearing in the Will Ex.PW7/1 and the letter dated 15.9.1973, Ex.PW7/2, written by late Sh.Narinjan Dass Rikhy to the society from whom the plot in question was allotted to late Sh.Narinjan Dass Rikhy. This argument of course does appear to be attractive at the first blush, however, this need not detain me because various witnesses on behalf of the petitioner have stepped into the witness box and affirmed the signatures of late Sh.Narinjan Dass Rikhy on the Will, and more importantly the objectors have not had the necessary conviction to step into the witness box and even give the affirmative statement that the Will does not bear the signatures of late Sh.Narinjan Dass Rikhy. Therefore, though the signatures of late Sh.Narinjan Dass Rikhy appearing on PW7/2 (letter) and Ex.PW7/1 (Will) are definitely different, in my opinion, in the facts of the present case and the other evidences which have come on record, it cannot lead to conclusion that the Will does not bear the signatures of late Sh.Narinjan Dass Rikhy. Also, sometimes a non-formal document (Will is a very formal document) is signed by a person not with care or is signed by someone on behalf of the sender, however the totality of the evidence shows that so far as the Will Ex.PW7/1 is concerned the same bears the signatures of the testator.
While on this aspect, I would like to dispose of the argument on behalf of the objectors that the letter Ex.PW7/2 shows that late Sh.Narinjan Test Case No.40/1982 Page 17 of 24 Dass Rikhy only wanted to make the petitioner as a co-owner of the plot i.e. not a sole owner. This argument is without any substance inasmuch as during his lifetime late Sh.Narinjan Dass Rikhy surely would not want to give away the complete ownership of the plot, however, it cannot mean that in the Will he would not want that the complete ownership of the plot should not go to the petitioner. Therefore, merely because the letter Ex.PW7/2 only states that the petitioner should be made co-owner of the plot, cannot necessarily mean that the Will is an unnatural Will and should be discarded.
20. The next argument very strenuously urged is with respect to the contradictions emerging from the testimonies of Sh. Kishan Singh (PW-2), Sh. Som Nath Kapoor (PW-6) and Justice Jagjit Singh (PW-1). In sum and substance, the contradictions arise because of two facts. Firstly of the witness Sh.Kishan Singh, PW-2 stating that the Will was executed at Anand Niketan and secondly because the witness Sh.Som Nath Kapoor, PW-6 had stated that the Will in question was found in a trunk given at the time of shifting from Northern Extension area to Anand Niketan, though this shifting was much before the year 1973 when the Will came into existence.
Of course one cannot run away from the fact that Sh. Kishan Singh has stated that the Will was in fact executed at Anand Niketan and which is against the petitioner because the Will was in fact executed when the Test Case No.40/1982 Page 18 of 24 deceased testator was living at Ganga Ram Hospital Road in Northern Extension area. One contradiction, however, in the facts of the present case, has failed to persuade me to throw out the probate petition solely on this ground itself. Contradictions can appear in testimonies of witnesses which are recorded many years after the event in question (and which in this case is as many as fifteen years) however such contradictions in my opinion cannot totally destroy the case which is otherwise proved by other witnesses/evidences. It is a question of one aspect against reasons of other evidences. I cannot agree that every positive evidence in this case ought to be overlooked because of one contradiction. I may state that the Supreme Court has repeatedly held that the doctrine of falsus in uno falsus in omnibus has no application in India i.e. merely because a witness is found to be stating false in one part of the statement, his testimony as a whole cannot be disbelieved. If this doctrine would have been applied in India, then, surely there will not be a single case which can really be decided purely on merits.
So far as the aspect that the witness Sh. Pritam Singh, PW-4 stated that the Will was drafted by Justice Jagjit Singh (retd.), once again this statement at best would be a statement which is false in the facts of the present case, however, there is other more than sufficient evidence with respect to the Will having been duly executed and attested. On such basis itself it is difficult Test Case No.40/1982 Page 19 of 24 to dismiss the probate petition in the facts of the present case, especially where the objectors have chosen not to depose even in their own favour.
Now let us for the sake of argument assume that the Will was drafted by Justice Jagjit Singh (retd.). Even in such a case at best it would mean that possibly Justice Jagjit Singh (retd.) would have given assistance to late Sh. Narinjan Dass Rikhy for making of the Will, however, it is noted that the Will is a holograph Will in this case i.e. it is quite clear that the Will is written by none other than the deceased testator. That being so, I would not attach too much importance on this statement of PW-4 of the Will having been drafted by Justice Jagjit Singh (retd.).
21. I also refuse to accede to the argument as urged on behalf of the objectors that the statement of Sh. Som Nath Kapoor as PW-6 states that the Will has been taken out from the trunk/suitcase given alongwith the furniture at the time of shifting from Northern Extension area to Anand Niketan. In order to appreciate the argument and the lack of any genuine substance in the statement, let me reproduce the entire examination-in-chief of Sh.Som Nath Kapoor, PW6, and which reads as under:-
"STATEMENT OF PW-6, MR. SOM NATH KAPOOR S/O MR. BANARSI NATH KAPOOR R/O 5 PANCHSHEEL PARK, CHANKAYA PURI, NEW DELHI ON S.A.
Test Case No.40/1982 Page 20 of 24
I knew late N.D. Rikhy and his family. I have known Mr. Jasjeet Singh Rikhy since 1943 from Lahore. Mr Jasjeet Singh and I used to go college together and I got acquainted with his family through him. I met him in Delhi after independence in 1948-49. Mr. Rikhy was staying at Tughlak Road. We used to meet quite often. Mr. Jasjeet Singh had left with me some suit-cases and some furniture when they shifted from Northern Enclave to Anand Niketan. After the death of Mr. N.D. Rikhy, Mr. Jasjeet Singh Rikhy came to my house to collect some documents lying in the suit-case that was in my house. The WILL was then shown to me by Mr. Jasjeet Singh Rikhy and stating that this was the WILL of his father. (Vol. Mr. N.D. Rikhy had never mentioned about the WILL to me during his life time). He further stated that he had to give the WILL to his uncles. I suggested that he should give a photocopy of the WILL to his uncles. Since he insisted that he has to give original will to his uncles then I suggested him that he should keep an attested copy of the WILL with him. I have seen the document marked „I‟. It is a copy of the original WILL that was shown to me by Mr. Jasjeeet Singh Rikhy. The copy was attested in my presence." (underlining is mine)
22. A reference to the aforesaid statement shows that it cannot be said that a conclusion should be derived from the statement that the Will was also collected from the suitcase. The two underlined statements are disjunctive and not joint. The aforesaid statement only shows that after the death of Sh. Narinjan Dass Rikhy, the father of the petitioner, namely, Sh.Jasjit Singh Rikhy came to collect documents lying in the suitcase and at which time the Will was also shown to Sh. Som Nath Kapoor. This however cannot compulsorily mean that the papers referred to for taking from the suitcase included the Will in question. All that it means is that Sh.Jasjit Singh Rikhy Test Case No.40/1982 Page 21 of 24 came to take papers from the suitcase and at that time he had showed the Will to Sh. Som Nath Kapoor.
23. The final argument urged on behalf of the objectors was that the Will is unnatural because it disinherits all other branches except the branch of Sh.Jasjit Singh Rikhy. I do not find any strength in this argument because it has been quite clearly established on record that the father, late Sh. Narinjan Dass Rikhy only and always lived with his one son namely Sh.Jasjit Singh Rikhy. Even at the time of making of the Will, the father was in fact living with Sh.Jasjit Singh Rikhy. The address given in the Will is the address where both late Sh. Narinjan Dass Rikhy and Sh.Jasjit Singh Rikhy were residing. Also, there is no evidence on behalf of the objectors to the contrary that the father was if not living with Sh. Jasjit Singh Rikhy then he was living at which address and with which other legal heir of late Sh. Narinjan Dass Rikhy. Once the father lives with one son, it cannot be said totally unnatural for the Will to be held unnatural as he has preferred that branch of the son who was living with him, especially in his old age. The other son Manjit Singh Rikhy (objector) was settled abroad in USA and was well off. The sister Harjit Kaur (objector) was married in a very affluent family in UK. Once again, I would have to look into this aspect in detail provided that the objectors had led some evidence and stepped into the witness box. I am of course time and again Test Case No.40/1982 Page 22 of 24 repeating this aspect because this indeed is a crucial aspect in this case that if a person does not choose to lead any evidence then the other person who has led evidence cannot be disbelieved in a civil case. I may also note that not only Justice Jagjit Singh (retd.) as PW1, but also Sh. Kishan Singh as PW2 have specifically deposed that late Sh. Narinjan Dass Rikhy specifically had told them that late Sh. Narinjan Dass Rikhy was not happy with his second son Sh. Manjit Singh Rikhy and therefore had excluded him under the Will. So far as one widowed daughter is concerned she had been given by the Will the right to reside in her lifetime in a portion of the suit property. The remaining sister‟s branch has given NOC for the Will.
24. A civil case turns on the issue of discharge of onus of proof. Onus of proof shifts from time to time in a civil case. Initially onus is always upon the person who urges the plea. However, once evidence is led in support of the plea, and in this case there is evidence of as many as seven witnesses, the onus of proof shifts to the opposite side to at least lead some sort of credible evidence, and with respect to which as already stated there is a miserable failure on the part of the objectors. The petitioner has therefore discharged the onus of proof that the Will Ex.PW7/1 was duly executed by late Sh.Narinjan Dass Rikhy and was also attested by the attesting witnesses in accordance with law. I may finally state that there is no issue urged on behalf Test Case No.40/1982 Page 23 of 24 of the objectors as to the lack of mental capacity or lack of sound deposing mind of Sh. Narinjan Dass Rikhy at the time of making of the Will.
25. In view of the aforesaid discussion, I hold the only issue in favour of the petitioner and against the objectors. I hold that the petitioner is entitled to letters of administration with the Will annexed i.e. the Will dated 21.8.1973 of late Sh. Narinjan Dass Rikhy proved and exhibited as Ex.PW7/1. Let the letters of administration with the Will annexed be issued in favour of the petitioner on his filing the necessary Court fees. The petitioner being the only beneficiary of the Will is exempted from giving any administration or surety bond. Parties are left to bear their own costs.
VALMIKI J. MEHTA, J AUGUST 23, 2012 ak Test Case No.40/1982 Page 24 of 24