Sham Lal Kapur vs State And Ors.
1998 Latest Caselaw 554 Del

JUDGMENT

K. Ramamoorthy, J.

1. Late Shri Faqir Chand Vadhera belonged to the State of Himachal Pradesh. He was doing business in Delhi. He owned immovable properties in Himachal Pradesh and also owned movable properties. He had leasehold interest in shop No. B-2, Connaught Place. He had three sons, namely, Tilak Kumar, Baldev Kumar and Jatinder Kumar. The youngest son, Jatinder Kumar died in USA in the year 1971. Mrs. Vadhera pre-deceased the husband. The other two sons are living in the United States of America. They had not taken interest in the welfare of the father for reasons best known to them. I do not want to go into that aspect because the vicissitude off life cannot be predicted. The petitioner, who also hails from the State of Himachal Pradesh, had been assisting Faqir Chand in business that was carried on by Faqir Chand.

2. On the 30th of December, 1983, Faqir Chand died.

3. The petitioner presented the petition for grant of probate in this Court on the 23rd of March, 1984 propounding the Will and the Codicil alleged to have been executed by Faqir Chand Vadhera. The two sons of Vadhera have objected to the grant of probate disputing the Will and the Codicil.

4. The sons had filed the Suit No. 1239/85 praying for the following reliefs:

"It is, therefore, prayed that a decree calling upon the defendant to render the accounts of the partnership known as Tilak Hosiery be passed in favour of the plaintiffs and against the defendant.

The plaintiffs further pray that the defendant be permanently restrained from transferring or otherwise delivering possession of the Shop No. 2-B, Kathulia Building, Connaught Place, New Delhi (of which the plaintiff's are tenants) and appropriate orders be passed against the defendant.

The costs of the suit be also awarded to the plaintiffs and against the defendant.

That the Receiver may also be appointed to take possession of the business and business premises and run the business till the disposal of the suit."

5. The petitioner in the probate case, who is the defendant in the suit, has projected a case of partnership with himself and the late Faqir Chand Vadhera in the business. According to the petitioner/defendant, the partnership deed was executed on the 13th of August, 1978. That also disputed by the sons.

6. The main question in the probate case is whether the petitioner has proved the due execution of the Will and the Codicil. According to the petitioner, the Will was executed by Faqir Chand Vadhera on the 21st of February, 1983. According to the petitioner, the Codicil was executed on the 11th of November, 1983. Will is marked as Ex. PW-2/A and the Codicil is marked as Ex. PW-2/B. In support of his case the petitioner examined himself as PW-1 and examined Dr. D.N. Sharma as PW-2 and Mr. N.C. Sharma as PW-3 who are stated to be the attesting witnesses to the Will and to the Codicil.

7. Straightaway, I go to the evidence of these witnesses to find out whether they have proved due execution of the Will and the Codicil, Mr. Sham Lal, the petitioner, would state that the testator, Faqir Chand Vadhera, was carrying on business in Delhi; that the petitioner was related to him as his cousin; that when one of the sons of the testator died in the USA in 1971, the petitioner was asked to come to Delhi to assist the testator. The petitioner in his own words has stated:

"In 1971, his son died in the USA and he called me here. In pursuance of his request, I came to Delhi in the month of December, 1971. He mentioned to me that in case you can carry on with the business, you can sit on the shop B-2, Connaught Place, and the profit would be shared by us. From March, 1972 to 1983, the partnership business was carried on. The firm had a Current Account No. 2411 with the New Bank of India. The joint account was operated by both of us. He was staying in Rajinder Nagar. I was staying with him in Rajinder Nagar along with my family. His both sons left India in the year 1964 and 1965. The partnership was reduced in writing in the year 1978. In February, 1983, he executed a Will. I sued to look after the entire business of the shop. I came to learn about the Will in the year 1983.He suffered from illness in the year 1975 and both of his sons were asked to come here but they declined to come here. Again in the year 1982, he suffered from the illness. Again when his sons were asked to come, they declined to do so. In the year 1983, when he called Naresh Sharma and Dr. D.N. Sharma for becoming witnesses to the Wall, then I learnt about it at the shop. The Will was executed in my presence and the witnesses signed in my presence. The Will has been executed by Shri Faqir Chand Vadhera. I recognise his signature on the Will, which is marked for the purpose of identification as 'A'. The two witnesses, namely, Shri D.N. Sharma and Shri N.C. Sharma signed in my presence. After the Will, a Codicil was executed in the month of November, 1983. This also was signed by the executant Fazir Chand. It was signed by both the witnesses in my presence. This document is marked for the purpose of identification as 'B'. He was mentally sound when he executed the Will and the Codicil. He died on December 30, 1983. The witness volunteered to say: After the death of the father, when the sons were informed, the younger one came the next day and the elder one did not come. Thereafter, I had taken him to Hardwar for last rites. The last rites were performed by me."

8. In the cross-examination, he would state that he knew Lala Faqir Chand Vadhera since 1930 when he met him in the marriage of the petitioner's elder brother, Shri Ram Gopal Kapur. He would also state that he used to work with Vadhera in Tilak Hosiery Factory, Lahore, run by Shri Faqir Chand Vadhera. The witness is not able to say about the bank accounts in the name of Shri Faqir Chand Vadhera. His evidence is :

"It is wrong to suggest that the deceased Shri Faqir Chand Vadhera was having Bank Account No. 1542 with the New Bank of India, K. Block, Connaught Place, New Delhi. I am not aware of any such account. When I came to Delhi in the year 1971 then deceased Shri Faqir Chand Vadhera was having Account No. 2411 with New Bank of India, K. Block, Connaught Place, New Delhi. I am unable to affirm or deny the suggestion that the Account No. 1542 with the New Bank of India, K. Block, Connaught Place, New Delhi continued for the period 1972 to 1980. I do not know that the said account was in the name of the firm with Shri Faqir Chand Vadhera as the sole proprietor thereof. I did not get Account No. 1542 closed with the New Bank of India, K. Block, Connaught Place, New Delhi. I did not sign any account opening form in respect of Account No. 1542 with the New Bank of India, K. Block, Connaught Place, New Delhi. I also did not fill up any specimen signature card in respect of the said account. Shri Faqir Chand Vadhera died on 30.12.19983. When Shri Faqir Chand Vadhera died at that time Account No. 2411 was in operation with the New Bank of India, K. Block, Connaught Place, New Delhi. It is correct that I have been operating that account as a partner even after the death of Shri Faqir Chand Vadhera. It is wrong to suggest that I did not inform the Bank with regard to the death of Shri Faqir Chand Vadhera."

He was not able to say whether Vadhera had a locker in any Bank in Delhi. About PW-2 and PW-3, he says:

"Two witnesses signed the impugned Will i.e. Dr. D.N. Sharma and N.C. Sharma. A Codicil for the said Will was prepared. I am not in a position to give the exact date with regard to the preparation of the Codicil. It is correct that the said Codicil was signed by the abovenamed two witnesses. A partnership deed was prepared in the year 1978. The above-named two witnesses signed the said partnership deed. Dr. D.N. Sharma has been known to me for the last 18/20 years as a customer of my shop."

He was not in a position to tell the Court whether Dr. Mahajan was the Doctor of Vadhera, but, however, he would admit that Vadhera was operated upon by Dr. Mahajan in the year 1975. This question became necessary in the cross-examination because, according to the attesting witness, Dr. D.N. Sharma, who is not a regular doctor in the way in which people understand, he was treating Vadhera. He would state :

"I do not know as to whether the Will was got typed. However, the Will was signed at the shop. I was present at that time."

He would deny the suggestion that he did not inform the sons about the serious illness which inflicted Vadhera just before his death. According to the two attesting witnesses, PW-1 & PW-2, or his customers. He would state:

"I am not on visiting terms with Dr. D.N. Sharma and Shri N.C. Sharma. However, if I go to Gandhi Nagar to meet my other relations I see them. I do not go to meet other customers."

He would admit:

"Dr. D.N. Sharma isa resident of Chawri Bazar, Delhi. However, he is having his clinic at Gandhi Nagar, Shahdara, Delhi."

The witness would state that N.C.Sharma is a resident of Gandhi Nagar. The witness has not been able to say how Vadhera chose these two persons for attesting the Will and the Codicil. From the answer given by the witness in the cross-examination, it is clear that the petitioner has not been able to give any explanation. It is clear that he had participated in the execution of the Will, When; admittedly, the petitioner was present at the time of execution of the Will, one would expect him to give clearly the circumstances at the time of the execution of the Will and prior thereto when the petitioner was the only person assisting Vadhera.

9. PW-2, Dr. D.N. Sharma states that he has acquired Diploma in Bachelor of Integrated Medicine and Surgery (BIMS) from Tibbia College, New Delhi. He has not produced any credentials to prove that he is entitled to practise any system of medicine. He has got his board which, according to him, shows that the clinic was established in the year 1921. He was 55 years of age at the time when he gave evidence on the 24th of November, 1993. In 1983 he must have been 45 years of age. He must have been born in the year 1933. Therefore, how he represented that the clinic was established in the year 1921, he has not been able to explain. He would claim that Faqir Chand Vadhera was his patient and was suffering from high blood pressure. The witness would state that he had seen PW-1 and Faqir Chand working together in the shop. He states that Faqir Chand called him to his shop and he signed the Will at the instance of Vadhera as an attesting witness. He also, accord ing to him, signed the Codicil. He asserts that he acquired a Degree of Bachelor of Integrated Medicine and Surgery (BIMS) from Tibbia College, Karol Bagh, New Delhi in the year 1964. According to him, the institution is recognised by Delhi Unani & Ayurvedic Board. He would admit:

"I have not given any date on the Board of my shop as to since when I started running my clinic. It is correct that I have got written on the Board of my clinic that it was established in the year 1921. It is correct that there is no seal or stamp to that effect also."

He would state :

"Faqir Chand Vadhera did not inform me as to why he wanted my presence in the shop. It is only on my arrival, Vadhera disclosed to me the nature of the work."

He would admit that he was on visiting terms with PW-3, N.C. Sharma as his friend. He has not been able to give distance between his clinic and Connaught Place. He would state that he also signed the Codicil. The witness does not state as to when the Will was executed and when the Codicil was executed. According to the witness, when he signed the Codicil, Vadhera alone was there at the shop at that time. He would admit:

"there was no Notary Public when I signed the Will and the Codicil subsequently".

He would admit:

"I have got two stamps. One of my stamps bears the registration number. I do not keep my stamp in my bag. I was not asked by Sh. Faqir Chand to bring my stamp at the time of execution of the Will and at the time of writing the Codicil. However, I was not asked by him to bring my stamp when I was required to sign as a witness on the partnership deed."

He. would admit:

"It is correct that Lala Faqir Chand was ill in October/November, 1983. It is also correct that he was under the treatment at Sir Ganga Ram Hospital. I did not notice at the time 1 was asked to sign the Will as to whether Sh. Faqir Chand was fit or not."

About the timings of execution of the Will and the Codicil without giving the dates, the witness would state:

"I was summoned to the shop of Faqir Chand at near about 2.00 p.m. to sign the Codicil. I was called to sign the Will at near about 3.00 or 3.30 p.m."

About his attending Vadhera as a doctor he would state "I did not charge any fee from Lala Faqir Chand for checking his blood pressure. I did not make any entry in the register with regard to the checking of the blood pressure of Lala Faqir Chand. However, I gave him in writing the reading of the instrument of the blood pressure to enable him to consult his physician. I never asked Lala Faqir Chand the name of his physician. He never told me the name of his physician also."

10. In PW-2 / A, the PW-2, has put his signature and underneath the signature there is the seal which reads as under:

"ESTD 1921 [Phone clinic-213481] Phone Resi-266408 Dr. D.N.Sharma B.I.M.S.

1386 Main Bazar, G.Nagar Delhi-31

The document is typed first and PW-2 has signed in the margin towards the end of the foot of the page. PW-3 has singed on the margin space on the left-hand side. The notary public has signed at the top of the left-hand side. According to the witness, no Notary Public was present at the time of the execution of the Will. According to the witness, he had not taken any seal on the date of execution of the Will. PW-2 would admit:

"I am a Pediatrician as well as an E.N.T. Specialist. I do not have any special qualification with regard to the diseases of the children and the diseases of the Ear, Nose, and Throat except that I am a B.I.M.S."

From this, one can easily infer that PW-2 cannot at all be believed and he has suppressed ail the material facts. He has been set up by PW-1 for the purpose of proving the Will. His evidence is not trustworthy and he is not speaking to truth.

11. PW-3, Mr. N.C. Sharma, claims to be an attesting witness. In the chief-examination, he would state:

"I have been working in New Delhi Municipal Committee since the year 1960. I knew Lala Faqir Chand Vadhera as his customer. His shop was on my way to my residence. As such, I sued to make purchases from his shop. Deceased Faqir Chand Vadhera and Shri Sham Lal used to sit at the said shop under the name and style of Tilak Hosiery. Shri Sham Lal used to act as a salesman and Lal Faqir Chand Vadhera remained sitting on a chair at the shop.

I know Dr. D.N. Sharma PW-2. He is running a clinic at Gandhi Nagar. His clinic is at a distance of 100 yards from my residence. Ex. PW-2/C bears my signatures. I signed the same at the instance of Lala Faqir Chand Vadhera. It was also signed by Dr. D.N. Sharma and Lala Faqir Chand .Vadhera.

Lala Faqir Chand Vadhera was in a sound disposing mind at the time of the execution of the partnership deed. Shri Sham Lal signed the partnership deed after it Was signed by Lala Faqir Chand Vadhera.

I was asked through Dr. D.N.Sharma. I was required by Lala Faqir Chand Vadhera i.e. the deceased to sign a Will. I was asked to come after lunch interval. I accordingly reached there. Lala Faqir Chand Vadhera and Dr. D.N. Sharma and Shri Sham Lal were present at that time. Lala Faqir Chand Vadhera was having a typed Will with him when I readied there. He told that he had written a Will. Lala Faqir Chand Vadhera signed the Will first of all and thereafter it was signed by Dr. D.N. Sharma and then it was signed by me. Lala Faqir Chand Vadhera was a sound disposing mind and in his full senses at the time he signed the Will. The Will is Ex. PW-2/A.

On a subsequent date I was given a message by Dr. D.N. Sharma that I way required to be present at the shop of Lala Faqir Chand Vadhera deceased to sign a Codicil. I accordingly reached there. I found Lala Faqir Chand Vadhera present there and Shri Sham Lal and Dr. D.N. Sharma. Lala Faqir Chand Vadhera signed the Codicil and thereafter Dr. D.N. Sharma and then I signed the Codicil.The Codicil is Ex. PW-2/B.We also signed the Will and the Codicil in the presence of one another, Lala Faqir Chand Vadhera deceased was in sound disposing mind and in his full senses at the time of the execution of the Codicil."

In the cross examination, he would admit:

"I have been working in New Delhi Municipal Committee since the year 1960. I knew Lala Faqir Chand Vadhera as his customer. His shop was on my way to my residence. As such, I sued to make purchases from his shop. Deceased Faqir Chand Vadhera and Shri Sham Lal used to sit at the said shop under the name and style of Tilak Hosiery. Shri Sham Lal used to act as a salesman and Lala Faqir Chand Vadhera remained sitting on a chair at the shop.

I know Dr. D.N. Sharma, PW-2. He is running a clinic at Gandhi Nagar. His clinic is at a distance of 100 yards from my residence. Ex. PW2-/C bears my signatures. I signed the same at the instance of Lala Faqir Chand Vadhera. It was also signed by Dr. D.N. Sharma and Lala Faqir Chand Vadhera.

Lala Faqir Chand Vadhera was in a sound disposing mind at the time of the execution of the partnership deed. Shri Sham Lal signed the partnership deed after it was signed by Lala Faqir Chand Vadhera.

I was asked through Dr. D.N. Sharma. I was required by Lala Faqir Chand Vadhera i.e. the deceased to sign a Will. I was asked to come after lunch interval. I accordingly reached there. Lala Faqir Chand Vadhera and Dr. D.N. Sharma and Shri Sham Lal were present at that time. Lala Faqir Chand Vadhera was having a typed Will with him when I reached there. He told that he had written a Will. Lala Faqir Chand Vadhera signed the Will first of all and thereafter it was signed by Dr. D.N. Sharma and then it was signed by me. Lala Faqir Chand Vadhera was in a sound disposing mind and in his full senses at the time he signed the Will. The Will is Ex. PW-2/A.

On a subsequent date I was given a message by Dr. D.N. Sharma that I was required to be present at the shop of Lala Faqir Chand Vadhera deceased to sign aCodicil. I accordingly reached there. I found Lala Faqir Chand Vadhera present there and Shri Sham Lal and Dr. D.N. Sharma. Lala Faqir Chand Vadhera signed the Codicil and thereafter Dr. D.N. Sharma and then I signed the Codicil.

is Ex. PW-2/B.We also signed the Will and the Codicil in the presence of one another. Lala Faqir Chand Vadhera deceased was in a sound disposing mind and in his full senses at the time of the execution of the Codicil."

In the cross-examination he would admit that even though he is known to PW-2, he is not able to tell the Court full name of Dr. D.N. Sharma. He is not able to tell the explanation of BIMS. He had not seen the board in residence of the PW-2 which mentions that the clinic was established in the year 1921. He is not able to say whether Vadhera was a rich man or a poor man. He did not know whether Vadhera could afford a qualified doctor or not. He was not aware of the ailment Vadhera was suffering from. He would state:

"I do not know as to whether the deceased Lala Faqir Chand Vadhera was admitted at Ganga Ram Hospital when I was called to sign the Codicil."

He would state:

"When I arrived at the shop of Lala Faqir Chand Vadhera to sign the Will, Lala Faqir Chand Vadhera, Dr. D.N. Sharma and myself were present at that time at the shop and none else"

He denied the presence of the petitioner. He has almost admitted that he did not know anything about Vadhera. From his evidence, one can easily infer that he was not at all connected with Vadhera, which would make Vadhera to ask him to attest his Will. I am not able to believe the evidence of PW-3. It is obvious from the evidence that he has been summoned by PW-1 for the purpose of his case. What PW-3 claims is that he used to purchase under wears, banians, socks from the shop of Shri Sham Lal. A perusal of the Will and the Codicil would show that they had not come into existence in the normal course. The absence of Notary Public at the time of execution of the Will and the Codicil is admitted by PW-2 and PW-1. How the Notary Public came to sign the Will and the Codicil remains a mystery. That throws suspicion in the execution of the Will. PW-2 and PW-3 would not speak to the dates of the Will and the Codicil. They had assumed that there was absolutely no time gap between the execution of the Will and the Codicil and I may also mention, at this stage, that the very same witnesses PW-2 and PW-3 had attested the partnership deed alleged to have been executed between Faqir Chand Vadhera and the petitioner. There also, I find the signatures of the same Notary Public.

13. Mr. Ishwar Sahai, the learned Senior Counsel appearing for the petitioner made strenuous efforts referring to various circumstances to show that the petitioner was taking care of Vadhera, especially when the sons had been totally oblivious to their obligations to the father. Mr. Sahai, the learned Senior Counsel, relied upon the statement of Mr. Vadhera on 15.4.1979 which is marked as DW-4/ 13 (in suit). There Faqir Chand Vadhera had stated that he had written a letter to his partner, Shyam Lal, and on this basis it was argued that Vadhera had admitted the petitioner to be his partner in business and that throw light on the question of the genuineness of the Will. According to the learned Senior Counsel, it was admissible under Section 32 of the Evidence Act 1872. From the records, it would appear that Vadhera was defendant in an eviction suit and he wanted to set up a case of partnership and that case was rejected by the Court. Therefore, that statement made by Vadhera cannot be put against the objectors. Objectors were not parties to mat eviction suit. We are concerned with the proof of the Will and the Codicil. Therefore, the petitioner cannot rely upon Section 32 of the Evidence Act, 1872 with a view to proving DW-4/13, the evidence of Vadhera, as against the objectors. I do not want to mention the various circumstances mentioned by Mr. Ishwar Sahai, the learned Senior Counsel, because that Will be wholly unnecessary as due execution of the Will has to be proved by the petitioner by adducing cogent evidence when there are suspicious circumstances.

14. The evidence of DW-1 to DW-10 need not be considered because it is for the petitioner to establish the due execution and attestation of the Will and the Codicil. When I am not at all satisfied about the evidence of PW-1 to PW-3, I deem it wholly unnecessary to deal with the evidence of DW-1 to DW-10.

15. The principles applicable for considering the question proof of Will are well settled and I have considered the principles in Smt. Rajrani v. State & Ors., 1996 V AD (Delhi) 337. I am very clear in my mind that the petitioner has failed to establish his case relating to the due execution of the Will and the Codicil. Therefore, the Probate Case No. 32/84 stands dismissed.

16. There shall be no orders as to costs.

17. I have already extracted the relief portion in the suit. The case of the two sons of Faqir Chand Vadhera is that the defendant, Sham Lal, was an employee of Faqir Chand Vadhera. The said defendant was an employee in the business run in the name and style of "Tilak Hosiery" from shop No. 2-B, Kathulia Building, Connaught Place, New Delhi. According to the plaintiffs, Mr. Baldev Kumar went to USA in 1962 and Mr. Tilak Kumar went to USA in 1965. Without admitting any partnership, the plaintiffs would state that assuming there was any partnership, the said partnership had come to an end on the 30th of December, 1983. According to the plaintiffs:

"That the plaintiffs neither know about the said partnership deed nor defendant has given any deed of partnership. However, the defendant has been telling the plaintiffs that he entered into a partnership with late Sh. Faqir Chand in 1978. According to the defendant in this partnership, he was to get 50% profit and loss but the whole of the investment was made by late Sh. Faqir Chand. The stock in trade and the capital investment was by late Sh. Faqir Chand. The business premises i.e. B.2, Kathulia Building, Connaught Place, New Delhi had been in the tenancy of late Fazir Chand and were to remain as such. The partnership had nothing to do with the tenancy premises.

18. The plaintiffs also assert that the tenancy rights in premises 2-B, Kathulia Building, Connaught Place, New Delhi did not form part of the assets of the partnership firm. According to the plaintiffs, the defendant was only a partner without any investment and, therefore, the defendant would be entitled to 50% share of the profit and loss. The plaintiffs seek relief relating to accounting. It is asserted in the plaint that the business was carried on in the sole tenancy of Faqir Chand Vadhera. The defendant in his written statement claiming that he was a partner along with Faqir Chand Vadhera, would state that:

"Para No. 12 of the plaint is wrong and denied; except to the extent that the defendant was entitled to 50% share in the profits and loss of the business during the life time of father of the plaintiffs, but after his death the defendant is sole owner."

19. The plaintiff had examined the PW-1 to PW-8. The defendant had examined DW-1 to DW-4. The plaintiffs have filed documents Ex. P-1 to Ex. P-3, Ex. P-X/l, Ex. Mark-A, Ex. PW-4/D1, Ex.PW-5/1 to Ex. PW-5/3, Ex. PW-5/D1 to Ex. PW-5/D5 and Ex. PW-6/1. The defendant has filed documents Ex. D-1 to Ex. D-4, Ex. D/1 to Ex. D/6, Ex. DW1/1, Ex. DW1/2, Ex. DW-1/2, Ex. DW-2/B, Ex. DW-8/1, Ex. DW-2/A, Ex. DW-4/P-3 to Ex. DW-4/12, Ex. DW-2/A, Ex. DW-2/8, Ex. DW-4/P1, Ex. DW-4/P2 and Ex. DW-4/P3.

20. The defendant can succeed only if he establishes the Will and the Codicil. The partnership deed dated 1.8.1978 cannot also be believed because there are suspicious circumstances surrounding the execution of the document. The evidence of PW-1 to PW-3 in Probate 32/84 would clearly show that the partnership deed had been created by PW-1 along with the Will and the Codicil. Therefore, the case of the plaintiffs is accepted and there shall be a preliminary decree as per the provisions of CPC. The defendant in the suit, who had claimed right on the basis of the Will and the partnership deed, cannot claim any right in the tenancy held by the deceased. The sons, who are the plaintiffs in the suit, are entitled to succeed the estate of the deceased with reference to the tenancy right. The plaintiffs had prayed for injunction restraining the defendant from transferring or otherwise delivering possession of the shop. The plaintiffs in the suit are entitled to a preliminary decree, as per the provisions of the Civil Procedure Code, in the partnership matter.

21. There shall be a preliminary decree with reference to the partnership directing/declaring that:

1. The defendant-tenant is restrained from transferring or otherwise delivering possession of the shop to any third parties.

2. The plaintiffs in the suit are entitled to succeed to the tenancy right of the deceased, Vadhera,

3. The parties to bear their costs.

4. The plaintiffs to apply for final decree as and when necessary.

5. The plaintiffs to apply for possession of the premises after the final decree is passed in the partnership matter.

22. The probate case No. 32/84andSuitNo. 1239/85 stand disposed of in the above terms.