Ram Kishan vs State And Anr.
1998 Latest Caselaw 1043 Del

JUDGMENT

C.M. Nayar, J.

1. This judgment will dispose of an appeal which arises out of the judgment dated August 28, 1993 passed by Additional District Judge, Delhi in Probate Case No. 640/1993.

2. The appellant filed a petition under Section 276 of the Indian Succession Act for the grant of probate in respect of the Will dated October 8, 1981 alleged to have been executed by late Smt. Sirya Devi wife of Munna Lal, alleged to be paternal grand-mother of the appellant who expired on December 9, 1981. The deceased was a resident of C-7, Rana Pratap Bagh, Delhi and in the petition only Mool Chand son of Shri Ghasi Ram respondent No. 2 was imp leaded as a party. The relationship of respondent No. 2 with the deceased was not disclosed nor there was any averment made in the petition that deceased had left behind any other heir or near relation who would be interested in the property after her death. On objection being taken by respondent Mool Chand, the appellant filed an application under Section 151 of the Code of Civil Procedure before the Additional District Judge for direction to respondent No. 2 to furnish the names and addresses of other relations. The list of such relations comprising of three sets of relations: (i) six sisters sons and daughters of the deceased; (ii) three brothers sons and daughters of the deceased, and (iii) two brothers and sisters of the appellant. Citation of the petition was duly published by publication in 'Savera', daily newspaper. Notices were also sent to the other near relations as stated above. Only eight of such relations, namely, Smt. Vidya Devi, Manbhawati Devi, Kasturi Devi, Sarjo Devi, Ram Phool Gupta, Ram Dhan, Suraj Bhan and Nanti Devi filed joint written statement/objections dated September 12, 1985 wherein they denied that the deceased had executed any Will in favour of the appellant which was alleged to have been forged after the death of the testatrix.

They also pleaded that she executed another Will dated 29th March, 1978 in favour of Mool Chand and that Will was registered and genuine document.

Respondent No. 2 Mool Chand filed his written statement/objection dated April 18, 1985 and inter alia pleaded as follows:

"The Will propounded by the petitioner was a forged document and was not executed by the deceased; that the deceased was not in sound and disposing mind on 8.10.1981 when the said Will is alleged to have been executed and the deceased was sick and confined to bed and was not fit to make the Will on 8.10.81; on the other hand the deceased had executed her last Will on 29.3.1978 in his favour and which was a registered Will; that the deceased had died at the house of the respondent No. 2 at Alipur (Delhi) and not at her house at C-7, Rana Partap Bagh; and that the respondent No. 2 always served her during her life-time and she was dependent upon him and he had performed her last rites; that there was no love and affection between the petitioner and the deceased and they were not even on visiting terms; that the property which is the subject matter of the Will was purchased by the deceased out of the compensation claims which she had received in respect of the property which she had left in Pakistan on partition of the country and subsequently, she had made additions in the property partly by mortgaging at one time and partly from rental income and her own earnings. The property in Pakistan was gifted to her by her brother who was the father of the respondent No. 2 as her husband had died when she was a child of 16 years of age and also after her death, the property in question has also been mutated in the name of the respondent No. 2 in the house-tax records on the basis of the Will dated 29.3.1978 executed by the deceased in his favour. He thus denies the legality and validity of the Will in favour of the petitioner, and asserts that the deceased had executed Will in his favour on 29.3.1978".

3. On the pleadings of the parties the following issues were framed:

1. Whether Smt. Sirya Devi validly executed her last Will and testament on October 1, 1981 and was of sound disposing mind at that time?

(The date of the Will is wrongly mentioned as 1.10.81 and this is corrected as 8.10.81, as alleged in the petition).

2. Relief.

Both the parties examined their respective witnesses. The appellant examined four witnesses including himself as PW4 whereas respondent No. 2 examined five witness including himself as RW1. The testimonies of PW1 to PW4 as reiterated in the impugned judgment may be referred to as below:

"PW-1 Shri Iqbal Bahadur Mathur, Advocate is one of the attesting witness, and has deposed that he was practicing at the office of the Sub-Registrar at Krishna Nagar, and the deceased and executed of this Will and come to him along with Shri Rattan Prakash and Shri Brij Lal whom he did not know earlier and on her instructions he had prepared the Will Ex. P-1 which was signed by her as well as by himself and the two attesting witness Shri Rattan Prakash and Shri Brij Lal, after the contents of the Will were read over to her and she had admitted them as correct. He has further deposed that she was of sound disposing mind and knew that she was executing the Will.

9. PW-2 Shri Rattan Parkash Chaturvedi is one of the attesting witnesses of the Will Ex. P1 and he has deposed that he knew the deceased, who was the grand mother of the petitioner and that she had executed Will Ex. P1 in his presence, and also in the presence of another person, and also in the presence of Shri Ram Kishan petitioner, at the office of the Sub-registrar at Lal Quarters, Delhi. He has proved signatures of the deceased as well as his own signatures and that of the other witnesses. He was also cross-examined to dispute the correctness of his testimony.

10. PW-3 Shri Brij Lal is another attesting witness of the Will. He has also deposed that the Will was executed by the deceased in his presence outside the office of the Sub-Registrar, Krishna Nagar, Delhi, where this Will was typed and then he and the other attesting witness Shri Rattan Prakash had signed it. He further deposed that this document was also presented before the SubRegistrar for registration. He has also proved Will Ex.P1. He was also cross-examined.

11. PW-4 Shri Ram Kishan is the petitioner and he has deposed that the deceased was his father's paternal aunt, and she had become a widow at the age of 16 years, when her husband Munna Lal had died in Pakistan. Smt. Sirya Devi owned property in Hurnabad in Bhawalpur State in Pakistan, which property was contracted by his grand-father Shri Moti Ram; that after the death of his grand-father, the deceased had lived with his father at Arafwala Mandi, Distt. Mintgoomri, Pakistan. And after partition, she was living alone at Subzimandi, Delhi, and thereafter shifted to Prem Gali, Kamla Nagar, Delhi. Thereafter, she constructed the house at Rana Pratap Bagh, out of the claim-compensation of the property left in Bhawalpur, Pakistan. She had died at Alipur, in the house of the respondent No. 2. He then deposed that Smt. Sirya Devi had executed the Will dated 8.10.1981 in his presence, the draft of the Will was prepared by Shri Iqbal Bahadur Mathur, and the Will was thereafter executed in his presence by the deceased in the presence of the two attesting witnesses Shri Rattan Prakash and Shri Brij Lal. He was also cross-examined.

Respondent Mool Chand examined himself as RW1 and deposed that the deceased was his father's sister and was issueless. She was being looked after by him and she treated him as her son. During her life-time she had executed Will dated March 29, 1978 in his favour which was drafted by a petition writer and was examined in the presence of two attesting witnesses. The Will was registered on the same day. The testatrix was taken seriously ill during last two months prior to her death and she was treated on 7th, 8th and 10th October, 1981 at Alipur and so she could not execute the Will on October 8, 1981 at Krishan Nagar, Delhi. It is, therefore, contended by him that the Will in question in favour of the appellant is a forged document and the Will in his favour is a genuine. RW2 Shri Ishwar Singh is an attesting witness to the Will dated March 29, 1978. RW3 Ram Phool Gupta has deposed that deceased Smt. Sirya Devi was his mother's sister and she was having ill-health and was seriousl ill for about one year prior to her death and on last Dussehra day he had met her at Rana Partap Bagh, Delhi where she was sick and she was got treated by Mool Chand, RW4 Shri Veer K. Sakhuja is the Handwriting Expert who has given his opinion on the Will Ex. P-1 propounded by the appellant. In his opinion the Will was not signed by the deceased Smt. Sirya Devi. He has given his opinion on the basis of the signatures of the deceased on some old documents. Similarly, Sri Anil Garg, Medical Officer Incharge, Primary Health Centre, Alipur, Delhi has also been examined as RW4. He has deposed that he was Medical Officer Incharge at Primary Health Centre, Alipur in the year 1981 and on October 10, 1981 he had examined one Smt. Sirya Devi as an OPD patient vide Serial No. 28179 entered in the register for diarrhoea with URC. Again he had examined Smt. Sirya Devi on October 31, 1981 vide entry in the OPD register at serial No. 30790. RW5 Dr. U.L. Anand, deposed that he was a private medical practitiner since the year 1959 and he had examined the deceased Smt. Sirya Devi whom he knew earlier, on October 8, 1981 for acute diarrhoea and de-hydration and he had also issued certificate Ex. RW5/1.

The learned Additional District Judge examined the evidence as referred to above and assessed the same as follows in paragraphs 31 to 35:

"31. There is no consistency between the four witnesses PW-1, PW- 2, PW-3 and PW-4, who all claim to be witnesses of execution of the Will Ex. P-1 as regards the drafting of the Will, presence of number of persons, role of Shri Mathur Advocate PW-1, the lan- guage in which the Will was typed, about signatures or thumb impression of the executant, and if the Will would have actually been read over or was executed on 8.10.1981.

32. PW-3 is a relation of the petitioner with respect to whom latter was in a dominating position while PW-2 is a friend of the petitioner. None of them are independent witnesses nor have any witnesses to the testatrix.

33. Further, both these witnesses were strangers to the deceased testatrix, and they would not have been asked by Sirya Devi to had visited the house of the petitioner, the latter would have made arrangements for the presence of the witnesses, and not the deceased. Obviously, it is an attempt to show that the petitioner did not take any active role or initiative in the execution of this Will.

34. What was the condition of the deceased on or about 8.10.1981, that is, whether she was in sick condition during 7.10.1981 to 10.10.1981, as claimed by the objector, or she was in normal health and so would have visited the petitioner on or about 8.10.1981 from R.P. Bagh to Krishna Nagar where the petitioner lived?

35. There is no plea or material available on the record to show when and for what purpose, Smt. Sirya Devi had visited the petitioner on or about 8.10.1981, and when she left for her house.

It is admitted by PW-2 and PW4 that she was residing at Rana Partap Bagh in her own house. RW-1 has also so deposed."

4. The crucial evidence is the medical evidence in the case which has been referred to by the learned Additional District Judge. RW5 Dr. U.L. Anand has elaborately stated that the deceased was examined on October 8, 1981 when she was suffering from acute diarrhoea. In this background it cannot be believed that she executed the Will in the circumstances as alleged by the appellant. This witness has no special interest in the matter and his testimony can be accepted as that of an independent witness and there is no reason to disbelieve the same. Similarly the evidence of Dr. Anil Garg RW4 is based on the official record and the learned Judge has carefully examined the same in the following manner:

"...He has deposed on the basis of the entries in his register about the patient attended by him. His evidence is based on the official record maintained by a public servant in the ordinary course of discharge of his official duties. Correctness of the official record from where this witness has deposed has not been challenged nor it is disputed specifically that he had not examined this patient Sirya Devi on 10.10.1981 at his dispensary at Alipur. He is a public servant and is not interested in the Objector, nor has any bias against the petitioner. There is, therefore, no reason to disbelieve this witness. I believe him and hold that on 10.10.1981, Smt. Sirya Devi was examined and treatment was given by him to her at Alipur Dispensary for diarrhoea with URC."

The conclusive findings which will clinch the issues are recorded in paragraph 39 which makes the following reading:

"39. Smt. Sirya Devi was a resident of R.P. Bagh. There would have been no reason nor it is so shown that she had gone to Alipur for any other reason than her ill-health or there was anybody else to look after her at R.P. Bagh in the absence of the wife of the Objector having gone to Alipur. This corroborates RW-1 and RW-5 DR. U.L. Anand. In the circumstances, I believe RW-1 that Smt. Sirya Devi was in R.P. Bagh on 7.10.81 and 8.10.81; she was ill suffering from diarrhoea and vomiting at that time; was treated thereby DR. U.L. Anand and then she was shifted to Alipur on 8.10.1981, in the evening. 8.10.81 and 9.10.81 were public holidays on account of Dussehra and Idul-zuha, of which I take judicial notice, and she could not be examined in the Alipur dispensary and was examined there by Dr. Anil Garg on 10.10.81. In this situation, she would not have visited the petitioner and would not have stayed with him at Krishna Nagar on 7.10.81 and 8.10.81, or on 9.10.81, when the Will is alleged to have been drafted or executed. This falsifies the testimony of each of PW-1, PW-2, PW-3 and PW-4, that Smt. Surya Devi had executed the Will Ex. P1 in their presence or that they had attested this Will in her presence. This necessarily follows that the Will Ex.P1 is not the genuine Will of Smt. Sirya Devi.

I take judicial notice of the fact that it was a Dussehra holiday on 8.10.81, and the office of the Sub Registrar was closed on 8.10.81 and so it was not a working day as has been claimed by the PWs. This also shows that none of the PWs or Smt. Sirya Devi would have gone to that office for the execution of this Will. This circumstance also falsified the testimony of the PWs."

The Court then considered as to whether the deceased actually intends to confer her bounty on the appellant by executing the Will Ex. P.1 To this affect the evidence of respondent No. 2 Mool Chand was referred which may be reproduced as follows:

"My father had gifted the house in question to Smt. Sirya Devi. Gift deed was executed. She used to live with my father and my father was looking after her. She never lived with the family of the petitioner at any time. Sirya Devi had purchased the plot of the house in question from the claim received by her of the house gifted by her father (perhaps it should be my father) to her. She constructed the house in question in parts, from the funds earned by her by stitching and by raising a loan by mortgaging the plot in question. Front portion was constructed and let out and back portion was later on constructed comprising of the two rooms"..... I identify the signatures of my father Ghasi Ram on gift deed Ex.RW-1/1 and on mortgage deed PW-4/D-1, I identify the signatures of Sirya Devi also".

5. On the above basis the learned Judge concluded that the property in Pakistan was obviously gifted to the deceased by her brother Ghasi Ram father of Objector Mool Chand vide Gift Deed Ex.RW1/1. This plea is not necessary to be adjudicated any further as the Court was only considering the Will dated 8th October, 1981 as allegedly propounded by the Testatrix. The other clinching piece of evidence is that of RW1 Shri V.K. Sukhija who is the Handwriting Expert and he clearly stated that the disputed signatures are forged and are not in the hand of the person who had signed the comparative signatures on other documents Ex. PW4/D1 to Ex. PW4/D4.

In view of the above the petition of the appellant was correctly dismissed on cogent grounds. The alleged Will is surrounded by suspicious circumstances. The propounder, appellant herein, has not been able to remove the said suspicion by clear and satisfactory evidence.

6. The reading of the evidence, as referred to above, will clearly establish that the Testatrix was in no position to make the alleged Will on October 8, 1981 as she was under medical treatment and was not in a position to take steps for execution of the Will. There is no sufficient explanation to discard the medical evidence of two Doctors who are independent witnesses and have no interest in any of the parties. The Propounder of the Will has failed to prove the execution of the same in accordance with the provisions of law. The onus became greater and clear cogent evidence must be led to clear the suspicion and to satisfy the Court that the Will propounded was the last testament of the Testator. The learned Additional District Judge has discussed the evidence in detail and given cogent grounds to reject the pleas of the appellant.

The present appeal is devoid of merit and is dismissed accordingly. There will be no order as to costs.