Surinder Pal Kaur vs State
2009 Latest Caselaw 5183 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Date of Reserve: December 03, 2009
                                                      Date of Order: December 14, 2009
+Test Cas 48 of 2005
%                                                                  14.12.2009
      Surinder Pal Kaur                                            ...Petitioner
      Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Virendra Rawat and Mr. Y.S.
      Chauhan, Advocates

        Versus

        State                                                               ...Respondents
        Through:Nemo


        JUSTICE SHIV NARAYAN DHINGRA

1.      Whether reporters of local papers may be allowed to see the judgment?

2.      To be referred to the reporter or not?

3.      Whether judgment should be reported in Digest?


        JUDGMENT

1. This petition for probate has been preferred by the petitioner Ms. Surinder Pal

Kaur in respect of the Will of deceased Baba Chakraborty Darvesh who expired on 5th

September 2003. Notice of the petition was served upon all legal heirs of Baba

Chakraborty Darvesh as mentioned in the petition and a citation was published in "Punjab

Kesari" and "Tribune". No objections to the grant of probate qua Will were filed by the

legal heirsof Baba Chakraborty. One disciple Mr. Raghbubir Shiware of the deceased

filed objections to the probate petition and alleged that all the legal heirs of deceased had

joined their hands and filed a forged Will before the Court. However, this objector did not

appear in the Court subsequently.

2. In order to prove the Will, the petitioner examined herself as PW-1 by way of an

Test Cas 48 of 2005 Surinder Pal Kaur v. State Page 1 Of 6 affidavit. She deposed by way of this affidavit that Baba Chakraborty Darvesh was a

Hindu and he died on 5th September 2003. She proved his death certificate as Ex.PW1/1.

She submitted that on 23rd June 1966 one Smt. Gurdayal Kaur wife of Mr. Raghubir

Singh pronounced that she has no issue and she being the true follower of Baba

Chakraborty Darvesh in full senses donated and gifted plot no.E-255, Greater Kailash,

Part-II, New Delhi, belonging to her, to Baba Chakraborty Darvesh vide a registered

donation deed dated 23rd June 1966 duly singed by Ms. Gurdayal Kaur. A photocopy of

this donation deed was marked as Ex.PW1/8. A perusal of this photocopy would show

that the alleged donation deed was executed (if so) by Ms. Gurdayal Kaur on a plain

paper and was notarized by a Notary Public and it was not a registered document. It only

bears the stamp of Notary Public and does not bear even the signatures or even the thumb

impression of Ms. Gurdayal Kaur or any of the witnesses namely Mr. Gurdev Singh or

Mr. Jagbir Singh. The photocopy is not a copy of original but it is a photocopy of an

unsigned attested true copy. It is stated in the affidavit that the deceased was inquired

about the original and the deceased told the deponent that somebody, taking advantage of

his blindness, must have replaced the original donation deed with a true copy so the

original donation deed was lost and not traceable. It is stated that the petitioner had

become sole legatee of property bearing number E-255, Greater Kailash, Part-II, New

Delhi by virtue of the Will and the property is to be used for upliftment of poor and for

religious purposes. The deceased was brother-in-law of the petitioner. Since he was blind,

the Will was dictated by him to one of his disciples Shri Gurdev Singh son of Gurdayal

Singh and it was executed in presence of Ms. Dalbir Kaur wife of Gurdev Singh and

Kamaljit Singh son of Mr. Gurmail Singh.

3. The other witnesses examined is PW-4 Gurdev Singh who is stated to have taken

Test Cas 48 of 2005 Surinder Pal Kaur v. State Page 2 Of 6 dictation of this Will at the instance of Baba Chakraborty Darvesh. He in his affidavit

testified that Baba Chakraborty Darvesh was blind and dictated the Will dated 7th June,

2003 to him and the said Will was in his handwriting. He testified about the affixation of

thumb impression on the Will by testator in his presence. He further deposed that the

other witness signed the Will in his presence and in presence of other witnesses. The

contents of the affidavit were made read over to him in vernacular and the same were

correct. Smt. Gurdayal Kaur is the other attesting witness to the Will. She is wife of

Gurudev Singh, as is clear from her affidavit. She stated that she was one of the witnesses

to the Will and she was present on 7th June, 2003 at 147, Shivalik Enclave Landran Road,

Kharar District, Ropar, when at the residence of deceased, the Will was dictated by

deceased to one of his disciples Mr. Gurdev Singh. The affidavit sounds as if this disciple

was not her husband but the fact remains that this disciple was no one else but her

husband. It is stated that the deceased affixed his thumb impression on the said Will in

her presence.

4. The next witness is Mr. Kavaljit Singh. He in his affidavit has testified that he was

one of the witnesses to the Will and testament of deceased Baba Chakraborty Darvesh

and was present at 147, Shivalik Enclave Landran Road, Kharar District, Ropar where

deceased was residing. The Will was dictated by the deceased to one of his disciples Mr.

Gurdev Singh and the testator affixed his thumb impression in his presence and in

presence of other witnesses.

5. A perusal of the Will Ex.PW1/9 would show that while the entire Will and

signatures of Shri Gurdev Singh and name of Gurdev Singh and Baba Chakraborty

Darvesh were in the same pen in Gurumukhi language, the signatures of other two

Test Cas 48 of 2005 Surinder Pal Kaur v. State Page 3 Of 6 witnesses, though allegedly present on the same day, at the same time, in presence of each

other, were with different pens. While the words „second witness‟ was written in the ink

of pen of first witness, the address and signatures of second witness are not written with

the same pen but with a different pen throwing doubt on the presence of the two witnesses

at the same time alognwith the writer of the Will Testator about the same address. Had

the three witnesses been present at the same time at the same address, there would have

been no reason for the three signing in different pens and „witness number‟ being written

in different pen and address and signatures being in different pen. After dictation taken by

Shri Gurdev Singh who had written this Will, he would have written witness no.1 and 2

also with his pen since both these witnesses were allegedly present at the same time when

the Will was being dictated and written. Their names and addresses were well known to

Shri Gurudev Singh as one of the witnesses was his own wife.

6. Another anomaly which appears is that 2nd witness does not know English

language and in the affidavit it is stated that the contents of the petition and affidavit have

been read over to her and made her understand in vernacular but under the address "D" is

written in Roman script while under the address of Gurdev Singh "D" is written in

Gurumukhi script. In the address of witness no.1 "Chandigarh" in short form "Chd"

whereas Mr. Gurudev Singh had written "Chandigarh" in Gurumukhi script. Thus, it

appears that this Will was prepared at different place and was got signed from witnesses

at different places. Deceased Baba Chakraborty Darvesh was a blind person. His thumb

impression has been proved by the witnesses by deposing through affidavits. No effort

has been made to get this thumb impression compared with the admitted thumb

impression of the deceased existing on some previous document or in the bank account or

on any registered document.

Test Cas 48 of 2005 Surinder Pal Kaur v. State Page 4 Of 6

7. By the Will, the deceased had handed over "Gaddi" of his Sect/ Organization to

his sister-in-law Ms. Surender Pal Kaur on the ground that she was of Dharmik mind. So

far as this handing over of "Gaddi" is concerned, nobody would have an objection since

this matter relates to his followers. However, he has bequeathed the property bearing

number E-254, Greater Kailash, Part-II, New Delhi measuring 250 sq yards in favour of

Ms. Surrender Pal Kaur on the ground that this property was donated to him by Smt.

Gurudayal Kaur. The photocopy of a true copy of alleged donation deed placed on record

is a scrap. It is settled law that transfer of immovable property worth more than Rs.100/-

can be done only through a registered document duly registered with Registrar of

Properties executed on a stamp paper of appropriate value. A donation deed or a gift deed

or any other deed by which an immovable property worth more than Rs.100 is

transferred, donated or gifted is compulsorily registrable and no Court can take

cognizance of any unregistered document in respect of transfer of immovable properties.

I, therefore, consider that the Will, even if it had been considered as genuine, Will would

have given no right to petitioner over the property bearing number E-254, Greater

Kailash, Part-II, New Delhi as the property had not been transferred to deceased by virtue

of document Ex.PW1/8.

8. I, therefore, find that the present probate petition is liable to be dismissed on the

ground that the Will of which probate is sought is suspicious and it does not seem to have

been signed by the witnesses at the same time and place when it was allegedly executed

by the deceased and also because the property bequeathed through the Will and claimed

by the deceased was not his property. Since there is no executor appointed in the Will, the

Court could have issued a letter of administration, if the Will was found genuine, but as

Test Cas 48 of 2005 Surinder Pal Kaur v. State Page 5 Of 6 already observed above, the property did not stand transferred to the deceased, thus no

letter of administration could have been issued by the Court. The petition is hereby

dismissed.

December 14, 2009                                    SHIV NARAYAN DHINGRA J.
rd




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