Ram Pat & Ors. vs Mst. Khazani & Ors.
2009 Latest Caselaw 5205 Del

*      HIGH COURT OF DELHI : NEW DELHI

        FAO. No. 28 of 1977

%      Judgment reserved on:          17th November, 2009

       Judgment delivered on:         15th December, 2009

    1. Ram Pat (Since deceased)
       Through: LR.

       Sh. Rajendra Kumar
       S/o Late Ram Pat.

    2. Ram Meher
       Through: LRs

       i)Surjan Singh.
         S/o Late Ram Meher.

       ii) Om Prakash
           S/o Late Ram Meher.

    3. Parse Ram.
       S/o Dhan Singh.

       All R/o Village and PO: Badli,
       New Delhi.

                                                            ....Appellants.
                            Through:        Mr. Suresh Tripathi, Advocate.

                            Versus

       Mst. Khazani (Since deceased)
       Through: LRs

       1. Lal Singh.

       2. Babu Lal
          Both S/o late Mst. Khazani,

          R/o Village and PO:Joria,
          Distt. Alwar,
          Rajasthan
                                                            ....Respondents.




FAO No. 28/1977                                                 Page 1 of 6
                                         Through:    Nemo

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

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

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported
   in the Digest?                                   Yes

V.B.Gupta, J.

Present appeal has been filed against judgment dated 30th September,

1976, passed by District Judge Delhi.

2. Brief facts of this case are that initially, S/Shri Ram Pat, Ram Mehar and

Parse Ram filed a petition before District Judge, under Section 276 of the Indian

Succession Act, 1925 (for short as „Act‟) for grant of probate of the Will of late

Mst. Munni Wd/o Kishan Lal. It was their case that Mst. Munni had executed a

Will on October, 8, 1961, by which she had bequeathed all her property to them.

It was stated by them that they are impleading Mst. Khazani as a party to the

petition since she is claiming herself to be the step daughter of Mst. Munni,

though they are disputing this assertion of hers.

3. Mst. Khazani, who was respondent before the trial court, alleged that she

is the daughter of Kishan Lal @ Chuttan. After death of her mother, her father

had married Smt. Munni. She further pleaded that Mst. Munni was blind from her

birth and was illiterate. Mst. Munni had not executed any Will and the Will in

question is a forged and fabricated document. She further stated that Mst. Munni

was bed ridden for a considerable time before her death and she was not

possessed of sound disposing mind when the Will in question is alleged to have

been executed.

4. The trial court, vide impugned judgment dismissed the petition.

Thereafter, petitioners filed this appeal against respondent. During pendency of

the appeal, petitioners Ram Pat and Ram Meher as well as respondent-Mst.

Khazani died. Their legal representatives have been brought on record. On 27th

February, 2009, counsel for respondent appeared, but later on he absented.

5. It is contended by learned counsel for appellants that once it is shown that

the testatrix is of sound disposing mind, there would be hardly any occasion for

holding further enquiry in respect of the execution of the Will. If at all any

enquiry is required, then the mandate of law is that the onus is shifted on the

contestants. Here the Will in question was read over to the testatrix and thereafter,

she executed it with sound disposing mind.

6. It is further contended that there was no requirement of Mst. Munni saying

in the Will that she had no relation etc. In fact, Mst. Khazani was a step daughter

coupled with the fact that she had no direct or proximate relation with Mst.

Munni.

7. Lastly, it is contended that one who propounds the Will must establish the

competence of the testator to make the Will at the time when it was executed. In

the present case, the onus has been discharged by the propounder, adducing

evidence proving the competence of the testator and the execution of the Will in

the manner contemplated in law. The Objector, except for making a bare denial

in the written statement, did not prove that the executor was of unsound mind.

8. The testatrix, in the present case was a blind lady. It does not appeal to

commonsense that a blind lady would go alone all the way out of her house for

executing the Will at the "Gher" of Ram Pat, one of the petitioners (since

deceased). Since, Mst. Munni was a blind lady, it was for petitioners to have

explained as to how that blind lady reached at the "Gher" of Ram Pat.

9. PW-1 Jhandu and PW-2 Mauji Ram, nowhere stated in their statements as

to how Mst. Munni, the testatrix, reached at the "Gher" of Ram Pat.

10. PW-3 Deep Chand, in cross-examination has stated, that he does not know

who had brought Munni to the place where the Will was scribed. He further

stated that Mst. Munni was going out to the fields to answer the call of nature and

a child was taking her to that side and then she had told him (PW-3) on the way,

about the Will and asked him to reach the "Gher" where the Will was to be

scribed. The pen and ink pot were brought by the child.

11. This story given by PW-3 Deep Chand, is not at all convincing and the

manner in which Mst. Munni, reached the "Gher" of Ram Pat, is full of suspicion.

As per statement of PW-3, Mst. Munni was going out to the fields to answer the

call of nature, then how all of a sudden, she reached the "Gher" of Rampat.

12. Trial court in the impugned judgment also observed that there are number

of suspicious circumstances surrounding the execution of Will Ex. P-1 and the

petitioners have failed to remove those suspicions. Findings of the trial court in

this regard are reproduced as under:

"12.The deceased was an illiterate woman and blind from her birth. The evidence of Deep Chand, detailing the circumstances in which the will was executed by Mst. Muni, is not convincing. The

deceased and the petitioners had separate residential houses. There was no reason for the deceased to have gone to the „gher‟ of the petitioners to make the will. If she had intended to make the will, she should have called Deep Chand and others to her house. According to the evidence of the petitioners only PWs 1,2, and 3 were present when the will, Ext.P1, was executed by Mst.Muni. PW-2 was confronted with his statement, Ext. PW2/1, made before the Revenue Assistant, on December, 14, 1967, wherein he had stated that Rampat, Ram Mehar and Parse Ram were also present when the will, Edt. P1, was executed by Mst. Muni. It appears from the evidence of PW2 that the petitioners had taken a prominent part in the execution of the will, Ext.P1.

13. A look at the will would show that the entire will is written in blue-black ink. The thumb impression of the testatrix is in violet ink. There is no explanation on the record as to from where the ink-pad was procured by the scribe to obtain the thumb impression of the testatrix. It appears that the thumb impression on the will alleged to be of Mst. Muni was not obtained at the time and place deposed to by the witnesses. To my mind, it is doubtful even if the thumb impression is of Mst. Muni".

13. There is no reason to disagree with the above findings and reasoning given

by the trial court.

14. Even otherwise, in the entire Will Ext. P-1, there is no mention at all by

the testatrix as to of which properties she is the owner and which properties she is

bequeathing by virtue of this Will to the petitioners.

15. There is another aspect of the matter that Smt. Khazani, claiming to be the

legal heir of late Mst. Munni, in respect of land measuring 24 bighas, 12 biswas

contained in Mad No. 8, Shumar No. 21, of Village Badli, filed second appeal

under the provision of Section 66 of the Delhi Land Revenue Act, 1954, against

order dated 27the September, 1971 of Additional Collector, whereby he partially

upheld the order of Revenue Assistant dated 28th January, 1971 to Smt. Khazani

being the successor-in-interest of Mst. Munni along with others in the aforesaid

land for purposes of mutation but remanded the case back to the Revenue

Assistant in pursuance of the cross objections filed by Smt. Khazani.

16. As per certified copy of the order dated 17th January, 1972, placed on

record, the Financial Commissioner, Delhi, accepted the appeal of Smt. Khazani

and quashed the order of Additional Collector and held;

"Smt. Khazani alone is the successor-in-interest of Mst. Munni of her rights, if any, in the aforesaid land and that the said rights need be mutated in her name".

17. In view of above decision of the Financial Commissioner, property in

question already stand mutated in the name of Smt. Khazani, the objector.

18. Under these circumstances, present appeal is not maintainable and same is

hereby dismissed.

19. Pending applications, if any, stands disposed of.

20. Parties shall bear their own costs.

21. Trial court record be sent back.

15th December, 2009                                         V.B.Gupta, J.
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