Shri Rai Singh vs The State & Other
2011 Latest Caselaw 4776 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.810/2003

%                                                    26th September, 2011

SHRI RAI SINGH                                             ...... Appellant
                                     Through:     Mr. G.D. Chopra, Advocate.
                          VERSUS

THE STATE & OTHER                                         ...... Respondents

                                     Through:     None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

2. To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this First Appeal under Sections

299 and 384 of the Indian Succession Act, 1925 is to the impugned

judgment of the Court below dated 10.11.2003, and by which judgment

the Court below allowed the probate petition of the

petitioner/respondent No.2 with respect to the Will of Smt. Dhapo Devi

dated 8.1.1985.

2. The facts of the case are that the respondent No.2/Smt.

Shakuntla Devi filed a petition for probate of the Will dated 8.1.1985 of

the deceased Smt. Dhapo Devi. Respondent No.2/Smt. Shakuntla Devi

was the grand-daughter of the deceased. Except the appellant herein

all other legal heirs of Smt. Dhapo Devi, including her sons, gave their

no objections to the probate petition. In fact, two of the sons of Smt.

Dhapo Devi, namely, Sh. Narain Singh and Sh. Dilbagh Singh are the

attesting witnesses to the Will. The appellant herein is the father of the

respondent No.2 and who contested the petition. The appellant herein

contested the probate petition and urged that the subject Will dated

8.1.1985 was a forged and fabricated document with the object of mis-

appropriating the property of the deceased being plot No.PU-81,

Pitampura, Delhi.

3. The respondent No.2/probate petitioner examined Sh.

Narain Singh as PW-1, who was the son of the deceased and also the

attesting witness of the Will. The Will was proved and exhibited as

PW1/1. The probate petitioner also examined herself as PW-2 and

proved the death certificate as Ex.PW2/1. PW-3/Sh. Ashok Kumar Midha

deposed about the registration of the Will. PW-5/Sh. Om Parkash

examined on behalf of the probate petitioner was the Clerk from the

State Bank of Patiala, Pooth Kalan branch and who brought the

specimen signatures card containing the thumb impression of Smt.

Dhapo Devi. The handwriting expert Sh. R.P. Singh was examined as

PW-6.

4. The objector/appellant herein examined Smt. Kiran Devi as

RW-1 to prove the date of death of Smt. Dhapo Devi as different from

that which was the case of the probate petitioner/respondent No.2.

Whereas the probate petitioner mentioned the factum of death of Smt.

Dhapo Devi as 30.8.1986 the objector claimed that Smt. Dhapo Devi

had in fact expired on 7.10.1985. RW-2 was Sh. Om Prakash an

employee of State Bank of India to prove the last pension credited in

the account of Smt. Dhapo Devi was on 1.10.1985.

5. By the impugned judgment, the trial Court has held that the

Will of Smt. Dhapo Devi exhibited as PW1/1 to be a valid Will. The

Probate Court disbelieved the testimony with regard to the alleged

difference in the date of death by observing as under:-

"The death of Smt. Dhapo Devi is not in dispute. The petitioner in para 1 of the petition had categorically stated that Smt. Dhapo Devi had died at Village Poothkalan, Delhi, on 30.8.06. The averments in this para were not denied specifically or by necessary implication. In fact there is not even a whisper in the entire objections preferred by the objector Shri Rai Singh that death certificate showing the date of death of Smt. Dhapo Devi as 30.8.86 was a forged and fabricated document. The objector has tried to dispute the date of death by stating that Smt. Dhapo Devi had in fact died on 07.10.85. A death certificate showing the date of death of Smt. Dhapo Devi as 07.10.85 was also proved as Ex.RA. However, the evidence with regard to the date of death as 07.10.85 cannot be looked into being beyond pleadings as this is very well settled law that whatever has not been pleaded cannot be proved by any amount of evidence. Not only that, the objector had nowhere stated the date of death of Smt. Dhapo Devi was 07.10.85. In fact, he had impliedly admitted the date of death as 30.8.86 by not traversing the averments of para 1 of the petition specifically or by necessary implication. Of course, the objector has tried to create some confusion about the date of death of the testatrix by producing on record a certificate showing her date of death as 07.10.85 but otherwise also once death of testatrix is admitted the date of her death is not very relevant."

6. The trial Court also referred to the fact that two sons of Smt.

Dhapo Devi, who were the attesting witnesses had no reason to act

against their own interest inasmuch as by the Will, the immovable

property at Pitampura was only given to the probate petitioner to the

exclusion of all other legal heirs including two sons who are the

attesting witnesses.

7. The trial Court has also referred to the fact that the

objector/appellant gave ambivalent statement with respect to the

thumb impression of the testator on the Will and therefore it was held

that the objector had not disputed the signatures on the Will. The

relevant observations in the impugned judgment read as under:-

"During the course of cross examination the Objector admitted that the thumb impression on the Will Ex.PW1/1 was of Smt. Dhapo Devi but he volunteered to add that the thumb impression could be affixed before the death and even after the death of a person, meaning thereby that the objector admitted during his cross examination that the Will was thumb marked by Smt. Dhapo Devi but her thumb impression must have been obtained just before her death or after her death. This was therefore the case of the objector in his objections as stated by me hereinabove. He had simply taken up a vague plea that the Will as propounded by the petitioner was a forged and fabricated document. He had nowhere averred in the Objections that thumb impression of Smt. Dhapo Devi was obtained after her death. Thus this part of the testimony of objector Shri Rai Singh that her thumb impression was obtained after her death has to be excluded being beyond pleadings."

8. The trial Court has also held that merely because the

respondent No.1/probate petitioner was married, cannot mean that it

should be held that she could not have taken care of the deceased Smt.

Dhapo Devi.

9. Finally, the trial Court has referred to the fact that the Will

has been duly registered and therefore there is attached to it an

authenticity on account of registration. In fact, the registration and

execution were on the same date.

10. The counsel for the appellant basically argued the following

points before this Court:-

(i) The Will is in English and the deceased was an illiterate lady

and thus it should be held that the Will is a forged and fabricated

document.

(ii) No scribe has been mentioned who drafted the Will.

(iii) The objector/appellant was originally not made as a party to

the probate petition which was allowed but which original order was set

aside on the application of the objector and which was thereafter

contested. It was argued that this conduct of the probate petitioner

disentitled her to the probate.

(iv) The name of the typist who typed the Will has not been

mentioned.

(v) The age of the deceased has not been mentioned in the

Will.

(vi) There was collusion between the attesting witnesses and

the probate petitioner/beneficiary.

(vii) The contradiction in the date of death of the deceased of

Smt. Dhapo Devi is a relevant suspicious circumstance to deny the

grant of probate.

11. In my opinion, the arguments as urged on behalf of the

appellant have no merit and the appeal is liable to be dismissed.

Merely because the deceased was an illiterate lady and the Will is in

English is no ground in itself to hold the Will, that too a registered Will,

to be a forged and fabricated document. There has been detailed

deposition by the attesting witness, and who was the son of the

testator, namely Sh. Narain Singh as to how they went to the office of

the sub-Registrar and where the deceased gave the necessary

instructions to the typist in Hindi to make the Will and pursuant to which

instructions the Will was made. I therefore reject the argument that the

Will should not be held to be a valid document merely because the

deceased did not understand English or because there was no scribe or

the name of the typist who typed the Will has not been mentioned. The

non-mentioning of the age in the Will is not by itself such a strong

circumstance in the facts of the present case to hold the Will to be a

fabricated document because not only is the Will duly registered before

the sub-Registrar, as stated above, the two sons of the deceased

testator who were disinherited were the attesting witnesses to the Will

and who therefore would not have otherwise deposed to the validity of

the Will. I may additionally note that all other legal heirs gave their no

objections to the Will of Smt. Dhapo Devi and it was only the

objector/appellant who contested, probably more so as an ego issue

because the appellant felt that he had brought up the probate petitioner

as a daughter, and in spite of that the probate petitioner did not

mention about the factum of the Will to him. So far as the contradiction

in date of death is concerned, I have reproduced above the relevant

portion of the impugned judgment which holds that this plea cannot be

looked into because this plea totally de hors the pleadings. Further, the

trial Court in addition to the above has noted that the witness Smt.

Kiran Devi whose deposition was recorded on behalf of the

objector/appellant only mentioned the factum of death of the deceased

in the „panda pothi‟ brought by her (a private document based on

information received) but the original of the document Ex.RW1/1 „panda

pothi‟ was not in her handwriting and she did not know mundi Hindi in

which this document was written and nor did the pothi bear any page

number.

12. In view of the above, I hold that there is no such grave

suspicious circumstance to hold that the Will dated 8.1.1985 of the

deceased Smt. Dhapo Devi was a forged and fabricated document. I

hold that the Will was validly proved and exhibited as Ex.PW1/1 and

therefore probate was rightly granted. The appeal accordingly being

without merit is dismissed, leaving the parties to bear their own costs.

SEPTEMBER 26, 2011                              VALMIKI J. MEHTA, J.
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