Shri Amarjeet Singh vs The State
2012 Latest Caselaw 2669 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+      (1)           TEST. CAS. 91/2008


SHRI AMARJEET SINGH                                    ..... Petitioner
                  Through:                Mr. Rajat Aneja and Mr. S.
                                          Sethu Mahendran, Advocates

                     versus


THE STATE                                        ..... Respondent
                              Through:    Mr. Bhupesh Narula and
                                          Mr. Ajay Kumar, Advocates.


+      (2)           TEST. CAS. 63/2010


APJIT SINGH                                           ..... Petitioner
                              Through:    Mr. Bhupesh Narula and
                                          Mr. Ajay Kumar, Advocates.

                     Versus


STATE & ORS.                                            ..... Respondents
                              Through:    Mr. Rajat Aneja and Mr. S.
                                          Sethu Mahendran, Advocates

%                             Date of Decision : April 24, 2012



CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

Test Case Nos. 91-2008 & 63-2010                              Page 1 of 11
                              JUDGMENT

: REVA KHETRAPAL, J.

1. By this common judgment, it is proposed to decide Test Case

No.91/2008 and Test Case No.63/2010 which were consolidated to be

heard together by order dated December 21, 2010. The consolidation

was ordered on account of the fact that both the aforesaid cases relate

to the last will and testament of late Smt. Harbans Kaur.

2. In Test Case No.91/2008 the petitioner Shri Amarjeet Singh,

one of the sons of the deceased late Smt. Harbans Kaur, sought to

propound the will dated 27th April, 2007 allegedly executed by his

deceased mother during her lifetime. It is the case of the petitioner

Shri Amarjeet Singh that late Smt. Harbans Kaur bequeathed her

entire property bearing No.F-3, Gautam Nagar, New Delhi, measuring

about 130 sq. meters, allotted to her by Delhi Development Authority

in favour of the petitioner, and accordingly after her death the

petitioner is the sole beneficiary of the said property in accordance

with her aforesaid will. It is stated that the said will was executed by

the deceased in sound health and without any pressure and the same

was duly attested by two witnesses. It is also asserted that the said

will is the final will and testament of the deceased. The deceased had

left behind as her legal heirs five sons, two married daughters and the

widow and daughter of a pre-deceased son.

3. In Test Case No.63/2010, the petitioner Apjit Singh has sought

probate of the last will and testament of the deceased Smt. Harbans

Kaur dated 14.10.2007, whereunder the deceased bequeathed one-fifth

of the sale proceeds of her immovable property bearing House No.F-3,

Gautam Nagar, New Delhi in favour of the petitioner and further

bequeathed one-fifth share each to her other living sons. On

21.12.2010, both the testamentary cases, as stated above, were

consolidated. On the same date, the following issues were framed:-

"(i) Which of the Wills propounded in the Testamentary Cases i.e. the one dated 27.4.2007 or 14.10.2007 is the last, valid and enforceable Will and testament of Late Smt. Harbans Kaur? Onus on parties.

(ii) Is any of the said Wills not enforceable for reasons of existence of any vitiating or suspicious circumstances? Onus on parties.

(iii) Relief."

4. Oral evidence was recorded in Test Case No.63/2010. Exhibits

and documents were also marked in the same case as directed by the

Court.

5. The petitioner in Test Case No.63/2010 Shri Apjit Singh,

however, failed to adduce any evidence despite ample opportunity

granted to him for the aforesaid purpose. Consequently, by order

dated August 24, 2011, his right to lead evidence was closed. The

petitioner Amarjeet Singh in Test Case No.91/2008 tendered in

evidence his affidavit of evidence Ex.OW1/A, relying upon the

documents mentioned in the said affidavit as Ex.OW1/1 to Ex.OW1/6.

After examining himself, he produced in the witness box three other

witnesses, namely, Shri J.S. Chahal, the attesting witness to the will

dated 27th April, 2007 as OW2, Shri Satya Pal from the office of the

Sub-Registrar as OW3 and Shri Brahm Prakash, a witness from

Canara Bank, Green Park, New Delhi as OW4.

6. The petitioner Shri Amarjeet Singh in his affidavit by way of

evidence (Ex OW1/A) testified that the deceased Smt. Harbans Kaur,

wife of late Shri Kabir Singh, was his mother who expired at Delhi on

27.01.2008. He proved on record her original death certificate as

Ex.OW1/1 and her original will dated 27.04.2007 as Ex.OW1/2. He

also proved on record the original death certificate of late Shri

Joginder Singh, one of the attesting witnesses of the said will as

Ex.OW1/3 and the original letter dated 19.01.2011 issued by Canara

Bank, Green Park Extension Branch, New Delhi certifying the

specimen signatures of the testatrix as available in their record of

Savings Bank Account No.0350101006510 as Ex.OW1/4. He stated

that his deceased mother left behind her five living sons, two

daughters and the widow and daughter of a pre-deceased son.

However, he alone was living with his mother and looking after her

and he alone was the beneficiary under her will dated 27.04.2007. He

deposed that his brother Shri Apjit Singh had forged and fabricated an

unregistered will dated 14.10.2007 in collusion with one Shri Harpal

Singh, who had been shown as one of the attesting witnesses to the

alleged will dated 14.10.2007, which was never executed by his

deceased mother. He proved on record criminal complaint dated

03.07.2008 lodged by him against Shri Apjit Singh and Shri Harpal

Singh with Police Station Defence Colony, New Delhi bearing

endorsement dated 07.07.2008 by way of receipt (Ex.OW1/5). He

stated that the original documents pertaining to the medical treatment

of his deceased mother were Ex.OW1/6 (collectively). At the time of

the execution of her will, his deceased mother was in a sound

disposing mind and the will executed by her in his favour dated

27.04.2007 was the last will of his mother and was a genuine one.

7. Shri J.S. Chahal in his affidavit by way of evidence,

(Ex.OW2/A) stated on oath that late Smt. Harbans Kaur executed a

will dated 27.04.2007 in his presence and in the presence of the other

attesting witness, namely, Shri Joginder Singh (now deceased) and

that both of them had signed as attesting witnesses in the presence of

late Smt. Harbans Kaur and in the presence of each other, all three

being present at the same time in the office of the Sub-Registrar. He

affirmed that the original will dated 27.04.2007 was Ex.OW1/2 and

stated that late Smt. Harbans Kaur was of sound disposing mind when

she affixed her signature on the aforesaid will in his presence.

8. Shri Satya Pal, Record Attendant, Department of

Archives/Sub-Registrar, in the course of his evidence as OW-3

produced Book-Volume No.1460, which contained the record in

respect of registration of will of late Smt. Harbans Kaur dated

27.04.2007, which depicted registration of the said Will on

27.04.2007 vide Registration No.456 in Book No.3, Volume No.1460

on pages 194 to 196. The said witness further stated that the original

of the will dated 27.04.2007 (Ex.OW1/2) was the same and matched

with the record produced by him.

9. The petitioner then sought to prove the original account opening

form of late Smt. Harbans Kaur pertaining to Account No.6510 dated

12.10.2000 containing her specimen signatures at point 'A' by

examining OW4 - Shri Brahm Prakash from Canara Bank, Green

Park Branch, New Delhi, who placed on record the attested true copy

of the aforesaid document certified by the Senior Manager as

Ex.OW4/1 along with the specimen signatures of late Smt. Harbans

Kaur.

10. All aforesaid witnesses though appeared in the witness-box

were not subjected to cross-examination and their statements are

unrebutted and unchallenged on record. Thus, there is on record the

unchallenged testimony of the petitioner-Shri Amarjeet Singh with

regard to the will dated 27.04.2007 propounded by him and the

testimony of the attesting witness, namely, Shri J.S. Chahal to the said

will, who has stated on oath that the will was attested by him and by

the other attesting witness, namely, Shri Joginder Singh (since

deceased) in the presence of each other and in the presence of the

deceased testatrix, who had also signed in the presence of both of

them. There is also on record the statement of the official from the

office of the Sub-Registrar, who proved that the will dated 27.04.2007

was duly registered in the office of the Sub-Registrar and that original

Will Ex.OW1/2 is the same as the registered will found on the records

of the Sub-Registrar.

11. The petitioner in Test Case No.63/2010 Shri Apjit Singh has, on

the other hand, altogether failed to produce any evidence to

substantiate the execution of the will propounded by him, being the

will dated 14.10.2007. It may be mentioned at this juncture that

though objections had been filed in Test Case No. 91/2008 by the four

sons of the deceased testatrix, jointly to the will dated 27.04.2007,

namely, by Shri Paramjeet Singh, Shri Baljeet Singh, Shri Satinder Pal

Singh and Shri Apjit Singh on 10.02.2009; and Smt. Gurmeet Kaur

and Smt. Gunwant Kaur (daughter and daughter-in-law of the

deceased testatrix respectively) also filed objections to the same on

02.07.2009. The objectors including Shri Apjit Singh did not adduce

an iota of evidence to challenge the will dated 27.04.2007 propounded

by the Shri Amarjeet Singh nor adduced any evidence to prove that

will dated 27.04.2007 was a forged and fabricated document.

Moreover, an application was filed by the wife of late Shri Joginder

Singh stating that Apjit Singh had forged the signatures of her

husband on the Will dated 14.10.2007 as an attesting witness and in

fact, her husband was hospitalised due to kidney problem and could

not move from the bed from 20.09.2007 till the date of his death. One

of the daughter of the deceased testatrix, namely, Smt. Kuldeep Kaur

in the reply filed by her affirmed that her mother, late Smt. Harbans

Kaur had during her lifetime executed will dated 27.04.2007,

bequeathing her property in favour of the petitioner Shri Amarjeet

Singh exclusively and that she was in a sound disposing mind at that

time. Further she stated that Shri Apjit Singh, her brother, had forged

and fabricated an unregistered will dated 14.10.2007.

12. From the aforesaid, it is not difficult for this Court to arrive at

the conclusion that the will dated 27th April, 2007 propounded by Shri

Amarjeet Singh, has been duly proved on record as the last and final

will and testament of the deceased testatrix- Smt. Harbans Kaur. The

statement made on oath in this regard by Shri Amarjeet Singh has not

been challenged in cross-examination. The execution of the aforesaid

will also stands established from the statement of the attesting witness,

whose testimony is also unrebutted on record. The registration of the

will is also proved on record through the testimony of Shri Satya Pal-

OW3, from the office of the Sub-Registrar. There is also nothing on

record to suggest that the deceased was not in a sound disposing mind

at the time of the execution of the will nor as a matter of fact, there are

any suspicious circumstances casting a cloud on the authenticity of the

will. The will dated 27.04.2007 Ex.OW1/2 is thus held to be the last

and final will and testament of Smt. Harbans Kaur.

13. In view of the aforesaid, the petitioner in Test Case No.91/2008

is held entitled to the grant of Letters of Administration in his favour

subject to his fulfilling the necessary formalities including furnishing

of stamp duty, surety bond, etc.

14. In the result, Test Case No.91/2008 is allowed. IA

Nos.11781/2008 also stands disposed of.

15. Test Case No.63/2010 stands dismissed.

REVA KHETRAPAL (JUDGE) APRIL 24, 2012 km