Sh. Jasjit Singh Rikhy vs State & Ors.
2012 Latest Caselaw 4951 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Test Case No.40/1982

%                                                        23rd August, 2012

SH. JASJIT SINGH RIKHY                                      ...... Petitioner
               Through:            Mr. Mukul Talwar with
                                   Mr. Sradhananda Mohapatra,
                                   Mr. Rajesh Kumar & Mr. Sunil Kumar, Advs.

                            VERSUS

STATE & ORS.                                                 ...... Respondents

                      Through:     Mr. I.S. Alag with Mr. I.S.Lamba, Advs.
                                   for Relative No.2.
                                   Mr. Sumit Bansal with Mr. Ateev Mathur &
                                   Ms. Sumi Anand, Advs. for LR‟s of
                                   Relative No.4.

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

    To be referred to the Reporter or not?                  Yes.


VALMIKI J. MEHTA, J (ORAL)

1. This Probate Petition seeks probate of the Will dated 21.8.1973

of late Sh. Narinjan Dass Rikhy. The beneficiary under this Will is Jagdeep

Singh Rikhy son of Sh.Jasjit Singh Rikhy. Sh.Jasjit Singh Rikhy is the son of

late Sh. Narinjan Dass Rikhy, i.e. the beneficiary under the Will was the

grandson of late Sh.Narinjan Dass Rikhy. The petition was originally filed by

Sh.Jasjit Singh Rikhy as Sh. Jagdeep Singh Rikhy - the beneficiary, was a

minor at the time when the petition was filed. Sh.Jagdeep Singh Rikhy

thereafter became major during the pendency of the case and he therefore was

substituted in place of his father Sh. Jasjit Singh Rikhy.

2. The disputes between the parties as regards the Will have arisen

because the Will bequeaths the immovable property namely Plot No.15, Street

No.5, Shanti Niketan, Tula Rao Marg, New Delhi, admeasuring about 1000

sq.yds. to the petitioner only. As per the Will one son and one daughter

namely Sh. Manjit Singh Rikhy and Smt. Harjit Kaur (the two objectors) have

been disinherited totally and one widowed daughter-Mrs. Kuljit Raghbir Singh

was given a limited right to reside in her lifetime in the rear portion of the

property which was to be built upon. Besides, the aforesaid one son and two

daughters being disinherited, there is a third pre-deceased daughter, and whose

legal heirs gave no objection with respect to the present probate petition, and

which legal heirs also did not receive anything under the Will.

3. Sh.Narinjan Dass Rikhy died at New Delhi on 5.3.1974. The

Will executed by him is dated 21.8.1973. The petitioner having set up this

Will must prove this Will in order to succeed in this probate petition.

4. Before I proceed ahead, I must turn to an extremely important

aspect in the present case and which is that there is no original Will which has

been filed in the present case. As per the petitioner, the original Will dated

21.8.1973 was given by his father Sh. Jasjit Singh Rikhy to the brother of late

Sh.Narinjan Dass Rikhy, one Dr. H.S.Rikhy. During the proceedings in the

present case on notices being issued to Dr. H.S. Rikhy to produce the Will, he

wrote a letter to this Court that he does not have the original Will dated

21.8.1973. Details in this regard, I would deal with a bit later, but for the

present, it is necessary to refer to Sections 70 and 237 of the Indian

Succession Act, 1925 inasmuch as those Sections provide as to the manner of

revocation of a Will and also as to how probate can be granted when the

original Will is not found. Sections 70 and 237 read as under:-

"70. Revocation of unprivileged Will of codicil. - No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person on his presence and by his direction with the intention of revoking the same.

237. Probate of copy or draft of lost Will. - When a Will has been lost or mislaid since the testator‟s death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced."

5. A reading of Section 70 shows that a Will can be revoked in

different methods. One method is to declare by writing an intention to revoke

the Will. The second is by destroying the same such as by burning or tearing.

Section 237 provides that if a Will is lost or mislaid since the testator‟s death

or the destruction is by a wrong or an accident which is not an act of the

testator, and a copy of the Will has been preserved, then in such circumstances

probate can be granted of the properly authenticated copy of the Will.

6. In this case the only issue which has been framed was as to

whether the deceased Narinjan Dass Rikhy had executed the Will in question.

This was the issue no. 1 framed on 31.5.1984 and which reads as under:-

"1. Whether the deceased executed the disputed Will? If so

whether it was executed in accordance with law?"

7. In para 3 of the probate petition there is a specific averment of the

original Will dated 21.8.1973 being with Dr.H.S.Rikhy, the younger brother of

the testator. A request was made to the Court to direct Dr.H.S.Rikhy to

produce the Will in Court.

8. By an order dated 17.8.1983, a learned single Judge of this Court

directed that the original Will be summoned from Dr.H.S.Rikhy. Since

Dr.H.S.Rikhy was not served for 21.9.1983, fresh notice was issued to

Dr.H.S.Rikhy for 28.11.1983. For this date, Dr. H.S.Rikhy was found to have

written a letter to the Registrar of this Court stating that he does not have the

Will. Since this short letter dated 19.10.1983 written by Dr.H.S. Rikhy to the

Registrar is relevant, and which letter is lying in the miscellaneous file of this

Court at page 52, the said letter is reproduced in toto as under :-

"19-10-83 The Registrar High Court, New Delhi.

Regarding Probate case No.40(LA)82 Shri Narinjan Dass Rikhy.

Sir, In response to your letter Dated 10th October, 83, regarding the above case, I have to inform you, that I don‟t have the Will of Late Shri Narinjan Dass Rikhy. I therefore regret that I am unable to file the same.

                                               Yours Faithfully

          D/19.10.83                           (DR. H.S. RIKHY)
                                               F-8, Lodi Market,
                                               Lodi Colony
                                               New Delhi-3"

9. A reference to the aforesaid letter dated 19.10.1983 shows that

Dr. H.S. Rikhy says that he does not have the Will of late Sh.Narinjan Dass

Rikhy. It is curious that this letter is silent as to whether Dr.H.S.Rikhy ever

had the Will at any point of time, and if he had the Will at one point of time,

when its possession ceased to be with him. I find that the language of this

letter is a convenient language which avoids to meet a very crucial point as to

whether Dr. H.S.Rikhy ever had with him the original Will of late Sh.

Narinjan Dass Rikhy.

10. Taken with the language of the letter dated 19.10.1983, and that

none of the parties have disputed that this is a letter written by Dr. H.S.Rikhy

to the Registrar of this Court, there is evidence which is led on behalf of the

petitioner himself as PW7 wherein the petitioner states that his father Sh.Jasjit

Singh Rikhy in his lifetime had shown him the original Will of late

Sh.Narinjan Dass Rikhy and that Dr. H.S. Rikhy had confirmed to the father

of the petitioner i.e. Jasjit Singh Rikhy that the Will was in the possession of

Dr. H.S.Rikhy. PW7/petitioner has also deposed that when Dr. H.S.Rikhy

was asked to produce the original Will he had assured the father of the

petitioner that the same would be produced in the Court. It may also be noted

that on the refusal of Dr.H.S.Rikhy to produce the Will, he was sought to be

examined on commission, but the commission could not be executed as Dr.

H.S.Rikhy passed away in the meanwhile.

11. A most crucial aspect in this case is that out of the two objectors

i.e. one son-Sh.Manjit Singh Rikhy and the daughter-Mrs.Harjit Kaur, none of

them have led any evidence whatsoever. In spite of the repeated

opportunities, when evidence was not led on behalf of the objectors, their right

to lead evidence was closed. Therefore, the position is that there is affirmative

evidence on behalf of the petitioner who led evidence of as many as seven

witnesses, there is not a single witness who has deposed in support of the

objectors. This aspect will be very crucial for arriving at a decision of the

issue in the present case.

12. On the basis of the aforesaid facts which have emerged i.e. the

petitioner stating in the petition that the Will was with Dr. H.S.Rikhy, Dr.

H.S.Rikhy writing the letter dated 19.10.1983 reproduced above stating that he

does not have the Will Ex.PW7/1, PW7 deposing that the Will was with

Dr.H.S.Rikhy and who had affirmed that the Will was in his possession in the

presence of the petitioner and the fact that there is absolutely no evidence led

on behalf of the objectors, satisfies the requirement of Section 237 of the

Indian Succession Act, 1925 for grant of the probate of the authenticated copy

of the Will dated 21.8.1973 which has been filed and proved in this case as

Ex.PW7/1.

13. I have thought long and hard on this aspect. Courts of course

have to apply greater scrutiny in cases where the original Will is not filed and

probate is sought of the copy of the Will (which of course is permissible under

Section 237), yet, the aforesaid aspects noted by me, persuade me to come to

the conclusion that the original Will dated 21.8.1973 of Late Sh.Narinjan Dass

Rikhy was not revoked or destroyed deliberately. This I say so because all the

conclusions given by me above, taken especially with the fact that once there

is evidence led on behalf of the petitioner, the opposite side was at least duty

bound to step into the witness box and support their case and stand the test of

the cross-examination, however, the objectors have led no evidence, and this

being a civil case required to be decided as per preponderance of the

probabilities, I hold that in terms of the preponderance and balance of

probabilities, the Will which has been filed and proved in this case as

Ex.PW7/1 is a correct/true copy of the Will dated 21.8.1973 of late

Sh.Narinjan Dass Rikhy and original of which was never revoked by

Sh.Narinjan Dass Rikh in his lifetime. I am also considerably persuaded on

account of the deliberate vague language in the letter dated 19.10.1983 written

by Dr. H.S.Rikhy wherein it has only been stated that „he does not have the

Will of late Sh.Narinjan Dass Rikhy‟, but he failed to categorically state that

he never had possession at any point of time of the Will dated 21.8.1973 of

late Sh.Narinjan Dass Rikhy. I therefore decide accordingly that Ex.PW7/1 is

a true/correct copy of the original Will dated 21.8.1973 of late Sh. Narinjan

Dass Rikhy and probate of the same can be granted on the same being proved

to have been validly executed and attested.

14. Let us now examine as to whether the petitioner has succeeded in

proving the due execution and attestation of the Will dated 21.8.1973 of late

Sh. Narinjan Dass Rikhy. Included in the aforesaid aspects would be as to

whether there are suspicious circumstances so as to disbelieve the Will in

question.

15. The aspect of execution and attestation need not hold me much

inasmuch as one attesting witness Sh. Kishan Singh appeared in the witness

box as PW2 and who has specifically deposed that the Will dated 21.8.1973

was duly executed by late Sh.Narinjan Dass Rikhy and attested by the two

attesting witnesses in the presence of the testator who was of sound disposing

mind. Sh. Kishan Singh, it may be noted, can be said to be a neutral witness

because he is the wife‟s brother of the testator i.e. Sh.Kishan Singh is the real

brother-in-law of late Sh. Narinjan Dass Rikhy and therefore equidistant and

equirelated without any bias for or against any one of the legal heirs of late Sh.

Narinjan Dass Rikhy. In fact Sh. Kishan Singh had worked in a Government

office as a junior to late Sh.Narinjan Dass Rikhy and Sh.Kishan Singh has

deposed that he is aware of the signatures of late Sh.Narinjan Dass Rikhy as

during the course of performance of official duties he had on many occasions

come across the documents which were signed by late Sh.Narinjan Dass

Rikhy. There are certain aspects of perceived contradictions in the deposition

of this witness, and the deposition of certain other witnesses, and such issue of

contradictions being the major argument urged on behalf of the objectors, the

same I will deal with when I will take up and deal with the arguments which

are urged on behalf of the objectors. While on the aspect of execution and

attestation of the Will there is also an extremely important and material

witness. This extremely important and material witness is a retired Judge of

this Court namely Justice Jagjit Singh, who has appeared in the witness box

and deposed as PW1. He has deposed that during the function of marriage of

his son in his house, Sh.Narinjan Dass Rikhy had come and late Sh. Narinjan

Dass Rikhy had at that point of time showed to him the Will executed by him

and which he had cursorily gone through. Justice Jagjit Singh (retd.) has also

deposed that late Sh.Narinjan Dass Rikhy was accompanied by his younger

brother Sh.H.R.Rikhy who is the other attesting witness to the Will.

Sh.H.R.Rikhy had also confirmed with regard to the execution and attestation

of the Will. The marriage function of Justice Jagjit Singh‟s (retd.) son was

just about two weeks prior to the death of Sh.Narinjan Dass Rikhy and thus it

showed that till two weeks before the death of Sh.Narinjan Dass Rikhy there

existed the original Will and whose due execution was affirmed before Justice

Jagjit Singh (retd.) and who had seen this original Will.

16. Therefore, there is clearly affirmative evidence with regard to the

execution of the Will by the testator in the presence of the two attesting

witnesses and of the two attesting witnesses having signed in the presence of

the testator. In my opinion, the Will therefore stands duly proved

notwithstanding the fact that the other attesting witness was not brought into

the witness box, and in fact he could not be brought into the witness box

because before the evidence could be led of this witness, this witness had

already expired. In fact this witness had expired prior to the filing of the

petition, a position admitted by all the parties. As already stated above

whereas there is sufficient evidence to prove the due execution and attestation

of the Will, there is absolutely no evidence led on behalf of the objectors and

therefore on the balance of probabilities, I come to the conclusion that the Will

Ex.PW7/1 stands duly proved.

17. At this stage, let me now take up the main arguments which were

urged on behalf of the objectors to dispute the factum of due execution and

non-existence of the original Will i.e. that the original Will has not been

proved to have been existing after the death of Sh. Narinjan Dass Rikhy.

These arguments have been urged to show that material contradictions have

been made by the witnesses of the petitioner totally destroying their credibility

and hence of their testimonies and hence it is argued that Will in question has

not been proved. The main arguments which have been urged on behalf of the

objectors are as under:-

i) The petitioner in the probate petition only stated that the original

Will was with Dr. H.S.Rikhy, but they fail to state as to how the original

Will was with Dr.H.S.Rikhy. It is argued that this lacuna of inadequate

and incomplete statement in the petition is sought to be made up by the

evidence and which evidence has to be ignored. It is argued that

Dr.H.S.Rikhy himself denied that the Will was with him and thus the

whole case falls.

ii) The attesting witness Sh.Kishan Singh who appeared as PW2

stated that the Will was made at Anand Niketan, however, the Will itself

shows that the Will was not executed at Anand Niketan but when the

deceased testator was resident of Northern Extension Area i.e. at Ganga

Ram Hospital Marg, New Delhi. It is argued that this is a vital

contradiction which shows that the Will as propounded by the petitioner

was a forged and fabricated document.

iii) It is argued that the signatures appearing of late Sh.Narinjan Dass

Rikhy in the Will Ex.PW7/1, are ex facie and wholly different from those

on the letter dated 15.9.1973, Ex.PW7/2, and which should be taken with

the fact that the contents of this letter dated Ex.PW7/2 shows that late Sh.

Narinjan Dass Rikhy only wanted the petitioner-Sh. Jagdeep Singh Rikhy

to be made as a co-owner of the plot in question.

iv) It is further argued that Sh. Som Nath Kapoor, PW6 who

appeared on behalf of the petitioner stated that the Will in question was

put in a trunk and which trunk alongwith certain other furniture was left

with Sh.Som Nath Kapoor when the family of the father of the petitioner

alongwith late Sh. Narinjan Dass Rikhy shifted from the Northern

Extension Area to a rented premises in the Anand Niketan, and since

witness Sh.Kishan Das Singh stated that the shifting was about one to

five years before 1973, the testimony of not only Sh.Som Nath Kapoor

but Sh.Kishan Singh had to be disbelieved because Sh. Kishan Singh

stated that the Will was executed at Anand Niketan and Sh.Som Nath

Kapoor had talked of furniture being shifted and a trunk containing the

Will (i.e. existence of the Will) even before the Will was executed at

Anand Niketan as per the statement of Sh.Kishan Singh.

v) The statement of Justice Jagjit Singh (retd.) should be disbelieved

because as per the deposition of Sh.Pitam Singh, PW4, the Will is said to

have been drafted by Justice Jagjit Singh (retd.), whereas, on the date

when the Will dated 21.8.1973 was made, Justice Jagjit Singh (retd.) was

a Judge of this Court and therefore he could not have drafted the Will in

question. While on this argument, it is also urged that the testimony of

Justice Jagjit Singh (retd.) that he saw the Will about fifteen days prior to

the death of Sh. Narinjan Dass Rikhy because late Sh. Narinjan Dass

Rikhy had brought the Will to the function of the son of Justice Jagjit

Singh (retd.), is negated by the testimony of Sh.Som Nath Kapoor that

the Will being put and existing in the trunk given with the furniture at the

time of shifting period which was prior to the execution of the Will.

vi) The final argument which has been urged on behalf of the

objectors is that since the other legal heirs have been disinherited, the

Will is unnatural and therefore the Will is not a valid Will of late

Sh.Narinjan Dass Rikhy.

Let me take up each of the arguments and deal with the same as

per the record of the present case and the arguments as urged by the parties.

18. The first point which is argued is with respect to the case having

to fall as Dr. H.S. Rikhy himself has denied that he ever had with him the

original Will. I am unable to accept this argument for various reasons. The

first important reason is the language of the letter of Dr. H.S.Rikhy sent to this

Court dated 19.10.1983. I have already dwelt upon this aspect and observed

that the letter is somehow inexplicably silent, and I may go to the extent of

saying that it is deliberately ambiguous as to whether Dr.H.S.Rikhy ever had

in his possession the original Will dated 21.8.1973. The second aspect for me

to hold that the original Will of late Sh. Narinjan Dass Rikhy was not

destroyed by him during the lifetime or revoked by him is because just barely

fifteen days prior to the death of late Sh.Narinjan Dass Rikhy the original Will

was shown to Justice Jagjit Singh (retd.), and who has deposed on this aspect.

The presence of one attesting witness, i.e. the younger brother of late

Sh.Narinjan Dass Rikhy namely Sh.H.R. Rikhy, as already stated above, finds

mention in the testimony of Justice Jagjit Singh (retd.) that he was also at that

time present and he had affirmed to the due execution of the Will. Once again

all these aspects are to be taken with the fact that if the objectors had any

conviction in their case they should have surely led evidence, at least

themselves stood in the witness box and stand up to the test of the cross-

examination as has been done on behalf of the petitioner and seven of his

witnesses, however, no evidence at all has been led on behalf of the objectors.

On the balance of probabilities, therefore, I have to hold that the Will was not

revoked by late Sh.Narinjan Dass Rikhy in his lifetime and Dr. H.S.Rikhy had

deliberately avoided to produce the original Will in his possession and which

was given to him by the father of the petitioner. A petition has to contain the

material fact and not the details of the evidence and which is to be led during

trial. There is thus no defect in the petition as the objectors want me to

believe. How the Will was with Dr.H.S.Rikhy is an issue of fact to be proved

in evidence.

In fact whatever doubt there can be with regard to existence of

the original Will even after the death of late Sh. Narinjan Dass Rikhy is

removed by the statement of Smt. Kanta Jaishreeram who appeared on behalf

of the petitioner and deposed as PW3. Smt. Kanta Jaishreeram has deposed

that she was a Metropolitan Magistrate in the Child Welfare Board and she

knew late Sh. Narinjan Dass Rikhy. She has deposed that she had attested the

Will Ex.PW7/1 i.e. photocopy of Will in question after seeing the original and

comparing the copy with the original. I find no reason to disbelieve the

testimony of this witness, and who has not been shown to be in any manner

biased against the objectors. It has also come in the evidence on behalf of the

petitioner as PW7 and Sh.Som Nath Kapoor, PW6 that the father of the

petitioner namely Sh.Jasjit Singh Rikhy was required to give the original Will

to his uncle i.e. the brother of late Sh.Narinjan Dass Rikhy and therefore he

kept an attested copy of the Will with himself. I therefore reject this argument

urged on behalf of the objectors that merely because Dr.H.S.Rikhy has said

that he does not have the original Will, the probate petition must necessarily

fail or that there is an unsurmountable defect in the pleading qua who gave the

Will to Dr.H.S.Rikhy.

19. The next argument which has been urged on behalf of the

objectors is with regard to the diversity in the signatures of late Sh.Narinjan

Dass Rikhy appearing in the Will Ex.PW7/1 and the letter dated 15.9.1973,

Ex.PW7/2, written by late Sh.Narinjan Dass Rikhy to the society from whom

the plot in question was allotted to late Sh.Narinjan Dass Rikhy. This

argument of course does appear to be attractive at the first blush, however, this

need not detain me because various witnesses on behalf of the petitioner have

stepped into the witness box and affirmed the signatures of late Sh.Narinjan

Dass Rikhy on the Will, and more importantly the objectors have not had the

necessary conviction to step into the witness box and even give the affirmative

statement that the Will does not bear the signatures of late Sh.Narinjan Dass

Rikhy. Therefore, though the signatures of late Sh.Narinjan Dass Rikhy

appearing on PW7/2 (letter) and Ex.PW7/1 (Will) are definitely different, in

my opinion, in the facts of the present case and the other evidences which

have come on record, it cannot lead to conclusion that the Will does not bear

the signatures of late Sh.Narinjan Dass Rikhy. Also, sometimes a non-formal

document (Will is a very formal document) is signed by a person not with care

or is signed by someone on behalf of the sender, however the totality of the

evidence shows that so far as the Will Ex.PW7/1 is concerned the same bears

the signatures of the testator.

While on this aspect, I would like to dispose of the argument on

behalf of the objectors that the letter Ex.PW7/2 shows that late Sh.Narinjan

Dass Rikhy only wanted to make the petitioner as a co-owner of the plot i.e.

not a sole owner. This argument is without any substance inasmuch as during

his lifetime late Sh.Narinjan Dass Rikhy surely would not want to give away

the complete ownership of the plot, however, it cannot mean that in the Will

he would not want that the complete ownership of the plot should not go to the

petitioner. Therefore, merely because the letter Ex.PW7/2 only states that the

petitioner should be made co-owner of the plot, cannot necessarily mean that

the Will is an unnatural Will and should be discarded.

20. The next argument very strenuously urged is with respect to the

contradictions emerging from the testimonies of Sh. Kishan Singh (PW-2), Sh.

Som Nath Kapoor (PW-6) and Justice Jagjit Singh (PW-1). In sum and

substance, the contradictions arise because of two facts. Firstly of the witness

Sh.Kishan Singh, PW-2 stating that the Will was executed at Anand Niketan

and secondly because the witness Sh.Som Nath Kapoor, PW-6 had stated that

the Will in question was found in a trunk given at the time of shifting from

Northern Extension area to Anand Niketan, though this shifting was much

before the year 1973 when the Will came into existence.

Of course one cannot run away from the fact that Sh. Kishan

Singh has stated that the Will was in fact executed at Anand Niketan and

which is against the petitioner because the Will was in fact executed when the

deceased testator was living at Ganga Ram Hospital Road in Northern

Extension area. One contradiction, however, in the facts of the present case,

has failed to persuade me to throw out the probate petition solely on this

ground itself. Contradictions can appear in testimonies of witnesses which are

recorded many years after the event in question (and which in this case is as

many as fifteen years) however such contradictions in my opinion cannot

totally destroy the case which is otherwise proved by other

witnesses/evidences. It is a question of one aspect against reasons of other

evidences. I cannot agree that every positive evidence in this case ought to be

overlooked because of one contradiction. I may state that the Supreme Court

has repeatedly held that the doctrine of falsus in uno falsus in omnibus has no

application in India i.e. merely because a witness is found to be stating false in

one part of the statement, his testimony as a whole cannot be disbelieved. If

this doctrine would have been applied in India, then, surely there will not be a

single case which can really be decided purely on merits.

So far as the aspect that the witness Sh. Pritam Singh, PW-4

stated that the Will was drafted by Justice Jagjit Singh (retd.), once again this

statement at best would be a statement which is false in the facts of the present

case, however, there is other more than sufficient evidence with respect to the

Will having been duly executed and attested. On such basis itself it is difficult

to dismiss the probate petition in the facts of the present case, especially where

the objectors have chosen not to depose even in their own favour.

Now let us for the sake of argument assume that the Will was

drafted by Justice Jagjit Singh (retd.). Even in such a case at best it would

mean that possibly Justice Jagjit Singh (retd.) would have given assistance to

late Sh. Narinjan Dass Rikhy for making of the Will, however, it is noted that

the Will is a holograph Will in this case i.e. it is quite clear that the Will is

written by none other than the deceased testator. That being so, I would not

attach too much importance on this statement of PW-4 of the Will having been

drafted by Justice Jagjit Singh (retd.).

21. I also refuse to accede to the argument as urged on behalf of the

objectors that the statement of Sh. Som Nath Kapoor as PW-6 states that the

Will has been taken out from the trunk/suitcase given alongwith the furniture

at the time of shifting from Northern Extension area to Anand Niketan. In

order to appreciate the argument and the lack of any genuine substance in the

statement, let me reproduce the entire examination-in-chief of Sh.Som Nath

Kapoor, PW6, and which reads as under:-

"STATEMENT OF PW-6, MR. SOM NATH KAPOOR S/O MR. BANARSI NATH KAPOOR R/O 5 PANCHSHEEL PARK, CHANKAYA PURI, NEW DELHI ON S.A.

I knew late N.D. Rikhy and his family. I have known Mr. Jasjeet Singh Rikhy since 1943 from Lahore. Mr Jasjeet Singh and I used to go college together and I got acquainted with his family through him. I met him in Delhi after independence in 1948-49. Mr. Rikhy was staying at Tughlak Road. We used to meet quite often. Mr. Jasjeet Singh had left with me some suit-cases and some furniture when they shifted from Northern Enclave to Anand Niketan. After the death of Mr. N.D. Rikhy, Mr. Jasjeet Singh Rikhy came to my house to collect some documents lying in the suit-case that was in my house. The WILL was then shown to me by Mr. Jasjeet Singh Rikhy and stating that this was the WILL of his father. (Vol. Mr. N.D. Rikhy had never mentioned about the WILL to me during his life time). He further stated that he had to give the WILL to his uncles. I suggested that he should give a photocopy of the WILL to his uncles. Since he insisted that he has to give original will to his uncles then I suggested him that he should keep an attested copy of the WILL with him. I have seen the document marked „I‟. It is a copy of the original WILL that was shown to me by Mr. Jasjeeet Singh Rikhy. The copy was attested in my presence." (underlining is mine)

22. A reference to the aforesaid statement shows that it cannot be

said that a conclusion should be derived from the statement that the Will was

also collected from the suitcase. The two underlined statements are disjunctive

and not joint. The aforesaid statement only shows that after the death of Sh.

Narinjan Dass Rikhy, the father of the petitioner, namely, Sh.Jasjit Singh

Rikhy came to collect documents lying in the suitcase and at which time the

Will was also shown to Sh. Som Nath Kapoor. This however cannot

compulsorily mean that the papers referred to for taking from the suitcase

included the Will in question. All that it means is that Sh.Jasjit Singh Rikhy

came to take papers from the suitcase and at that time he had showed the Will

to Sh. Som Nath Kapoor.

23. The final argument urged on behalf of the objectors was that the

Will is unnatural because it disinherits all other branches except the branch of

Sh.Jasjit Singh Rikhy. I do not find any strength in this argument because it

has been quite clearly established on record that the father, late Sh. Narinjan

Dass Rikhy only and always lived with his one son namely Sh.Jasjit Singh

Rikhy. Even at the time of making of the Will, the father was in fact living

with Sh.Jasjit Singh Rikhy. The address given in the Will is the address where

both late Sh. Narinjan Dass Rikhy and Sh.Jasjit Singh Rikhy were residing.

Also, there is no evidence on behalf of the objectors to the contrary that the

father was if not living with Sh. Jasjit Singh Rikhy then he was living at which

address and with which other legal heir of late Sh. Narinjan Dass Rikhy. Once

the father lives with one son, it cannot be said totally unnatural for the Will to

be held unnatural as he has preferred that branch of the son who was living

with him, especially in his old age. The other son Manjit Singh Rikhy

(objector) was settled abroad in USA and was well off. The sister Harjit Kaur

(objector) was married in a very affluent family in UK. Once again, I would

have to look into this aspect in detail provided that the objectors had led some

evidence and stepped into the witness box. I am of course time and again

repeating this aspect because this indeed is a crucial aspect in this case that if a

person does not choose to lead any evidence then the other person who has led

evidence cannot be disbelieved in a civil case. I may also note that not only

Justice Jagjit Singh (retd.) as PW1, but also Sh. Kishan Singh as PW2 have

specifically deposed that late Sh. Narinjan Dass Rikhy specifically had told

them that late Sh. Narinjan Dass Rikhy was not happy with his second son Sh.

Manjit Singh Rikhy and therefore had excluded him under the Will. So far as

one widowed daughter is concerned she had been given by the Will the right

to reside in her lifetime in a portion of the suit property. The remaining

sister‟s branch has given NOC for the Will.

24. A civil case turns on the issue of discharge of onus of proof.

Onus of proof shifts from time to time in a civil case. Initially onus is always

upon the person who urges the plea. However, once evidence is led in support

of the plea, and in this case there is evidence of as many as seven witnesses,

the onus of proof shifts to the opposite side to at least lead some sort of

credible evidence, and with respect to which as already stated there is a

miserable failure on the part of the objectors. The petitioner has therefore

discharged the onus of proof that the Will Ex.PW7/1 was duly executed by

late Sh.Narinjan Dass Rikhy and was also attested by the attesting witnesses in

accordance with law. I may finally state that there is no issue urged on behalf

of the objectors as to the lack of mental capacity or lack of sound deposing

mind of Sh. Narinjan Dass Rikhy at the time of making of the Will.

25. In view of the aforesaid discussion, I hold the only issue in favour

of the petitioner and against the objectors. I hold that the petitioner is entitled

to letters of administration with the Will annexed i.e. the Will dated 21.8.1973

of late Sh. Narinjan Dass Rikhy proved and exhibited as Ex.PW7/1. Let the

letters of administration with the Will annexed be issued in favour of the

petitioner on his filing the necessary Court fees. The petitioner being the only

beneficiary of the Will is exempted from giving any administration or surety

bond. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 23, 2012 ak