Ajit Singh vs State & Ors.
2013 Latest Caselaw 1853 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.104/2009 & CMs 4242-4243/2009

                                        Decided on : 25th April, 2013

AJIT SINGH                                   ...... Appellant
                    Through:     Counsel (appearance not given)

                      Versus

STATE & ORS.                             ...... Respondents
                    Through Ms.Neha Kapoor, proxy counsel

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant against judgment dated 2 nd

January, 2009 passed by the learned Additional District Judge

dismissing the probate petition of the appellant.

2. Briefly stated the facts of the case are that the appellant and the

respondent Nos.2 and 3 are the sons of Late Sh.Jhandu Singh.

Jhandu Singh and his brother namely Hans Ram, who was

unmarried were the owners of half share each in respect of various

properties and the present dispute is with regard to the Will dated

18.5.1983 purported to have been made by Hans Ram. The

appellant herein filed a probate petition in respect of the said Will

stating that his father Jhandu Singh expired in the year 1986, wife

of Jhandu Singh expired in the year 1997 and Hans Ram, who was

living with the appellant died on 14.8.1993. It was alleged by him

that on 28.12.98, that is almost after five years from the date of the

death of Hans Ram, he opened a box belonging to his mother and

found a Will purported to have been executed by Hans Ram on

18.5.83 by virtue of which the deceased testator had bequeathed his

one half share in the property bearing No.E-249, Village Munirka,

New Delhi consisting of 22 shops known as Rama Market in

favour of the appellant.

3. The respondent no.2 filed his written statement, contesting the

claim of the appellant, which was adopted by the respondent no.3.

4. The main objection which was taken by the respondent nos.2 and 3

was that the Will was forged and fabricated. It was stated that the

appellant has concealed a material fact that he had filed a suit for

partition bearing Suit no.542/1993 in respect of the property in

question in which a consent decree was passed on 12.3.96,

therefore, the partition of the property having been effected, there

was no question of the deceased testator having made a Will in

favour of the appellant. It was also stated that the alleged story of

recovery of the Will from the box of his mother was only a

concocted story made by the appellant. On the pleadings of the

parties, the following issues were framed:-

(i) Whether the present petition has not been framed and filed in accordance with law? OPD

(ii) Whether the present proceedings are barred in view of the position that partition decree dated 12.3.1996 had already been passed by the Civil Court and whether the petitioner is estopped from filing the present petition? OPD

(iii) Whether the deceased Sh. Hans Ram had executed a valid Will dated 18.5.1983 while in sound disposing mind and whether the said document is the last Will and testament of the deceased? OPP

(iv) Relief.

5. The appellant in support of his case had filed affidavits of four

persons. So far as PW-1 and PW2 were concerned, though their

affidavits were filed but they were not made available for the

purpose of cross examination, consequently, their evidence was not

read, as their testimony was incomplete. The court was left only

with the testimony of PW-4/appellant and PW-3/ Mangat Singh,

one of the attesting witness of the Will. The respondent no.2

examined himself as RW-1. The issue no.1 was stated to be not

survived and the same was therefore dropped. So far as issue no.2

is concerned, the trial court came to a finding that the Will which

was set up by the appellant was not a genuine Will of the deceased

testator. The reason for forming this view by the trial court was

multifold. These reasons were; concealment of fact that the

appellant had earlier filed a suit for partition; the original Will was

not produced, what was produced was only a carbon copy; the

appellant claimed that the deceased testator was living with him

since 1986 while as the Will is purported to have been executed in

1983. The attesting witness was not able to prove the due

execution of the Will in terms of Section 63 of the Indian

Succession Act, 1925. In addition to this, the trial court had also

observed the peculiar behavior and conduct of the appellant during

the course of trial when he came for the purpose of cross

examination where he was avoiding answers which constrained the

Court to pass adverse observations.

6. In totality of facts and circumstances, the trial court came to a

finding that the Will was shrouded with suspicious circumstances

and therefore, could not be relied upon.

7. I have heard the learned counsel for the parties and gone through

the testimonies of the witnesses as well as the record.

8. The main contention of the learned counsel for the appellant is that

the earlier suit for partition was with regard to the properties owned

by the father of the appellant and the respondent no.2 and 3 and

therefore, there was no question of the property of the deceased

testator being involved in the said suit or this factum being

mentioned by the appellant in the probate petition.

9. So far as the proof of the Will is concerned, it has been contended

by the learned counsel that the appellant has produced Mangat

Singh as the attesting witness. The affidavit of the other attesting

witness was also filed, however, as the said attesting witness was

threatened by the respondents, therefore, he could not appear for

the purpose of cross examination. He has filed an application

bearing CM no.4243/2009, under Order 41 Rule 25 & 27 r/w Sec.

151 CPC seeking permission to file additional documents and

adduce additional evidence which will corroborate the testimony of

PW-3 regarding proof of the Will.

10. So far as the observation of the Court regarding demeanor of the

appellant is concerned, it was contended by the learned counsel

that it was totally unwarranted and there was no reason for the

Court to pass such observations as the appellant was not avoiding

answers to the questions.

11. The learned counsel for the respondents has drawn the attention of

the Court to the evidence and stated that the attesting witness was

not able to prove the Will in terms of Section 63 of the Indian

Succession Act, 1925 where he has to specifically state that the

deceased testator had signed the Will after having understood the

contents in the presence of the attesting witness and each of the

attesting witnesses have signed in the presence of the other. He

also refuted the other submissions of the counsel for the appellant.

12. I have carefully considered the submissions made by the learned

counsel for the parties and gone through the record.

13. I feel that the appellant has himself failed to prove that the

deceased testator had made a Will in his favour. This is on account

of the fact that the conduct of the appellant himself is shrouded

with mystery and surrounded by suspicious circumstances. He is

not truthful and fair in disclosing that he had earlier filed a suit for

partition in respect of the properties which were jointly owned by

his father along with his brother Hans Ram who was the deceased

testator and in the said suit and a compromise decree was passed.

This compromise decree not only pertains to the properties owned

by their father Jhandu Singh but also involves the property of Hans

Ram.

14. Seen in the light of this, the deceased testator's Will is shrouded

with mystery on account of the fact that the attesting witness in his

cross examination has stated that he learnt about the Will having

been made through the appellant himself. The exact words which

have been mentioned by the attesting witness are as under:-

"I was told by Ajit Singh about the Will when this case was filed by him."

15. The attesting witness had stated that he had signed the Will at two

places while as his signatures appeared only at one place. The

appellant has stated that he has filed the original Will while as

carbon copy of the Will has been filed and no explanation has been

given as to where the original Will has gone. The appellant has

stated that the Will is purported to have been prepared in the year

1983 while as the deceased testator came to live with him in 1986

and the trial court has rightly observed that the very fact that the

Uncle of the appellant came to live with him in 1986 creates a

doubt as to why he would make a Will in favour of somebody with

whom he is not living and not showing any special love and

affection and bequeath his property in his favour. To top it all,

Section 68 of the Evidence Act specifically lays down as to how

the Will is to be proved. Will has to be proved by producing one

of the attesting witness. Mangat Ram is the attesting witness who

gathers information from the appellant himself. Mangat Ram does

not state that he had seen the deceased testator signing the Will in

his presence and he put his signatures in the presence of the

deceased as well as the second attesting witness. Therefore, the

essential requirement which has to be satisfied before a Will is

deemed to have been proved, is not satisfied. The fact that the

appellant might have obtained the signatures on some documents

from the attesting witness is also reflected by the fact that PW-3

had stated that he had signed the Will at two places while as his

signatures appeared only at one place.

16. All this clearly show that the Will of the deceased testator is

shrouded with mystery and there is absolutely no reason given in

the Will as to why the deceased testator had shown extra love and

affection for one of his nephews while as he had tried to divest the

other two Nephews who are equally related to him. I therefore,

feel that the appellant has not been able to prove the Will in

accordance with law and it is shrouded with suspicious

circumstance which are unexplained.

17. So far as the application of the appellant for producing additional

evidence is concerned, I feel that the application is totally

misconceived for two reasons.

18. Firstly, it is not necessary that both the attesting witnesses be

examined, Section 68 of the Evidence Act clearly lays down that if

a document is attested by two attesting witnesses then production

of one witness is more than sufficient to prove the document.

Admittedly, in the instant case, one attesting witness has been

produced by the appellant. Apart from this, the appellant had filed

a similar application before the trial court also for production of the

second attesting witness, which prayer was disallowed.

19. The appellant had preferred a Civil Miscellaneous Main matter

against the said order which was also dismissed; therefore, the

appellant's fate was completely sealed so far as the production of

the second witness was concerned. In any case, the Court has not

drawn any adverse inference on account of non production of the

second attesting witness; therefore, the application of the appellant

is totally misconceived.

20. Having regard to the aforesaid facts and circumstance, I feel that

the appeal of the appellant is without any merit and accordingly,

the same is dismissed.

V.K. SHALI, J.

APRIL 25, 2013 RN