Delhi High Court
Krishan Lal Dilawari vs State & Ors. on 2 April, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 100/1994
% 2nd April, 2014
KRISHAN LAL DILAWARI ......Appellant
Through: Mr. Manoj Swarup, Adv. Ms. Lalita
Kohli, Adv. Mr. Abhishek Swarup,
Advocates.
VERSUS
STATE & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 299 of the Indian
Succession Act, 1925 impugning the judgment of the probate court dated
3.11.1993 by which the probate court dismissed the probate petition filed by
the petitioner. Petitioner is in no way related to the deceased Asa Singh
whose Will dated 8.5.1974 was sought to be got probated.
2. The facts of the case are that the appellant/petitioner
propounded the Will dated 8.5.1974 of the deceased testator Asa Singh. Asa
Singh was the owner and resident of House no.1/455, Gali Rajan Kalan,
Kashmere Gate, Delhi. Asa Singh died on 29.9.1975. The Will dated
8.5.1974 which is relied upon is said to have been registered with the sub-
Registrar on 9.5.1974 i.e on the next day of the execution. Petitioner claims
that though he was not related to the deceased testator, since he took care of
deceased testator Asa Singh and his wife Bhagwanti; physically and
financially; during their life time, the deceased testator hence treated him
like a son and thus bequeathed to him the Kashmere Gate property.
3. Initially, before the court below, the probate petition proceeded
till the stage of completion of evidence. The widow Smt. Bhagwanti (treated
as the sole surviving relative) is alleged to have given no objection with
respect to the petition through her lawyer Mr. Nasim Ahmad, and evidence
was led of one attesting witness Sh. Madan Lal, PW-1 and the petitioner as
PW-2. It was however noticed at this stage that the deceased had also left
behind another legal heir being a grand-daughter Smt. Updesh Kaur/Guddi
inasmuch as there was a reference of the grand-daughter in the Will itself.
Petition was therefore amended and notice was sent to the grand-daughter
Smt. Updesh Kaur/Guddi. The grand-daughter did not file any objections
but objections were filed by the respondent no.2 herein, and who is the
nephew of the deceased testator. It was contended on behalf of the objector
that the deceased was about 100 years old at the time of his death i.e about
98 years when the alleged Will was made on 8.5.1974. Objector also stated
that the deceased was not in a sound disposing mind at the time of making of
the Will and was suffering from various ailments because of the old age.
The objector also pleaded that the appellant-petitioner had never taken care
of the deceased testator and that the deceased testator and his wife were
taken care of by the objector and the grand-daughter Guddi including
helping them financially. The propounded Will was stated to be a forged
and fabricated Will. The Will was pleaded to be surrounded by unnatural
and suspicious circumstances. Objector also pleaded that the deceased could
not bequeath the property as it was an ancestral property. It was the case of
the objector that the petitioner who was carrying on the business in an
adjoining small shop as a tenant of one landlord Sohan, he was in a position
to have and thus in fact had obtained the thumb impression of the deceased
by playing fraud upon the deceased.
4. The following issues were framed by the probate court:-
"1. Whether the will in question was duly executed by Sh. Asa
Singh deceased and is attested according to law? OP
2. Whether Shri Asa Singh was of sound disposing mind at the
time of the execution of the said Will?
3. Relief."
5. On behalf of the petitioner, evidence was led of 8 witnesses.
PW-1 and PW-7 is the same person Sh. Harnam Singh who is said to be
deed and petition writer. PW-2 Sh. A.N.Seth was the clerk from the office
of the Sub-Registrar to prove the registration of the Will. PW-3 Sh. Madan
Lal is an attesting witness of the Will. PW-4 Sh. Aman Kumar was the
neighbor of the deceased testator who deposed with respect to visiting the
house of deceased testator Asa Singh and that Asa Singh was of sound
disposing mind. PW-5 Iqbal Singh Chinna was the sub-Registrar at
Kashmere Gate in May 1974 when the subject Will Ex.P-1 was registered.
PW-6 Sh. Krishan Lal Dilawari was the appellant/petitioner himself. PW-8
Sh. A.K.Jain was the sub-Registrar at Kashmere Gate when an earlier
alleged Will of the deceased testator dated 12.5.1970 Ex.PW-7/A was said to
have been executed and registered. The thumb impression of the executants
on the two Wills Ex.PW-7/A and Ex.P-1 were sent to the Finger Print
Expert, Phillaur and the handwriting expert gave his report on 27.3.1980 that
thumb impressions on the subject Will were of the deceased testator. This
report is given by comparing the thumb impression of the deceased testator
on the subject Will with the thumb impression on the earlier Will dated
12.5.1970 Ex.PW-7/A.
6. On behalf of the objector Sh. Baldev Singh evidence was led
by his examining himself and deposing as RW-1. Two other witnesses were
examined being Daljit Singh RW2 son-in-law of the testator and RW-3 Smt.
Updesh Kaur (Guddi)-grand-daughter of the testator i.e daughter of the pre
deceased daughter of the deceased testator. Objector and RW-3 -Smt.
Updesh Kaur-Guddi deposed that they had taken care of the deceased
testator and his wife Smt. Bhagwanti Devi including incurring medical
expenses for their treatment. They also used to personally visit the deceased
testator and his wife regularly. They also deposed that they never saw
appellant taking care of the deceased testator or living with the deceased
testator. They also deposed with respect to the fact that it is the objector
who incurred the expenses of the funeral and that the appellant/petitioner
was not present at the funeral ceremonies and nor did he spent any moneys
towards funeral expenditure with respect to the deceased Asa Singh.
7. Before I turn to the conclusions given by the probate court for
dismissing the probate petition, at the outset I would like to mention a very
important aspect noticed by this Court during the hearing of this appeal, and
which is that in the entire trial court record the original Will which is said to
have been exhibited as Ex.P1 was not found and that there is only a
photocopy of the propounded Will dated 8.5.1974. I asked the counsel for
the appellant-petitioner to show to the Court any order or list of documents
showing filing of the original Will and thereafter return of the original Will
to the appellant/petitioner, but, counsel for the petitioner could not point out
to me any list of documents or any order showing the filing of the original
Will and thereafter return of the original Will. I have also examined the trial
court record and find that neither the original of the alleged Will dated
8.5.1974 exists in the record of the trial court nor is there any list of
documents/court order evidencing the filing or the return of the original
Will. In my opinion, this aspect is very immaterial because a probate cannot
be granted unless the original Will is filed and proved. A probate is granted
of a photocopy/copy of the Will in limited cases only and on specific
requirements as stated in Sections 237 to 240 of the Indian Succession Act,
1925 being found to exist. Before granting probate of a photocopy/copy of
the Will, it is necessary to lead evidence to show that the original Will was
actually not revoked inasmuch as an original Will can be revoked including
by different methods including of tearing or burning the same. Courts are
naturally hesitant in giving probate of a photocopy/copy of a Will because it
is very much possible that the original Will in fact stands revoked including
by destroying of the same. In the present case, besides the fact that no
original Will is on record of the trial court, I also do not find that any
evidence has been led by the petitioner as to why the original Will could not
be filed or that the original Will has been destroyed by the testator.
Therefore, in my opinion, on this sole ground alone the probate petition is
liable to be dismissed. However, without taking this aspect as final, let me
now turn to the impugned judgment of the court below, and which in my
opinion, has given very exhaustive reasons for dismissing the probate
petition in terms of the detailed judgment running into 38 pages.
8. The reasons given by the probate court below for dismissing the
probate petition are given below and I fully concur with the reasoning.
Additional observations are also made by this Court at the relevant places.
(A) Admittedly the deceased testator was survived by his widow
and a grand-daughter Guddi/Updesh Kaur yet these persons have been for no
valid reason completely excluded from the inheritance. Probate court
concludes that there is no reason for leaving the widow at the mercy of the
appellant-petitioner by giving the widow only a right of residence in the suit
property and not giving to her even the right of receiving of the rent from the
tenants on the ground floor of the suit property although the widow had no
other source of income for her maintenance. The probate court below in this
regard accordingly notes that though property at Kashmere Gate was
fetching a rent of about Rs.150 per month but strangely no right was given
by the deceased testator to the widow for this rental amount for supporting
herself and also no obligation was cast upon the appellant-petitioner by
virtue of the Will to provide for her subsistence. The probate court concludes
that there is no valid reason to exclude the grand-daughter Guddi/Updesh
Kaur as done by the subject Will, and to which aspect I would additionally
like to note that Guddi appeared in the witness box as RW-3 and deposed
that not only she used to take care of the deceased testator and his wife Smt.
Bhagwanti by regularly going to and staying in the house at Kashmere Gate,
but also that the deceased testator had stated to her that he would be giving
rights to her in the property at Kashmere Gate.
(B) No doubt, in the earlier Will dated 12.5.1970 Ex.PW7/A
propounded by the petitioner (and which the trial court rightly holds as not
having been proved as required by law), the grand-daughter was excluded
inasmuch as the suit property was bequeathed in favour of the nephew of
Smt. Bhagwanti Devi; one Sh. Mahender Singh; however, so far as the
widow Smt. Bhagwanti Devi is concerned, she was under this Will given a
life-estate. I may immediately state that there is some difficulty with this
Court with regard to what are the actual contents of the alleged Will dated
12.5.1970, inasmuch as, there is no English translation of this Will dated
12.5.1970 either in the trial court record or in the record of this Court and
whatever is being observed as regards the contents of the Will dated
12.5.1970 of the deceased testator, the same is only on the basis of the
statements made before me by the appellant through his counsel with respect
to the contents of the 1970 Will. It bears note that the Will of 1970 which
was exhibited as Ex.PW7/A, cannot at all be said to have been legally
proved, as held by the trial court, because no attesting witnesses of the Will
was examined. The Will though is sought to be got proved simply through
the deed and petition writer Sh. Harnam Singh who appeared as PW-1 and 7
without giving credible explanation of affirmative evidence forthcoming on
record on behalf of the appellant-petitioner as to whether either of the two
attesting witnesses of this alleged Will dated 12.5.1970 of the deceased
testator were or were not available for giving their depositions. Trial court
has therefore concluded that one cannot hold that the deceased testator had
died leaving behind an earlier Will dated 12.5.1970 Ex.PW7/A and that this
Will bears the thumb impression of the deceased testator. This aspect that
there is no Will of the deceased testator dated 12.5.1970, Ex.PW7/A
becomes relevant when reference would be made to the report of the
handwriting expert of the subject Will inasmuch as the expert has given his
opinion of the subject Will being the Will of the deceased testator by
comparing the thumb impression on the subject Will with the thumb
impression on Will dated 12.5.1970. Therefore, though the appellant-
petitioner relies upon an alleged earlier Will dated 12.5.1970 Ex.PW7/A ,
the said Will cannot be said to have been proved to the satisfaction of the
Court merely by citing the deposition of only a deed writer. To the
conclusion of the trial court, I would like to add that even assuming the Will
dated 12.5.1970 Ex.PW7/A is taken to have been proved as having been
executed and registered, in fact, in the opinion of this Court, the existence of
the same goes against the appellant-petitioner, because there is no evidence
on record as to why the beneficiary of the earlier Will Sh. Mahender Singh,
has been excluded by the subject Will dated 8.5.1974.
(C) (i) The Will propounded by the petitioner/appellant is also incredible
because admittedly the appellant-petitioner is not in any manner related;
near or distant; to the deceased testator or his wife ie the propounder of the
Will is a complete stranger to the family and having an acquaintance
admittedly of but just six years prior to the death of the testator.
(ii) To the above aspect and conclusion of the trial court I would
like to add that there is no reason why a person would bequeath his property
to a complete stranger merely because as per the case of the
appellant/petitioner, some very small amounts of financial help were given
including of amount of Rs.1000/1200 for renovation of the Kashmere Gate
property. In this regard, I note that the probate court below has noted that
whereas in the original probate petition the appellant-petitioner had stated
that he was 'manually and financially' serving the deceased testator, in the
amended probate petition it was only stated that the appellant-petitioner
served him physically and regarded him as his father i.e aspect of financial
help which was pleaded in the original probate petition was deleted in the
amended probate petition. Therefore, just taking care of the deceased
testator, and his widow, that also only as per the self serving deposition of
the appellant-petitioner without any documentary evidence, the case of the
appellant-petitioner that the deceased testator had executed the subject Will
in favour of the petitioner was rightly disbelieved by the trial court. It is also
rightly held by the probate court below that it cannot be believed that the
appellant/petitioner took such amount of care of the deceased testator and his
widow so that the appellant-petitioner was taken as a son by the deceased
testator and his widow Bhagwanti and for thus being bequeathed the
Kashmere Gate property.
(D) It is noted by the probate court below that since the
acquaintance of the appellant-petitioner with the deceased testator was
admittedly only for six years before the death of the testator hence no special
relations existed for such relations to be a consideration for the deceased
testator for bestowing the bounty of the Kashmere Gate property in favour of
the appellant-plaintiff and hence taking away the only source of sustenance
of the widow Bhagwanti after the death of the deceased testator. In
buttressing this aspect, the probate court has also observed that there is
nothing on record to show that relations between the deceased testator and
his wife Bhagwanti were not normal and cordial for her to be completely
disinherited in terms of the subject Will.
(E)(i) There were two attesting witnesses to the Will but only one
attesting witness Sh. Madan Lal Handa was examined by the
petitioner/appellant, and which witness was found to be a friend of the
petitioner. The other attesting witness Sh. Har Prakash Adv. was not
examined. The following observations in this regard have been made by the
probate court:-
"28. Shri Har Parkash Advocate, the other attesting witness of this
will, has not been examined and there is no valid reason why he has not
been produced as a witness. Har Parkash Advocate was verymuch
available, and even summons for his appearance as a witness for 28-7-
76, were personally served on him, which is available on the judicial
file. With holding of a material witness in the circumstances also is a
suspicious circumstance which casts doubt on the genuineness of the
will and also on the testimony of PW-3. And as noticed earlier, PW-3
is not found to be a wholly reliable witness, and his testimony is not
corroborated even by the testimony of this witness."
(ii) The probate court below for disbelieving the attesting witness Madan
Lal Handa to be a valid attesting witness of the subject Will has also
observed that the attesting witness was living as far as 10 km away from
Kashmere Gate property and also that a person who is asked to sign as an
attesting witness ordinarily is a very close person which the alleged attesting
witness was not. The aforesaid aspects assume importance because if the
subject Will was scribed at 9 am or 10 am in the morning as per the case of
the appellant-petitioner, there is no explanation as to why the attesting
witness visited the adjoining shop of Sh. K.K.Singh at such an early hour
because the shop would not have normally opened at such an early time. The
following relevant observations are made by the probate court below:-
"He would have no occasion to visit the shop of K.K. Singh or knowing
Asa Singh for the last 8-9 years before the latter's death as at that time he
would be only 15/16 years old, and as per his address given in the Will, he
was residing at 288 Onkar Nagar, Delhi, situated well over 10 kms. away
from Kashmere Gate. This makes his alleged visits to the shop of K.K.
Singh highly improbable. He was not having any dealings whatsoever with
Asa Singh, nor was on visiting terms with him, and obviously, was not
having so friendly relations with Asa Singh which may have prompted Asa
Singh to ask him to be a witness of his Will. Normally, a friend, relation or
known and reliable person is invited to be a witness of a document, and not
a stranger like PW-3. It is highly improbable that Asa Singh if intended to
execute his Will, would have selected and confided in his person to be a
witness of his Will, especially when he is alleged to have disclosed
execution of his Will even to petitioner much later. Petitioner would have
come to know about this Will at least through PW-3, who was his good
friend soon after its execution if he was not present at the time of its
execution. There is no reason why the decease would have joined a
stranger to be a witness who was a friend of the petitioner, to be an attesting
witness of his Will if he intended to keep it a secret from the petitioner.
This witness does not say that he was asked before hand to accompany Asa
Singh on the particular day to a scribe and to be a witness for him.
Accordingly to PW-1 this Will was scribed by him at about 9 or 10 AM,
and this witness has stated that he was present at the shop of K.K. Singh
when Asa Singh met him and took him for execution of this Will. It seems
not probable that this witness would have visited the shop of K.K. Singh at
so early hour for no valid reason and when normally the shop would also
have not opened. He has also stated that he had accompanied Asa Singh to
Tis Hazari and where the Will was scribed, whereas, as deposed by PW-1
scribe, he sits at Kashmere Gate, where the Will was executed. This also
creates doubt in the testimony of PW-3. (underlining added)
(iii) The attesting witness Sh. Madan Lal Handa was merely about
26 years old when the Will was executed on 8.5.1974 and deceased even as
per the case of the appellant/petitioner was as old as 86 years when the Will
was executed, if not 98 years as per the proved death certificate Ex.PW6/1
which shows that the deceased testator was 100 years old when he died on
25.5.1975. There is no reason why a person of 86 years of age would take a
person who is of 26 years as an attesting witness to the Will, and with whom
no such relations are proved that he was that much trusted by the deceased
testator for being an attesting witness to his Will considering that at best the
acquaintance of witness of Sh. Madan Lal with deceased testator is shown
of few years only and that too because of the visits of the attesting witness to
the shop of the appellant-petitioner which was situated adjacent to the
Kashmere Gate property of the deceased testator.
(iv) It may be noted that the attesting witness also claimed to be
visiting a shop of neighbor Sh. K.K.Singh for business, however, the probate
court below rightly notes that the attesting witness failed to disclose what
business he was doing; since when and where; and also evidence as to the
business dealings of the attesting witness with Sh. K.K.Singh. It also is a
moot point as per my opinion that what is the 'business' which a 26 years
old attesting witness was doing.
(F) Though the scribe Sh. Harnam Singh has appeared as PW-1 and
PW-7 and had brought his register to prove that he had scribed the Will, the
names of the two attesting witnesses were not mentioned in the register
where the entry of the Will was entered and nor is the presence of the
attesting witnesses recorded in the register. Trial court thus holds that the
two attesting witnesses had not signed the Will before the scribe and when it
was purported to have been signed by its executants. The following relevant
observations in this regard are made by probate court below:-
"This Will is scribed by PW-1 deed writer. He has deposed that
this Will was executed in his presence and the two attesting
witnesses were also present there, and they had attested it in his
presence. The Will also recited at its end that this Will was signed
by the testator in the presence of "following witnesses". Name or
description of these two witnesses are not written in the hand of the
scribe at the places ear-marked for two witnesses on it whereas
name of Asa Singh as an executants is specifically mentioned, with
name and description. The names of these two attesting witnesses
are also not mentioned in his register, where the Will was entered.
These circumstances also suggest that these witnesses were not
present at the time when this Will was scribed, as deposed by PW-
1. Obviously, the two attesting witnesses had not signed the Will
before the scribe when it purports to have been signed by its
executants and their signatures would have in all probability been
procured by the petitioner subsequently."
(underlining added)
(G) Though the handwriting expert's report is in favour of the
appellant/petitioner, however, the handwriting expert's report is not a
reliable evidence because the handwriting expert compared the signatures of
the subject Will Ex.P-1 with the earlier 1970 Will Ex.PW7/A, but, the
genuineness of the specimen/handwriting/thumb impression in the 1970 Will
Ex.PW7/A has not been established to be of the deceased testator Sh. Asa
Singh because the Will Ex.PW7/A has not been proved in accordance with
law of the same having been validly executed and attested, and only
registration thereof was proved through the witness Sh. A.K.Jain PW-8 who
was sub-Registrar in May, 1970. This aspect has also been mentioned to in
sub para (B) above.
(H) Neither the appellant-petitioner nor any of his friend/relative
paid the funeral expenses with respect to death of the deceased testator Asa
Singh, and it is in fact the objector who had incurred expenses for the funeral
which was proved by means of the receipts Ex.R-2 to Ex.R-5. The objector
and Guddi led sufficient evidence on record that the ceremonies on account
of death of the deceased testator Asa Singh were not performed by the
appellant/petitioner, but were performed by the objector.
(I) The probate court below also notes that no doubt summons were
issued to Smt. Bhagwanti but there is a peculiarity in the service report with
regard to the service of the summons because she as per the summons was
identified to the process-server by one Varinder Kumar Madhok, although
there is no such procedure whereby the process server requires identification
of a person to whom a service is to be effected.
(J) When the probate petition was originally being heard ex parte
when Guddi/Updesh Kaur was not added as a party, the appellant-petitioner
had sworn an affidavit dated 1.11.1975 that deceased Asa Singh left no legal
heirs except his widow and had also made a similar statement as PW-2 on
2.1.1976 although the deceased to the knowledge of the appellant-petitioner
was survived by another legal heir being the grand-daughter/Guddi/Smt.
Updesh Kaur. Petitioner therefore originally had surreptitiously sought to
take probate by misrepresentation and concealment of facts as regards the
existence of Guddi/Updesh Kaur. There was therefore a very serious doubt
on the bonafides of the appellant-petitioner.
(K) In the ex parte evidence led on behalf of the petitioner
originally on 2.1.1976, the appellant-plaintiff deposed that the Will was
executed in his presence, but, when subsequently the case was contested,
and the petitioner appeared as PW-6, he deposed and tried to show that he
was not present when the Will was executed and that he allegedly came to
know of the subject Will only afterwards.
(L)(i) The contention urged on behalf of the appellant/petitioner that
the objector was not entitled to file objections being only a nephew was
rejected inasmuch as even if the grand-daughter-Guddi did not raise
objections, however, she was very much a legal heir to whom the Kashmere
Gate property would have devolved if it had to be held that there was no
valid Will of the deceased testator Asa Singh.
(ii) The probate court also notes that appellant was not entitled to
raise objections at the stage of final arguments for the first time with respect
to the locus of the objector in opposing the grant of probate (including by
leading his evidence), because, admittedly the objection as to locus standi of
the objector was never taken at the time when the issues were settled; then
when the trial court proceeded in the case with the objector participating in
the proceedings unopposed throughout by not only cross-examining the
appellant's/petitioner's witnesses but also by examining himself and other
witnesses including the grand-daughter. Petitioner was therefore held to be
estopped at the stage of final arguments to dispute the right of the objector to
contest the probate petition.
(iii) To the above aspect, I may note that since the judgment in a
probate petition is a judgment in rem, any reasonable person having some
reasonable locus can always object to the grant of the probate because a
probate court has to satisfy its conscience for grant of a probate. In fact a
probate is not necessarily granted even if no objections are filed, if the court
is not convinced with respect to the validity of the propounded Will. The
objector very much had a locus because if the estate would not devolve upon
the grand-daughter Guddi then it will devolve as per the Hindu Succession
Act upon the objector who was nephew of the deceased testator.
9. In addition to the conclusions which are given by the probate
court below, I would like to give the following additional conclusions to
uphold the judgment of the court below:-
(A) Though Smt. Bhagwanti Devi widow of the deceased testator
was very much alive when the evidence of the witnesses of the
appellant/petitioner was being led, yet Smt. Bhagwanti Devi was however
not brought into the witness box by the appellant/petitioner in support of the
case of the appellant/petitioner. Smt. Bhagwanti lived for around 3 years
after the death of the deceased testator Asa Singh and in this period of three
years, in the subject probate case, depositions of most of the witnesses on
behalf of the appellant-petitioner were recorded. Smt. Bhagwanti Devi never
personally appeared in the trial court and also never made any personal
statement in the trial court in favour of the appellant-petitoner. She was only
represented through an advocate Mr. Nasim Ahmad who was a junior of Sh.
Mela Ram, Adv. of the appellant/petitioner. Merely because allegedly a no
objection was filed on behalf of the Smt. Bhagwanti Devi/widow of the
deceased testator, the same cannot and does not mean that she ought not to
have been brought into the witness box by the appellant-petitioner on his
behalf because she was very much alive at the time of recording of the
depositions of the witnesses of the appellant-petitioner. It is not the case of
the appellant-petitioner that on account of Smt. Bhagwanti being bed-ridden
or for any other sufficient reason, Smt. Bhagwanti could not be brought into
the witness box to depose in favour of the appellant-petitioner. Therefore,
the absence of any deposition of Smt. Bhagwanti, and who was the best
possible witness to support the case of the appellant/petitioner being not
brought into the witness box by the appellant/petitioner, there is sufficient
reason for the propounded Will to be discarded.
(B)(i) The appellant-petitioner claimed that he was living with the
deceased testator and his wife before the death of the testator, but there is not
even a faint documentary evidence of the alleged residence of the appellant-
petitioner with the deceased testator and his wife during the life time of the
deceased testator. Obviously, the appellant/petitioner had illegally
constructed some temporary construction on the first floor very soon after
the death of the deceased testator Asa Singh and occupied the same to show
his residence with the deceased testator, but actually this occupation was ex
facie illegal because not only there is no document to show residence of the
appellant-petitioner in Kashmere Gate property during the life time of the
deceased testator but also that there is no evidence showing the consent of
the deceased testator or his widow for the appellant/petitioner to reside in
Kashmere Gate hub. It may be noted that after the death of the deceased
testator things moved really fast for any legal proceedings to be filed to
challenge the illegal possession of the appellant-petitioner, because, the
deceased testator died on 29.9.1975 and this probate petition was filed barely
a month thereafter on 28.10.1975. Therefore, it is clear that
appellant/petitioner played his cards well because he had realized (being a
tenant in the adjoining premises) that the deceased testator was living alone
with his wife Smt. Bhagwanti and that deceased testator did not have any
relations residing with him and thus the appellant-petitioner can fabricate the
propounded Will to misappropriate the Kashmere Gate property.
(ii) This Kashmere Gate property is situated on an area of
approximately 40 sq. yds and I take judicial notice of the fact that in
Kashmere Gate area (walled city area of Old Delhi), a 40 sq. yds property in
this commercial hub even on a most conservative estimate would not be less
than 15 to 20 crores or so today. Even in 1975, Kashmere Gate area where
the property of the deceased testator was situated was a commercial hub and
one of the most prime commercial areas in Delhi.
(iii) Accordingly, in my opinion, the sequence of events would have
been enacted by the appellant-petitioner for taking control and ownership of
this Kashmere Gate property.
(C) I have already stated in the earlier part of this judgment that
there is no original Will on the record of this case and there is no explanation
whatsoever as to if at all this original Will was filed in the record of the
probate court, thereafter if taken back then when and under what order the
same was taken back, what and where is the list of documents or the court
order showing filing of the original Will in Court or return of the same etc.
etc. This aspect in itself casts a very grave doubt on the maintainability of
the probate petition in question.
(D) The case of the appellant-petitioner is that he was a tenant on
the first floor of the property with the consent of the deceased testator Asa
Singh but, there is not even a single rent receipt which is filed by the
petitioner to prove the so-called tenancy. There is also no proof whatsoever
of the giving of any rent by the appellant-petitioner to the deceased Asa
Singh. Though counsel for the appellant before this Court argued that the
appellant-petitioner was paying rent at Rs.30 per month with respect to the
first floor portion which was let out to the petitioner by the deceased testator
Asa Singh, however, not only there is no proof that this rate of rent was
Rs.30 per month but also that it is doubtful if rate of rent could be merely
Rs.30 per month in the walled city of Delhi in Kashmere Gate area in the
year 1974 or so. Counsel for the appellant also further sought to argue that
there is nothing strange in rate of rent being only Rs.30 per month because
similar rents were being paid by other tenants, however it is well known that
if a nominal rent is fixed a 'pagri'/premium is paid for creation of a tenancy
and which pagri amount would have run into many lacs of rupees even in the
year 1974, and therefore either the rent could not be Rs.30 per month as is
being pleaded by the appellant-petitioner, and if the rent was fixed at Rs.30
per month, then the deceased Asa Singh should have received lacs of rupees
towards pagri/premium and in which latter case of receiving of
pagri/premium then there was no need for any financial help being taken by
the deceased testator from the appellant-petitioner and as was the case
pleaded by the appellant-petitioner. Of course, it is a moot point as to how
the appellant-petitioner who was just about 24 years of age when the Will
was made would have with him a huge amount running into lacs of rupees
for paying pagri/premium to the deceased testator Asa Singh because
obviously there is no evidence led as to financial capacity of the appellant-
petitioner in the year 1974 for giving his financial muscle for paying of this
huge pagri/premium of lacs of rupees to the deceased testator. Therefore,
the case of the appellant/petitioner is nothing but a web of lies so as to
misappropriate the Kashmere Gate property of the deceased testator Asa
Singh.
(E)(i) Another peculiar aspect in this case is that appellant/petitioner
has succeeded in getting, not one but two two sub-Registrars to depose in his
favour. One sub-Registrar who has deposed is Sh. A.K.Jain, PW-8 and who
deposed with respect to the Will dated 12.5.1970 Ex.PW7/A. This sub-
Registrar deposed that Will dated 12.5.1970 was presented before him by the
testator Asa Singh who was identified by Surender Singh and Sh. Roshan
Lal, the two attesting witnesses of this Will and that he had read over the
contents of the Will to the testator who had admitted the same as correct and
who also allegedly admitted execution of the Will dated 12.5.1970. Surely,
there is something amiss with respect to the deposition of this sub-Registrar
PW-8 Sh. A.K.Jain because no sub-Registrar can ever personally remember
hundreds of cases of registration of documents which take place before him;
the depositions of PW-8 Sh. A.K.Jain in the probate court is of 19.9.1986 i.e
more than 15 years after the Will of 1970 was registered. In fact the
deposition of PW-8 is only a part of the official record and as is found noted
in all Wills at the time of registration. Deposition made by PW-8 is only of
reiterating the duties which a sub-Registrar has under the Registration Act,
1908. Obviously, therefore this witness is an unreliable witness and there is
hence a clear lack of credibility in the case as propounded by the petitioner.
(ii) Similar observations are required to be made with respect to the
sub-Registrar Iqbal Singh Chinna who deposed as PW-5 and all that has
been observed above by this Court with respect to PW-8 will also squarely
apply to this witness except the difference that instead of the sub-Registrar
deposing 15 years after the Will in the case of PW-8 Sh. A.K.Jain, in the
case of deposition of the sub-Registrar Iqbal Singh Chinna as PW-5 the
same would be around two years after the registration of the Will, and which
two years period in the opinion of this Court is also large enough because it
is a very impossible task for a sub-Registrar to remember personal details in
the dozens of cases of registration which would have come up before him in
the two years period of his duties.
(iii) Therefore, surely, sub-Registrars are ordinarily never called for
proving the execution, attestation and registration of the Wills, and bringing
the sub-Registrars for deposing on behalf of the petitioner, only leaves a trail
of appellant's/petitioner's over-anxiety to ensure that the disputed Will is
somehow or the other accepted by court. In my opinion, therefore, the fact
that the sub-Registrars have appeared on behalf of the petitioner, although,
they need not at all have because they only have deposed with respect to the
official duties and facts stated in the registered Wills, the same clearly goes
against the appellant-petitioner.
10. Before me, counsel for the appellant raised the following
arguments:-
(i) Since the propounded Will Ex.P-1 dated 8.5.1974 has been
found to be registered, registration is prima facie proof of the Will, and in
view of the factum of registration the onus of proof that the Will has not
been executed and attested by the deceased testator in a sound disposing
mind shifted to the objector, and this onus which shifted to the objector was
not discharged by the objector.
(ii) There is nothing strange in the widow Smt. Bhagwanti and the
grand-daughter-Guddi-Updesh Kaur being disinherited, inasmuch as, even in
the Will dated 12.5.1970/Ex.PW7/A, nothing was bequeathed to Smt.
Bhagwanti or Smt. Updesh Kaur/Guddi, and therefore the probate court
according to the counsel for the appellant erred in holding that the
propounded Will dated 8.5.1974 was an unnatural Will because it
disinherited the widow and the grand-daughter.
(iii) Once the handwriting expert gave his evidence in the form of
his report that the propounded Will bore the thumb impression of the
deceased testator Asa Singh, and which report was given on comparison
with the thumb impression in the earlier Will of 1970 Ex.PW7/A, therefore,
the probate court has committed an illegality in dis-believing the
propounded Will.
(iv) No challenge could be laid by the objector who had no interest
in the property of the deceased because he was only a nephew, and would
not have an interest once the grand-daughter Smt. Updesh Kaur/Guddi/PW-3
was alive and who had not filed any objections to the Will.
(v) Since the objector pleaded adverse interest by claiming that the
Kashmere Gate property was an ancestral property, therefore, this shows that
the objector would not be having good relations with the deceased testator
and therefore, there was valid reason for the propounded Will to have been
made by the deceased objector in favour of the appellant/petitioner.
(vi) Once the widow Smt. Bhagwanti had given no objection to her
lawyer and which was filed in the court, the probate court was not justified
in arriving at a finding of lack of credibility of the petitioner on the ground
that Smt. Bhagwanti did not personally appear in the case.
(vii) The probate court below has wrongly held that the objector and
the grand-daughter used to visit the deceased testator and his wife.
(viii) Finally, certain contradictions were sought to be pointed out in
the testimonies of RW-1 Sh. Baldev Singh/objector and RW-3 Smt.
Guddi/Updesh Kaur/grand-daughter for discrediting their testimonies.
11. The first argument urged on behalf of the appellant/petitioner of
shifting of onus because propounded Will is registered is wholly a
misconceived argument because it is not the law that the registration of the
Will amounts to prima facie proof of the Will. It is not the law that if a
propounded Will is shown to be registered the onus of proving that the Will
is not duly executed falls on the objector merely and simply because the Will
is a registered Will. No law was cited before me that merely because a Will
is registered, onus of proving that the Will is in fact not duly executed and
attested shifts to the objector. This argument urged on behalf of the
appellant-petitioner is therefore rejected.
12. So far as the argument that since the first Will dated 12.5.1970
Ex.PW7/A is proved, the thumb impression in that Will can be taken to be of
the testator and consequently the handwriting expert's report can be taken in
favour of the petitioner for allowing the probate petition, all that is required
to be stated is that merely because a document is found to exist in the sub-
Registrar's office cannot mean that that document is automatically proved to
contain the signatures of the executants of such document. In order to prove
that the Will dated 12.5.1970 Ex.PW7/A bore the thumb impression of the
deceased testator Asa Singh, it was necessary for the appellant-petitioner to
establish by leading evidence of the attesting witnesses to the Will dated
12.5.1970 or filing admitted/proved documents containing the thumb
impression of the deceased testator and only whereafter it could be held that
the subject Will contained the thumb impression of the deceased testator Asa
Singh. Admittedly, none of the attesting witnesses of this 1970 Will have
come and deposed in favour of the appellant/petitioner. This Court has also
not found affirmative evidence of the petitioner led before the court below
giving requisite explanation that why these alleged attesting witnesses to the
1970 Will were not brought into the witness box on behalf of the
appellant/petitioner. There is also no affirmative evidence of the
appellant/petitioner or PW1/PW7 that these attesting witnesses are dead.
Though these witnesses as per the arguments made before this Court were
no longer stated to be alive, however, even if, that be so, surely, the
signatures of the attesting witnesses on this Will dated 12.5.1970 Ex.PW7/A
could have been proved through the surviving relations/friends etc etc of the
deceased attesting witnesses, but, the appellant-petitioner took no steps to
lead evidence of such persons to show that the Will dated 12.5.1970 of the
attesting witnesses whose names are found in this Will dated 12.5.1970.
Only if such evidence was led there would be some measure of proof that
thumb impression in the Will dated 12.5.1970 Ex.PW7/A contained the
signatures of the deceased testator Asa Singh, but in the absence of any such
evidence, the court below has rightly held that there is no evidence that the
Will dated 12.5.1970 is the Will of the deceased Asa Singh and that it thus
bears the signatures and the thumb impression of the deceased Asa Singh.
Once that is so, the handwriting expert's report which only relies upon
thumb impression of the deceased testator Asa Singh on this 1970 Will as
genuine for being compared with the thumb impression on the propounded
Will dated 8.5.1974, the handwriting expert's report cannot be taken as a
piece of evidence on behalf of the appellant/petitioner for accepting the
propounded Will.
13. So far as the argument that even in this Will dated 12.5.1970
Ex.PW7/A, the deceased testator had not bequeathed anything in favour of
his widow and the Guddi/grand-daughter/Updesh Kaur/RW-3, all that is
required to be stated is that this argument would have been available to the
appellant/plaintiff if the Will dated 12.5.1970 Ex.PW7/A was proved to have
been duly executed and attested by the deceased testator Asa Singh, but as
stated above, no such evidence is led and therefore, it cannot be said that the
Will dated 12.5.1970 Ex.PW7/A is proved as required by Section 63 of the
Indian Succession Act. I have also already stated above that evidence of the
sub-Registrar PW-8 Sh. A.K.Jain lacks credibility and cannot be used as
evidence in proof of due execution and attestation of the Will dated
12.5.1970. Further why Sh. Mahender Singh who was beneficiary of 1970
Will has been excluded is not explained. Finally, Guddi/Updesh Kaur has
deposed that deceased testator had told her that he would be bequeathing to
her the Kashmere Gate property
14. The next argument urged on behalf of the appellant was that the
Will could not have been challenged by the objector as he lacked locus
standi, the said argument has already been otherwise dealt with in the earlier
part of this judgment and those observations are reiterated herein and not
repeated herein to avoid prolixity.
15. So far as the argument that the objector has pleaded an adverse
interest to the deceased testator by claiming that Kashmere Gate property is
not exclusively owned property of the deceased testator but the same was
ancestral property, I do not find that this in itself is such a ground to hold
that the objector's case should not be believed for discarding the propounded
Will. This argument urged on behalf of the appellant/petitioner is also
therefore rejected.
16. So far as the argument of the widow Smt. Bhagwanti Devi not
having filed any objections to the probate petition is concerned, the same has
already been dealt with in the earlier part of this judgment and which
discussion is not repeated herein to avoid unnecessary repetition.
17. So far as the argument that the objector never visited the
deceased testator and his wife and also the same stand with respect to the
grand-daughter, this argument is misconceived because evidence has been
led both on behalf of RW-1/objector and RW-3/grand-daughter that they
used to visit the deceased testator and his wife and also used to take care of
them besides also taking care of their medical expenses. This argument
urged on behalf of the appellant-plaintiff is accordingly rejected.
18(i) The last argument urged on behalf of the appellant-petitioner is
that there are contradictions in the testimonies of RW-1 and RW-3 basically
with respect to the time of death at 6 am in the morning being stated by the
objector but the grand-daughter -RW-3 stated that she does not know the
time of death of the deceased testator Asa Singh. In my opinion, first of all
this difference in the testimonies is not a contradiction and because there are
no contradictory statements, and in any case, even assuming there is a so-
called difference in the two statements of RW-1 and RW-3, this is not such a
ground to hold that the propounded Will should be believed. In fact, the
propounded Will has been disbelieved on the ground that it is
unnatural/suspicious document and which is more to do with the case as set
up by the appellant/petitioner and evidence led by him, and whose case has
been disbelieved by the probate court below and any alleged inconsistencies
in depositions of RW1 and RW3 can hardly have bearing on the aspects of
the propounded Will being a forged/fabricated document and being an
unnatural/a suspicious document.
(ii) Another contradiction which was argued to exist was that there
is a difference as to whether the widow Bhagwanti died three years after the
death of deceased testator as claimed by RW-1 or 1½ years as claimed by
RW-3. Once again besides these depositions and contradictions being
hardly material for determining of the validity of the Will for allowing of a
probate petition it is to be noted that it has otherwise clearly come on record
that Smt. Bhagwanti Devi lived for a period of three years after the death of
the testator.
19. I at the conclusion would like to note one surprising fact that
the counsel for respondent no.2/objector regularly appeared when this case
was called out since January, and this appeal was repeatedly adjourned on
the request either on behalf of appellant or on behalf of respondent no.2,
however, for some unexplained reason, counsel for respondent no.2/objector
did not appear since Monday when arguments began in this case and
thereafter judgment was commenced by dictation from yesterday and which
has ended today i.e Thursday post lunch session.
20. The facts of the aforesaid case show that this entire litigation
initiated on behalf of the appellant is a dishonest litigation and only to
misappropriate the Kashmere Gate property. The probate court below by an
exhaustive judgment running into 38 pages has discussed each aspect
threadbare and held that the propounded Will is not the Will of the deceased
testator Asa Singh. I have also agreed with the probate court besides giving
additional reasoning. Therefore, while dismissing the appeal, costs of
Rs.1,00,000/- are imposed upon the appellant-petitioner, and which costs
shall be paid within a period of six weeks from today to the respondent
no.2/objector/Baldev Singh. Supreme Court in the judgment in the case of
Ram Rameshwari Devi & Ors. Vs. Nirmala Devi & Ors. (2011) 8 SCC 249
has observed that it is high time that actual costs must be imposed with
respect to dishonest litigation. I am also empowered to impose actual costs
in exercise of powers under Volume V of the Punjab High Court Rules and
Orders (as applicable to Delhi) Chapter VI Part I Rule 15.
APRIL 02, 2014 VALMIKI J. MEHTA, J.
ib/Ne
