Delhi High Court
Smt. Sumitra Devi vs State & Ors. on 16 May, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 140/2014
% 16th May, 2014
SMT. SUMITRA DEVI ......Appellant
Through: Mr.R.L.Nanda , Advocate.
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 by which
the petition for letters of administration filed by the appellant with respect
the Will dated 5.2.2008 of her late adoptive father Sh. Lakshman Singh has
been dismissed.
2. A reading of the impugned judgment shows that the following
salient facts have rightly persuaded the court below to dismiss the petition:
FAO 140/2014 Page 1 of 5
(i) Petitioner who was an adopted daughter of the deceased testator
Lakshman Singh had two litigations against Sh. Lakshman Singh in his life
time. The first litigation was a suit which was filed by the petitioner against
her father on 4.7.2007, by which petitioner had sought for partition of
property bearing no.L-256/1, Gali No. 6, Gautam Vihar, Dehi 110053 and
the second litigation was a suit filed by the father against the appellant for
possession, and which suit was filed in February, 2008. Though the
appellant disputed these litigations in her cross-examination, however, these
denials in the cross-examination were of no effect because appellant in her
pleadings admitted to the factum of these litigations. Therefore, the
relationship between the appellant and her deceased father were strained and
therefore there was no reason as to why the deceased testator/father/Sh.
Lakshman Singh would have executed a Will in favour of the appellant
giving to her his property exclusively and ousting his widow, one son and a
daughter.
(ii) The attesting witness PW-3 who appeared on behalf of the
appellant, originally had attested the petition for letters of administration as
an attesting witness to the Will, however in his evidence he admitted that
blank papers were got signed from him and that the testator Sh.Lakshman
FAO 140/2014 Page 2 of 5
Singh never signed the alleged Will in his presence. These aspects are noted
by the court below in paras 17 and 18 of the impugned judgment and which
read as under:-
"17. PW-3 is Sh. Ram Khiloni. He is one of the attesting
witness of to Will and whose certificate appears in the body of
the petition. Since his evidence is material for the purposes of
outcome of this petition, the same is reproduced as under:
"I have come to depose on being summoned by the court.
I can read and write in Hindi.
(This witness was summoned by the petitioner as
he is the attesting witness to the Will dated 05.02.2008 of
Late Sh. Luxman Singh Ex.PW1/3. Witness has gone
through this document.)
I identify my signature which appears on point A
on the third page of this document. Luxman Singh did
not ask me to sign this document as an attesting witness
to the same. Luxman Singh did not sign this document in
my presence.
Court Question: How does your signature
appear at point A of this document?
Ans. I am known to one Sh. Omprakash who works as a
court clerk (Munshi) of an advocate in Chamber no.293,
Tis Hazari Courts, Delhi. He is my friend. The petitioner
Sumitra Devi is my distant relative, being sister-in-law.
She came into contact with Om Prakash through me. Sh.
Om Prakash came to me with blank paper and aksed me
to sign the same to help her asking me to depose that she
is my sister-in-law. This blank paper has been used to
FAO 140/2014 Page 3 of 5
prepare this document. I am not aware about the contents
or the correctness of the same. The same was not
prepared in my presence.
(Counsel for the petitioner seeks permission to
cross-examine the witness. Permission granted)
XXXX By Sh. K.C.Malhotra Ld. counsel for the
petitioner.
The photograph on the first page of this document
is of Sh. Luxman Singh. Sh. Luxman Singh is related to
me being distant father-in-law (Mamia Sasur). It is
wrong to suggest that I appended my signature at point A
on the Will on the asking of Luxman Singh in his
presence and Luxman Singh also signed the Will in my
presence. I know the petitioner since I got married in the
family. There is no case pending against me in any other
court. I am not aware of pendency of any suit in any
court in which I may be party."
18. PW-3 though identified his signatures at point A on the
will Ex.PW-1/3, deposed that the testator did not ask him to
sign on this document. He deposed that the testator Lakshman
Singh did not sign this document in his presence. In response to
a court question as to how his signatures appeared on Ex.PW-
1/3 he deposed that he was known to one Omprakash who was
working as a court clerk of an Advocate in Tis Hazari Courts.
He deposed that the petitioner Sumitra was his sister in law and
she herself came into contract with Omprakash through him. He
deposed that Omprakash came to him with a blank paper and
asked him to sign on the same to help Sumitra, asking him to
depose that she was his sister-in-law. He deposed that the said
blank paper was used to prepare the will Ex.PW-1/3. He
deposed that he was not aware of the contents and signatures on
the same. He deposed that the same was not prepared in his
FAO 140/2014 Page 4 of 5
presence. Counsel for the petitioner cross examined PW-3 but
there is nothing material which could come out from the same.
Thereafter the petitioner closed her evidence on 6.8.2013."
3. Accordingly, the court below has disbelieved the factum with
respect to execution of the subject Will in favour of the appellant.
4. In my opinion, both the aforesaid reasons given by the court
below are sufficient for dismissal of the probate petition and I may note that
the respondents had relied upon a registered Will dated 7.6.2007 executed by
the deceased testator in favour of his son, respondent no. 4 before the court
below , though of course that aspect was not material to be proved because
the issue in the petition was with respect to validity of the Will dated
5.2.2008 and which was propounded by the appellant/petitioner.
5. In view of the above, I do not find any merit in the appeal, and
the same is therefore dismissed, leaving the parties to bear their own costs.
MAY 16, 2014 VALMIKI J. MEHTA, J.
ib
