Shri Gurtej Singh vs The State And Ors
2014 Latest Caselaw 5141 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     FAO 122/2014

                                               Decided on 14th October, 2014

      SHRI GURTEJ SINGH                            ..... Appellant
                    Through:           Mr. V. Elanchezhya, Adv.
                    versus
      THE STATE AND ORS                            ..... Respondents

                    Through:           Mr. Shoaib Haider, Adv. for R-1.
                                       Mr. Kundan Kumar Lal, Adv. for
                                       R-2.
                                       Mr. L.K. Sharma and Mr. Ram
                                       Kumar Sharma, Advs. for R-3.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1. As per the service report respondent no.2 is not residing at the given

address. However, Mr. Kundan Kumar Lal, Advocate has entered

appearance on behalf of respondent no.2. Respondent no. 4 (a) to (d) has

not appeared despite service. Since short point is involved arguments heard

and trial court record perused and by this order appeal is being disposed of.

2. Respondent no. 2 filed a petition before the trial court for grant of

Letter of Administration with the Will dated 31st July, 2003 of Late Shri Bali

Singh (Testator) annexed. Appellant was impleaded as respondent no.2;

whereas respondent nos. 3 and 4 in present appeal were impleaded as

respondent nos. 3 and 4 in the said petition. Respondent no. 4 died during

the pendency of petition before the trial court and her legal representatives

were impleaded as respondent nos. 4 (a) to 4 (d). By the impugned

judgment, trial court has allowed the petition of respondent no.2 and has

ordered for issuance of Letter of Administration with the copy of Will dated

31st July, 2003 (Ex. PW1/2) annexed, subject to furnishing of administration

bond for `21,72,260/- with one surety in the like amount. Aggrieved by the

judgment of trial court, appellant has preferred this appeal.

3. Respondent no.2 filed a petition before the trial court on 21st

November, 2006 alleging therein that his father Late Shri Bali Singh died on

7th September, 2003. He was permanent resident of Delhi. Prior to his death

Shri Bali Singh executed his last Will dated 31 st July, 2003 duly registered

with the Sub Registrar, North-West-VI A, Model Town, Pitampura, Delhi

vide document no. 29947 Book No. III Volume 2912 at pages 24 to 29. It

was alleged that original Will was in the custody of his brother, namely, Shri

Gurmeet Singh, that is, respondent no.3. Will was duly executed by the

Testator in presence of two witnesses, namely, Shri Inderjeet Singh S/o Shri

S. Basant Singh R/o B-4/A, Sawa Park, Ashok Park, Phase-IV, Delhi and

Shri Balvinder Singh S/o Shri S. Kartar Singh R/o 802, Hem Shikha Colony,

Near CRP Camp, District Panchkula, Haryana, in full disposing mind.

Respondent no.2 further alleged that his mother Smt. Surjeet Kaur expired

on 9th June, 2004. Testator left behind appellant and respondent nos. 2 to 4

as his legal heirs. Vide Will dated 31st July, 2003, Testator bequeathed his

two properties in the following manner :-

"(i) Eastern half portion of above said built-up property bearing No. AW-33, built on land measuring 125.0 sq.meters (out of total 250.0 sq. meters), situated at Sanjay Gandhi Transport Nagar, Delhi - 110042 and (ii) Middle portion of above said built-up property bearing House No. A-329/1, area measuring 33.33 sq. yds. approx. (out of total 100.0 s. yds.) built on old Plot No. 42, out of Khasra No. 481/179, situated in the area of village Sadora Kalan, Colony known as Shastri Nagar, Bagh Dabarwala, Delhi - 110052 to the exclusion of all my other legal heirs and successors, he have full right to use, hold, enjoy, sell and transfer the same and get other benefits of the above said properties in my manner he likes after my death.

And whereas after my death my son S. Gurtej Singh shall have no any right, title or interest regarding the above said built-up property bearig No. AW-33, built-on land measuring 250.0 sq. meters, situated at Sanjay Gandhi Transport Nagar, Delhi - 110042 and my other two sons namely (i) S. Gurbachan Singh and (ii) S. Gurmeet Singh shall be liable to pay a sum of Rs.4,00,000/- (Rupees Four Lacs Only) in cash to my son S. Gurtej Singh or situated in the Sanjay Gandhi Transport Nagar, Delhi at their own costs and expenses in the name of S.Gurtej Singh."

4. Details of the property were given in Schedule-A to the petition.

5. Respondent no. 2 alleged that appellant had filed a suit for declaration

before the Civil Judge, Delhi praying therein that Will dated 31 st July, 2003,

be declared null and void being forged and fabricated document. In the suit

it was alleged that deceased had executed a previous Will dated 13th June,

2003 despite the fact that Will dated 31st July, 2003 was last will, inasmuch

as, Testator had categorically stated in the Will dated 31 st July, 2003, that it

was his last Will and testament made after revoking and cancelling all his

previous Wills. Respondent no.2 claimed that there was no impediment

under any provision of law to the grant of Letter of Administration. It was

prayed that Letter of Administration of the Will of Late Shri Bali Singh be

granted in favour of respondent no.2.

6. Respondent no. 3 filed written statement stating therein that he had no

objection to the grant of Letter of Administration in favour of respondent

no.2.

7. Appellant and respondent no. 4 filed objections to the grant of Letter

of Administration. It was alleged that respondent no.2 had no locus standi to

file the petition since original Will was in the possession of respondent no.3.

Respondent no.2 had concealed the factum of execution of Will dated 13 th

June, 2003, by Late Shri Bali Singh despite the fact that he was a witness to

the said Will. Appellant and respondent no. 4 alleged that Will dated 31 st

July, 2003, was a forged Will. Petition filed by the respondent no. 2 was

counter blast to the civil suit filed by the appellant. Thumb impressions of

Late Shri Bali Singh appearing on Will dated 31 st July, 2003 were different

than his thumb impressions appearing on the Will dated 13 th June, 2003. It

was alleged that Testator had already executed a registered Will dated 13th

June, 2003, in a good state of mind and without any undue influence or

coercion, therefore, there was no occasion for him to execute another

registered Will on 31st July, 2003. Appellant and respondent no. 4 alleged

that witnesses to the Will dated 31st July, 2003, were relatives of respondent

no. 3 which reflected the ill motives of respondent no. 2. It was prayed that

petition be dismissed. In rejoinder, respondent no.2 denied the averments

made in the objections and reiterated what was stated in the probate petition.

8. It may be noted that citation was published in the newspaper „The

Time of India‟ dated 25th January, 2007, but no public person filed any

objection to the grant of Letter of Administration in favour of respondent

no.2. Valuation report in respect of immovable properties in question were

called from the concerned authorities which were submitted by the

Tehsildar, Sadar Bazar, New Delhi in respect of Shastri Nagar property and

by the Sub Divisional Magistrate, Narela (Delhi) in respect of Transport

Nagar property.

9. Following issues were framed by the trial court :-

1. Whether the Will dated 31.07.2003 of Sh. Bali Singh is proper and valid? OPP

2. Whether the Will dated 31.07.2003 of Sh. Bali Singh is his last Will? OPP

3. Whether the Will dated 31.07.2003 of Sh. Bali Singh is forged and fabricated? OPR-2 & 4.

4. Whether the petitioner is entitled to the grant of probate/letter of administration in respect of the Will dated 31.07.2003 of Sh. Bali Singh? OPP

5. Relief.

10. Respondent no.2 examined himself as PW1. He also examined one of

the attesting witnesses to the Will, namely, Shri Balvinder Singh as PW2.

Shri Om Prakash, LDC from the Office of Sub Registrar, Pitampura was

examined as PW3. PW1 was cross-examined by the counsel for respondent

nos. 2 and 4. However, PW2 and PW3 were not cross-examined by the

respondent no.2 and 4 despite several opportunities granted to them.

Testimonies of PW2 and PW3 have, thus, remained unchallenged.

Appellant examined himself as RW-2. Respondent nos. 2 and 4 also

examined one Shri Prem Shankar as RW-1.

11. Trial court considered the arguments of counsel for the parties and

scrutinised the entire documentary as well as oral evidence on record and

has concluded that respondent no.2 had succeeded in proving the Will dated

31st July, 2003, to be the last Will of Late Shri Bali Singh having been

executed by him in full disposing mind, in presence of two attesting

witnesses. Trial court has further concluded that from the statements of PW2

and PW3 it was clear that Will dated 31st July, 2003 (Ex.PW1/2) of

deceased-Bali Singh was duly proved in accordance with law by the

respondent no.2. Appellant and respondent no. 4 had alleged that Will was

forged and fabricated by the respondent no.2 but they had failed to lead any

evidence to prove the said defence. On the contrary, in view of the

testimonies of PW2 and PW3 respondent no. 2 had succeeded in proving

that Will dated 31st July, 2003, was the last genuine and valid Will of Late

Shri Bali Singh.

12. I have heard the learned counsel for the parties and have perused the

record. Section 63 (c) of the Indian Succession Act, 1925 (for short,

hereinafter referred to as the „Act‟) envisages that the Will shall be attested

by two or more witnesses, each of whom has seen the testator sign or affix

his mark to the Will or has seen some other person sign the Will, in the

presence and by the direction of the testator, or has received from the

testator a personal acknowledgment of his signature or mark, or the

signature of such other person; and each of the witnesses shall sign the Will

in the presence of the testator, but it shall not be necessary that more than

one witness be present at the same time, and no particular form of attestation

shall be necessary. Section 68 of the Indian Evidence Act, 1872 provides

that if a document is required by law to be attested, it shall not be used as

evidence until one attesting witness at least has been called for the purpose

of proving its execution, if there be an attesting witness alive, and subject to

the process of the Court and capable of giving evidence.

13. In this case, a perusal of Will (Ex. PW1/2) makes it clear that the

same has been duly executed in presence of two witnesses, namely, Shri

Inderjeet Singh and Shri Balvinder Singh (PW2) in the office of Sub

Registrar. PW2 has categorically deposed in his affidavit that he personally

knew Late Shri Bali Singh. On 31st July, 2003, he was called by Shri Bali

Singh at Sub Registrar‟s Office at Pitampura to witness the Will that was

made by him. He reached Sub Registrar‟s Office. Will was executed by Shri

Bali Singh in his presence which was witnessed by him. He has identified

his signatures on Ex. PW1/2. He also identified the thumb impression of

Late Shri Bali Singh on each page of the Will. He categorically deposed

that Late Shri Bali Singh affixed his thumb impression on each page in his

presence. He further deposed that after Testator had put his thumb

impression Will was signed by Shri Indejeet Singh and thereafter it was

signed by him as a witness. He has also identified the signatures of Shri

Inderjeet Singh on the Will. He has categorically deposed that Testator was

in full disposing state of mind at the time of execution of Will. His

deposition has remained unchallenged as he was not cross-examined by the

counsel for respondent nos. 2 to 4. There is no reason to disbelieve the

unchallenged testimony of PW2. Unchallenged testimony of PW2 meets the

requirement as contained in Section 63(c) of the Act. Testimony of PW2 in

no uncertain terms makes it clear that Testator had executed the Will in

presence of two attesting witnesses, inasmuch as, Will was registered in the

office of Sub Registrar in presence of the Testator and the witnesses to the

Will, namely, Shri Inderjeet Singh and Shri Balvinder Singh. Accordingly,

respondent no.2 has succeeded in proving the Will and finding of trial court

to this effect cannot be found faulted with.

14. Respondent nos. 2 and 4 have taken a plea in their reply that Will was

a forged and fabricated document, however, their bald statement in this

regard is not sufficient to prove that the Will is a forged document in

absence of any other cogent evidence. Plea taken by them has remained

unproved. Respondent nos. 2 and 4 have also stated in their reply that

thumb impressions appearing on the Will dated 31st July, 2003 are different

than the thumb impressions appearing on the earlier Will dated 13 th June,

2003, but no evidence has been led by the appellant and respondent no. 4

before the trial court to substantiate this plea. Opinion of hand writing expert

was not obtained nor any expert opinion was placed and proved on record.

Accordingly, this bald plea has rightly not been accepted by the trial court.

15. Learned counsel for the appellant has vehemently contended that the

Will is shrouded with suspicion. He has contended that in view of the earlier

Will dated 13th June, 2003 there was no necessity for execution of another

Will by Late Shri Bali Singh on 31st July, 2003. It has been further

contended that Late Shri Bali Singh was unwell and bed ridden and was not

in a position to execute any Will on 31 st July, 2003. PW1 Prem Shanker has

deposed that he saw Shri Bali Singh being taken to Sub Registrar‟s Office at

Pitampura by respondent nos. 2 and 3 on 31 st July, 2003 for some work and

at that time Shri Bali Singh was neither conscious nor in a proper state of

mind as he was on death bed for about one month. First of all, his this

statement cannot be accepted being beyond pleadings as no such plea was

taken in the reply by the appellant and respondent no. 4. Secondly, this plea

has remained uncorroborated by any documentary evidence on record.

Appellant and respondent no. 4 have not produced any documentary

evidence to show that Late Shri Bali Sigh was ailing and bed ridden,

inasmuch as, it has not been disclosed as to what kind of ailment he was

suffering from. All these pleas appear to have been taken as an afterthought

in the evidence and cannot be accepted. On the contrary, statement of PW1

supports the version of respondent no.2 that Late Shri Bali Singh executed

the Will dated 31st July, 2003 and got it registered with the Sub Registrar.

The Will otherwise is not unreasonable in the sense that even appellant has

been given equal right vis-a-vis respondent nos. 2 and 3 in the Shastri Nagar

property. As regards property at Transport Nagar is concerned, it has been

given to respondent nos. 2 and 3 in equal proportions but at the same time a

duty has been cast upon them to either pay `4 lacs to appellant or to buy a

property of 55 sq. meter in Transport Nagar from their own funds in the

name and for the benefit of appellant. It is not the case that appellant has

been completely debarred from inheritance. In my view, Will is not

shrouded with suspicion.

16. Learned counsel for the appellant has next contended that probate

petition was filed beyond a period of three years from the date of death of

Testator, thus, is barred by limitation. It is contended that in case of grant of

Letter of Administration Article 137 of the Limitation Act, 1963 is

applicable according to which a petition has to be filed within a period of

three years. Reliance has been placed on Krishna Kumar Sharma vs. Rajesh

Kumar Sharma AIR 2009 SC 3247. I do not find any force in this

contention. Article 137 of the Limitation Act provides that any other

application for which no period of limitation is provided elsewhere in this

division the period of limitation is three years from the date when "right to

apply accrues". No period of limitation has been prescribed for filing a

probate/letter of administration petition under the Limitation Act.

Accordingly, Article 137 of the Limitation Act is attracted with regard to

probate petitions. A perusal of Article 137 makes it clear that period of

limitation will commence from the date „right to apply‟ accrues in favour of

petitioner. The period of limitation will not commence from the date of

death of Testator; more so when in National Capital Territory of Delhi there

is no law which compels the applicant to file the proceedings of probate or

Letter of Administration.

17. I am also of the view that limitation for filing the probate or Letter of

Administration of a Will will not commence from the date of death of the

Testator but will commence from the date when „right to apply‟ accrues.

Appellant filed a suit for declaration against respondent nos. 2 and 3 on 17 th

August, 2006 praying therein that Will dated 31st July, 2013 be declared as

null and void meaning thereby that the Will was objected to by the appellant

and which challenge gave rise to a right in favour of respondent no.2 to

apply for grant of Letter of Administration. Within a period of three months

from the date of filing of suit by the appellant present petition for Letter of

Administration was filed by the respondent no.2, thus, it is not barred by

time.

18. In the light of above discussions, appeal is dismissed being devoid of

merits.

A.K. PATHAK, J.

OCTOBER 14, 2014 ga