Delhi High Court
Budh Singh vs Raghubir Singh & Ors on 11 September, 2015
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th September, 2015
+ RFA No.69/1980
BUDH SINGH ..... Appellant
Through: Mr. Manish Kumar with Mr. Pulkit
Choudhary, Advs.
versus
RAGHUBIR SINGH & ORS. ..... Respondents
Through: Mr. A.C. Gambhir and Mr. Lalit
Gambhir, Advs. for R-1(V).
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. This appeal, under Section 96 of the Code of Civil Procedure (CPC),
1908 impugns the judgment and decree dated 15th December, 1979 of the
Court of Shri R. Dayal, Additional District Judge, Delhi of dismissal of civil
suit no.47/1979 (Old No.297/1973) filed by the deceased appellant Shri
Budh Singh against his deceased brothers Shri Raghubir Singh (Respondent
no.1), Shri Balbir Singh (Respondent no.2), Shri Kishan Singh (Respondent
no.3) and his sisters namely Smt. Shanti (Respondent no.4) and Smt. Manti
(Respondent no.5) for partition of immovable properties.
2. The appeal came up first before this Court on 5th March, 1980 when
while admitting the same, ex parte ad interim order of stay of dispossession
was passed and which was on 10th July, 1980 made absolute till the decision
of the appeal. The appeal has remained pending in this Court for the last 36
years owing to the time taken in service of the respondents and thereafter in
substitution of the legal heirs of the appellant and the respondents no.1,2&3,
all of whom died in the interregnum and in service of notice of the appeal on
them vide another interim order dated 9th September, 1987, the respondents
were restrained from transferring, leasing or otherwise parting with
possession of the suit properties or any part thereof and which order also has
continued in force till now. In this long span of time, some of the legal heirs
substituted of the original parties also started dying and steps for substitution
of their legal heirs also took time. On 10 th September, 2015, applications for
substitution of the legal heirs of one of the legal heirs of the deceased
respondent no.1 and for condonation of 1248 days delay in applying therefor
and 140 days delay in re-filing of the application had come up before this
Court. It appears that over a period of time, though service of all the
respondents and of all the legal heirs of the deceased respondents no.1,2&3
was completed, they / their Advocates also lost interest in the matter. On 10 th
September, 2015, only the counsel for the legal heirs of the appellant and the
counsel for one of the legal heirs namely Shri Mahavir Singh (who also has
died and whose legal heirs were for substitution on 10th September, 2015) of
the deceased respondent no.1, appeared. Though the counsel for the legal
heirs of the said Shri Mahavir objected to the substitution on the ground of
long delay on the part of the legal heirs of the appellant in applying therefor,
but the delay was condoned and the substitution permitted on the condition
of the counsels arguing the appeal on that date itself. On request of the
counsels, the matter was posted to today. The counsel for the legal heirs of
the appellant and the counsel for the legal heirs of Shri Mahavir Singh,
being one of the legal heirs of the deceased respondent no.1 Shri Raghubir
Singh, have been heard. None appears for the other respondents / their legal
heirs who are proceeded against ex parte.
3. The deceased appellant instituted the suit from which this appeal
arises pleading that:-
(a) Shri Zaharia Mal, father of the appellant and his three brothers
(Respondents no.1,2&3) and his two sisters (Respondents
no.4&5) died in the year 1967 leaving, besides the parties to the
suit, his widow Smt. Bakhtawari Devi;
(b) Smt. Bakhtawari Devi also died thereafter leaving the appellant
/ plaintiff and the respondents / defendants as her only legal
heirs;
(c) the said Shri Zaharia Mal at the time of his death was the owner
of :
(i) House bearing old Municipal no.2294, New
Municipal no.4055, situated in Gali Jain Girls
Higher Secondary Shool, Pahari Dhiraj, Sadar
Bazar, Delhi;
(ii) House bearing old Municipal no.3107, New
Municipal no.3902 situated near Khari Kuan, Gali
Mandir Wali, Pahari Dhiraj, Sadar Bazar, Delhi;
and;
(iii) House bearing old Municipal no.3260, New
Municipal no.4050 situated at Gali Jain Girls
Higher Secondary School, Pahari Dhiraj, Sadar
Bazar, Delhi;
(d) on the demise of Shri Zaharia Mal and Smt. Bakhtawari Devi,
the appellant / plaintiff and the five respondents / defendants
became owners of the aforesaid three properties with a share of
1/6th each;
(e) that the appellant / plaintiff was in actual possession of part of
the house bearing new Municipal No.4054 (supposedly
incorrect ) and in joint possession of the other properties; and,
(f) that though the appellant / plaintiff sought partition but the
same was denied.
Accordingly, the relief of partition by metes and bounds of the
aforesaid three properties and of putting the appellant / plaintiff in separate
possession of his 1/6th share thereof was claimed in the suit.
4. The respondents / defendants no.1, 2 &3 being the brothers of the
appellant / plaintiff filed a joint written statement:
(i) denying that Shri Zaharia Mal died in the year 1967 and
pleading instead that he died on 18th August, 1968;
(ii) pleading that Shri Zaharia Mal left a validly executed and
registered last Will dated 23rd March, 1967 whereunder, after
his death Smt. Bakhtawari Devi and the respondents /
defendants no.1,2&3 were the beneficiaries under the Will and
the appellant / plaintiff was excluded from any right or interest
in the properties left by Shri Zaharia Mal;
(iii) pleading that after the death of Smt. Bakhtawari Devi the
respondents / defendants no.1,2&3 are the only owners of the
said properties;
(iv) denying that the appellant / plaintiff was in joint possession of
any other property except property no.4054;
(v) pleading that the first two of the aforesaid properties were in
exclusive possession of the respondents / defendants no.1,2
respectively and the third of the aforesaid properties was in
joint possession of the appellant / plaintiff and the respondent /
defendant no.3 Shri Kishan Singh; and,
(vi) that the respondent / defendant no.3 Shri Kishan Singh was the
sole and absolute owner of the said property no.4054 and had
rightly filed a suit for recovery of possession of the portion
thereof in occupation of the appellant / plaintiff.
5. The respondents / defendants no.4&5, being the sisters of the
appellant / plaintiff, filed a joint written statement supporting the
respondents / defendants no.1,2,&3 and also pleading the Will of Shri
Zaharia Mal.
6. The appellant / plaintiff filed replications denying the Will and
contending that even if the Will of Shri Zaharia Mal was to be accepted, he
still had 1/6th share in the properties in as much as under the said Will, on the
demise of Shri Zaharia Mal, Smt. Bakhtawari Devi became the absolute
owner of the properties and on the demise of Smt. Bakhtawari Devi the
appellant / plaintiff and the five respondents / defendants being her only
legal heirs, having 1/6th share each therein. It was further pleaded that the
alleged Will "is a spurious document and was got executed from Shri
Zaharia Mal deceased when he was not in disposing mind".
7. Vide order dated 14th December, 1973 in the suit, the following
preliminary issue was framed:-
"(1) Whether the plaintiff is entitled to the decree as
claimed in the suit even if the Will is taken to be
valid?"
8. The learned Additional District Judge before whom the suit was
pending, vide judgment and decree dated 10th January, 1974 decided the
aforesaid preliminary issue in favour of the appellant / plaintiff. It was held
that under the Will aforesaid it was mentioned that after the death of Shri
Zaharia Mal his wife Smt. Bakhtawari Devi would be the absolute owner of
the entire property - movable or immovable and would have absolute right
to transfer the property in any way she likes and nobody will have objection
to the sale of the property by Smt. Bakhtawari Devi; however it was also
mentioned in the Will that the appellant / plaintiff and / or his children would
not have any right in the property and after the death of Smt. Bakhtawari
Devi the respondent / defendant no.1 Shri Raghubir Singh will get house
no.4054, the respondent / defendant no.2 Shri Balbir Singh will get house
no.3902 and the respondent / defendant no.3 Shri Kishan Singh will get shop
no.4 as mentioned in the Will; that since under the Will Smt. Bakhtawari
Devi was to become the sole owner of all the properties, the stipulation in
the Will with respect to bequest after the demise of Shri Zaharia Mal was of
no avail and the appellant / plaintiff being one of the six natural heirs of Smt.
Bakhtawari Devi had inherited 1/6th share in all the properties aforesaid.
Accordingly, a preliminary decree for partition of the properties was passed.
9. The respondents / defendants no.1,2&3 preferred RFA No.102/1974
to this Court against the preliminary decree aforesaid for partition of the
properties which was decided by a judgment dated 11 th August, 1977 of the
Division Bench of this Court. This Court held that the Will aforesaid of Shri
Zaharia Mal conferred an absolute title on Smt. Bakhtawari Devi in respect
of movables only and conferred a life estate of Smt. Bakhtawari Devi in
respect of immovable properties and thus the stipulation in the Will with
respect to the position after the death of Smt. Bakhtawari Devi, was valid.
Accordingly, the judgment and preliminary decree of partition passed on the
basis of preliminary issue aforesaid was set aside and the suit remanded to
the Additional District Judge to adjudicate the valid execution of the Will. It
was however observed that the construction of the Will having been done,
would not be attempted again by the Trial Court and the Trial Court after
deciding the issue regarding the execution, attestation and validity of the
Will, will dispose of the suit in the light of the interpretation of the Will
given by the High Court.
10. The learned Additional District Judge, post remand of the suit from
the High Court, vide order dated 20th January, 1978 framed the following
issues:-
"(1) Whether the plaint has been properly valued
for the purposes of court fee and jurisdiction, if
not what is the correct value?
(2) What is the date of death of Zaharia Mal? OPP
by the parties
(3) Whether the Will dated 23.3.67 has been
executed validly by Zaharia Mal and has been
validly attested and is valid?
(4) Relief."
11. The appellant / plaintiff besides examining himself examined three
other witnesses. The respondents / defendants besides examining the
respondent / defendant no.2 Shri Balbir Singh examined the two attesting
witnesses to the Will. The appellant / plaintiff examined himself again in
rebuttal evidence.
12. The learned Additional District Judge vide impugned judgment and
decree dated 15th December, 1979 has held that:-
A. though the respondents / defendants no.4&5 (sisters) had filed a
written statement but thereafter did not appear and were
proceeded against ex parte;
B. the suit had been properly valued for the purposes of court fee
and jurisdiction;
C. though the appellant / plaintiff pleaded that Shri Zaharia Mal
died in the year 1967 but did not produce any evidence that the
death occurred in the year 1967; rather he admitted in his cross
examination that the death occurred on 18th August, 1968;
D. the document propounded by the respondents / defendants as
the Will of Shri Zaharia Mal was presented before the Sub
Registrar at Kashmere Gate for registration on 23rd March, 1967
and purported to bear the impression of Shri Zaharia Mal and
was purported to be witnessed by Shri Devi Saran and Shri
Sunder Singh, Advocate;
E. in the said Will, the appellant / plaintiff was excluded from
succession for the reason of being disobedient and the testator
Shri Zaharia Mal being not satisfied with the appellant /
plaintiff‟s character and being displeased with him; it was also
mentioned in the Will that the appellant / plaintiff used to speak
in an offensive language against his parents;
F. of the three witnesses examined by the respondents / defendants
no.1,2&3, the respondent / defendant no.2 Shri Balbir Singh did
not depose anything about the execution of the Will; his version
was that the Will was not executed in his presence and he came
to know of it later on when Shri Zaharia Mal told him about it
and of having not bequeathed anything to the appellant /
plaintiff on account of strained relations of the appellant /
plaintiff with Shri Zaharia Mal;
G. that Shri Devi Saran, one of the purported attesting witness to
the Will examined as DW-3 had deposed:
(i) that Shri Zaharia Mal had come to Kashmere Gate
on 23rd March, 1967 where the Will was scribed
and presented for registration;
(ii) that Shri Zaharia Mal was not accompanied by
anyone else;
(iii) that he was known to Shri Zaharia Mal because he
and the respondent / defendant no.2 Shri Balbir
Singh used to work as peons in the Deputy
Commissioner‟s office;
(iv) that Shri Shiv Dayal, petition writer scribed the
Will on behalf of Shri Zaharia Mal in his presence
and in the presence of Shri Sunder Singh,
Advocate;
(v) that after the Will was scribed, the same was read
over to Shri Zaharia Mal by Shri Shiv Dayal and
then it was thumb marked by Shri Shri Zaharia
Mal in the presence of himself and the other
witness after admitting the contents to be correct;
(vi) thereafter Shri Sunder Singh and he signed the
Will in the presence of all the persons present; and,
(vii) Shri Zaharia Mal was of sound disposing mind.
H. that Shri Sunder Singh, Advocate who was examined as DW-2
proved his attestation on the Will by giving similar evidence as
Shri Devi Saran and claimed that though Shri Zaharia Mal was
not earlier known to him but he identified him on the basis of
Shri Devi Saran and had also independently satisfied himself
about the identity of Shri Zaharia Mal from the documents of
title relating to the three houses subject matter of Will. He
further deposed that Shri Zaharia Mal had informed that it was
on account of his unhappiness with the appellant / plaintiff that
he was excluding the appellant / plaintiff from the Will;
I. that though the appellant / plaintiff had deposed/tried to prove
that Shri Zaharia Mal on account of his age and illness was not
in a position to go to Kashmere Gate Courts all alone but his
evidence fell short of proving that;
J. that though the appellant / plaintiff deposed that the Will had
been forged in collusion with the respondent / defendant no.2
Shri Balbir Singh and the witness Shri Devi Saran, but on
another date deposed that he did not know if Shri Zaharia Mal
had executed a Will on 23rd March, 1967;
K. that though the appellant/plaintiff deposed that Shri Zaharia
Mal was not in a position to move, but the witnesses examined
by him did not support the same;
L. one of the witnesses Shri Kehar Singh examined as PW-2 who
was living at a distance of about one furlong from the house in
which Shri Zaharia Mal was living, deposed that Shri Zaharia
Mal remained ill for one and a half or two years before his
death and during his illness he had once visited, about three or
four months prior to his death and though Shri Saharia Mal
could not walk but, otherwise was well; the said witness also in
cross examination stated that he was not sure whether Shri
Zaharia Mal could walk or not and could come out of the house
or not; thus according to this witness of the appellant / plaintiff
himself, Shri Zaharia Mal was of having a sound disposing
mind even three or four months prior to his death;
M. thus the deposition of the appellant / plaintiff that Shri Zaharia
Mal was not having a sound state of mind as on 23rd March,
1967 could not be believed;
N. another witness namely Shri Ram Sarup examined by the
appellant / plaintiff and who was related to Shri Zaharia Mal,
though stated that Shri Zaharia Mal had been ill for three/four
years before his death and that for two years before his death he
was not in a position to walk but with respect to the state of
mind of Shri Zaharia Mal, deposed that it was as per his age
and he could understand matters relating to his welfare and in
cross examination admitted having spoken to Shri Zaharia Mal
two months prior to his death;
O. another witness examined by the appellant / plaintiff namely
Shri Ram Kishan as PW-4 living in a house adjacent to the
house where Shri Zaharia Mal was living, deposed that Shri
Zaharia Mal was weak and could walk only with a stick
bending his back till about one month prior to his death, though
for about two or three years prior to his death, used to confine
himself only to the house; he also stated that the appellant /
plaintiff had no quarrel with his parents but admitted that the
respondent / defendant no.1 Shri Raghubir Singh served Shri
Zaharia Mal more than other brothers and that Shri Zaharia Mal
and the respondent / defendant no.1 Shri Raghubir Singh were
living in the same house while the appellant / plaintiff lived in
another house;
P. that thus the evidence suggested that the appellant / plaintiff
was not looking after his father during his illness;
Q. that the appellant / plaintiff in his own cross examination
admitted that it was the respondent / defendant no.1 Shri
Raghubir Singh who got Shri Zaharia Mal admitted to
Willingdon Hospital and that he himself could not give the date,
month or year of admission in the hospital or the name of the
doctor under whose treatment Shri Zaharia Mal remained;
R. that the appellant / plaintiff in his evidence also admitted that it
was the respondent / defendant no.1 Shri Raghubir Singh who
used to look after the medical needs of the father;
S. that thus the appellant / plaintiff had failed to show that Shri
Zaharia Mal, on the date of execution of the Will, was not of
sound mind; rather the witnesses of the appellant / plaintiff had
admitted that Shri Zaharia Mal had a sound state of mind even
few months prior to the date of his death;
T. that the appellant / plaintiff in his cross examination admitted
that he had no enmity with his brothers respondents /
defendants no.1,2&3; it was therefore not understandable why
the three brothers would collude against the appellant / plaintiff;
U. that the evidence of the respondent / defendant no.2 Shri Balbir
Singh that Shri Zaharia Mal excluded the appellant / plaintiff
from succession on account of strained relationships of the
appellant / plaintiff with his parents is thus believable;
V. that there was no merit in the challenge of the appellant /
plaintiff to the testimony of Shri Sunder Singh, Advocate on the
ground of his being a witness to a large number of Wills /
documents and not maintaining any record thereof; merely
because Shri Sunder Singh, Advocate was not appearing in the
Courts and fighting the cases was not reason to disbelieve /
discard his evidence;
W. that the receipt Ex.PW1/1 for Rs.600/- executed by the
respondent / defendant no.1 Shri Raghubir Singh in favour of
the appellant / plaintiff also did not throw any doubt as to
genuineness of the Will;
X. that the appellant / plaintiff had failed to prove any suspicious
circumstances surrounding the making of the Will;
Y. that the respondents / defendants had proved that the Will had
been properly executed by Shri Zaharia Mal and was properly
attested by the two witnesses namely Shri Sunder Singh and
Shri Devi Saran and;
Z. accordingly the Issue No.3 supra was decided in favour of the
respondents / defendants and against the appellant / plaintiff.
Axiomatically, the appellant / plaintiff was held to have no share in
the properties forming the estate of Shri Zaharia Mal and the suit for
partition was dismissed.
13. The counsel for the plaintiff / appellant has argued:-
(i) that considering that Shri Zaharia Mal on the date of execution
of the Will was admittedly 90 years of age and further
considering that one of the attesting witnesses to the Will was
admittedly a colleague in the office of the respondent /
defendant no.2 Shri Balbir Singh, one of the beneficiaries of the
Will, the learned Additional District Judge erred in holding the
document to be the Will of Shri Zaharia Mal;
(ii) that at 90 years of age, Shri Zaharia Mal could not possibly
have himself visited the Office of the Sub Registrar, Kashmere
Gate;
(iii) that though the respondent / defendant no.2 Shri Balbir Singh in
his deposition stated that Shri Zaharia Mal had also made
certain Police complaints against the appellant / plaintiff but no
such Police complaints were proved;
(iv) that though the respondent / defendant no.2 Shri Balbir Singh in
his evidence also stated that the appellant / plaintiff in the
presence of Shri Ram Sarup and Shri Ram Kishan had spoken
badly to Shri Zaharia Mal but Shri Ram Sarup and Shri Ram
Kishan, examined by the appellant / plaintiff himself, did not
support so;
(v) that thus, no reason had been proved by the respondents /
defendants who had propounded the Will for exclusion by Shri
Zaharia Mal of the appellant / plaintiff from his estate;
(vi) that both the attesting witnesses to the Will were strangers to
Shri Zaharia Mal and which itself is a suspicious circumstance;
and,
(vii) that the respondents / defendants did not produce the Deed
Writer Shri Shiv Dayal who was claimed to have scribed the
Will.
14. Per contra, the counsel for the legal heirs of Shri Mahavir Singh, one
of the legal heirs of the deceased respondent / defendant no.1 Shri Raghubir
Singh, argued:-
I. that one of the attesting witnesses to the Will, namely Shri Devi
Saran could not be said to be a stranger to the deceased Shri
Zaharia Mal being an office colleague of the respondent /
defendant no.2 Shri Balbir Singh, son of Shri Zaharia Mal;
II. that Shri Devi Saran had also deposed of having visited Shri
Zaharia Mal on an earlier occasion;
III. that both the attesting witnesses had also deposed of Shri
Zaharia Mal having himself instructed the said Shri Shiv Dayal,
the Deed Writer;
IV. that neither the appellant / plaintiff, nor any of his witnesses
even deposed that the thumb impression on the duly registered
Will is not of Shri Zaharia Mal;
V. that in fact the appellant / plaintiff did not even dispute the
thumb impression being that of Shri Zaharia Mal inasmuch as if
had done so, would have examined expert evidence;
VI. that the only evidence of the appellant / plaintiff is of Shri
Zaharia Mal owing to his age being not capable of going alone
to the Office of the Sub Registrar at Kashmere Gate; and,
VII. that the appellant / plaintiff did not even know the date of death
of the father and therefrom it is evident that he was totally
alienated from the father and was merely surmising that his
father Shri Saharia Mal could not have gone alone to Kashmere
Gate.
15. The Trial Court record is found to contain the document purporting to
be the original registered Will of Shri Zaharia Mal. The same is scribed in
hand in Urdu language with the endorsement of registration thereof being
also in Urdu language save for the signatures of Shri Devi Saran in Hindi
and Shri Sunder Singh, Advocate and the Registering Officer in English
language. No translation in Hindi or English of the said Will is found on
record. Neither counsel could also produce any Hindi or English translation
of the Will. They explained that since the finding on the construction of the
language of the Will has attained finality vide judgment supra in RFA
No.102/1974 earlier preferred by the respondents / defendants, they did not
feel the need thereof. The said document is found containing a thumb
impression, purportedly of Shri Zaharia Mal.
16. I may at the outset record that the appellant / plaintiff in the plaint,
filed approximately five years after the death of Shri Zaharia Mal, did not
make any mention of the respondents / defendants having set-up any Will of
Shri Zaharia Mal and though made a bare mention of the respondent /
defendant no.3 Shri Kishan Singh having earlier filed a suit for possession
against the respondent / appellant. Though the copy of the plaint in the said
suit for possession has not been produced but it can safely be assumed that
the respondent / defendant no.3 Shri Kishan Singh in the plaint in the said
suit must be claiming exclusive title to the property on the basis of the Will
aforesaid and the appellant / plaintiff thus prior to the institution of the suit
from which this appeal arises must have known of the Will. In my opinion, it
was incumbent upon the appellant / plaintiff to, in the plaint, make a
challenge to the Will set-up by the respondents / defendants. Only if the
appellant / plaintiff had done so could the respondents / defendants in the
written statement have dealt with the grounds on which the appellant /
plaintiff was challenging the Will.
17. Even after the respondents / defendants in their written statement
pleaded the Will, the only plea with respect thereto of the appellant /
plaintiff in the replication was of the same being a spurious document and
having not been executed by Shri Zaharia Mal as he was not of a sound
disposing mind. The appellant / plaintiff at that time appeared to be pegging
his claim more on the language of the said Will claiming to be having 1/6 th
share in the properties even if the Will were to be valid.
18. What thus follows is that the only ground on which the appellant /
plaintiff in the pleadings disputed the Will, was of Shri Zaharia Mal being
not in a sound disposing mind at the time of execution thereof. The appellant
/ plaintiff then, in the pleadings, did not take the plea of Shri Zaharia Mal at
that time being not in a position to go to the Office of the Sub Registrar or of
any collusion between the respondent / defendant no.2 Shri Balbir Singh and
the witnesses to the Will.
19. I am of the view that though the onus to prove the Will may be on the
propounder thereof but a challenger to the Will is required to, in the
pleadings, specifically plead the grounds on which a challenge is sought to
be made to the Will so as to let the propounder of the Will know the grounds
on which the Will is contested, to be in a position to lead evidence to dispel
such grounds. A challenger to the Will cannot be allowed to, without taking
any pleading or any specific grounds of challenge, spring surprises and at the
stage of arguments contend that this has not been proved or that has not been
proved.
20. Considered in this light, the challenge by the appellant / plaintiff to
the Will of his father Shri Zaharia Mal is only on the ground of Shri Zaharia
Mal on the date of execution thereof being not in a sound disposing mind.
21. This ground, I am afraid, the appellant / plaintiff has utterly failed to
establish. Rather, the evidence of the appellant / plaintiff himself belies Shri
Zaharia Mal on the date of execution of the Will being not in a sound
disposing mind.
22. The respondent / defendant no.2 Shri Balbir Singh appearing as DW-1
in his cross examination, in response to a query whether any hot words were
ever exchanged between the appellant / plaintiff and Shri Zaharia Mal,
answered in the affirmative and further deposed that the same were
exchanged in the presence of Shri Ram Sarup, Shri Ram Kishan, Shri
Mangal Singh and another Shri Budh Singh residing in the Mohalla. Though
the respondents / defendants did not examine any of the said persons but the
appellant / plaintiff in his rebuttal evidence examined Shri Ram Sarup and
Shri Ram Kishan as PW-3 and PW-4 respectively and both of them deposed
that Shri Zaharia Mal never told them of any ill will towards the appellant /
plaintiff and claimed to have met Shri Zaharia Mal and talked to him till
about 2/3 months before his death. In my view, the factum of Shri Zaharia
Mal meeting and talking to the said two witnesses till about 2/3 months prior
to his own death belies the case of the appellant / plaintiff of Shri Zaharia
Mal being of unsound mind.
23. The appellant / plaintiff in his own evidence in affirmative did not
depose of Shri Zaharia Mal being not in a position to understand at any time
before his death. When he examined himself again in his rebuttal evidence,
he did depose that for 2 or 2½ years prior to his death Shri Zaharia Mal was
not in a position to understand anything. In his cross examination, he
expressed inability to produce any medical record with respect to soundness
of mind of Shri Saharia Mal and stated that he used to remain semi-
conscious and was suffering from "Hydrocele for about ten years" but could
not give the name of any doctor attending to his father or even the date /
month / year enter his father was admitted in the hospital. However all the
other witnesses of the plaintiff who claimed to be meeting Shri Zaharia Mal
regularly though stated that he remained ill for 1½ to 3 years before his
death, claimed to have talked to Shri Zaharia Mal. None of them deposed of
Shri Zaharia Mal being of unsound mind at any time prior to his death.
24. The appellant / plaintiff thus failed to prove the ground of
unsoundness of mind on which he contested / challenged the Will.
25. Though Shri Zaharia Mal was undoubtedly of very old age but there
can be no presumption of his having lost his senility owing thereto. It was
for the appellant / plaintiff to prove so. The Supreme Court, in Ramabai
Padmakar Patil Vs. Rukminbai Vishnu Vekhande (2003) 8 SCC 837 held
that the fact that the deceased was unable to walk does not lead to an
inference that his mental faculties had been impaired or that he did not
understand the contents of the document which he was executing.
26. Though the appellant / plaintiff did not plead the ground of Shri
Zaharia Mal being unable to himself go to the Office of the Sub Registrar at
that advanced stage for registration of the Will but on enquiry during the
hearing I was told that Shri Zaharia Mal was living at Pahari Dhiraj, Sadar
Bazar, Chandni Chowk, Delhi. Being familiar with the city, I can say that it
was well-nigh possible for Shri Zaharia Mal to, even at that age, take a cycle
rickshaw, which is the most common mode of transport in that locality, from
the front of his house to go to the Office of the Sub Registrar, Kashmere
Gate.
27. I have during the hearing asked the counsel for the appellant /
plaintiff, whether the appellant / plaintiff admittedly living in a separate
house from his father in his evidence deposed of visiting the father regularly
or of in his evidence having examined any doctor or other person to depose
about the mental condition of the father at the contemporaneous time. The
reply of the counsel for the appellant / plaintiff was in the negative.
28. As far as the argument of the counsel for the appellant / plaintiff of
both the witnesses to the Will being strangers to the deceased Shri Zaharia
Mal and being known to one of the beneficiaries is concerned, though again
no such ground was taken in the pleadings and without which, as aforesaid,
the same cannot be urged but I may record that the hard reality of life is of
persons of implicit faith of beneficiaries of the Will only being chosen as
witnesses to the Will to obviate the possibility of defeating the purpose of
making of the Will. No credence thus can be given to this ground as well.
Supreme Court, in Madhukar D. Shende Vs. Tarabai Aba Shedage (2002)
2 SCC 85 held that merely because of being classmates of the propounder of
the Will, it could not be said that the two attesting witnesses would be
interested in obliging their classmate to the extent of falsely deposing in the
Court and their evidence cannot be rejected as that of an interested witness.
29. As far as the argument, of there being no reason for the deceased Shri
Zaharia Mal to exclude the appellant / plaintiff being one of the sons from
his estate is concerned, again though the appellant / plaintiff did not
specifically plead so and though the respondents / defendants also cannot be
said to have established so in their evidence, but in my opinion, the very
purpose of making a Will is to exclude one of the several natural heirs all of
whom will inherit in the absence of the Will. In the present case, not only the
appellant / plaintiff but his sisters have also been excluded from the estate. It
has also come in the cross examination of the appellant / plaintiff during his
evidence in affirmative that the two houses other than the house in which the
appellant / plaintiff was / is residing were / are two storeyed, constructed on
1000 sq. yds. each while the house in which the appellant / plaintiff was / is
residing was admitted by the appellant / plaintiff himself to be constructed
over 40 sq. yds. only and having kuchcha construction and of which also the
appellant / plaintiff was only in part possession. The disparity maintained by
Shri Zaharia Mal in his lifetime also between the appellant / plaintiff and the
other two sons is thus evident. Not only so, though the appellant / plaintiff
claims that the father was of unsound mind for 2 / 2½ years prior to his
demise but the appellant / plaintiff in his cross examination during his
evidence in affirmative denied knowledge of the affairs of the father during
his lifetime also. Inference is obvious that either the father himself or the
two brothers were dealing with the properties to the exclusion of the
appellant / plaintiff. It thus cannot be said that only on the ground of the
appellant / plaintiff being the only son excluded from the estate, a suspicious
circumstance can be said to arise. The appellant / plaintiff as per his own
version was excluded from the enjoyment of the properties of the father
during the lifetime of the father also. Supreme Court, in S. Sundaresa Pai
Vs. Sumangala T. Pai (2002) 1 SCC 630 held that uneven distribution of
assets amongst children cannot by itself be taken as a circumstance causing
suspicion surrounding execution of Will. Similarly, in Rabindra Nath
Mukherjee Vs. Panchanan Banerjee (1995) 4 SCC 459 it was held that the
whole idea behind execution of a Will is to interfere with the normal line of
succession and thus the circumstance of deprivation of a natural heir should
not raise any suspicion. Similarly in Ramabai Padmakar Patil supra also,
it was held that a Will is executed to alter the mode of succession and by the
very nature of things it is bound to result in either reducing or depriving the
share of a natural heir and thus the same, without anything more cannot be
held to be a suspicious circumstance specially in a case where bequest is
made in favour of an offspring. Reference in this regard can also be made to
Uma Devi Nambiar Vs. T.C. Sidhan (2004) 2 SCC 321.
30. Non-examination by the respondents / defendants of the scribe / Deed
Writer of the Will cannot also be said to be fatal. Both the witnesses to the
Will examined by the respondents / defendants have deposed of the deceased
Shri Zaharia Mal having instructed the Deed Writer in their presence and in
the face thereof it was not necessary for the respondents / defendants to
multiply the witnesses by examining the scribe as well. Moreover, the
whole argument of the appellant / plaintiff is of Shri Sunder Singh, Advocate
also having deposed at the instance of the other attesting witness who was a
colleague of the respondent /defendant no.2 Shir Balbir Singh and even if
the scribe working in the same complex had been examined, the argument
vis-à-vis his disposition would have been the same. Supreme Court, in
Ramabai Padmakar Patil supra held that mere non examination of the
Advocate who was present at the time of preparation and registration of Will
and of the typist who typed the Will, cannot by itself be a ground to discard
the same.
31. I also do not find any merit in the argument, of the evidence of Shri
Sunder Singh, Advocate being of no avail for the reason of his admission of
having attested more than 500 documents. It is again a hard fact that several
lawyers confine their arena of law practice to the offices of Registrars of
Documents and only perform the work of facilitating the registration of
documents. In the absence of any other plea and evidence, their evidence
cannot be discredited solely on this ground.
32. Else, I find the impugned judgment of the learned Additional District
Judge to be a well reasoned one and do not find any ground to interfere
therewith. This Court in Jagdish Lal Bhatia Vs. Madan Lal Bhatia 2008
(100) DRJ 98 has held that if there is nothing unnatural about the Will and
the evidence adduced satisfies the requirement of proving the Will, the Court
would not return the finding of "not proved" merely on account of certain
assumed suspicion or supposition.
33. There is thus no merit in the appeal. Dismissed, however no costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 11, 2015
„pp‟..
(Corrected and released on 19/10/2015)
