Rajender Kumar Saini vs Krishan Kumar Saini & Ors.
2016 Latest Caselaw 3392 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                         FAO 104/1987 & CM No.21183/2015

                                          Pronounced on: 9th May, 2016

       RAJENDER KUMAR SAINI                              ..... Appellant
                          Through:    Mr. Rajeev Gupta, proxy for
                                      Mr. Parveen        Kumar        Singh,
                                      Advocate
                          versus


       KRISHAN KUMAR SAINI & ORS.                  ..... Respondents
                          Through:    Mr. S.K. Kalia, Advocate for
                                      respondent No.1
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is an appeal filed by the appellant against the judgment dated 27.02.1987 by virtue of which the probate petition of the appellant was dismissed.

2. Briefly stated that facts of the case are that Subedar Major Som Nath Saini owned a house bearing No.A-70, South Extension, Part- II, New Delhi, measuring 250 sq. yds., and some deposits in Banks and Post office. His wife is alleged to have died in October, 1975. He is alleged to have been bedridden for several years and ultimately he also died on 15.09.1984 at his residence in South Extension. Before his death, he is purported to have executed a

Will dated 26.08.1982 bequeathing the ground floor and the built up portion of the barsati floor to his son Rajinder Kumar Saini and first floor of his house and the un-built portion on the second floor to respondent No.2 Surender Kumar Saini. As regards the deposit in Banks and Post Office, including the shares details of which are given in the schedule attached to the petition were bequeathed in equal shares to the appellant Rajinder Kumar Saini and respondent No.2 Surender Kumar Saini. His third son Krishan Kumar Saini was excluded from the bequest and so far his married daughter Krishna Kumari, is concerned, the reason given in the Will disinheriting these two persons are as under:-

".....My eldest son, Krishan Kumar Saini did not pay the least attention to my ailing wife i.e. his mother, who died in October, 1975 and was bed-ridden for several years. Shri Krishan Kumar Saini is also inattentive to me in my old age.

My daughter, namely, Krishna Kumari, has been married, who was given sufficient dowry."

3. The Will executed by the deceased/testator is stated to have witnessed by two attesting witnesses, PW-1 D.R. Madan and PW-2 Balkrishan Sharma. Apart from this, the appellant had entered into the witness box.

4. So far as respondent is concerned, he has examined himself as RW-

1. Various documents have been proved, namely Will Ex.P-1, photographs Ex.PW-1/RA1 and PW-1/RB2. Apart from these the other documents which have been proved re PW-3/X1 to PW-

3/X6, PW-3/Y to PW-3/Y-5, which are the documents pertaining to bearing the signatures of the deceased/testator.

5. The learned trial Court after hearing the arguments dismissed the probate petition. One of the important grounds for dismissal of the probate petition was the suspicious circumstances which were not fully explained by the appellant/petitioner. These suspicious circumstances were that so far as the identification of the deceased/testator is concerned, D.R. Madan, who is a lawyer and an attesting witness apart from being a scribe of the Will, had stated that the deceased/testator was friend of his elder brother whom he used to visit off and on. He has also stated in the examination-in-chief that he knew deceased/testator for the last more than 10 to 15 years. But when he was cross-examined and he was asked to identify the deceased/testator, he could not do so.

6. The learned trial Court considered this vital piece of evidence as a crucial factor for arriving at the conclusion that the testimony of D.R. Madan was not reliable. Similarly, so far as the other witness PW-2 Balkrishan Sharma is concerned, he had also stated that he knew the deceased/testator for 4 to 6 years prior to execution of the Will and has met him for 5-10 times during that period and he had signed the Will at the instance of PW-1 D.R. Madan and he has seen the deceased/testator putting signatures on the Will. Like PW-1 D.R. Madan, he was also asked to identify the deceased/testator from a family photograph which was shown to him which are Ex.PW-1/RA-1 and PW1/RB-2 which had appeared in some magazine. So far as Balkrishan Sharma is concerned he

identified a wrong person as the deceased/testator. In the light of this discrepancy in the cross-examination the testimony of these persons were not believed and it was considered to be suspicious that it is possible that the attesting witnesses did not know the deceased/testator and they had put the signatures at different times.

7. Accordingly, the probate petition was dismissed.

8. I have heard the learned counsel for the appellant as well as the learned counsel for the respondents. I have also gone through the impugned judgment as well as the grounds of appeal.

9. I find that the learned trial Court has rightly not relied upon the testimony of the attesting witnesses because their testimony does not inspire confidence of the Court and does not seem to be credible. The reason of this is that not only they are contradicting each other but also the fact that it is highly improbable that a person who is in touch and known to the deceased/testator for the last 10 to 15 years and has been constantly meeting and seeing him will not be in a position to identify him, if a photograph is shown. This precisely has happened so far as the testimony of PW-1 D.R. Madan is concerned. D.R. Madan has categorically stated in his examination-in-chief that the deceased/testator was friend of his elder brother whom he had been visiting and he had seen him, met him and interacted with him for the last 10 to 15 years. If that be so, it is highly improbable that he would not have been in a position to identify the deceased/testator from a photograph which was very clear and apparent. Because of this the only reasonable inference which can be drawn is that the witness has never seen the

deceased/testator and there is no question of his signing simultaneously along with the deceased/testator on the Will. He has simply stated that he has drafted the Will at the instance of the deceased/testator and later on read over and explained to him and then only he had put his signatures. Therefore, this testimony of PW-1 D.R. Madan is totally unreliable and it will not be safe to rely on his testimony.

10. In order to establish the Will it is not necessary that both the attesting witnesses need to be examined. The testimony of one of the attesting witnesses is good enough, provided he is inspires confidence and he is able to prove the Will.

11. In the instant case not only the testimony of PW-1 D.R. Madan, who is one of the attesting witness has been examined but the appellant has examined the other attesting witness also by the name of PW-2 Balkrishan Sharma. PW-2 Balkrishan Sharma had stated that he had also seen the deceased/testator signing in his presence. He was acquainted with him. So far as Balkrishan Sharma is concerned, when he was also shown the photographs of the deceased/testator in the cross-examination and he identified a wrong person. The very fact that either of these witnesses are not able to identify or identified a wrong person clearly shows that not only they were not known to the deceased/testator moreover, they do not seem to have put the signatures in the presence of each other or the deceased/testator has never given any assurance to any one of them that the other attesting witness has signed in his presence.

All these facts lead only to one inference that it will not be safe to rely on their testimony and grant the probate.

12. Further, this fact of suspicious circumstance gets further compounded by the fact that both PW-1 D.R. Madan and PW-2 Balkrishan Sharma contradicted each other around the time when they went to the Court for the purpose of registration of the Will. One of them says that they went in the morning while as other witness says that they went in the afternoon. There cannot be so much of gap in the testimony of the two attesting witnesses regarding time of registration of Will. The attesting witnesses could have said that both of them had gone in the morning or in the evening. There may be some variations in the time or they had gone in the afternoon. When both the witnesses had gone for the registration of the Will at the same time, there can be variation to the exact time which is stated by them in their statements. When one witness says in the morning or other says in the afternoon, it makes a lot of difference which clearly shows that these witnesses are in fact procured witnesses.

13. Further, in the Will itself the father, namely, Subedar Major Som Nath Saini, the deceased/testator has given a reasons for excluding is third son Krishan Kumar Saini on the ground that he has not looked after his mother at the time of her old age and similarly he has not looked after the deceased/testator as well. It is very rare that despite the fact that a parent may not be looked after by one of the child out of three-four children, still he would not go to the extent to divest that person from the inheritance for the simple

reason that when a person is on the death bed he always has a tendency to forget or forgive. Therefore, this fact of excluding one of the sons also creates some doubt. Since the deceased/testator was living in the suit premises itself where the appellant himself is stated to be living and he may have manipulated this Will in his favour and in the favour of one of his brother to the exclusion of the third. Same is the case with the daughter. Father is more attached to the daughters and despite the fact that she has got married in 1963 still when the deceased testator is about to meet his creator, he would not like to deprive his daughter of a token amount being bequeathed as there is no apparent reason for the same. All these facts if seen cumulatively, I feel that the Will which is set up by the appellant is not proved in law and rightly so held to be not proved by the learned trial Court.

14. So far as this appeal is concerned, I find myself in total agreement with the conclusion and the reasoning given by the learned trial Court and accordingly, the present appeal is without any merit and the same is dismissed.

15. Pending application also stands disposed of.

V.K. SHALI, J.

MAY 09, 2016 vk