Mr.Darshan Singh Bilkhu (@ Milkhu vs State & Ors.
2017 Latest Caselaw 5024 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 7th SEPTEMBER, 2017
                            DECIDED ON : 13th SEPTEMBER, 2017

+                TEST.CAS. 28/1991
        MR.DARSHAN SINGH BILKHU (@ MILKHU)..... Petitioner
                 Through : Mr.Satish Tamta, Sr.Advocate with
                 Ms.Ruchi Kapur, Advocate.
                      versus
        STATE & ORS.                           ..... Respondents
                 Through : Mr.Pradeep Dewan, Sr.Advocate with
                 Mr.Anupam Dhingra, Advocate for R 3, 9 and 11

         CORAM:
         HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Present petition under Section 276 and 300 of the Indian Succession Act has been filed by the petitioner - Darshan Singh Bilkhu @ Milkhu for grant of probate. It is contested by the respondents.

2. Darshan Singh Bilkhu @ Milkhu claims to be the son of late Sh.Pargan Singh Milkhu who expired on 31.05.1990 at 131, Harrowdene Road, Wembley, England. Petitioner's case is that Pargan Singh Milkhu had executed a Will dated 29.05.1990 whereby the entire properties whatsoever owned by him in India were bequeathed to him. The Will dated 29.05.1990 is the last Will and testament of the deceased. It was duly executed and signed in the presence of two attesting witnesses - Suzanne Stewart (Secretary) and Savita Patel (Clerk). The properties bequeathed under the Will

consisted of a house at 11A, W.E.A. Karol Bagh, 18, New Delhi, India; a house at Nagal Khurd, Village Nangal Khurd, Distt. Hoshipelpur East Punjab, India. The movable properties consist of a Mercedez Benz, a Pugeot, jewellery in a Safe Deposit Box of Punjab National Bank, two watches, money lying in various banks. It is averred that since the petitioner being the sole executor named in the Will is entitled to the grant of probate.

3. The petition is contested by the respondents. It is averred that the petitioner's real name is Dersen Singh; he is a fictitious person and is not entitled to the grant of probate. The petitioner is not the son of late Sardar Pargan Singh Milkhu. It is further averred that Pargan Singh Milkhu was born in July 1920 and died on 31.05.1990 at the age of 70 years. The Will dated 29.05.1990 is a forged and fabricated one and is not the last Will and testament of Sardar Pargan Singh Milkhu. It is further claimed that Pargan Singh Milkhu before his death was being treated for "acute angina heart disorder"; he had lost control of his senses and was not in complete frame of mind. He did not execute any Will in his sound disposing mind. It is further averred that Pargan Singh Milkhu had left behind a Will relating to all his properties both movable and immovable in India in 1971 while he was in Uganda. The properties mentioned in the petition are joint family properties and Pargan Singh Milkhu had no right to make any Will thereof. Will dated 29.05.1990 does not bear signatures of Pargan Singh Milkhu.

4. In the rejoinder, the petitioner has controverted the objections raised by the respondents and have reiterated his claim.

5. On the basis of pleadings of the parties and the documents on record, following issues were framed by an order dated 24.10.2005 :

"1) Whether the petitioner is Darshan Singh Bilkhu (Milkhu) being the person who is named in the will dated 29.05.1990?OPP

2) Whether the petitioner is the son of Late Shri Pargan Singh Milkhu being the beneficiary of the will dated 29.05.1990?OPP

3) Whether Late Shri Pargan Singh Milkhu had executed a legal and valid will dated 29.05.1990? OPP

4) Whether Late Shri Pargan Singh Milkhu was not of a sound disposable mind at the stage of execution of the will? OPD

5) Relief."

6. To prove its case, the petitioner examined himself as PW- 1 besides examining PW-2 (Yugal Kishore Kochhar), PW-3 (Santosh Singh) & PW-4 (Balwan Singh). The respondents examined Inderjeet Singh Milkhu as RW-1.

7. I have heard the learned Senior Counsel for the parties and have examined the file. Issue-wise findings are as under :

8. Both these issues are taken together as they are interconnected.

9. The burden to prove that Pargan Singh Milkhu had executed a valid Will on 29.05.1990 was heavily upon the petitioner. In his evidence by way of affidavit (Ex.PW-1/A), he claimed that the Will (Ex.PW-1/2) was executed by his late father Pargan Singh

Milkhu and it contained his signatures at appoint 'G'. It is highly disputed by the respondents.

10. I have examined the Will (Ex.PW-1/2); it is surrounded by suspicious circumstances. It is a typed unregistered Will. Date of execution of the Will i.e. 29.05.1990 was not specifically recorded / typed therein. The 'date' on the Will was left blank and seemingly it was handwritten as 29th subsequently. The Will (Ex.PW-1/2) contains cuttings at point 'B'; it bears signatures of one Renu Khanna at point 'C'. The reverse page of the Will (Ex.PW-1/2) has also some 'cutting' at point 'E'. Again, it bears signatures of Renu Khanna at point 'F'.

11. Relevant to note is that Will (Ex.PW-1/2) has not been proved by producing any attesting witness i.e. Suzanne Stewart or Savita Patel. The author of the Will has also not been examined. No plausible explanation has been offered by the petitioner as to why the attesting witnesses could not be produced for examination. Perusal of the order-sheet reveals that no sincere efforts were made by the petitioner to procure their presence. None else has been examined by the petitioner to testify if the signatures bearing at points 'H' and 'I' on Ex.PW-1/2 are that of Suzanne Stewart and Savita Patel.

12. It has come on record that the petitioner at the relevant time was residing in Canada whereas Pargan Singh Milkhu was in England being U.K. citizen. The petitioner claims that by a telegram (Ex.PW-1/22) received from J.C.Patel, Solicitor, England, he came to know about the Will executed by his father. No evidence has emerged if J.C.Patel was acquainted with the petitioner and was aware of his address. No evidence has surfaced if J.C.Patel had the knowledge of

the Will (Ex.PW-1/2) or had sent the telegram (Ex.PW-1/22) to the petitioner. There is no evidence on record as to how and under what circumstances J.C.Patel came into possession of the Will in question. In the cross-examination, the petitioner admitted that J.C.Patel, Advocate had never been his lawyer in any litigation in U.K. He further admitted that he never had any correspondence with J.C.Patel. No cogent evidence has come on record to infer if J.C.Patel was the advocate of the petitioner's father or that the said Will was drafted by him. In the cross-examination, the petitioner claimed that Will (Ex.PW-1/2) came into his possession through his lawyer J.S.Mistri at London. Again, J.S.Mistri has not been examined. It is unclear as to when J.S.Mistri came into possession of the Will, if so, from whom and when it was handed over to the petitioner. In the cross- examination, he admitted that J.S.Mistri was never a counsel for Pargan Singh Milkhu. He did not know if J.C.Patel, Advocate and J.S.Mistri, Advocate had any connection. It is thus unclear as to how and in what circumstances, the petitioner got the possession of the Will (Ex.PW-1/2). The cuttings at points 'B' & 'E' have not been explained.

13. In the cross-examination, PW-1 - the petitioner was unable to disclose as to when the date 29th came to be inserted in the Will (Ex.PW-1/2) by hand. He is not aware as to who had done it and why it was not typed at first instance. The 'date' has not been signed by the executor of the Will.

14. In the cross-examination, the petitioner admitted that he did not know personally Suzanne Stewart and Savita Patel, the

attesting witnesses; he never met them. Needless to say, the petitioner is not a competent person to identify their signatures on the Will at points 'H' & 'I'. No person acquainted with the signatures of the said witnesses was produced.

15. It has not been established as to who had drafted the Will (Ex.PW-1/2). It is not the petitioner's case that it was drafted by J.C.Patel, Advocate. It does not bear his signatures to be the author of the Will. It is unclear as to how Suzanne Stewart and Savita Patel happened to be there at the time of execution of the Will by Pargan Singh Milkhu. It is again not clear if both the attesting witnesses are from the office of J.C.Patel. Ex.PW-1/4 is a 'verification' given by Savita Patel, the attesting witness. This verification is dated 18.04.1991. It has not been explained as to how this verification came into existence and if so, what was its purpose. Why the verification of other attesting witness was not obtained. This verification discloses date of execution of Will as 29.05.1991. The mismatch between the two dates has not been explained. Curious enough in the 'Will' (Ex.PW-1/2), details and particulars of the property owned by Pargan Singh Milkhu in India was not described. The specific movable or immovable property had not been described in detail and there is no specific mention if the particular property was being bequeathed by the deceased to the petitioner.

16. No cogent evidence has emerged on record to infer if Pargan Singh Milkhu was in sound state of mind at the time of execution of the Will. It cannot be inferred if two days before his death the deceased was in a sound physical and mental state and was

able to approach the author of the Will. It is unclear as to at which place the Will was drafted / executed; whether the deceased had visited the office of his advocate to get the Will drafted. It is not clear as to how J.C.Patel came to know the exact name and address of the petitioner when he was having no contact with him any time prior to that.

17. In the cross-examination, the petitioner disclosed that he was unaware as to at what age, his father expired and what was his cause of death. He was even not aware if he died in a hospital or at home. He was not aware if Pargan Singh Milkhu was married with Rattan Kaur in 1945 in Punjab or after marriage they both shifted to Uganda.

18. A Will is required to be attested by two or more witnesses each of whom has seen the Testator signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and by the direction of the Testator or has received from the Testator a personal acknowledgement of the signature or mark or his signatures or the signature of such other person and that each of the witnesses has signed the Will in the presence of the Testator ['Gopal Swaroop vs. Krishna Murari Mangal & Ors.', 2010 (12) SCALE 470]

19. Section 68 of the Indian Evidence Act prescribes the mode of proof. Section 69 provides for cases where no attesting witnesses can be found and then the legislature provides for proof of the Will by proving the handwriting of one of the attesting witnesses and the signature of the executant of the document to be in the handwriting of that person. In terms of Section 68 of the Act,

although it is not necessary to call more than one attesting witness to prove due execution of a Will. When genuineness of a Will in question apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing (if any). Thus, in addition to proving the execution of a Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. This evidence is lacking in the instant case.

20. The Court while granting probate of the Will, must take into consideration all relevant factors. It must be found that the Will was product of the free Will. The attesting witnesses must have full knowledge and understanding as regarding the contents thereof.

21. In the instant case, no attesting witness has been examined, scribe of the Will has not been produced. No evidence has emerged if the Will contained signatures of deceased Pargan Singh Milkhu. No evidence has surfaced if Pargan Singh Milkhu had put his signatures on the Will in the presence of attesting witnesses. Mere identification of the signatures of the testator in Ex.PW-1/2 is not sufficient to prove the execution of the Will and its genuineness. It is crystal clear that onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signatures of the testator.

22. In view of the above, it cannot be said that the petitioner adduced credible evidence sufficient to satisfy the Court regarding the genuineness and validity of execution of the Will. Both these issues are decided in favour of the respondents and against the petitioner.

23. These issues have not been pressed seriously by the respondents. The petitioner in his evidence as PW-1 coupled with the testimonies of PW-3 (Santosh Singh) & PW-4 (Balwan Singh) has established that he is the son of Pargan Singh and is not a fictitious individual to file the probate petition. No credible evidence has come on record by the respondents that the deceased Pargan Singh Milkhu was not the petitioner's father. The issues are decided in favour of the petitioner and against the respondents.

Relief

24. In view of the findings above, the petition fails and is dismissed with no order as to costs.

(S.P.GARG) JUDGE SEPTEMBER 13, 2017 / tr