Delhi High Court
Shiromani Gurdwara Prabandhak ... vs State on 12 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th April, 2018
+ TEST.CAS. 31/1994
SHIROMANI GURDWARA
PRABANDHAK COMMITTEE ..... Petitioner
Through: Mr. S.K. Dubey & Mr. Rajmangal
Kumar, Advs.
Versus
STATE ..... Respondent
Through: Mr. Avadh Kaushik, Adv. for
Objector.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner seeks probate of the document dated 1 st March, 1988
as the validly executed last Will of the deceased Jagdish Singh @ Sant Jee,
son of Sh. Hari Singh, ordinary resident of C-150, Tanki Road, Bhajan
Pura, Delhi.
2. This petition was filed, pleading i) that the petitioner is a body
corporate constituted under the provisions of the Sikh Gurdwaras Act, 1925
and manages and controls Darbar Sahib Amritsar and Akal Takhat Sahib,
Amritsar, besides other religious places; ii) that the deceased Jagdish Singh
died on 3rd March, 1988 in an accident in District Ettah (U.P.); iii) that the
Will was got registered at Delhi after the death of the deceased Jagdish
Singh; iv) that the deceased has left neither wife nor any child; and, v) that
the deceased has bequeathed his assets in favour of the petitioner and the
petitioner is the beneficiary of the assets under the Will dated 1st March,
1988.
3. The petitioner along with the petition annexed the following list of
near relatives of deceased Jagdish Singh:
Sl. Name Relationship with
No. Jagdish Singh
1 Inder Kaur Sister
2 Bant Kaur @ Balwant Kaur Sister
3 S. Pratap Singh All sons of Gurdial Kaur,
4 S. Baldev Singh deceased sister of
5 S. Gurbachan Singh deceased Jagdish Singh
6 S. Billo
7 S. Gurbachan Singh All sons of Amrit Kaur,
8 S. Gyan Singh deceased sister of
9 Dr. Sujan Singh deceased Jagdish Singh
10. S. Ajit Singh
11. S. Pritpal Singh Nephew
12. Harbhajan Kaur Daughter-in-law
4. The petitioner along with the petition also annexed the list of
movable and immovable properties of the deceased Jagdish Singh
disclosing a) National Savings Certificates of the total value of Rs.1900/-;
b) Income Tax Refund Voucher of Rs.1162/-; c) a licensed rifle; d) property
No.C-150, Tanki Road, Bhajan Pura, Delhi, measuring 100 sq. yds.; and, e)
land ad-measuring 1 Bigha 24 Biswas in village Gangapur (Mohd. Pur),
Pargana Kuraoli, Tehsil and District Mainpuri (UP) and on one part of
which, petrol pump and another part of which Gurdwara building, house
and school building are constructed.
5. The petition was entertained and notice thereof ordered to be issued
to the near relatives of the deceased and citation ordered to be published in
the newspaper „Statesman‟, New Delhi Edition. The order dated 20th
November, 1995 records that the citation had been published. The order
dated 16th July, 1996 records that no reply had been filed by the State and
no objections had been filed by any outsider pursuant to citation. The order
dated 13th November, 1997 records that objections had been filed by
respondent No.1, 3.3, 3.4, 5 & 6. The order dated 5 th March, 1998 records
that no objection in favour of grant of probate had been filed by relation
No.3.1, 3.4, 5 & 6. However subsequent orders show that only near
relative no.1 Inder Kaur, described as respondent no.1, was pursuing the
objections filed. The order dated 30th August, 2001 records that the only
objector Rajender Kaur (supposedly incorrect for Inder Kaur) had expired.
6. The matter continued to languish for service of the unserved near
relatives of the deceased Jagdish Singh and for substitution of legal
representatives (LRs) of the near relative No.1 Inder Kaur. Ultimately, vide
order dated 10th January, 2013, Surjeet Kaur was substituted in place of the
deceased near relative No.1 Inder Kaur.
7. The relative No.1 Inder Kaur, in her objections by way of IA
No.8068/1997 to the grant of probate, pleaded (i) that she was the eldest
surviving sister of deceased Jagdish Singh; (ii) that the Will of the deceased
Jagdish Singh propounded by the petitioner was wholly unnatural and was
clouded with suspicion and the date put on the Will was of two days prior
to the death of Jagdish Singh and which death also was unnatural; (iii) that
the registration got done of the Will, after the demise of Jagdish Singh, is
also suspicious; (iv) that the deceased Jagdish Singh had allowed Gurcharan
Singh and Surjeet Kaur being the son-in-law and daughter respectively of
Inder Kaur, to reside in property No.C-150, Tanki Road, Bhajan Pura,
Delhi; (v) that the deceased Jagdish Singh was residing with Inder Kaur at
District Mainpuri, U.P.; (vi) that the deceased Jagdish Singh executed a
Will dated 4th November, 1982 bequeathing property No.C-150, Tanki
Road, Bhajan Pura, Delhi to Gurcharan Singh, son-in-law of Inder Kaur and
had also appointed Gurcharan Singh as executor of that Will; (vii) that the
Will dated 1st March, 1988, propounded by the petitioner is forged and
fabricated and has not been executed by the deceased Jagdish Singh and
does not bear his signatures; (viii) that the deceased Jagdish Singh was not
at Delhi on 1st March, 1988, on which date the said Will is alleged to have
been executed at Delhi--the deceased Jagdish Singh was at Mainpuri, U.P.
and left for Delhi on 1st March, 1988 and arrived at Delhi in the early hours
of 2nd March, 1988 and again left for Mainpuri, U.P. in a matador in the
night of 2nd March, 1988 and met with a fatal accident en route, in the early
hours of 3rd March, 1988; (ix) that the Will dated 1st March, 1988 of which
probate is sought, if at all executed by the deceased Jagdish Singh, was got
executed from him under undue influence and coercion; (x) that the Will
dated 1st March, 1988 of which probate is sought is witnessed by procured
witnesses.
8. The petitioner, in reply to the objections aforesaid of near relative
No.1 Inder Kaur, (a) pleaded that Inder Kaur and her husband had
participated in the functions organized by the petitioner in the memory of
deceased Jagdish Singh and praised the management of the assets of the
deceased Jagdish Singh by the petitioner; (b) denied that the deceased
Jagdish Singh was residing with his sister Inder Kaur; (c) pleaded that the
petitioner is a religious institute with annual budget running into crores of
rupees and will not indulge in unfair means; (d) pleaded that the deceased
Jagdish Singh used to reside in property No.C-150, Tanki Road, Bhajan
Pura, Delhi, whenever he was in Delhi in connection with his business; (e)
pleaded that Gurcharan Singh and his wife Surjeet Kaur are in unauthorized
occupation of property No.C-150, Tanki Road, Bhajan Pura, Delhi; (f)
pleaded that the deceased Jagdish Singh never intended to bequeath
property No.C-150, Tanki Road, Bhajan Pura, Delhi to Gurcharan Singh or
Surjeet Kaur; (g) pleaded that the deceased Jagdish Singh had as far back as
on 25th February, 1970 executed a document expressing desire for
utilization of his properties for religious and charitable purposes for
Gurdwara, School, Hospital etc.; (h) pleaded that the deceased Jagdish
Singh had executed a Will dated 4th November, 1982, where he desired a
trust body comprising of (i) Gurcharan Singh, (ii) S. Ajit Singh, (iii)
Surender Kaur, (iv) Gurbachan Singh; (v) Tarlok Singh and (vi) Amarjit
Singh to control and lookafter all his properties and income therefrom to be
used for Gurdwara and other allied religious purposes for Sikh Samaj.
9. Vide order dated 14th March, 2014, on the objections of Surjeet Kaur
aforesaid, the following issues were framed:
"1. Whether the petition has been signed, verified and
instituted by a duly authorised person? OPP
2. Whether the Will dated 1st March, 1988 contains forged
and fabricated signatures of petitioner? OP Objector-1
3. Whether the Will dated 1st March, 1988 is legal and valid
left behind by the Testator? OPP
4. Relief."
10. The counsel for the petitioner, after examining six witnesses, on 11th
February, 2016, closed the evidence on behalf of the petitioner. Surjeet
Kaur, LR of the near relative No.1 Inder Kaur of the deceased Jagdish
Singh, examined herself only in her evidence and closed her evidence.
11. The counsel for the sole objector Surjeet Kaur was heard on 2nd
March, 2017 and the counsel for the petitioner was heard on 3 rd March,
2017. Certain queries were made from the counsel for the petitioner during
the hearing on 3rd March, 2017 and as recorded in the order of that date and
on request of the counsel for the petitioner, hearing was adjourned to 6 th
March, 2017. On 6th March, 2017, hearing was adjourned to 21st March,
2017, when the counsels were further heard and orders reserved.
12. The petitioner, in its evidence examined as PW-1 Ravinderjit Singh,
General Power of Attorney of the petitioner who proved (a) the
authorization in favour of the signatory of this petition; (b) the Death
Certificate of deceased Jagdish Singh; and, (c) that the petitioner was in
possession of all properties bequeathed under the Will dated 1 st March,
1988 of which probate is sought except property No.C-150, Tanki Road,
Bhajan Pura, Delhi. Though in the affidavit by way of examination-in-
chief of the said witness, Ex. PW-1/3 was put on the Will dated 1st March,
1988 of which probate is sought, but admittedly Ravinderjit Singh is not a
witness to the Will of which probate is sought and a Will, vide Section 63
of the Indian Succession Act, 1925 read with Section 68 of the Indian
Evidence Act, 1872 can be proved / admitted into evidence only by an
attesting witness thereof. The said witness in cross-examination admitted
that deceased Jagdish Singh had earlier executed a Will dated 4 th
November, 1982 in favour of Sardar Gurcharan Singh, son-in-law of Inder
Kaur and could not tell as to how the petitioner came in possession of the
Will dated 1st March, 1988 of which the probate was sought.
13. PW-2 Balwinder Singh is the draftsman of the petitioner and proved
the site plan of property No.C-150, Tanki Road, Bhajan Pura, Delhi
prepared by him.
14. PW-3 Sukhwant Singh is the Rent Clerk in the office of the petitioner
and deposed that he had along with PW-2 Balwinder Singh visited the
property No.C-150, Tanki Road, Bhajan Pura, Delhi for preparing the site
plan thereof.
15. Avtar Singh, LDC in the office of Sub-Registrar, Seelampur, Delhi
with whom the Will dated 1st March, 1988 was registered post the death of
Jagdish Singh was also examined and cross-examined as PW-4 and deposed
that Will Ex. PW-1/3 was registered in the office of the Sub-Registrar,
Seelampur, Delhi.
16. PW-4 Sharat Chand Gupta deposed that he was an attesting witness
of the Will dated 1st March, 1988 and further deposed that the deceased
Jagdish Singh had put his signatures in his presence and also in the
presence of Mr. Devender Kumar Gupta. In his cross-examination recorded
as PW-5, he deposed (i) that he was working as a document/deed writer
since 1987 and was a Law Graduate; (ii) that his office was at C-196, Tanki
Road, Bhajan Pura, Delhi; (iii) that he did not know the deceased Jagdish
Singh prior to the date deceased Jagdish Singh came to his office in the year
1988; (iv) that he is maintaining record of the documents prepared by him
but only from the year 2005 and had no record of documents drafted by him
prior thereto; (v) that Ex. PW-1/3 was drafted by him and got typed by him
from his employee; (vi) that the Will Ex. PW-1/3 was drafted on the same
day when deceased Jagdish Singh had come to his office for the first time
and he remembered that date to be 1st March, 1988; (vii) that two other
persons had accompanied deceased Jagdish Singh, when they visited his
office on 1st March, 1988; (viii) that the names of the said two persons are
Swatantra Babu Gupta and Devender Kumar Gupta; (ix) that he was aware
that Swatantra Babu Gupta was a resident of Village-Kurawali, District
Mainpuri, U.P. and Devender Kumar Gupta was a resident of Delhi; (x) that
he knew Swatantra Babu Gupta only through Devender Kumar Gupta and
from the date when Devender Kumar Gupta came for the first time along
with deceased Jagdish Singh; (xi) however he knew Devender Kumar
Gupta since 1987 as he attended his marriage in 1987 being related to his
wife; (xii) that deceased Jagdish Singh had brought documents of his
identification with him; one was a weapon licence/arms licence; (xiii) that
the name of the deceased Jagdish Singh on arms licence was not mentioned
as „Santji‟ but the deceased Jagdish Singh orally informed him so; (xiv) that
he had never met deceased Jagdish Singh after that day and had not seen
Jagdish Singh signing any other document; (xv) that he could not say if the
signatures at point „A‟ on the Will Ex. PW-1/3 were not of deceased
Jagdish Singh; (xvi) however deceased Jagdish Singh had signed the Will
Ex. PW-1/3 at point „A‟ in his presence; (xvii) that he did not ask Swatantra
Babu Gupta to be a witness to the Will Ex. PW-1/3; (xviii) that ordinarily
he did not become a witness to a Will drafted by him but became a witness
on that date on the request of Devender Kumar Gupta; (xix) that he agreed
to be an attesting witness because of it being a religious matter; (xx) that
Devender Kumar Gupta had not brought any document of his identity; (xxi)
that the deceased Jagdish Singh had not brought any proof of his being a
resident of Delhi; (xxii) that he could not remember, whether the address of
the deceased Jagdish Singh on the arms licence was of Delhi or Mainpuri,
U.P.; (xxiii) that the deceased Jagdish Singh had signed the Will first,
thereafter Devender Kumar Gupta had signed the same and he had signed
the Will simultaneously with Devender Kumar Gupta; (xxiv) that he did not
retain any copy of the Will with him and the original Will was taken by the
deceased Jagdish Singh with him; and, (xxv) that only one copy of the Will
had been prepared.
17. PW-6 Devender Kumar Gupta in his affidavit by way of
examination-in-chief deposed that he was one of the attesting witnesses of
the Will dated 1st March, 1988 executed by the deceased Jagdish Singh and
that Jagdish Singh had put his signatures in his presence and in presence of
Sharat Chand Gupta. In his cross-examination, he deposed (a) that Sharat
Chand Gupta is his brother-in-law i.e. sister‟s husband; (b) that he knew
deceased Jagdish Singh as his sister‟s husband Swatantra Babu Gupta was
the Manager of Jagdish Singh in Kurawali, Mainpuri, U.P.; (c) that he knew
Jagdish Singh since 1972; (d) that Jagdish Singh was unmarried and used to
live at his petrol pump at GT Road, Kurawali, U.P., in a small room built
for that purpose; (e) that Jagdish Singh was 60 to 65 years of age when he
had come to Delhi for getting the Will prepared; (f) that Jagdish Singh died
in a road accident, while going back from Delhi after execution of the Will;
(g) that Jagdish Singh had come to Delhi on 28th February, 1988 for the
purposes of getting the Will prepared; (h) that Jagdish Singh had come to
Delhi along with Swatantra Babu Gupta; (i) that he introduced deceased
Jagdish Singh to Sharat Chand Gupta on 1st March, 1988 and the Will was
got prepared on the same day; (j) that the Will was signed by Jagdish Singh,
by Sharat Chand Gupta, by himself and by Swatantra Babu Gupta; (k) that
Swatantra Babu Gupta died 5-6 years prior to his deposition; (l) that he had
never seen the Will dated 1st March, 1988 after that date; (m) that he had
come to depose on the asking of Sharat Chand Gupta; (n) that Swatantra
Babu Gupta had signed the Will at points „X‟ and „Y‟ on the backside of
page 1; and, (o) that none had put their thumb marks on the Will and
everybody had signed the same.
18. The sole contestant Surjeet Kaur in her affidavit by way of
examination-in-chief repeated the contents of the objections filed by her
predecessor Inder Kaur and in cross-examination deposed (i) that deceased
Jagdish Singh used to sign in English as well as Gurmukhi Punjabi
language; (ii) that she had never seen the deceased Jagdish Singh signing in
English; (iii) that she knew that Jagdish Singh signed in Gurmukhi Punjabi
language as he had sent letter from Mainpuri to her residence at Bhajan
Pura, Delhi inviting her for a marriage.
19. The counsel for the sole objector Surjeet Kaur argued that Swatantra
Babu Gupta, working as „Munshi' of the deceased Jagdish Singh, if had
been brought by the deceased Jagdish Singh from Mainpuri, U.P. to Delhi
for execution of the Will, ought to have, in the normal course of human
conduct, been made an attesting witness to the Will; however, he is not the
attesting witness to the Will and there is no explanation for such unusual
conduct.
20. Per contra, the counsel for the petitioner argued that the Will dated 1st
March, 1988 of which probate is sought stands proved by the evidence of
both the attesting witnesses. Reliance was placed on Jagdish Parshad Vs.
State 2014 (2010) DLT 319.
21. The counsel for the sole objector Surjeet Kaur, in rejoinder argued
that PW-6 Devender Kumar Gupta in his cross-examination has deposed
the deceased Jagdish Singh having signed the Will dated 1 st March, 1988 in
the presence of Sharat Chand Gupta, himself and Swatantra Babu Gupta,
when signatures of Swatantra Babu Gupta at the backside of page 1 of the
document are admittedly of a date after the date of demise of Jagdish Singh.
Reliance was placed on Neeraj Katyal Vs. State 229 (2016) DLT 466 and
on Bhagwan Kaur Vs. Kartar Kaur (1994) 5 SCC 135.
22. I have considered the pleadings and the evidence.
23. As far as issue no.1 is concerned, the petition is signed and verified
on behalf of the petitioner by one Manjit Singh, pleaded in the petition itself
to have been appointed as attorney of the petitioner vide registered
document dated 26th July, 1982 executed by Gurcharan Singh Tohra,
President of the petitioner and who in turn is pleaded to have been
authorized vide Resolution No.957 dated 6th June, 1980 of the petitioner to
execute and appoint an attorney on behalf of the petitioner. PW1
Ravinderjit Singh in his affidavit by way of examination-in-chief, besides
proving the Power of Attorney (POA) executed by the petitioner in his
favour as PW1/1, deposed that the petitioner, vide Resolution No.9570
dated 6th June, 1980 had authorized Gurcharan Singh Tohra to execute and
appoint an attorney and Gurcharan Singh Tohra had appointed Manjit Singh
as attorney.
24. Though PW1, who is the only witness on issue no.1, has not proved
the Resolution No.957/9570 dated 6th June, 1980 of the petitioner
authorizing Sh. Gurcharan Singh Tohra to execute and appoint an attorney
or the POA dated 26th July, 1982 in favour of Manjit Singh, signatory of
the petition, but the counsel for the sole contesting objector in his cross-
examination of PW1 has not challenged the deposition in examination-in-
chief of PW1, of the petitioner vide its Resolution having authorized
Gurcharan Singh Tohra to execute the POA and appoint attorney or that
Gurcharan Singh Tohra so appointed Manjit Singh as the attorney. It is well
settled that the part of the deposition of a witness which is not challenged in
cross-examination is deemed to have been accepted by the cross-examining
party. Thus, the deposition of PW1 Ravinderjit Singh to the effect that
Manjit Singh, signatory of the petition was authorized by the petitioner to
sign and verify the petition having gone unchallenged, has to be accepted.
Not only so, PW1 Ravinderjit Singh in his evidence has proved as PW1/1
the POA executed by the petitioner in his favour and which shows that
PW1 Ravinderjit Singh was duly authorized to represent the petitioner in
these proceedings. The deposition of PW1 Ravinderjit Singh shows
ratification by the petitioner of the institution of the present petition, even if
there were to be any lacuna in proof of institution of this petition by a duly
authorized person on behalf of the petitioner. Also, the petitioner is akin to
a public institution and qua which the Courts have held that the technical
defects in proof of authorization for institution of the petition should not be
allowed to defeat the claims of such institution. Moreover, the counsel for
the sole contesting objector during the hearing also has not challenged the
valid institution of this petition.
25. Thus, the issue no.1 is decided in favour of the plaintiff and against
the sole contesting objector Surjeet Kaur.
26. The issues no.2 and 3 are taken together for adjudication.
27. As far as the issue no.3 qua legality and validity of the document
dated 1st March, 1988 as a Will is concerned, neither is there any plea in the
objections of the sole contesting objector that the document, even if proved
to be validly executed by the deceased Jagdish Singh, is not a Will or does
not bequeath the estate of Jagdish Singh to the petitioner and the counsel
for the sole contesting objector, during the hearing also has not raised the
said aspect. A reading of the document dated 1st March, 1988 claimed to be
the Will and on which Exhibit PW1/3 has been put, shows it to be i) typed
in Hindi language on two sheets of foolscap paper; ii) bearing the signatures
purportedly of deceased Jagdish Singh at the bottom right hand side on each
of the two sheets where the writing ends; iii) titled as „Iccha Patra‟; iv)
recording all the particulars of the executant thereof and the properties
owned by the executant of the document; v) recording that the same was
being executed to avoid disputes with respect to the estate, as invariably
happened; vi) recording the „Iccha‟ i.e. desire of the executant that his
property be used for the benefit of „Sikh Dharam‟ and „Sikh Samaj‟; vii)
recording that the executant had expressed such desire personally at Golden
Temple, Amritsar; viii) recording that the executant in pursuance to said
desire had established a Gurudwara on his plot of land No.632 in village
Gangapur (Mohd. Pur), Pargana Kuraoli, Tehsil and District Mainpuri
(UP); ix) recording that the executant, vide registered Will dated 4th
November, 1982, had also established a body of six Sikh persons; x)
recording that the executant on his plot of land No.634 at Village Gangapur
aforesaid had opened a Guru Nanak Vidyalaya; xi) recording that the
Gurudwara so established by the executant was being managed by the
confidant of the executant viz. Sh. Swatantra Babu Gupta; xii) recording
that the executant post his demise also wanted his property to be used for
the management of the Gurudwara and was therefore annulling his Will
dated 4th November, 1982 and executing the subject document to declare
that after his death his entire property should be owned by Akal Takhat
Sahib, Shiromani Gurdwara Prabandhak Committee, Amritsar which
according to its rules will deal with his property; and, xiii) recording that
for a period of two years after the death of the executant, the Gurudwara
established by the executant will be managed by the body of six Sikh
persons constituted vide document dated 4th November, 1982.
28. It thus cannot be said that the document dated 1st March, 1988, if
proved to have been validly executed as a Will by the deceased Jagdish
Singh, is invalid or not legal as a Will.
29. As far as proof of the document is concerned, as aforesaid, though
Exhibit PW1/3 was put on the document in the deposition of PW1
Ravinderjit Singh but putting of the said exhibit mark did not constitute
proof thereof or admission thereof into evidence. Section 63 of the
Succession Act provides for a Will to be executed according to the Rules
prescribed therein and which are as under:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall
be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a Will.
(c) 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 Evidence Act 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.
30. The document dated 1st March, 1988 claimed to be a Will purports to
be witnessed by Devender Gupta and Sharat Chand Gupta who have signed
the same on the second sheet thereof at the bottom on the left hand side and
in the left hand side margin respectively.
31. It was not the case in the petition that neither of the witness was alive
or subject to the process of the Court or not capable of giving evidence.
Rather, the petition as per the mandate of Section 281 of the Succession Act
was verified by one of the witnesses viz. Devender Gupta.
32. The petitioner as aforesaid has examined both the aforesaid attesting
witnesses viz. Devender Gupta and Sharat Chand Gupta. It is not the case
of the sole contesting objector and it was not so put to the said persons in
their cross-examination that the persons who appeared as witnesses are not
Devender Gupta and Sharat Chand Gupta who had witnessed the document
dated 1st March, 1988.
33. The next question to be considered is, whether the aforesaid
witnesses have proved the Will.
34. Both the witnesses filed their affidavits by way of examination-in-
chief in which they deposed that they were the attesting witness of the Will
dated 1st March, 1988 executed by S. Jagdish Singh in favour of Shrimoni
Gurdawara Prabandak Committee and which Will was registered on 29 th
October, 1992 at Seelampur, Registrar-IV Office and that Jagdish Singh
had put his signatures in their presence. Though the aforesaid witnesses
appeared before the Joint Registrar for tendering their affidavits by way of
examination-in-chief but the witnesses, neither in their affidavits by way of
examination-in-chief nor at the time of tendering their affidavits by way of
examination-in-chief identified their own signatures or the signatures of
each other or of Jagdish Singh on the original document dated 1st March,
1988 on the Court file and which the witnesses, at the time of affirmation of
their affidavits by way of examination-in-chief could not have seen or
referred to. Neither witness identified the signatures of deceased Jagdish
Singh or their own signatures on the document dated 1st March, 1988, as
should have been done to prove the document. Merely affirming an
affidavit deposing as aforesaid, without reference to the document, would
not amount to proof of the document.
35. It was owing to the aforesaid, that in the hearing on 3rd March, 2017,
it was enquired from the counsel for the petitioner as to how either of the
aforesaid two witnesses in their examination-in-chief had proved the
document as Will in accordance with Section 68 of the Evidence Act.
36. My experience shows that such defaults in proving a Will, in this era
of examination-in-chief by affidavit, are quite widespread. My experience
also shows that in most of such cases, inspite of propounder of the Will not
proving the same, the objector, in cross-examination invariably puts the
document to the witness and in questions with respect thereto allows the
witness to depose of the respective signatures, thereby proving the
document as a Will. However, though at the time of hearing on 3rd March,
2017, on having a look at the cross-examination by the counsel for the sole
contesting objector of the aforesaid two witnesses it had appeared that
unlike in most cases where rather than the propounder proving the Will, the
objector in his cross-examination does so, it is not so in the present case.
However on careful reading of the cross-examination of the aforesaid two
witnesses by the counsel for the sole contesting objector, it is found that the
present case also suffers from the same malady i.e. though the petitioner as
propounder of the document dated 1st March, 1988 had failed to prove the
same as a Will but the counsel for the objector by detailed, not in the
interest of the objector cross-examination of the attesting witnesses, has
proved the Will.
37. I need only set out herein below the following paras of the cross-
examination of PW5 Sharat Chand Gupta conducted on 11th February,
2016:
"I cannot say if the signature at point „A‟ on the Will Ex.PW1/3 are not the
signatures of S. Jagdish Singh nor can I say that he was an illiterate or he
did not use to sign in English language nor can I say that the signatures on
the Will are forged one. (Vol. he signed the Will Ex.PW1/3 at point „A‟ in
my presence).
........................................................................................
The testator S. Jagdish Singh @ Santji had signed the Will first. Thereafter,
Sh. Devender Gupta signed the same and then I put my signatures on the
Will simultaneously..................................................................
It is wrong to suggest that signatures of the testator on the Will at point „A‟
are forged one. It is wrong to suggest that I am deposing falsely."
And the following paras of the cross-examination conducted on 11th
February, 2016 of PW6 Devender Gupta:
"......The Will was signed by the testator, by Sh. Sharat Chand, by me and
by Sh. Swatantra Babu.
I signed the Will in Hindi Language. I had signed my affidavit of evidence
in English language. I used to sign in English language while maintaining
my bank account.
..........................................................................................
At this stage Will is shown to the witness and he is asked to point out where
Sh. Swatantra Babu had signed thereon. The witness after seeing the Will
has pointed out that signatures of Sh. Swatantra Babu appear at two points
„X & Y‟ on the backside of page no.1 of the Will.
Nobody had put his thumb impression on Ex.PW1/3 and all of them had
signed the same. It is wrong to suggest that signatures of the testator on the
Will at point „A‟ are forged one or that the testator had never come to Delhi
for execution of the Will. It is wrong to suggest that testator never executed
any Will."
38. It would thus be seen that though PW5 Sharat Chand Gupta and PW6
Devender Gupta in their examination-in-chief did not, with reference to the
document of which they claim to be the attesting witnesses, identify the
signatures of the executant on the document or their own signatures but the
counsel for the sole contesting objector, in exuberance to cross-examine the
witnesses to the hilt, put the documents to the witnesses and got identified
the signatures of the executant and the witnesses thereon, thereby proving
the document as a Will in accordance with Section 68 of the Evidence Act
and in compliance of Rules for execution of the Will prescribed in Section
63 of the Succession Act, and committing a self-goal.
39. It stands established, i) that deceased Jagdish Singh signed the
document dated 1st March, 1988 in the presence of the Sharat Chand Gupta
and Devender Gupta; ii) that the signatures of Jagdish Singh are so placed
as to show that they are intended to give effect to the writing dated 1 st
March, 1988 as a Will; and, iii) that the document dated 1 st March, 1988 is
attested by Sharat Chand Gupta and Devender Gupta as witnesses thereto
and each of whom saw deceased Jagdish Singh sign in his presence and
each of whom signed as witness to the Will in the presence of deceased
Jagdish Singh.
40. The sole contesting objector, in her own evidence, has not been able
to shake the aforesaid evidence.
41. The document Exhibit PW1/3 thus stands proved as the validly
executed last Will of deceased Jagdish Singh.
42. The only other aspect which needs to be dealt with is, whether the
execution of the document is under suspicious circumstances or whether the
deceased Jagdish Singh was under any undue influence.
43. In my opinion, no suspicion qua the execution of the document arises
and no case of the document having been executed under any undue
influence is made out. My reasons therefor are as under:
A. The petitioner has pleaded having taken over the remaining
estate of deceased Jagdish Singh except House no.150, Tanki
Road, Bhajan Pura, Delhi which is in possession of the sole
contesting objector Surjeet Kaur and her husband Gurcharan
Singh. This fact has not been controverted by the sole
contesting objector also. It is inexplicable that if Exhibit
PW1/3, of which probate is sought, is not accepted to be the
Will of the deceased Jagdish Singh, why the natural heirs of
Jagdish Singh including the sole contesting objector have not
laid any claim to the rest of the estate and allowed the same to
be taken over by the petitioner.
B. The sole contesting objector is not the only natural heir of
deceased Jagdish Singh. The petitioner, in the petition itself
furnished a list of as many as 12 near relatives, including the
sole contesting objector. None of the others have chosen to
contest this petition and have rather filed No Objection
Certificates to grant of probate in favour of the petitioner.
Only the contesting objector, who is in possession of one of the
properties i.e. property bearing No.150, Tanki Road, Bhajan
Pura, Delhi, is contesting, evidently to save her possession of
the said property.
C. Though the beneficiary of the estate of the deceased Jagdish
Singh under Exhibit PW1/3 is not a natural heir but merely the
said fact does not raise any suspicion. If a person intends his
estate to be inherited by his all natural heirs, there is no need to
execute a Will. A Will is always executed, either to exclude
some of the natural heirs or to bequeath the estate to a person
who would not inherit the same but for a Will.
D. The most important factor is that though the sole contesting
objector pleaded a Will dated 4th November, 1982 of the
deceased Jagdish Singh in favour of Gurcharan Singh, husband
of the sole contesting objector Surjeet Kaur but did not bother
to prove the same. The petitioner also admits the said
document. However, according to the petitioner, the document
dated 4th November, 1982 is not in favour of Gurcharan Singh
but also constitutes a Committee of six Sikh persons to utilize
the estate for the benefit of the Sikh community. Exhibit
PW1/3 also refers to the document dated 4th November, 1982
and confirms so, though Exhibit PW1/3 is in supersession
thereof. From the failure of the sole contesting objector to
prove the said document, the necessary inference is that the
version of the petitioner of the contents thereof is to be
believed rather than the version of the sole contesting objector
thereof. If under the document dated 4th November, 1982, the
estate or any part thereof had been bequeathed to Gurcharan
Singh, husband of the sole contesting objector, the sole
contesting objector would have certainly proved the same and
if the contents thereof were as per the version of the sole
contesting objector, then the petitioner would have been
required to explain the basis of the change in the intent, heart
and will of deceased Jagdish Singh, to , instead of to a close
relative, bequeath the estate to the petitioners.
E. Though the petitioner also has failed to prove the document
dated 4th November, 1982 or certain other things which the
petitioner can be accused of not proving though could have,
but the same does not raise any suspicion against the
petitioner. It cannot be forgotten that the petitioner is a body
corporate managed by individuals from time to time and who
have no personal interest in the properties or revenues accrued
therefrom and all of which properties and monies are to be
used as per the rules and regulations of the petitioner. It is
often found that with none to take personal interest as of own
property, negligence occurs, as has occurred in pursuing this
present petition also which has remained pending for an
inordinately long time.
F. There is merit also in the plea that the petitioner, as a body
corporate, cannot be accused of any personal motive or intent
in grabbing the property of deceased Jagdish Singh.
G. The undisputed actions of deceased Jagdish Singh of setting up
a Gurudwara and Guru Nanak Vidyalaya on his lands at
Mainpuri in Uttar Pradesh is in consonance with Exhibit
PW1/3 bequeathing his estate to petitioner.
H. The sole contesting objector has also been unable to raise any
suspicion as to the conduct of the attesting witnesses Sharat
Chand Gupta and Devender Gupta. No motives have been
attributed to them for deposing falsely or for falsely supporting
the claim of the petitioner. Rather, the testimonies of both the
witnesses are found to have a ring of truth, with no overt
attempt to support the petitioner.
I. No merit is also found in the argument of the counsel for the
sole contesting objector that Swatantra Babu Gupta not being
an attesting witness to Exhibit PW1/3 raises suspicion. It is
not as if Devender Gupta and Sharat Chand Gupta who have
signed Exhibit PW1/3 as attesting witnesses are strangers. It
has been proved that Devender Gupta was introduced by
Swatantra Babu Gupta and Sharat Chand Gupta is also related
to Devender Gupta. Swatantra Babu Gupta, though is deposed
to have accompanied the deceased Jagdish Singh from
Mainpuri, Uttar Pradesh to Delhi for the purpose of execution
of the Will, is named in Exhibit PW1/3 as confidant of
deceased Jagdish Singh and he was being entrusted with
management of some of the properties of the deceased for a
period of two years under the Exhibit PW1/3 also. In the said
circumstances, it is quite normal for the said Swatantra Babu
Gupta to have not opted to sign as an attesting witness. It is
general belief of common man that witnesses to a Will should
be independent persons. The factum of Swatantra Babu Gupta
not signing the Exhibit PW1/3 as attesting witnesses is in
consonance therewith.
J. Similarly, the death in a road accident of deceased Jagdish
Singh within two days of execution of Exhibit PW1/3 also
does not raise any suspicion. It is not the plea that the accident
was caused by the petitioner or by anyone at the behest of the
petitioner or was not an accident or that anybody was accused
or tried for causing the same. Thus, the demise of Jagdish
Singh soon after the execution of Exhibit PW1/3 does not raise
doubts about Exhibit PW1/3.
44. Issues no.2 and 3 also are thus decided in favour of the petitioner and
against the sole contesting objector.
45. The petition is thus allowed. I may however state that on a reading
of Exhibit PW1/3, the present is not a case for grant of probate but for grant
of Letters of Administration with copy of the Will annexed.
46. Accordingly, a Letters of Administration with Exhibit PW1/3
annexed thereto as the validly executed last Will of deceased Jagdish Singh
@ Sant Jee, son of Sh. Hari Singh, ordinary resident of C-150, Tanki Road,
Bhajan Pura, Delhi is ordered to be granted to the petitioner upon the
petitioner depositing the requisite stamp duty and furnishing administration
bond with one surety for the value of the property subject matter of Exhibit
PW1/3.
The petition is disposed of.
No costs.
RAJIV SAHAI ENDLAW, J.
APRIL 12, 2018
„gsr/bs‟..
