Trilok Kumar Kapur & Ors vs Ish Kapur & Ors
2018 Latest Caselaw 6291 Del

                                                          SINDHU KRISHNAKUMAR

                                                          23.10.2018 19:25

$~32
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of decision: 15th October, 2018
+      CS(OS) 3174/2014, I.As. 2028/2018, 12454/2018, 12455/2018 &
       12456/2018

       TRILOK KUMAR KAPUR & ORS              ..... Plaintiffs
                   Through: Mr. Hemant Chaudhri and Mr. Arjun
                            Bhaskar, Advocates. (M:9810035336)

                          versus

       ISH KAPUR & ORS                                   ..... Defendants
                     Through:          Mr. Preetjeet Singh and Mohd. Anis
                                       Rehnam, Advocates for Defendant
                                       No.1. (M:9811674091)
                                       Mr. V.P. Singh, Advocate for
                                       Defendant No.3. (M:9810276825)

       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. This is a suit for partition filed by the legal heirs of late Shri G.R. Kapur (Shri Gurubaksh Rai Kapur) who was the owner of Plot No.D-143, Ajay Enclave, New Delhi-110018 measuring 200 square yards (`suit property').

2. Late Shri Gurubaksh Rai Kapur had five sons and a daughter namely; Shri Trilok Kumar Kapur, Shri Manmohan Kapur, Shri Ish Kapur, Shri Rajinder Kumar Kapur, Shri Surinder Kumar Kapur and Smt. Urvashi Kapur. One of the sons - Shri Manmohan Kapur had predeceased his father. Smt. Urvashi Kapur, his daughter, passed away on 4th June, 2018. Thus, the only LRs are Defendant No.1, 2, 3 and the Plaintiffs. The Plaintiff No.1 is

the son of Shri Gurubaksh Rai Kapur, Plaintiff Nos.2 and 3 are the grand children of Shri Gurubaksh Rai Kapur through Shri Manmohan Kapur.

3. The following issues were framed in the suit on 16th November, 2017:

"i) Whether the Will dated 09.10.1989 propounded by defendant Nos.1 and 3 is legally and validly executed by Late Sh. Gurbaksh Rai Kapur? If so, its effect? OPD-1 and 3

ii) Whether the plaintiffs are entitled to seek partition in respect of the suit property? If so, what would be the share of the parties to the property? OPP

iii) Relief."

4. Learned counsels for the parties had submitted on 3rd August, 2018 that one of the attesting witnesses to the Will dated 9th October, 1989 which is relied upon by the Defendant Nos.1 and Defendant No.3 is a senior citizen. Accordingly, a Local Commissioner had been appointed to record the statement of the said attesting witness.

5. The statement of the said witness was recorded on 11th September, 2018. In view of the statement which was recorded, the Plaintiffs now press for a preliminary decree.

6. A perusal of the pleadings shows that the parties do not dispute the ownership of the property by Shri Gurubaksh Rai Kapur. The Defendant No.1 submits that though his father was the owner of the property, a Will dated 9th October, 1989 was executed under which he was given absolute ownership of the front portion of the first floor along with roof rights. According to the said Will, the front portion of the ground floor was bequeathed in favour of Defendant No.4 i.e. the daughter. However, the rear portion was to be sold by the deceased father and proceeds were to be

distributed in the manner provided in the Will. Thus, the only defense of Defendant No.1 is that he relies upon the Will dated 9th October, 1989.

7. Insofar as Defendant No.3 is concerned, the defense of the said Defendant is also based on the Will dated 9th October, 1989. Further it is also pleaded by the said Defendant that contribution was made by him for paying off the share to Defendant No.2 and for construction in the property. The Defendant no.3 relied upon a compromise decree dated 19th December, 1988 under which the Defendant No.2-Shri Rajinder Kumar Kapur was paid a sum of Rs.1,20,000/- towards his rights in the suit property.

8. Thus, the entire case of the Defendants is based on the Will dated 9th October, 1989 and the compromise decree.

9. Insofar as the compromise decree is concerned, a copy of the same has been placed on record. The operative portion of the said decree passed on 19th December, 1988 in Suit No.1097/81 reads as under: -

"....I am of the view that the compromise arrived at between the parties is not contrary to law and they have settled all their disputes amicably out of court. Plaintiff and defendants 1 to 4 are sons of defendant No.5. Under the compromise, plaintiff received a sum of Rs.1,20,000/- from defendant No.5 and ceases to have any right, title or interest in the property in question. The other defendants 1 to 4 have also accepted the terms of compromise to the effect that they have also no right, title or interest in the property in question. This property now exclusively belongs to defendant No.5. Under the circumstances, I pass a final decree to the effect that defendant No.5, namely Mr. G.R. Kapur shall be the exclusive and sole owner of the property No.D-143, Ajay Enclave, New Delhi. Defendant No.5 shall also be entitled to collect the title deeds in respect of the property from defendant No.6

on payment, if any, to defendant No.6. Plaintiff and defendant No.1 have resigned from the membership of defendant No.6 and they will be at liberty to apply for fresh membership of defendant No.6 or any other society. The compromise Ex.P.1 shall form part of the decree. Parties are left to bear their own costs."

10. Thus, it is clear that Defendant No.2 has no rights or claim in the suit property.

11. Coming to the Will in question, it is the settled position in law under Section 68 of the Evidence Act, every Will has to be attested by two witnesses and at least one witness ought to be produced by the person relying on the Will to prove the same.

12. The Defendant No.1 produced DW-1-Shri Ratan Mehta whose statement in examination-in-chief is recorded as under: -

"STATEMENT OF DW-1, RATAN MEHTA, S/o LATE SH. L.R. MEHTA, R/o VILL BHALOH, P.O. GHANAHATTI, TEH. & DISTT., SHIMLA, HIMACHAL PRADESH-171011, AGED ABOUT 67 YEARS.

On S.A.

I have identified my signature at Point 'A' on the original Will dated 09.10.1989.

I cannot identify the signature of Sh. Gurubaksh Rai Kapur, S/o Late Sh. Brij Lai Kapur, R/o D/143, Ajay Enclave, New Delhi, on the Original Will dated 09.10.1989 which is exhibited as Ex. DW-1/1. The signature at Point 'B' on DW-1/1 is of Sh. Vikram Parve who is my friend.

The same chief has been adopted by Counsel for Defendant No.3.

OBJECTION RAISED BY the Counsel for the Plaintiffs for exhibiting/marking the Document as DW-

1/1 in view of the examination in chief of the DW-1. Cross-examination by Sh. Arjun Bhaskar, Counsel for the Plaintiffs.

NIL, Opportunity given.

It is submitted by the Counsel for the Plaintiffs that as the DW-1 has not identified the signature of Sh. Gurubaksh Rai Kapur on the Original Will, he does not wish to cross-examine the witness."

13. Learned counsel for the Plaintiff, on the basis of the above statement, submits that since the attesting witness failed to identify the signature of Shri Gurubaksh Rai Kapur, the execution of the Will has not been proved by the attesting witness and accordingly the Will can no longer be relied upon. It is the submission of learned counsel for the Plaintiffs, that Issue No.1 is therefore, to be decided against the Defendants.

14. On the other hand, learned counsel for the Defendant Nos.1 and 3 submits that the witness has not denied the execution of the Will. He has merely refused to identify the signature of the testator. The witness has identified his own signature and the signature of the other attesting witness. Thus, the Defendants should be permitted to prove the Will in terms of Section 71 of the Indian Evidence Act, 1872. The Defendants rely upon the judgment of the Supreme Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam AIR 2003 SC 761 as also a judgment of a learned Single Judge of this Court in Gur Prasad Gupta v. Ram Prasad Gupta in FAO 462/2007 dated 6th July 2017. Learned counsel for the Defendants has also relied upon a commentary on the Evidence Act to submit that if the witness has no recollection of the execution but he has no doubt that it took place,

this is sufficient proof.

15. On the other hand, learned counsel for the Plaintiffs relies upon Jagdish Chand Sharma v. Narain Singh Saini and Ors. AIR 2015 SC 2149 to argue that there is a difference between proving the execution of a Will under Section 68 and denying/not recollecting the execution of the same, as contained in Section 71. He submits that the attesting witness in the present case has failed to prove the execution of the will itself. Thus, a preliminary decree is liable to be passed.

16. This Court has heard the submissions of the parties. For the sake of convenience Section 68 and Section 71 of the Indian Evidence Act are set out herein below: -

"68. Proof of execution of document required by law to be attested.--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:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]

71. Proof when attesting witness denies the execution.--If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

17. The settled law on the proving of Wills is that a Will has to have two

attesting witnesses. One of the attesting witnesses has to be produced before the Court to prove the execution of the Will, the signatures on the Will as also the various surrounding circumstances. If the Will is not proved by the attesting witness or there are any suspicious circumstances which surround the execution of the Will, the Will is invalid and cannot be relied upon. As held in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and Ors. AIR 2009 SC 1389, these facts have to be proved in order for the Will to be held to be genuine and valid. In a case involving an appeal wherein the High Court had dismissed an appeal against a judgment of the District Judge by which probate of a will had been granted, the Supreme Court allowed the appeal with the following observations:

"22. The question which, thus, arises for consideration is as to whether execution of the Will has been proved. In our opinion, it has not been. The requirements for proving a Will have been laid down in a large number of decisions. We would, however, refer to only a few of them.

2 3 . In Janki Narayan Bhoir (supra), while dealing with the question elaborately, this Court held: "8. To say will has been duly executed the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place form which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and

each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.

9 .It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.

10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act does notsay that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as

envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of Clause

(c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 ofthe Evidence Act fails to prove the due execution of the will then the other available attesting witness has to

be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act." Following the said decision, as also the other decisions in Benga Behera (Supra), this Court held:

21. It was also not necessary for the appellants to confront him with his signature in the Xeroxed copy of the Will, inasmuch as the same had not appeared in the certified copy. Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, therefore, can only be proved in terms of clause(c) of Section 63 when at least one of the two witnesses proves the attestation. A Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his markto the Will. Section 68 of the Evidence Act provides for the requirements for proof of execution of the Will. In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will.

2 4 .Yet again, recently in Anil Kak v. Kumari Sharada Raje and Ors. AIR 2008 SC 2195, it was opined:

"52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience

before it passes an order.

54. It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.

5 5 .Unlike other documents, even animus testandi is a necessary ingredient for proving the attestation."

2 4 .For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed."

18. The question that arises in the present case is as to whether the statement of the attesting witness satisfies the requirement of Section 68 of the Evidence Act. A perusal of the statement given by the attesting witness shows that his statement is very limited and cryptic in nature. He unequivocally states that "he cannot identify the signature of the testator". He identifies his own signatures and the signature of the other attesting witness. This portion of the examination-in-chief is led by Defendant No.1 and is also adopted by Defendant No.3. The statement apart from being found wanting, is further conspicuously silent about the following -

 whether the Will was in fact executed by the testator;  whether he had accompanied the testator to the Sub-Registrar's office;  Whether the testator had signed the Will in his presence;  What were the circumstances in which the Will was executed;  What was the nature of his relationship with the testator;  Whether he was familiar with the family of the testator;  Who was the other attesting witness i.e., a friend, colleague or relative of the testator;

The statement of the attesting witness which is recorded in the examination- in-chief and the lack of any further statement on behalf of testator clearly shows that the requirements under Section 68 have not been established. The Will, having not been proved by the attesting witness, who in fact even denies to identify the signatures of the testator, cannot be said to have satisfied the requirement of law. Though a Will does not require to be compulsorily registered, if the same is registered and the attesting witness has participated in the registration process, it is unusual for the said witness not to mention the said fact.

19. In Jagdish Chand Sharma v. Narain Singh Saini and Ors.(Supra), the Supreme Court has clearly observed as under: -

"45.1 Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of 1872 Act. The distinction between failure on the part of a attesting witness to prove the execution and attestation of a Will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies /deny the execution of the document or cannot recollect the said incident. Not

only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71of Act 1872 cannot be invoked to bail him (propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63 (c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour 45.2 Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. This underlying principle is inter alia embedded in the decision of this Court in the Commission of Income Tax, Madras Appellant v. Ajax Products Limited Respondent AIR 1965, Supreme Court 1358."

20. The above judgement clearly holds in categorical terms as to the circumstances in which Section 71 can be invoked by the propounder of a Will. In Janki Narayan Bhoir (supra), the Supreme Court had in fact held

that Section 71 is to "rescue a party who had done his best, but driven to a state of helplessness and impossibility". Here there is neither an impossibility nor helplessness. The present is also not a case as in Gur Prasad Gupta (supra), where the attesting witness turned hostile. The attesting witness is very much available but has failed to establish the execution of the Will. If a witness is casual in his testimony and his testimony lacks credibility and clarity, Section 71 cannot come to the propounder's aid. What is important to note that even in the said case, the witness Mr. Kumar, as recorded in paragraph 15.5 "could not recall as to whether he was present when the testator had signed the Will". He also did not remember if any other person signed the Will or attested the same. Under these circumstances, the Supreme Court held that Section 71 cannot be resorted to by a person who has failed to fulfil the requirements of law as per Section 68. Issue No.1 is thus decided against Defendant Nos.1 and 3.

21. Insofar as Issue No.2 is concerned, admittedly Defendant No.2 has no share in the property and Defendant No.4 who is a female Hindu had died intestate. Applying the principles of Section 15 of the Hindu Succession Act in respect of her share, it is held that the parties would have the following shares in the suit property: -

1. 25% share with Plaintiff No.1

3. 25% share with Defendant No.1

4. 25% share with Defendant No.3

22. A preliminary decree is passed in terms of the shares stated herein above. Decree sheet be drawn.

23. Since the shares of all the parties have been determined, the Court is

of the opinion that mediation should be explored for either partitioning the property by metes and bounds or any other modes of partition.

24. Learned counsels for the parties have also pointed out that an FDR of Rs.18 lakhs is lying deposited in this Court which was created from the funds of Shri Gurubaksh Rai Kapur as also contributions by Defendant Nos.1 and 3 and some portions by the Plaintiffs for the maintenance of Defendant no.4 during her lifetime. In the mediation process, the distribution of this fund, shall also be done, after giving credit to the contributions made by the parties, failing which the Court would pass appropriate orders in respect of the said FDR.

25. List before Delhi High Court Mediation & Conciliation Centre on 26th October, 2018 at 3.00 p.m.

26. List before Court on 14th December, 2018.

27. In light of the order passed above and the preliminary decree granted by the Court, none of the applications in the suit survive. Accordingly, all I.As. are dismissed as infructuous.

PRATHIBA M. SINGH JUDGE OCTOBER 15, 2018 Rekha