Radhey Shyam Soni vs State & Anr
2019 Latest Caselaw 2528 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 15th May, 2019
+                               TEST.CAS. 35/2013

      RADHEY SHYAM SONI                                    ..... Petitioner
                 Through:               Mr. S.C. Buttan, Adv.
                                    versus
      STATE & ANR                                    ..... Respondents

                          Through:      Ms. Barnali Basak, Adv. for
                                        GNCTD.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petitioner Radhey Shyam Soni seeks probate of the document dated 27th December, 2010 stated to be validly executed last Will of deceased Budh Mal Soni.

2. It is pleaded in the petition, that (i) the deceased Budh Mal Soni was the brother of the petitioner; (ii) the deceased died at Village Nechhwa, District, Sikkar, Rajasthan on 21st February, 2013; (iii) the deceased Budh Mal Soni was the owner of (a) first floor of Property No.5238/5, Krishna Nagar, Karol Bagh, New Delhi; (b) entire fifth floor of House No.2782/20, Beadonpura, Karol Bagh, New Delhi; (c) land bearing Khasra No.205 measuring 1.1255 hectare; (d) land measuring 5.8553 comprised in Khasra No.844 and 266 and land measuring 5.4759 hectare in Khasra No. 339, all situated in Village Nechhwa, District Sikkar, Rajasthan; (e) Plot No.46, Village Nechhwa, Tehsil Lachhmangarh, Rajasthan; (f) built-up house at Village Nechhwa Gram Panchayat Nechhawa; (g) one flat at Calcutta; (h) one Flat No.501,

Ravindra Sarni Calcutta; (i) Flat No.4C and Shop at Sikkar, Rajasthan; and, (j) one shop at Nechhwa Panditia Samiti Sikkar, Rajasthan; (iv) the deceased also had monies in his account with Syndicate Bank and Life Insurance Policies, which have already been given to Smt. Bimla Devi wife of the deceased Budh Mal Soni; (v) the document dated 27 th December, 2010 was executed by the deceased Budh Mal Soni at Jaipur as his last Will, in the presence of his brother Thakur Singh Soni, one Sushil Kumar Verma s/o R.S. Verma and one Rakesh s/o S.K. Sugandha;

(vi) the said document is written by Rakesh in his own handwriting; (vii) the deceased Budh Mal Soni has no Class I heirs except his wife Bimla Devi as he was issueless and the mother namely Bhanwari Devi of the deceased had predeceased him; (viii) the petitioner is named as the executor in the document claimed to be the Will and is entitled to obtain probate thereof; (ix) the wife of the deceased Bimla Devi was trying to sell the properties though had no right, title or interest to do so; and, (x) the deceased was an ordinary resident of House No.5238/5, First Floor, Krishna Nagar, Karol Bagh, New Delhi and has also left properties at Delhi.

3. Besides impleading State as respondent no.1, only Bimla Devi, wife of the deceased has been impleaded as the close relative of the deceased.

4. The petition came up before this Court first on 13 th May, 2013 when though recording that the Will set up was highly suspect, notice of the petition was issued. After several opportunities to serve the wife of the deceased Budh Mal Soni, on 1st November, 2013 Ranjana Doshi,

Advocate appeared for the respondent no.2 Bimla Devi. On that date citation was also ordered to be issued.

5. The respondent no.2 Bimla Devi filed her objections pleading that

(i) the document claimed to be the Will was forged, fabricated and manipulated; (ii) the deceased Budh Mal Soni, being the husband of the respondent no.2 never executed any Will or any Will dated 27th December, 2010; (iii) the deceased Budh Mal Soni was not on good terms with the petitioner; (iv) the petitioner has prepared the document to grab the properties of the deceased; (v) the deceased Budh Mal Soni was doing business of sale/purchase and manufacture of gold/silver ornaments from Shop No.2782, 5th Floor, Street No.20, Beadon Pura, Karol Bagh, New Delhi; (vi) the petitioner, prior to filing this petition, illegally took away the entire papers, documents, Life Insurance Policies, passports, passbooks and other documents from the said shop; (vii) the respondent no.2 and her daughter Pooja Soni made repeated requests to the petitioner to return the documents but the petitioner did not; (viii) on the contrary the petitioner along with his other brothers meted out threats to the respondent no.2 Bimla Devi and her daughter Pooja Soni; (ix) since the deceased Budh Mal Soni and respondent no.2 Bimla Devi were issueless, they had taken Pooja Soni as their daughter in adoption from her natural parents on 24th March, 1995; and, (x) the petitioner has concealed the factum of the deceased Budh Mal Soni having also left a daughter and the petition, without impleading the said daughter, is not maintainable.

6. The respondent no.2 Bimla Devi, besides filing her objections as

aforesaid also filed an application under Order I Rule 10 of the Code of Civil Procedure, 1909 (CPC) for impleadment of Pooja Soni as a party to the present proceedings.

7. The order dated 7th May, 2014 records that the petitioner did not want to file reply to the objections aforesaid of the respondent no.2 Bimla Devi or reply to the application of the respondent no.2 for impleadment of Pooja Soni as a party to the present proceedings.

8. On 8th January, 2015, the counsel for the petitioner stated that the respondent no.2 Bimla Devi had expired and he had instructions to withdraw the petition. The statement of the counsel for the petitioner to the said effect as well as statement of the counsel for the respondent no.2 of having no objection to the withdrawal of the petition were also recorded on that date. Vide order dated 22 nd January, 2015 the petition was dismissed as withdrawn.

9. Thereafter, IA No.8316/2015 was filed for restoration of the petition and notice thereof was issued and Mr. Dinesh Doshi, Advocate appeared for Pooja Soni on 17th August, 2015. Vide order dated 9th August, 2017, on the counsel for Pooja Soni stating that he had no objection to restoration of the petition which was earlier withdrawn, the petition was restored to its original position and time granted to Pooja Soni to file objections.

10. No objections were filed by Pooja Soni and the counsel who was earlier appearing on behalf of her, also stopped appearing and vide order dated 25th January, 2019 the petitioner directed to file ex parte evidence.

11. The petitioner has examined himself as PW1, Shushil Kumar

Verma as PW2, Rakesh Sugandha as PW3 and closed his ex parte evidence.

12. The counsel for the petitioner states that the document has been proved by attesting witnesses thereto as the validly executed last Will of the deceased Budh Mal Soni.

13. I had on 13th May, 2013, when the petition had first come up before this Court, observed that the document claimed to be the Will was highly suspect because the same is handwritten on about 3/4th part of a foolscap paper bearing signatures purportedly of the deceased Budh Mal Soni at one end thereof. The said signatures evidently are in a different ink and pen from the ink and pen in which the document is written and the witnesses have signed. Another reason why it was so observed was that neither the document claimed to be the Will, though acknowledging respondent no.2 Bimla Devi as wife, gives any reason for not leaving the estate to the respondent no.2 Bimla Devi wife nor does the petition set out any reason. The document merely records that the petitioner had looked after the deceased and the deceased had faith that the petitioner will continue to look after his wife also, whether she resides in village or anywhere else.

14. Not only is the document claimed to be the Will suspect but even the proceedings have been conducted in a highly suspect manner. The petitioner as aforesaid chose not to file a reply to the objections filed by the respondent no.2 Bimla Devi or to the application filed by the respondent no.2 Bimla Devi for impleadment of Pooja Soni as a party. The petitioner did not rebut that Pooja Soni was adopted by the deceased

as his daughter. Without impleading Pooja Soni as a party to the present petition, the petition did not lie. When the application of the respondent no.2 Bimla Devi for impleadment of Pooja Soni was pending, the petition was withdrawn. Reasons set out in the application for restoration also are contradictory. At one place it was stated that owing to the demise of the respondent no.2 Bimla Devi the petitioner was advised discontinuation of the proceedings and at another place it was pleaded that the previous counsel for the petitioner kept assuring the petitioner that the case was pending. Moreover, in the application being IA No.8316/2015 filed for restoration of the petition, again it was pleaded that the deceased left no other Class I heir except his wife as the deceased was issueless. No mention was made of Pooja Soni, whose being a daughter of the deceased was not denied.

15. Though notice of the said application for restoration was ordered to be issued but without noticing that the respondent no.2 Bimla Devi was dead and Pooja Soni had not been impleaded. The said notice also, in the handwriting of the Court Master on the order sheet dated 23 rd April, 2015 was reported to have been served on Mr. Dinesh Doshi, Advocate by ordinary process and who appeared before the Court and gave no objection to restoration of the petition. There is no clarity on whose behalf Mr. Dinesh Doshi, Advocate appeared inasmuch as the respondent no.2 Bimla Devi was dead and Pooja Soni had not been impleaded as a party. It is not understandable for whom the said Mr. Dinesh Doshi, Advocate appeared. There is no Vakalatnama also on record of Mr. Dinesh Doshi, Advocate. In fact, there is a reference in the order sheets, to the application for impleadment of Pooja Soni but there

is no application also on record and it appears that the application intended to be filed or filed remained under objection and never got listed. There is no order also of impleadment of Pooja Soni at any point of time.

16. In the circumstances, though PW2 Sushil Kumar Verma and PW3 Rakesh have in their affidavits by way of examination-in-chief tendered in evidence deposed that the document claimed to be the Will was executed in their presence and written by Rakesh Sugandha in his handwriting at the dictation of the deceased who signed the Will in their presence but my conscience as a Testamentary Judge who deals with the estate of a person who is not before the Court, is not satisfied, that the document on which Ex.PW1/2 has been put is validly executed Will of the deceased Budh Mal Soni. The petition is also liable to be dismissed for the reason of failure to implead Pooja Soni, whose being the daughter of the deceased was not denied. The withdrawal of the petition and restoration thereof in the manner aforesaid also raises suspicion, of the petitioner, when faced with a battle, withdrawing and thereafter appearing to obtain a walkover.

The petition thus fails and is dismissed.

RAJIV SAHAI ENDLAW, J MAY 15, 2019 'pp'...