Bimla Rani v. Prem Chand

13. In response to paragraph 7 to the petition, it has been stated by respondent no.2 in the written statement that the Will putforth by the petitioner stands superseded by the registered Will dated 19.10.1982 and the Will of 17.11.1969 stands cancelled. In effect the signatures on the Will of 1969 and execution of the will have not been questioned.

14. It may also be noticed that no original document dated 22.3.1980 was filed by respondent no.2 and only a photocopy was filed and the same has not been proved. Another important factor which is to be noticed before deciding the rival submissions of the parties is that respondent no.2 through his wife Smt.Urmila Aggarwal had filed probate proceedings being No.7 of 1994 as an executor of the Will dated 18.10.1982. The said proceedings were contested. In the written statement filed by the petitioner herein it was averred that the aforesaid Will dated 18.10.1982 is forged and fabricated, the probate petition was barred by limitation and the petitioner therein (Smt.Urmila Aggarwal) had renounced the executorship and accordingly two preliminary issues with respect to the limitation under Article 137 of the Limitation Act and the effect of renunciation in terms of Section 230 of the Indian Succession Act were raised. The petitioner withdrew the probate proceedings on 8.10.2008.

15. To prove the execution of the Will dated 18.10.1982 the respondent no.2 examined Sh.T.C. Gupta one of the attesting witnesses.

16. RW-1, Sh.T.C. Gupta in his examination, has deposed that he was the Secretary of Aggarwal Sabha, South Extension, and all Aggarwals residing in South Extension were known to him. He also knew Sh.Dina Nath as daughter of Sh.Dina Nath was married to his son. He also deposed that the Will dated 18.10.1982, Exhibited as Ex.RW-1/1 was executed by late Sh.Jija Lal in his presence. RW-1/1 bears the signatures of Sh.Jija Lal at point B, the Will was witnessed by him as well as Sh.Dina Nath. This witness identified his signatures on the Will at point E and the signatures of Sh.Dina Nath is at point F. He also identified the signatures of Sh.J.C. Chopra on Ex.RW-1/1 at point G. He also deposed that the contents of the Will, RW-1/1 were not discussed with him. The Will was drafted by Sh.J.C. Chopra, Advocate, and Sh.Jia Lal was having good physical and mental health at the time of execution of RW-1/1.

17. RW-1 was cross-examined by counsel for the petitioner. During crossexamination he deposed that Sh.Jia Lal may be known to him since 1950 or say for about five years from the execution of the Will, RW-1/1. According to this witness, Sh.Jia Lal was residing at C-40, NDSE-1. Though he did not know the date since when he was residing at the said place. He had met Sh.Jia Lal about five years earlier to the execution of the Will, RW-1/1, dated 8.10.1982 At the time when the Will was executed, Sh.Jia Lal was residing at C-40,NDSE-I. He had met Sh.Jia Lal for the first time on the ground floor of his house, although he was not going regularly to the house of Sh.Jiya Lal to meet him. He did not remember as to how many times he had met Sh.Jiya Lal, nor he had attended any social function in the house of Sh.Jia Lal. He denied the suggestion that Sh.Jia Lal was not known to him personally. Although he admitted that he had no knowledge about the wife and children of Sh.Jiya Lal. He did not recall when he was first elected as Secretary of Aggarwal Sabha at South Extension nor he remembered upto which year he remained Secretary of the Aggarwal Sabha. He also did not remember as to when Sh.Jiya Lal was made a member of the Aggarwal Sabha although he did know that the name of Sh.Jiya Lal appeared in the Directory of Aggarwal Sabha. He deposed that Sh.Dina Nath was residing in NDSE-2 and had since died. RW-1/1 also deposed that in a year he used to meet every member of Aggarwal Sabha, South Extension, two or three times. This witness was shown six photographs and was asked to identify the photographs of Sh.Jia Lal, however, this witness was not able to identify the photograph of Sh.Jia Lal, out of the photographs shown to him.

18. The respondent no.2 appeared as a witness (RW-2). In his examination-inchief, which was recorded on 13.2.2009, Sh.Amar Chand, PW-2, has deposed that his father was in the business of building construction since 1928, he had a good financial position, he was an income tax payee and his father used to help his sister financially. According to PW-2 his father made gifts to his sister, during his life time he was having a sound mind and good health till he passed away, he was not dependent on anybody financially or otherwise and he had helped his elder brother, Sh.Prem Chand and sister Ms.Kamla Rani, in constructing two houses. He has further deposed that prior to South Extension his father was residing at Shanti Niwas, Janpath Lane, New Delhi, in a rented house. After her marriage his sister Smt.Bimla Devi stayed with her in-laws at Mirdard Road, near Bengali Market upto 1968 and thereafter in the Government Accommodation at Minto Road allotted to her husband upto 1972 and thereafter at Panchkuyia Road. After the demise of husband of Sh.Bimla Devi, probably in the year 1980, she resided in C-40, NDSE, New Delhi, which belonged to his father.

19. During cross-examination, he testified that the relationship between his father, Sh.Jia Lal, and sister, Smt.Bimla Devi, were not cordial as the sister used to curse his father, rebuke her father and emotionally blackmail him for extracting more money. According to this witness after constant harassment for a number of years his father took the help of his own brother-in-law, Sh.S.P. Goel and requested him to mediate and the matter was amicably settled on 22.3.1980 in the house of Sh.S.P. Goel at Rohtak Road. Photocopies of the settlement agreement between Smt.Bimla Devi, her husband Sh.Dharampal and his father Sh.Jia Lal has been marked as Exhibit R-1. RW-2 has also identified the signature of his late father Sh.Jia Lal on Ex.RW-1/1, the Will, at points A, B, C and D. He has also deposed that this Will had been sent to him by post by one Sh.S.K. Jain, Advocate, along with a forwarding letter, a copy of which is marked as Exhibit R-2. He has also deposed that the Will dated 18.10.1982, Ex.RW- 1/1, was filed in Court by his wife, Smt.Urmila Aggarwal.

20. During cross-examination this witness deposed that he was married in the year 1964. His mother passed away in the year 1955. At the time of his marriage he was residing at Shanti Niwas, Janpath Lane, New Delhi. And after two days of marriage he shifted to C-40, South Extension, Part I, Delhi. His elder brother, Sh.Prem Chand, was married in the year 1955 and he came for his marriage from Allahabad where he was working and after marriage he went back to Allahabad. He further deposed that it was correct that neither his brother Sh.Prem Chand, nor his younger brother, Sh.Bahadur Chand, stayed with his father at Janpath Lane after their marriage at Janpath Lane and Sh.Jia Lal shifted to C-40, NDSE, Part-1, one and half years prior to his death. He denied the suggestion that there were three rooms in the house at Janpath Lane and volunteered to say that there were two rooms and a kitchen. He denied the suggestion that there was no paucity of space at the Janpath house. This witness was shown six photographs marked A, B, C, D, E and F and was asked to identify the photo of his father Sh.Jia Lal. This witness has deposed that his father never had any colour photograph and the photograph marked D appeared to be that of his father but the same had been manipulated. On being asked that the person appearing in photograph marked D is your father, he has deposed that the face of the person in the photographs resembles his father but the same has been manipulated. He denied the suggestion that the photograph marked D is a genuine or original photographs of his father Sh.Jia Lal. He also denied that Smt.Bimla Devi shifted to C-40, NDSE along with his father in the year 1982. He denied the suggestion that he was aware of the registered Will dated 17.11.1969 executed by his father, this witness has deposed that he had seen the Will for the first time after receiving the present petition, although his father used to say that he had executed some Will. On being shown Ex.PW-2/1, he identified the signature of Sh.Jia Lal at point A on the front page and at points A-1 and A-2 at the back side. He denied the suggestion that PW-2/1 was the last and final Will executed by his father. He also deposed that in the year 1967 he was posted at Jaislmer, from 1968 to 1976 he was also posted at Ghaziabad and from 1976 to 1979 he was posted at Ahmedabad. His wife had never been posted outside Delhi. He had no differences with his brother, Mr.Bahadur Chand, but he was not on talking terms with him since the year 1982. He denied the suggestion that he had marital differences with his wife. She had only visited her parents house as she was unwell and she had gone to her parents house with his son. He denied the suggestion that Sh.Jia Lal was being looked after by Smt.Bimla Devi exclusively. He also denied that suggestion that the stamp paper for the Will, RW-1/1 had been purchased by him. This witness was shown the stamp papers, as per which, the name of the witness had appeared, to which the witness clarified that he always writes his name as Amar Chand Aggarwal and not as A.C. Aggarwal, as mentioned on the back side of the stamp paper. He was pointedly asked that he was also known as A.C. Aggarwal, to which he replied that he was known as A.C. Aggarwal only at the office. He was also asked that in addition to his office his wife also referred herself as Urmila Aggarwal, wife of Sh.A.C. Aggarwal, to which he stated that he did not know. Again the witness was asked that his name was rightly mentioned as purchaser of the stamp paper, Ex.RW-1/1, to which he replied that it may have been written by somebody else and he could not say anything about it. He identified the signatures of his wife at Point A on Ex.RW-2/P[2]. According to this witness RW-1/1 was drafted by Sh.J.C. Chopra, Advocate, which was written on the Will itself. This witness was also shown the original bill of telephone no.24628296, which was marked as Ex.RW-2/3. He admitted that he knew Sh.T.C. Gupta since the year 1998 when he met him in respect of the present case and he had seen the Will, RW-1/1 for the first time when it was opened during the Court proceedings and when it was to be shown to the witness Ms.Renu Gupta. It was suggested to this witness that he knew Sh.T.C. Gupta since the year 1980, to which he replied as correct. He further deposed that Sh.T.C. Gupta was the office bearer of Aggarwal Sabha of South Extension. Again this witness was asked that whether Mr.T.C. Gupta is known to him as he is the friend of his son, Mr.Rajender Gupta, to which this witness replied that he did not know any Rajender Gupta. On being asked as to when he came to know about the existence of the Will, RW- 1/1, he answered on 23.9.1985, when a copy of the Will was given by his wife through her Advocate. This witness has deposed that it was correct that he lived with his wife in the same house, but he had not accompanied his wife to her counsel, Sh.S.K. Jain, for issuance of the said notice. His wife knew Sh.S.K. Jain as was the husband of one of his wife‟s colleague. He admitted that his wife had been accompanying him to Court only after the year 2004. He denied the suggestion that the Will Ex.RW-1/1 is a forged and fabricated Will or the same has been forged and fabricated by him and his wife. He further denied the suggestion that the financial position of his father was not good but it was correct that he had obtained a loan of Rs.20,000/- for construction of the house, C-40, South Extension. He also denied the suggestion that his father was not in his sound mind or good health or was bed ridden during the last two years of his life or that the relationship between his father and Smt.Bimla Devi were cordial or that Smt.Bimla Devi used to lookafter his father during her life time. He reiterated that Smt.Bimla Devi emotionally blackmailed, cursed and rebuked Sh.Jia lal and that it was incorrect that no efforts of mediation took place. He also denied all the suggestions with regard to document, R-1 (Settlement), is a forged and fabricated.

21. During his cross-examination by learned counsel for defendant no.3, Sh.Bahadur Chand, this witness has denied the suggestion that the Will, Ex.RW-1/1, is forged and fabricated and the same had been fabricated by him and his wife.

22. Further during the cross-examination of Shri Amarchand, Sh.Amarchand denied the suggestion that the Will Ex.RW-1/1 was written by him, or that he or his wife were aware of the contents of the Will in the year 1982 itself. Sh.Amarchand also denied that he did not know any person by the name of Mr.J.C.Chopra and Mr.Dinanath. Shri Amarchand further deposed that he could not identify the signatures of any of the persons on the Will, except the signatures of his father at points (A), (B), (C) and (D). He denied the suggestion that the signatures at points (A), (B), (C) and

(D) are not of his father Sh.Jialal. On being asked whether he knew any other person, who signed the Ex.RW-1/1, this witness replied that he knew about Sh.T.C. Gupta in the year 1998 only and his name and signatures are written on Ex.RW-1/1. He further denied that he did not know anything about the family of his Sh.T.C. Gupta and he was informed by the Sh.T.C. Gupta that he had retired as an Under Secretary from the Government of India and was practicing as an advocate.

23. Sh.Amarchand has also denied the suggestion that Sh.J.C. Chopra, Sh.Dinanath and Sh.T.C. Gupta were known to him or his family or that they were frequent visitors to his house. This witness has also deposed that he did try to find out whereabouts of other witnesses mentioned in the Will Ex.RW-1/1 through Sh.T.C. Gupta in the year 2006, however, he was told that other witness Sh.Dinannath has passed away, although he never visited the address of the witness, Dinanath mentioned in the Will. He did not try to find out whereabouts of the person, who drafted the Will i.e. Sh.J.C.Chopra, nor did he meet the family members of Sh.Dinanath for verification of his signatures on the Will. He also denied the suggestion that the stamp paper on which the Will had been written, had been purchased by him, although the details mentioned at point „X‟ of the backside of the Will are of his father and his name (name of Amarchand) did appear on the said document. He denied that his name appeared as A.C. Aggarwal at point „X‟; and volunteered that he always wrote his name as Amarchand Aggarwal. Thus A.C. Aggarwal and Amarchand Aggarwal are not the same person. He also denied that he ever received any letter or written communication from Mr.J.C.Chopra, Mr.Dinanath and Mr.T.C. Gupta; or that he had ever sought legal advice from either of them. The witness, however, admitted documents marked as RW-2/R1-1 to RW-2/R6-6; and volunteered to state that the said documents pertain to his office where he was called by the name A.C. Aggarwal. On being asked that the signatures of Sh.J.C. Chopra and Sh.Dinanath at point „F‟ and „G‟ are not the signatures of the said persons, this witness answered that he did not know. He also denied the suggestion that the Will RW-1/1 has been forged and fabricated by him and his wife. During crossexamination, this witness has deposed that his father had been living alone since the year 1968 onwards. He agreed to the suggestion that Sh.Premchand was the sole earning members during the period 1954-60. He admitted that in the year 1982 Sh.Premchand, respondent no.1 was residing at C-40, South Extension Part-I, New Delhi, but he was not aware from whom the plot C-40, South Extension Part-I, New Delhi was purchased or what was the mode of payment of the consideration of the same. He denied the suggestion that his father lost his memory in the year 1981 or that he was confined to the house due to death of his son-in-law (Sh.Dharampal) in the year 1981. This witness volunteered to state that he was hale and hearty and rode his bicycle till his death. He has not admitted that his father was sad due to demise of his son-in-law.

24. He testified that his relationship with his wife Smt.Urmila Aggarwal, who claimed to be the executor under Will dated 18.10.1982 were cordial. RW-2, Sh.Amar Chand Aggarwal the only contesting respondent and son of late Sh.Jia Lal, even refused to recognize the photograph shown to him of his father. He deposed that photograph marked „D‟ appeared to be that of his father, but the same was manipulated. It was put to him that the photograph marked „D‟ was that of his father, but his response was evasive and stated that the face of the person resembles as his father, but the photograph was manipulated. Interestingly although respondent no.2 testified that his relations with his wife were cordial; they resided in the same house, however, during cross-examination recorded on 1.5.1990 he testified that the Will of the year 1982 was seen by him for the first time when it was opened in the court proceedings for showing it to the witness, Ms.Renu Gupta on 15.12.2006 and it remains unexplained as to why the propounder of the Will had not seen the original Will dated 18.10.1982 till the year 2007. It has also been testified by this witness that a copy of this Will was received by him through a lawyer‟s notice. It is the wife of Sh.Amar Chand Aggarwal, the executor of the Will dated 18.10.1982 with whom Sh.Amar Chand Aggarwal had cordial relations being husband and wife living in the same house, yet the wife did not either inform her husband of the Will of 18.10.1982 nor discussed with him, despite the fact that her husband was a beneficiary and also approached one S.K. Jain, advocate who in-turn issued a notice annexing a copy of the Will to RW- 2, Sh.Amar Chand Aggarwal. Sh.Amar Chand Aggarwal also denied having visited the office of Sh.S.K. Jain, whereas a hand written word appearing at point „A‟ RW-3/1, which is the notice of S.K.Jain, advocate was shown to Mrs.Urmila Aggarwal, she did not deny the hand writing of respondent no.2, her husband. RW-2 was shown the stamp paper on which the Will of 1982 was prepared, which showed that the stamp papers were purchased by Sh.A.C. Aggarwal. Sh.Amar Chand Aggarwal refused to acknowledge that he was known as A.C. Aggarwal or the stamp papers were purchased at his instance. He was extensively cross-examined by counsel for the petitioner. During the cross-examination he testified that he was known as „A.C. Aggarwal‟ in his office; he pleaded ignorance that his wife would write his name as A.C. Aggarwal, although he admitted a telephone bill Ex.RW-2/3, which stated his name as A.C. Aggarwal. He also admitted signatures of his wife on Ex.RW-2/P-2 wherein his wife Urmilla Aggarwal has not denied the purchase of stamp paper on which the alleged Will dated 18.10.1982 is drafted, to have been purchased by respondent no.2. When respondent no.2 was confronted and put a specific question that his name has been rightly mentioned as AC Aggarwal on the stamp paper, he was very evasive and did not deny the suggestion and stated that he cannot say anything about it.

25. The affidavit by way of evidence has also been filed by Smt.Urmila Aggarwal, wife of Sh.Amar Chand Aggarwal, wherein she has stated that Sh.Jia Lal, during his lifetime has deposited one close envelope with her, containing his Will the contents of which were conveyed to his heirs only after one year of his death, and after all performing all the religious rituals. She further deposed that according to his wishes, she had informed all the legal heirs by sending photocopies of the Will dated 18.11.1982 through Sh.S.K. Jain, advocate. She identified the signatures of Sh.S.K. Jain, Advocate. She further deposed that as per the Will dated 18.10.1982 she was appointed as the executor of the Will and she deposited the Will on 03.03.1997 in the High Court and she further identified the signatures of Sh.Jia Lal on the Will of 18.10.1982. During cross-examination, she further proved the issuance of notices and postal receipts being RW-3/1 and RW-3/2 to RW-3/5. During crossexamination she was asked as to the person appearing in the photograph marked „D‟ was her father-in-law to which she replied that since it is small photograph and has been manipulated, she could not answer the question. She stated that she had very cordial relations with her husband and she is residing at C-40, NDSE, Part-I, New Delhi. During the crossexamination, she also stated that mostly her husband‟s name is written as Amar Chand Aggarwal, whereas in short the name is written as A.C. Aggarwal. She had stated that she was aware about the pendency of the present suit since the year 1985. Her answer was in the negative, to the question as to whether she had applied for estate duty clearance on the basis of the Will of 1982. She also denied that she had either asked for release of the payment or estate duty clearance on the basis of the Will.

26. During cross-examination, Smt.Urmila Aggarwal denied that she had taken any steps for mutation of the property C-40, NDSE, before the Municipal authority on the basis of a Will of 1982 or any steps for release of the amount from the bank account of Jia Lal on the basis of the Will of

1982. Smt. Urmila Aggarwal, during her cross-examination, admitted that she had withdrawn Probate Case no.7/1994 pertaining to the alleged Will dated 18.10.1982. She denied the suggestion that the Probate Case No.7/1994 had been withdrawn by her as the Will dated 18.10.1982 was a forged and fabricated document. This witness has stated that she was unaware of the fact that stamp paper for the Will dated 18.10.1982 had been purchased by her husband, Sh.A.C. Aggarwal, however, she admitted that her signatures appeared on each page of the document marked as Exhibit RW2/P[2]. She also denied the suggestion that the words written at point A on the document, Ex.RW3/1, are in the handwriting of her husband as the writing was 15/25 years old. She has stated that she was not aware of the exact date when the closed envelope as mentioned by her in para 3 of her affidavit was given to her, however, according to her it was given to her at her house in the month of October/November, 1982 and at that point of time none was present nor did the envelope contain any writing outside. This witness has stated that she opened the envelope in the year 1985 and she had shown the original Will only to her counsel, Sh.S.K.Jain, and to none else not even to her own husband according to the wishes of her deceased father-in-law. She has denied the suggestion that no envelope was ever given to her by Sh.Jia Lal nor any instructions were given by Sh.Jia Lal to her. She has also stated that she was not aware as to who had drafted the Will dated 18.10.1982 nor the Will was typed in her presence, nor she known anybody by the name of Sh.J.C.Chopra or Sh.I.C. Garg was known to her except that she met Sh.T.C.Gupta for the first time in the year 1998 at his house when she had visited him along with her husband for taking his affidavit to be filed in Court. She denied the suggestion that Sh.T.C.Gupta was her father‟s friend or that Sh.T.C.Gupta was very well known to her and her husband. She further stated that she do not know as to whether Smt.Bimla Rani, Sh.Premchand and Sh.Bahadur Chand were residing at C-40, NDSE, Part- 1, during the years 1985-1986. She has also stated that she did not know as to whether the said persons were residing at C-40, NDSE, Part-1, during the years 1985-1986. She further stated that she did not have with her any acknowledgement card or a certificate of delivery regarding the receipts. She denied the suggestion that she had left the matrimonial house prior to the death of Sh.Jia Lal. She stated that she was present at the matrimonial house and used to occasionally visit her parental house. She also denied the suggestion that she did not have cordial relationship with her father-in-law and she had left her matrimonial home on account of a tiff with him.

27. In her cross-examination by learned counsel for respondent no.1, Smt.Urmila Aggarwal stated that at the time of handing over of the envelope her father-in-law had told her that he had named her as the Executor in his Will and further that she should not inform anybody including her husband about handing over of the Will to her. She did not remember the time or which part of the day when the said envelope was entrusted to her. She could not also remember when the said envelope had been opened. Although the envelope was opened in the presence of her colleague, Smt.Lata Jain. She also stated that she could not remember as to when she came to know about the existence of the 1969 Will. She volunteered to state that she came to know about the existence of 1969 Will when her husband had been hospitalized at Patniak Eye Hospital, G.K.-11, Delhi. At that time she was told by Sh.Prem Chand that the arguments in the case pertaining to the 1969 Will were going on in Court. She denied the suggestion that neither any envelope nor any Will was ever handed over to her by late Sh.Jia Lal nor he executed any Will. She also denied the suggestion that she deposed that Sh.Prem Chand, respondent no.1, nor Sh.Bahadur Chand, respondent no.3, or Smt.Bimla Rani ever demanded the original Will of 1982 from her. On being asked to explain as to why the original Will had been filed in the year 1997 when the suit had been pending adjudication from 1985, especially, in view of the fact she was aware of the proceedings from 1985 onwards, this witness has stated that she was not aware as to which will was being considered in the Court proceedings, however, she filed the Will under instructions of her counsel. During cross-examination, Smt.Urmila Aggarwal has stated that she was married to respondent no.2 in 1964 and she shifted to the suit property after two days of her marriage. She was not aware as to how her father-in-law acquired the property nor she was aware about the loan of Rs.20,000/-, however, she had learnt that her father-in-law, Sh.Jia Lal, used to stay alone from 1969/1970 onwards at Shanti Niwas, Janpath Lane upto 1983 and thereafter shifted to C-40, South Extension, Part-I. She along with her husband visited Sh.Jia Lal at Shanti Niwas, Janpath Lane, once or twice a year.

28. She has stated in her cross examination recorded on 01.09.2009 that alleged Will dated 18.10.1982 was not typed in her presence and she did not know who had drafted the said Will. Whereas in Ex.RW-2/P-2 which is replication RW-3 to the written statement of Respondent no.3 Sh.Bahadur Chand in Probate Petition No.07/94 the signatures on which have been admitted by her during the cross examination. On the page 9 of the said Ex.RW-2/P-2, she has submitted that handwritten and typed addresses of the witness have no relevance as the witness No.1 was available when Will dated 18.10.1982 was typed and the witness No.2 came later on when all the parties signed the Will dated 18.10.1982 in the presence of each other. She also stated that Sh.J.C. Chopra has drafted the Will dated 18.10.1982. These averments in the said replication were made by her on 29.04.1998 and she has stated that these are based on her personal knowledge in her verification para. It is a glaring contradiction in the stand of RW-3 Smt.Urmilla Aggarwal. She is taking different stands at different times and cannot be relied upon. The drafting and typing of the said Will dated 18.10.1982 is a very material fact and the said witness in one proceeding pleads facts relating to time of drafting and typing of the alleged Will dated 18.10.1982 from her personal knowledge which necessarily means that she was personally present at that time and in another proceedings she is claiming to be unaware of the person who drafted the Will and categorically stated that it was not typed in her presence.

29. The testimony of this witness RW-3 is also highly shaky and unreliable which can be judged from her statement recorded on 01.09.2009 when she stated that she does not remember where Smt.Bimla Devi, Prem Chand and Bahadur Chand were residing in the year 1985-86. When she was specifically asked and told that these three persons were staying at AC-40, NDSE-I, New Delhi during the period 1985-86 to which she stated that she does not know. It is very strange and highly unbelievable that said witness Smt.Urmilla Aggarwal who was also stays in the same house does not know the other occupants of the house specifically when the other occupants are none other than her brother-in-law and sister-in-law.

30. RW-4, Ravinder Kumar, LDC, from the Office of Sub-Registrar-III, Asaf Ali Road, New Delhi, was also summoned. He produced the office copy of the Will, Ex.RW1/1, executed by Sh.Jia Lal. He stated that Ex.RW1/1 had been registered in the Office of Sub-Registrar vide registration no.2445, book no.3, Volume no.225 pages 118-19 on 19.10.1982. “STATEMENT OF RW-4, MR.RAVINDER KUMAR, LDC, OFFICE OF SUB-REGISTRAR-III, ASAF ALI ROAD, NEW DELHI-110002 ON S.A. I have brought the summoned records i.e. the office copy of the Will, Ex.RW1/1 executed by Sh.Jialal S/o Late L. Gopiram R/o C- 40, NDSE, New Delhi which had been registered in the Office of Sub-Registrar vide registration no.2445, book no.3, Volume no.225 pages 118-19 on 19.10.1982.” “STATEMENT OF RW-4, MR.RAVINDER KUMAR, LDC, DELHI RECALLED FOR CROSS-EXAMINATION FROM 21.10.09 ON S.A. The document Ex. RW1/1 had not been executed in my presence and I have no personal knowledge about the same. The signatures in the register containing the office copy of the document, Ex.RW1/1 had not been appended in my presence. I have joined the office of the sub-Registrar-III, Asaf Ali Road, New Delhi in November, 2007 and I have no personal knowledge about the case.

It is correct that the first page of the volume no.225, book no.3 which has been brought by me is torn. It is correct that there is no photograph affixed in the office copy. Volunteered at that time no photograph was affixed in the office copy.

Ex.RW1/1 having continuous pagination in ink? (I note that there is no continuous pagination on the register and the Wills have been numbered not in a continuous number and as such the question is disallowed) It is correct that on the reverse side of the page 2 of the office copy there are no signatures of the sub-registrar and no even sd/has been mentioned. Volunteered the signatures of the sub-registrar are not appended at the said place. (Court observation: It is noted that even on the other Wills registered prior and even subsequent to the registration of the document Ex. RW1/1 there are no signatures or mention of sd/- on the reverse side where registration number has been given. The name and mention of sd/- is there on the back side of the first page of the documents).” Test.Cas.46/1985 Date: 07.11.2009 STATEMENT OF RW-4 MR.RAVINDER KUMAR, LDC, DELHI RECALLED FOR FURTHER CROSS EXAMINATION FROM 27.10.09 ON S.A. xxxxx by Mr.Praveen Pahuja, learned counsel for the petitioner. It is correct that there are no thumb impressions of any persons on the record/office copy of the Will-Ex.RW-1/1. The photocopy of the office/record copy of the Ex.RW-1/1 is marked as RW-4/1. (The learned counsel for the petitioner objects to the exhibition of the documents submitting that the photocopy of the office record copy of the Ex.RW-1/1 cannot be exhibited today as he has not asked for tendering of the said document (illegible) since the questions regarding photocopy of the official copy/record copy are being put by learned counsel for the petitioner the said document, is being taken on record and exhibited as Ex.RW-4/1 and as such the objection is disallowed. I do not know if the registration of the documents is done in a sequential manner and I have brought only the summoned record and I do not know have any personal knowledge about the facts of case as to how the registration number have been given.

20 pages of the registration No.2445 in the records? (The question is objected to learned counsel for the respondent that the witness is being put to unnecessary harassment and the questions are irrelevant).

I have no personal knowledge about the case and I do not know any of the persons whose signatures appear in the records. It is correct that there is no documentary proof regarding the identity of the signatories in the register and no details regarding the proof of identity of the persons signing the document has been detailed in the office copy. Volunteered the documentary proof is seen and returned and the copy is not kept in the register. It is incorrect to say that the document Ex.RW-1/1 had been fraudulently registered and manipulated. xxxx by Mr.Bahadur Chand, respondent No.3 It is incorrect to say that the Will, Ex.RW-1/1 is a forged and fabricated document. It is further incorrect to say that the office record of the sub-registrar-III has been forged and manipulated.”

31. On 1.9.1992 statement of Sh.Bahadur Chand, son of the testatrix, was recorded in the Court. In his statement he stated that he did not want to lead any evidence, his father had executed a Will dated 17.11.1969 and he accepted the said Will.

32. Upon careful analysis of the evidence of RW-1 would show that Sh.T.C. Gupta in his cross examination first stated that he knew Sh.Jia Lal for last 50 years and in the second moment he took a complete somersault and stated he knew the testator for about 5 years from the date of execution of Will dated 18.10.1982. He further stated that Sh.Jia Lal was a retired person. Whereas, as per respondent no.2, Sh.Jia Lal was doing business of construction, which would show that PW-1 had no idea as to whether the testator was a retired person or in active business. The said witness Sh.T.C. Gupta stated in his cross-examination that he came to know Sh.Jia Lal through Aggarwal Dharam Sabha, South Extension, and as he was the Secretary of said Aggarwal Dharam Sabha. He stated that he met Sh.Jia Lal at his house at South Extension 05 years earlier to execution of Will dated 18.10.1982. It is, an admitted position that Sh.Jia Lal shifted to South Extension somewhere in the year 1980-81, thus, it was not possible that RW-1 met the testator for the first time, five years earlier to the execution of the Will at South Extension.

33. It may be noticed that respondent no.2 in his cross-examination had admitted that his father had shifted to South Extension somewhere in the year 1981. Although it may not be necessary that the attesting witness should have known the testator for a particular number of years, but in the present case there was no reason for this witness to have testified at the first instance that he knew the testator for 50 years which was reduced to 5 years in the next breath; and that he came to know the testator through Aggarwal Dharam Sabha, South Extension, as this witness was the Secretary of the Sabha. This period of five years is also factually incorrect as Sh.Jia Lal had shifted to South Extension only in the year 1980-81 and thus the testimony of RW-1 that he knew late Jia Lal for the last five years is also an incorrect statement, as is his statement that Jia Lal was a retired person.

34. Another surprising factor in the testimony of this witness is his inability to recognize and identify the photograph of the testator whom he knew if not for 50 years but for 5 years as per his own statement. It may be noticed that this witness has testified that he used to meet every member of the Aggarwal Dharam Sabha 2-3 times in a year. It is strange that the attesting witness who claims to have known the testator for the past 5 years and he would meet him at least 2-3 times a year, was unable to identify the photograph of the testator. During the cross-examination recorded on 21.5.2007 this witness has also deposed that he retired on 1.1.1980 and from 1977 to 1980 immediately prior to his retirement he was staying at Bhilwara and not in Delhi. This is another factor which would cast a serious doubt on his testimony and make PW-1 an unreliable witness.

35. From the testimony of PW-1 it further emerges that the said witness Sh.T.C. Gupta when asked about alleged Will dated 18.10.1982 stated that he had not drafted the said alleged Will and the Will was got drafted from Sh.J.C. Chopra and the contents of the Will were not discussed with him. He further stated that his office is at his home which is C-73, NDSE-II, New Delhi. He does not say that the Will was drafted in his presence rather he stated that Sh.J.C. Chopra, Advocate had told him that the Will was drafted by him, meaning thereby insofar as drafting of the Will is concerned he was a hearsay witness and the same was not drafted in his presence. He further deposed that Will was signed at his office which is at his house C-73, NDSE-II, as early as 9:00 AM in the morning and around 10:00 AM they had reached the Registrar‟s office with the Will signed by Sh.Jia Lal, Sh.Dinanath and himself.

36. It may also be noticed that the date of drafting of the Will is stated to be 18.10.1982 by Sh.J.C. Chopra, Advocate at his office. RW-1 in his crossexamination has testified that the Will was signed in the morning at 9:00 a.m. at his office at C-73, NDSE on 18.10.1982. Thus it is unexplained at what time on 18.10.1982 the Will was drafted by Sh.J.C.Chopra, Advocate at his office, which was at Asaf Ali Road. Ordinarily the office would not have opened before 10:00 a.m. which would mean that after the Will was drafted the same was taken to South Extension and signed as early as 9:00 a.m. in the morning by travelling a distance of not less than 15 kms. It is also unusual that a 75 year old person residing at South Extension will get a Will drafted from a lawyer at Asaf Ali Road in the wee hours of the morning and then drive back to South Extension to have the same signed at 9:00 a.m. in the month of October. The above factors also make the evidence of Sh.T.C. Gupta suspicious and unreliable. Sh.T.C. Gupta also deposed that he knew respondent no.2 (Sh.Amar Chand Aggarwal) for the last 4-5 years when his statement was recorded on 25.5.2007, which means that he knew Sh.Amar Chand Aggarwal since the year 2002, however, he testified that he did not know any lady by the name of Smt.Urmila Aggarwal, wife of Sh.Amar Chand Aggarwal, whereas Sh.Amar Chand Aggarwal admitted in his cross-examination recorded on 1.5.1990 that he know Sh.T.C. Gupta since the year 1980, an aspect which would individually not have much bearing, but taking into consideration the entire evidence of Sh.T.C. Gupta, it cannot be ignored that whereas Sh.T.C. Gupta has testified that he did not know any lady by the name Urmila Aggarwal, Sh.T.C. Gupta had disputed his association with Sh.Amar Chand Aggarwal since the year 1980. Mrs.Urmila Aggarwal wife of respondent no.2 (Sh.Amar Chand Aggarwal) in her testimony testified meeting Sh.T.C. Gupta in the year 1998 at his residence.

37. The evidence of RW-3, Smt.Urmila Aggarwal, who is the wife of respondent no.2, Sh.Amar Chand Aggarwal, is also evasive and unreliable. As per the testimony of Smt.Urmila Aggarwal, RW-3, Sh.Jia Lal during his life time had deposited with her closed envelope containing his Will with a request that the contents were to be conveyed to his heirs only after one year of his death and after all religious rituals were performed. After the death of Sh.Jia Lal, she informed all the legal heirs by sending photocopies of the Will through Sh.S.K. Jain, Advocate. As per the Will dated 18.10.1992 she was appointed as an executor of the Will, however, she deposited the Will in this Court only on 3.3.1997.

38. Smt.Urmila Aggarwal was unable to explain as to why she did not show the original Will dated 18.10.1982 to her husband when they had cordial relations between them and the necessity to give a notice to her own husband regarding the Will dated 18.10.1982. RW-3 was also evasive about the photograph marked „D‟ of her father-in-law and in fact denial of the photograph marked „D‟ seemed only for the reason that the attesting witness could not recognize the testator in the photograph or any of the photographs so put to him.

39. The said witness Smt.Urmilla Aggarwal who claimed to be the Executor of the Will dated 18.10.1982 admitted that she became aware of the present probate case in the year 1985 and also admitted that she has not filed any objections to the same. Had there been any Will dated 18.10.1982 and Smt.Urmilla Aggarwal who alleged to have met Sh.S.K. Jain, Advocate then why did she not file any objections to the present case till date despite the fact that she claimed herself to be the executor and under law the executor is required to file objections to any other Will of the testator. The said witness has not given any explanation why she has not done the needful despite the fact that legal advice was available to her.

40. The said witness denied having any knowledge about estate duty clearance on the basis of Regd. Will dated 17.11.1969 by Smt. Bimla Devi. On the contrary, the said witness was very much aware about the fact that Smt.Bimla Devi had obtained Estate Duty Clearance. The said witness who claimed to be the executor in para 10 of her probate petition no.07/94 Ex.RW-3/P-1 dated 10.2.1994 and had stated that Estate Duty Clearance had been obtained by the said Bimla Devi. She has not explained why she has lied on this score. She claimed to be the executor under the alleged Will dated 18.10.1982 then why she has not applied for estate duty clearance on the basis of the alleged Will dated 18.10.1982. Inevitable conclusion is that alleged Will dated 18.10.1982 is a forged and fabricated document.

41. The said witness who claimed to be the executor of the said alleged Will dated 18.10.1982 categorically admitted that she had not taken any steps in respect of the Will dated 18.10.1982 like getting mutation of property on the basis of said Will or taking steps of realising the amounts from banks. This necessarily means that the said Will dated 18.10.1982 had not been brought to the notice of any authority. The said witness has failed to explain as to why said Will dated 18.10.1982 has not been brought to the notice of any authority for last 26 years nor there is any explanation for not getting the property mutated on the basis of said Will dated 18.10.1982. The only reason why the property was not mutated on the basis of the Will dated 18.10.1982 or was not brought to the notice of other authorities was that the said Will was not genuine nor in existence.

42. The said witness has admitted that probate case No.07/94 on the basis of the alleged Will dated 18.10.1982 had been withdrawn by her. No plausible explanation has been given by her despite the fact that she had legal assistance of her counsel. The said witness was again found lying when asked about her knowing Sh.T.C. Gupta who is alleged to be the attesting witness on the alleged Will dated 18.10.1982 to which she stated that the first met Sh.T.C. Gupta in the year 1998. On the contrary, in para 12 of the probate petition 07/94 Ex.RW-3/P-1 dated 10.02.1994 she had averred that Sh.T.C. Gupta has stated that he will depose in the court but would not sign the petition. This averment in Probate Petition in the year 1994 clearly shows that the said Smt.Urmilla Aggarwal knew Sh.T.C. Gupta in 1994 as well. It is very surprising why she made a false statement about her acquaintance and knowing Sh.T.C. Gupta for a very long period.

43. The evidence of RW-2 is also unreliable and not beyond suspicion. According to RW-2, his sister, Smt.Bimla Devi, continued to harass her father and her relationship with her father were strained, and on account of her emotional blackmailing and harassing her father, late Sh.Jia Lal, took the help of his brother-in-law, Sh.S.P. Goyal, requesting him to mediate and the matter was amicably settled on 22.3.1980.

44. This testimony of RW-2, Sh.A.C. Aggarwal, is not borne out from the reading of the testimony of all the witnesses, as admittedly it was Smt.Bimla Devi, who was looking after her old and ageing father, and none of the sons stayed with the father after their marriage. RW-2 admitted that soon after his marriage, he shifted out and further admitted that neither his brother, Sh.Prem Chand, nor younger brother, Sh.Baldev Chand, stayed with the father after their marriage. This witness, in fact, even failed to recognize the photograph of his father, although, it is relevant to note that this witness identified the signatures of his father on the Will dated 17.11.1969 at point „A‟ of the front page and at points „A1‟ and A2‟ at the back side of the Will, although his stand was that this was not the list Will of his father. There is no explanation by this witness either that despite the fact that he had no marital differences with his wife, she did not deem it appropriate to inform him that his father had left an envelope containing a Will either prior to his death or after his death.

45. It is equally strange that Sh.Amar Chand Aggarwal when shown the stamp papers, which reveal that it had been purchased by Sh.A.C. Aggarwal, took a stand that he was never known as Sh.A.C. Aggarwal. It seems the only reason for this witness to deny that he was referred to as A.C. Aggarwal was that he wanted to deny having purchased the stamp papers for drafting of the Will.

46. During cross-examination, RW-2 clarified that he was also known as Sh.A.C. Aggarwal only at his office. On such a trivial aspect the denial of this witness of ever being referred to as A.C. Aggarwal also creates a suspicion and the suspicion is with regard to his testimony. It is equally not explained either by this witness or his wife as to why she would approach a lawyer, who would send a notice to all the parties including to her own husband with regared to the Will of the year 1982.

47. The onus of issue no.2 i.e. whether the Will dated 17.11.1969 was cancelled on 22.3.1980, as alleged by respondent no.2, was on respondent no.2. In my view, based on the evidence on record, which has been discussed in detail in paragraphs aforegoing, respondent no.2 has failed to discharge this onus to show that the Will dated 17.11.1969 was cancelled on 22.3.1980 nor any original settlement dated 22.3.1980 has been placed on record. It may also be noticed that respondent no.2 had taken a stand in his written statement that the settlement took place in the presence of seven persons, however, none of the persons have been examined, nor any proof of payment has been produced, nor PW-4 was confronted with the photocopy of the settlement.

48. Having regard to the totality of the evidence placed on record by respondent no.2, the only contesting respondent to the Will dated 17.11.1969 and the propounder of the subsequent will dated 19.10.1982, it leaves no room for doubt that the attesting witness to the Will as also the propounder of the Will, Shri Amar Chand Agarwal and his wife Smt.Urmila Agarwal, who claims herself to be the executor of the Will, is unreliable and untrustworthy, and, thus, it cannot be said that the Will dated 19.10.1982 was the last Will of late Shri Jia Lal.

49. Smt.Bimla Rani had filed the present probate petition, however, she died during the pendency of this petition and her legal heirs have been brought on record. Smt.Bimla Rani had prayed for grant of probate or any other order as deemed proper in the facts of this case.

50. As noticed, earlier probate was granted in this matter by an order dated 13.11.1992. Thereafter an application, being IA No.14155/1992, was filed by respondent no.2 on 13.11.1992 for recall of the ex parte judgment, which application was allowed on 16.10.2000 whereby liberty was granted to respondent no.2 to cross-examine the witnesses of the petitioner, in addition to the objection that the Will dated 17.11.1969 was not the last Will of late Shri Jia Lal as respondent no.2 had propounded the subsequent Will dated 18.10.1982.

51. Present petition has been opposed by counsel for the respondents on the ground that in para 9 of the petition it has been stated that the attesting witnesses to the Will dated 17.11.1969 have died and contrary thereto in para 13 it has been stated that the petition is signed by one of the attesting witnesses, whose affidavit is enclosed with the petition, and on this ground probate should be declined.

52. Onus to prove issue no.1 is on the petitioner. The petitioner led evidence of three witnesses i.e. herself as PW-1; Shri Som Prakas Goel as PW-3; and Shri C.P. Singh, LDC from Sub-Registrar of Assurance, Asaf Ali Road, New Delhi, as PW-2. Since the attesting witnesses had expired and whereabouts of their close relations could not be found therefore the attesting witnesses could not be examined. At the first instance, learned counsel for respondent no.1 had cross-examined at length PW-1 and PW- 2 although PW-3, Shri Som Prakash Goel, was not cross-examined. Respondent no.3 accepted the Registered Will dated 17.11.1969 and therefore he did not cross-examine any witness. At that stage respondent no.2 chose not to appear in Court and was proceeded ex parte. Respondent no.1 also did not lead any evidence.

53. In her statement, Smt.Bimla Devi deposed that Sh.Jia Lal was her father. Besides herself, there were three brothers and one sister. She identified the signatures of her father, as she had seen him writing and signing, on the Will and also deposed that the Will was registered. Smt.Bimla Devi also deposed that she knew Sh.Gulab Chand (one of the attesting witnesses) as Sh.Gulab Chand used to visit her father and they knew each other. She recognized the signatures of Sh.Gulab Chand and the signatures of her father, as she had seen her father and Sh.Gulab Chand writing and signing. She deposed that Sh.Gulab Chand had died. She further deposed that Sh.Ranbir Singh (second attesting witness) had also died. She identified the signatures of her father on the Will Ex.PW-2/1, which was marked as „A‟, and also identified the signatures of Sh.Gulab Chand at point „B‟. Smt.Bimla Devi, further went on to depose that her brother, Prem Chand, did not live with her father and he used to live at Allahabad before marriage and after marriage he used to live away from the father. The other brother, Sh.Amar Chand lived with his father till 1964 and in 1964 he got married and thereafter left the father‟s house. Sh.Bahadur Chand lived with the father till 1968, after he got married he left the residence of the father. She also deposed that her sister got married sometimes in the year 1953-54 and after her marriage she used to live outside Delhi. Smt.Bimla Devi also deposed that after the marriage of her elder sister, she was the only person who looked after her father before her marriage and after her marriage as well. Smt.Bimla Devi also stated that her father was in good health and sound mind at the time of signing the Will, Ex.2/1. Smt.Bimla Rani also deposed that she is in part possession of the subject property. During cross-examination, this witness denied the suggestion that the Will in question was got written by her from her father. She also deposed that Sh.Jia Lal wrote it himself and she was not present when the Will was made. She also testified that she did not know the date and place of death of Sh.Gulab Rai and she did not make efforts to obtain certificate of death as she did not think it would be necessary. According to her, Sh.Gulab Rai used to live in Darya Ganj and from there he had gone to some other place, which was not known to her; and she later on learnt that Sh.Gulab Rai had died, from the persons occupying the premises which was earlier occupied by Sh.Gulab Rai and his family. During cross-examination, Smt.Bimla Devi, deposed that although she had seen Gulab Rai signing, but she could not give the time or place where she had seen him signing. She also narrated how efforts were made by her to find the whereabouts of Sh.Ranbir Singh, who was a pleader practicing in the office of Sub-Registrar, Asaf Ali Road, Delhi. In reply to a Court question as to when she learnt about the Will, Smt. Bimla Devi replied that on RAKSHA BANDHAN day in 1970 she had gone to her father‟s residence in Shanti Niwas, where her Buaji and Phuphaji had also gone, and her father told her about the Will and gave the same to her. There was no cross-examination on behalf of respondent no.1, neither any re-examination was carried out by the petitioner.

54. Statement of Sh.Som Prakash Goel was recorded on 08.02.1991. Sh.S.P. Goel deposed that he is phupha of the parties. He deposed that Sh.Jia Lal was his brother-in-law (Sala) and he enjoyed a good relationship with him. He deposed that he recognized the handwriting and signatures of Sh.Jia Lal, as he had seen him writing and signing. The signatures at mark „A‟ on Ex.PW-2/1 were identified by this witnesses to be that of Sh.Jia Lal. He also recognized the signatures on the reverse of Ex.PW- 2/1 at places which are marked „A-1‟ and „A-2‟. Sh.Goel further deposed that Sh.Jia Lal had executed a Will in favour of Smt. Bimla Devi, the petitioner, of which he has personal knowledge as he had seen the Will earlier because it was handed over to Smt.Bimla Devi in his presence by Sh.Jia Lal and he stated that the affidavit dated 20.03.1985 has been filed with the probate petition. On 01.09.1992 Sh.Bhadur Chand, respondent no.3 made a statement that he did not wish to produce any evidence and he accepted the Will dated 17.11.1969 executed by his father.

55. Counsel for respondent no.1 had also made statement on the same day that he did not wish to cross-examine the witness, Sh.Som Prakash Goel and she closed his evidence. Petitioner also closed her evidence on the same date. At that stage, in I.A.No.14155/1992 on an application filed by respondent no.2 under Order 9 Rule 13 for setting aside the ex parte order dated 13.11.1992, the following order dated 16.10.2000 was passed: “I.A. No.14155/92 in Pr.46/85 It is an application under Order 9 Rule 13 CPC for setting aside the ex-parte order dated 13.11.1992. Learned counsel for the petitioner submits that since the matter is being delayed she has no objection if the application is allowed provided the matter is expedited on day to day basis. Counsel for the respondents submit that they have no objection if the evidence is ordered to be recorded by the local commissioner on day to day basis. Accordingly, the application is allowed. The order dated 13th November, 1992 is recalled. Issues framed on 28th April, 1989. The matter is very old. Shri D S Paweria, Joint Registrar is appointed as the local commissioner to record the evidence of the parties. Petitioner shall have the right to lead any further evidence. Respondents shall have right to crossexamine the witnesses of petitioner who have already been examined. Let the evidence be concluded as expeditiously as possible preferably within one year. List on 16.11.2000 before Joint Registrar for fixing dates for recording evidence.”

56. After passing of the aforesaid order, petitioner filed the affidavit by way of evidence of Sh.Shiv Saran Goel son of Sh.S.P. Goel who had died on 28.5.2003 after his statement was recorded in this court. Sh.Shiv Saran Goel deposed that he was son of Sh.S.P. Goel, who died on 28.05.2003. Late Sh.S.P. Goel was the brother-in-law of Sh.Jia Lal and was very close to him. He also deposed that he knew late Sh.Jia Lal very well and he recognized and identified the signatures of Sh.Jia Lal. He further deposed that he was aware of the registered Will dated 17.11.1969. He had seen the Will, Ex.PW-2/1 and the signatures of Sh.Jia Lal were identified by him at point „A‟. He further stated in the affidavit that he has seen his father Sh.S.P. Goel writing and signing being his son. He also deposed that the affidavit dated 20.03.1985 had been signed by his father late Sh.S.P. Goel at point „A‟. The affidavit of Shri Shiv Saran Goel is marked Ex.PW-4/5. He further went on to depose that his father had told him that he has deposed before the Hon‟ble Court and confirmed the execution of the Will dated 17.11.1969. This witness was crossexamined, by Sh.J.P. Gupta, advocate on behalf of respondent no.2. During cross-examination, this witness has deposed that he was not aware as to whether Sh.Jia Lal was on medication before his death. He also deposed that he was not summoned as a witness and it was correct that he was asked by the legal heirs of the plaintiff to come and depose in the Court.

57. Affidavit by way of evidence has also been filed by Ms.Renu Gupta, PW-

4. Ms.Renu Gupta is one of the legal representative of the deceased petitioner, being one of her daughters, and the grand-daughter of late Sh. Jia Lal. In the affidavit Ms.Renu Gupta has deposed that she is well conversant with the facts of this case. She has further deposed that late Sh.Jia Lal was her maternal grand father, who died at New Delhi on 10.5.1984. She exhibited the death certificate of Sh.Jia Lal as Exhibit P-1. PW-4 has also deposed that Sh.Jia Lal during his life time executed his Will dated 17.11.1969, which was duly registered with the Sub-Registrar of Delhi and it was his last and final Will. PW-4 identified the signatures of Sh.Jia Lal at point „A‟ as she had seen late Sh.Jia Lal write and sign. She also testified that the said Will, Exhibit PW-2/1 was also signed by late Sh. Jia Lal on the back side of the paper at points A-1 and A-2 and encircled in red with pencil. PW-4 has also deposed that Sh.Jia Lal, was sick and bed ridden for a considerable period, prior to his death and was living with his daughter, late Smt.Bimla Devi, petitioner. She was looking after her father, late Sh.Jia Lal, and all his needs were being met by her. Sh.Jia Lal was very happy and satisfied with the behavior and conduct of late Smt. Bimla Devi. Smt. Bimla Devi also took full responsibility to meet the day-to-day expenses of Sh.Jia Lal. While the respondents did not take over or lookafter their father, late Sh.Jia Lal. He further deposed that late Sh.Jia Lal had bequeathed 162 sq. yds. of the plot along with construction thereon out of 298 sq. yds. of his self-acquired property bearing no.C-40, South Extension, Part-I, New Delhi, to Smt. Bimla Devi and the remaining portion of the said property was bequeathed to respondents no.1 to 3, to be equally divided amongst them. PW-4 identified the property on the site plan, which was exhibited as PW- 4/1.PW-4 has also deposed that late Smt.Bimla Devi after the death of Sh.Jia Lal applied for the Estate Duty clearance in respect of estate of her deceased father. The certificate and assessment order dated 15.2.1985 have been exhibited as PW-4/2 and PW-4/3, respectively. PW-4 has also exhibited the death certificate of her mother, Smt. Bimla Devi, as exhibit PW-4/4. This witness further goes on to testify that Sh.S.P. Goel, brotherin-law of late Sh.Jia Lal was very close to Sh.Jia Lal, had also signed and sworn an affidavit dated 20.3.1985 that the said Will dated 17.11.1969 was signed by late Sh.Jia Lal and the Will was given by the deceased to Smt.Bimla Devi in his presence. The affidavit of Sh.S.P. Goel, who has since expired, was exhibited as PW-4/5.

58. PW-4 has further deposed that the Will was signed by two witnesses, namely, Sh.Gulab Rai and Sh.Ranbir Singh, who had also expired and whereabouts of their kith and kin are not traceable. This witness has further deposed that the alleged Will dated 18.10.1982 propounded by respondent no.2 is a forged and fabricated as Sh.Jia Lal never executed any Will on 18.10.1982, it does not bear the signatures of Sh.Jia Lal and the alleged Will dated 18.10.1982 has been fabricated and forged by respondent no.2 in order to defeat the genuine last Will dated 17.11.1969, which was neither cancelled nor superseded. She also deposed that the property no.C-40, NDSE was the self-acquired property of Sh.Jia Lal, which was purchased by him out of his own funds and the said property was not an ancestral property.

59. PW-4 was cross-examined by Sh.J.P. Gupta, counsel for respondent no.2, wherein she deposed that in her early childhood, she had seen Mr.Amar Chand, Mr.Prem Chand and Mr.Bahadur Chand residing with her maternal grandfather. PW-4 has further deposed that in the years 1981 and 1982, she had seen her maternal grandfather witting letters and also putting his signatures on documents. She has also deposed that in the year 1984, before his death, her maternal grandfather (Sh.Jia Lal) had some memory problems, used to forget things and there was also some trembling in his hand. Mr.Jia Lal had love and affection for all his children but he was extra affectionate towards her mother, Smt.Bimla Devi, as she had served him both before and after her marriage. PW-4 has deposed that she never met Sh.Gulab Rai but she was told about him by her mother and also that Mr.Gulab Rai was residing in Darya Ganj, Delhi. PW-4 has further deposed that about 2-3 months ago, she had gone to find out the whereabouts of Mr.Gulab Rai but she could not find his whereabouts. She did not know the address of the premises where she had gone, but she had some idea of the location where she had gone. On enquiry, she learnt from the occupants of the premises that Sh.Gulab Rai, used to reside there earlier. She also deposed that she did not know Sh.Ranbir Singh personally but she learnt about him through her mother that he was working in the office of Sub-Registrar and that he has since expired. PW-4 has also deposed that the Will PW-2/1 was not signed in her presence. She denied the suggestion that Rs.3.00 lakhs were given to her father and mother by her grand father on 22.3.1980. She further goes on to depose that her mother used to attend the Court proceedings and on some occasions she also used to attend court proceedings. PW-4 has also deposed that no one had told her about the Will of the year 1982 having been forged by Sh.Amar Chand, but she came to know of this fact as the said Will does not bear the signatures of her maternal grand father. She also deposed that the Will marked „X‟ had not been signed by Sh.Jia Lal at any of the points A, B, C and D. During further cross-examination this witness has deposed that her family shifted to the house in South Extension sometime in the years 1981 or 1982. Sh.Jia Lal also shifted to the house of South Extension at the same time. Sh.Jia Lal died due to a cardiac attack. Sh.Jia Lal was unwell for about 2-3 years prior to his death, he was suffering from memory loss and had become weak. He was not able to go outside, he did not go to the market or other places for attending to any work nor Mr.Jiya Lal was doing any work between the year 1982 and 1984. This witness has denied the suggestion that Sh.Amar Chand used to financially help his father or that he supervised the construction of the house or contributed towards expenses of the construction of the house no.C-40, NDSE. She disputed the suggestion that she had filed a false affidavit.

60. In the statement recorded on S.A. Sh.Dori Lal, PW-6, Record Attendant, Special Grade Department of Delhi Archives has deposed that he had brought the summoned record i.e. the Will dated 17.11.1969. This Will was registered as per their record at S.No.552 in additional book-3, Volume no.23, page no.95 on 21.11.1969. This witness was shown Exhibit PW-2/1. After comparing the Will, Exhibit PW-2/1, with the summoned record, the witness has stated it to be the same.

61. On appreciating the entire evidence including non-availability of attesting witnesses the petition was allowed vide order dated 13.11.1992. Meanwhile Smt.Bimla Rani, who had appeared as PW-2, had passed away and PW-3, Shri Som Prakash Goel, had also died by then. The petitioner led further evidence of Smt.Renu as PW-4, daughter of Smt.Bimla Rani; Shri Shiv Saran Goel as PW-5, Son of Som Prakash Agarwal; and Shri Dori Lal, LDC, Sub-Registrar, Asaf Ali Road as PW-6. None of these witnesses were cross-examined by respondents no.1 and 3 and their testimony was duly accepted.

62. It may be noticed that there is no evidence on record led by respondent no.2 to prove that there was cohersion for executing the Will dated 17.11.1969. Another question, which would require consideration in this matter, is the effect of evidence of Smt.Bimla Rani to prove the registered Will, Exhibit PW-2/1, in her testimony and on the basis of which probate was granted on 13.11.1992. Although opportunity was granted to respondent no.2 to cross-examine but Smt.Bimla Rani died before she could be cross-examined.

63. In the case of Srikishun Jhunjhunwalla v. Emperor, AIR (33) 1946 Patna 384 it was held that where a witness dies after his examination inchief but before his cross-examination had been concluded his evidence was admissible, but the degree of weight to be attached to it would depend on the circumstances of the case.

64. In the case of M.T. Horilkur and Another v. Rajab Ali and others, reported at AIR 1936 Patna 34 it was held that the circumstances making cross-examination impossible, the deposition can be treated as evidence on record although weight of such evidence would depend on circumstances and Court should see if indications of cross-examination would seriously have shaken the testimony which exists or his good faith would be successfully impeached.

65. Applying the law laid down to the fact of this case it is extremely relevant to notice that firstly the evidence of Smt.Bimla Rani, who was extensively cross-examined by counsel for respondent no.1, was accepted by the High Court which would be evident from the order dated 13.11.1992 by which probate was granted. Thus, the present case would not fall in the category of those cases where PW-1, Smt.Bimla Rani, was not cross-examined at all. Yet the evidence of Smt.Bimla Rani, PW-1, is to be carefully examined by this Court as admittedly the person contesting the Will at this stage respondent no.2 Amar Chand did not have the occasion to cross-examine the petitioner, Smt.Bimla Rani, although it is respondent no.2 who himself had chosen not to appear in the matter and on account of his own default he was proceeded ex parte. The stand taken in the written statement filed by contesting respondent no.2 does not dispute in any manner that the testator was not in good health and sound disposing mind. In fact the stand taken is that the Will dated 17.11.1969 was not the last Will of late Shri Jia Lal. Thus, the factum of execution of the Will dated 17.11.1969 is not denied by the contesting respondent no.2. Although a faint objection has been taken that Shri Jia Lal was coerced by his daughter, Smt.Bimla Rani, to execute the Will yet no evidence has been led as to how she coerced him. Thus, in my view the testimony of Smt.Bimla Rani can be usefully considered and relied upon by this Court and when the probate was granted on 13.11.1992 the High Court had duly considered the evidence by which the Will dated 17.11.1969 stood duly proved. Moreover, after the death of Smt.Bimla Rani her daughter stepped into the witness box as PW-4. In her affidavit by way of evidence, she again proved the death certificate of her grand-father, Exhibit P-1, although the death of Shri Jia Lal had not been disputed. She also identified the signatures of her maternal grand-father as she had seen him writing and signing. Her deposition was on the lines of the evidence of her mother. She proved the fact that her mother had applied for Estate Duty Clearance in respect of her deceased grand-father on the basis of Will dated 17.11.1969, Exhibit PW-4/2 and the Assessment Order, Exhibit PW-4/3. She also proved the affidavit dated 20.3.1985 of Sh.S.P. Goel, who was the brother-in-law of late Shri Jia Lal. She also proved the fact that the Will dated 17.11.1969 was signed by two witnesses, namely, Shri Gulab Rai and Shri Ranbir Singh, who had expired, and this was the last Will of her grand-father, which was neither cancelled nor revoked. This witness was cross-examined in detail but there is nothing in the crossexamination which would shake her testimony.

66. In my view taking into consideration the evidence led by late Smt.Bimla Rani read with the evidence of her daughter PW-4 and the fact that Smt.Bimla Rani was duly cross-examined by respondent no.1 in detail, the evidence Smt.Bimla Rani cannot be discarded in totality and in the alternate PW-4 has duly proved the execution of the Will dated 17.11.1969. The affidavit, Exhibit PW-5/A filed by Shri Shiv Saran Goel, son of S.P. Goel, who was the brother-in-law of late Shri Jia Lal, being Shri Jia Lal‟s sister‟s husband, identified the signatures of Shri Jia Lal on his Will dated 17.11.1969. He also confirmed that his father had deposed before the Court and confirmed the execution of the Will dated 17.11.1969. The statement of Shri Som Prakash Goel reads as under: “Statement of Shri Som Parkash Goel, S/o Late Lala Pyare Lal, age 71 years, r/o Laghu Kutir Opp. Promod Van, Gate, P.O. Janku Kund, Chitrakut, Distt. Satna, M:P. on Oath. I am the Phupha of the parties in these proceedings. Shri Jiya Lal was my brother-in-law (Sala). My relationship with him were good. I recognize the handwriting and signatures of Shri Jia Lal. I have seen him writing and signing in my presence. The signatures at mark „A‟ on Ex.P.W.2/1 are of Jia Lal and I recognize the same. On the reverse of Ex.P.W.2/1 also Shri Jia Lal has signed at places which are marked as A.[1] and A.[2] and have been encircled with the red pencil.

Jia Lal had executed a „Will‟ in favour of Smt.Bimla Devi, the petitioner herein about which I have personal knowledge. I have seen this Will earlier because it was handed over to Bimla Devi in my presence by Jialal. My affidavit dated 20th March, 1985 has been filed with the probate petitioner.”

67. It may be noticed that this witness has also died before he could be crossexamined by counsel for respondent no.2 as he was ex parte on the date when this witness had appeared in the witness box.

68. Section 68 of the Indian Evidence Act requires evidence of attesting witnesses “if there is an attesting witness alive, and subject to process of Court and capable of giving evidence”.

69. The stand of respondent no.2 that in the absence of any attesting witness probate cannot be granted is not acceptable. In the absence of any witness the document is to be proved by the mode provided in Sections 69 and 70 of the Indian Evidence Act. As already noticed the execution of the Will dated 17.11.1969 has not been challenged by respondent no.2.

70. The only objection to the aforesaid Will is that the Will dated 17.11.1969 is not the last Will of the testator and secondly a faint argument has been raised that the testator was coerced into executing the Will but no evidence has been lead as to how he was coerced.

71. In the case of Balwant v. Mainabai, reported at AIR 1991 Madhya Pradesh 11, the Single Judge has observed as under: “9. It may be stated at the outset that the respondent‟s contention that as attesting witnesses; are dead the Will can in no circumstance be proved is wholly devoid of merit. A plain perusal of S.68 of the Evidence Act shows that the requirement of examining at least one attesting witness is to be fulfilled „if there be an attesting witness alive‟. Where the attesting witnesses are dead the will can certainly be proved in the manner provided for proof of a document.”

72. It would also be useful to reproduce the observations of a Division Bench of Kerala High Court in Thayyullathil Kunhikannan and Others v. Thayyullathil Kalliani and Others, reported at AIR 1990 Kerala 226. Para 34, which reads as under:

73. On the contrary, simply to say that the Will dated 19.10.1982, being a registered Will, is bound to be treated as genuine is not an absolute rule since the propounder has to discharge the burden qua its genuineness. Mere registration of a Will will not shift the onus of proof to the objector of the Will and the propounder has to establish by cogent evidence that the Will was signed by the testator; at the relevant time he was in sound disposing mind; he had full control over his mental faculties; and he must dispel of suspicious circumstances.

74. It would be useful to refer to para 23 of the judgment rendered in the case of Rani Purnima Debi and Another v. Kumar Khagendra Narayan Deb and Another, reported at AIR 1962 Supreme Court 567: “There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon: (see, for example, Vellasaway Sarvai v. Sivaraman Servai, ILR 8 Rang 179: (AIR 1920 PC 24), Surendra Nath v. Jnanendra Nath, AIR 1932 Cal 574 and Girja Datt Singh v. Gangotri Datt Singhm (S) AIR 1955 SC

346. Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting.”

75. It may also be noticed that respondent no.2 has not testified that the Registered Will dated 17.11.1969 is a forged and fabricated Will or that the testator did not execute the said Will. In fact in the cross-examination dated 1.5.2009 RW-2 admitted the signatures of his father at point „A‟ on the front page and points „A-1‟ and „A-2‟ on the back side of Exhibit PW- 2/1, which is the Registered Will dated 17.11.1969.

76. Reliance is also placed by learned counsel for the petitioner on two letters dated 7.1.2008 and 8.12.2008 written to the Hon‟ble Court wherein respondent no.2 admitted execution of the Will dated 17.11.1969.

77. An alternate argument has also been raised by counsel for the petitioner while placing reliance on Section 90 of the Indian Evidence Act that the Will dated 17.11.1969, being a 30 year old document, was again tendered in evidence by Smt.Renu which would raise the presumption of doubt, execution and attestation of registered Will dated 17.11.1969. In support of his argument reliance is placed on Haradhan Mahatha and Others v. Dukhu Mahatha, reported at AIR 1993 Patna 129 more particularly paras no.10, 12, 15, 19 and 20. Reliance is also placed in Ajit Kumar Maulik v. Mukunda Lal Maulik and Others, reported at AIR 1988 Calcutta 196, more particularly para 7, which reads as under: “7. The learned Additional District Judge has properly discussed the principles to be followed for proving a Will. The onus of proving a will is on the propounder. In the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and the signature of the testator, as required by law, are sufficient to discharge the onus. As stated by the learned Additional District Judge, where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine. The meaning of the term, "onusprobandi", is that if no evidence is given by the party on whom burden is cast, the issue must be found against him, Onus as a determining factor of a case can only arise if the evidence pro and, con is so evenly balanced that no conclusion' can be derived therefrom. In such a case, onus will determine the matter. But if a tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it and need not be further considered (Harmes v. Hinkson, AIR 1946 PC 156). The "onus probandi is generally discharged by proof of capacity and the factum of execution, from which knowledge and assent to its contents by the testator will be assumed. Once it is proved that a Will has been executed with due solemnity by a person of competent understanding and apparently a free agent, the onus probandi is to be taken to be discharged (Gomtibai v. Kanchhedilal AIR 1949 PC 272). In the present case, there is no dispute about the testamentary capacity of the testatrix, who that on 5-6-59 after executing the Will on 24-4-50 and herself presenting it for registration on 13-2-52. It is no doubt true that the mere fact that the will is registered will not by itself be sufficient to displace any suspicion regarding it, without submitting the evidence of registration to a close scrutiny. In the present case, the endorsement on the back of the will in the office of the Registrar does not show that the contents of the document, of which the testatrix was admitting execution, were brought home to the testatrix. In the circumstances, on the basis of mere registration of the Will, the Will cannot be pronounced as valid Purnima Debi v. Khagendra Narayan, AIR 1962 SC 567; Anath Nath Das v. Bijali Bala, AIR 1982 Cal 236. The mere ability to sign one's name does not also necessarily imply the validity of a Will. The testator must have a disposing mind. He must be able to dispose of his property with understanding and reason. He must be able to appreciate his property and to form a judgment with respect to the parties whom he chose to benefit by it after death Surendra Krishna Mondal v. Smt.Ranee Dassi 24 Cal WN 860: (AIR 1921 Cal 677)]. We have already shown the various provisions of the Will. The evidences of P.W. 1 and D.W. 1 show that D.W. 1, the respondent 1, served if a Military Audit Department and retired in 1962 and is still now drawing pension. D.W.[1] has stated that the respondent 2, Provat, retired about 10 years ago from service. He admits that his brother, Sailen, is unemployed and that his youngest brother, the plaintiff, suffered from glandular T.B. It is in the evidence of P.W. 1 that Sailen was unemployed and was totally dependent on them and their mother. It is in his evidence that in 1939 Sailen married and that in 1947 a daughter was born to Sailen. The evidence of P.W. 1 further shows that though he is a graduate, he suffered from glandular T.B. for 12 years, and that it was detected in 1939. In these circumstances, the Will is not at all unnatural or unreasonable or unfair, having regard to the claims of affection on each son of the mother and their respective positions in life when the Will was executed. By making the Will, the testatrix was only making the "provision for future maintenance of the appellant and Sailen, both of whom had to be maintained by her husband and thereafter by her and had no other means for maintenance after her death. As the Will is to be presumed to be duly executed and attested, on the basis of the presumption under Section 90 of the Evidence Act and has been proved to have been duly executed and attested on the basis of the evidence of P.W. 2, the onus probandi has been sufficiently discharged by the appellant, specially when D.W. 1 has no knowledge about the execution of any Will by his mother. These glaring facts were overlooked by the learned Judge in the court below.”

78. In view of the evidence placed on record by the petitioner and in the absence of any cogent and reliable evidence and for the reason that respondent no.2 has been unable to discharge the onus that Will dated 17.11.1969 was cancelled on 22.3.1980 and the Court having reached the conclusion that execution of the subsequent Will propounded by respondent no.2 on 19.10.1982 was not duly proved as the evidence of the attesting witness was not found to be reliable, neither the evidence of respondent no.2 and respondent no.3 was trustworthy nor reliable, there is no doubt about the validity of the execution of the Will dated 17.11.1969 by Shri Jia Lal.

79. During pendency of this petition an application (IA.No.11705/2008) was filed under Order 22 Rule 10 CPC by which it was prayed that the name of the petitioner be substituted with Ms.Renu Gupta as LR of Mrs.Bimla Rani in place of Late Mr.Vijay Kumar Aggarwal, Mrs.Veena Aggarwal, Mrs.Vinita Rani Bindal and Ms.Madhu Gupta. This application (IA.No.11705/2008) was filed based on a relinquishment deed dated 9.12.2002. Original relinquishment deed has been placed on record. Reply to this application has not been filed. Accordingly, letter of administration will be issued in favour of Ms.Renu Gupta.

80. The petitioner shall be granted letters of administration on furnishing requisite court fee and administrative bond with one surety.

81. Petition stands disposed of. G.S.SISTANI, J OCTOBER 25th, 2013 ssn/msr